After the American Revolution, the several Colonies became states underneath the Articles of Confederation. These articles attempted to create a union of the States. However, they were contradictory. In the first article, it states that the colonies were unified. However, in the second article, it states that the colonies were independent and retained all their power.

In other words, the Articles of Confederation created a federal government, but was scared to give it too much power. The federal government did have power in some regards, such as in foreign affairs, solving disputes among states, and the ability to handle maritime issues. On the other hand, the federal government was lacking significant authority. For instance, the government did not have any regulation over commerce or taxing of the colonies.

A consequence of this weak document was near complete ignorance of it by the States. There were several agreements made by States with foreign governments without the permission of the Confederation. States had created issues overseas which created complaints to the Congress who were powerless to address the issues. Disputes had arisen where States would restrict the trade with other States, while some States were developing a large militia. In sum, the dream of the United States was falling apart.

James Madison was well aware of the issues and wrote down a list of things to address when he arrived at the Constitutional Convention. Below are a few of the things, paraphrased, he listed:

  • The states would fail to comply with constitutional requirements.
  • The states undermined federal authority.
  • Several of the states would trespass (do wrong towards) another.
  • Lack of ratification by the people for the Articles of Confederation.
  • And more. (7 more)

Constitutional Convention

With this in mind, the States sent delegates to address the issues of the Confederation. Their task was simple, update the document. Instead, they created a completely new document, outlining several different powers that the federal government would be afforded. Most significantly was the power to tax and regulate commerce, the creation of the executive branch, and the creation of a judicial branch.

Of course, there were disagreements between the parties. The largest disagreements to the newly proposed Constitution came from the anti-federalists, who were worried that a large federal government would lead to greed and power hungry politicians. This would come because the republic would be comprised of representatives, far from home, who could make whatever changes they wanted. As a result, they advocated for a smaller federal government that would have a republican system in smaller States. Ultimately, both parties for and against the Constitution determined that there should be some form of Republic on both a federal and state level.

In response to the anti-federalists, James Madison, Alexander Hamilton, and John Jay wrote the federalist papers to the People of New York. The purpose of these papers was to persuade skeptics of the usefulness of the Constitution, and the weaknesses of the Articles of Confederation.

Notes on The Federalist No. 10 (Madison)

A faction is when a minority or a majority have a common personal interest against the rights of others. This results in the attempt to seize public institutions to fuel this private interest.

Both federalists and anti-federalists believed that factions were a problem, but disagreed in how to solve it. Anti-federalists believed that a small government would lead to less dangerous factions because if a faction was discovered in a large government, it could adversely affect all.

Federalists disagreed. Madison states that factions are inevitable in a land of liberty. The only way to completely eradicate factions is to either take away liberty, or control the minds and interests of the people. Since that is not an appropriate outlook, we want to try and control the effects of factions.

Madison argues that the best way to control a faction is through a balance of a strong republic. This is because a republic can control for the factions. If a faction arises in a minority, the public will elect people who value the country and snuff out the faction. If the faction arises in the majority, there are more interests in play (other than self-interest) that could limit the factions growth. This is not true in a true democracy, where if the faction is in the majority, then there are no limits on what can be exercised towards the minority.

Notes on The Federalist No. 51 (Madison)

The Federalist No. 51 outlines several checks and balances. The list of how these balances work can become quite complicated. Our textbook outlines how these checks work.

“The result is a complex system of checks: National representation, bicameralism, indirect election, distribution of powers, and the federal-state relationship would operate in concert to counteract the effects of faction in spite of the inevitability of the factional spirit.”
– Stone in Constitutional Law Eighth Edition

In summary, all the branches of the federal government are independent enough to counteract the power of other branches, but dependent enough to be checked as well. The legislative, as the largest branch, has an extra security feature built in by splitting it into the house and the senate.

A Binding Document

Now that the history has been discussed, and arguments in favor of the Constitution presented, it is time to discuss how the Constitution “binds” or creates law.

Yes, there are some deficiencies to the Constitution. In my opinion, this is because there had to be deficiencies to obtain ratification. However, despite those deficiencies, we still follow it, over 200 years later. Why? Because we accept it to be law. As a people, overall, we agree with the vast majority of what the document protects. We function under it quite peacefully. There may also be some fear involved from openly rebelling against it. When people do rebel against it, they are punished accordingly and the people are satisfied.

Additional Notes

The focus of this class will be on the structure of the Constitution.


We begin with a history. After the Declaration of Independence, the Articles of Confederation was established to create a federal government that provided for loose restrictions on states. However, several states violated the few rules that the Articles of Confederation had. Most significantly were the states restricting trade with other states (interstate commerce).

The conventions first goal was to solve the interstate commerce issue. However, once convened, they scrapped the Articles of Confederation and started over with the Constitution, hoping to resolve the several articles.

There were a few compromises that were made in this Constitution. First, a bill of rights to protect the states from federal government overreach. Second bicameralism. This is where the Congress is built up of two chambers, a house and a senate. The house is governed by population. The Senate ensures that each state gets an equal say (large and small states have the same voice).

Different Perspectives

This document has produced several different perspectives. In other words, a variety people believe the founders created:

  • A compromise document
    • Where compromises were made to get votes. It’s not perfect, but it works.
  • A genius view
    • Where the founders were seen as very smart people who were maybe hindered by disagreements.
  • Elitist
    • Rich people trying to get what they want.
  • Radical document
    • Worries about expanding federal government.
The Federalist Papers

The purpose of the papers were to convince people that the Constitution was a good document worth ratification. These were written between the time when the Constitution was passed and ratified.

No. 10

This paper warns of the danger of factions. A faction is where a group of passionate people are willing to obtain power to achieve their interest (often against the interest of the public good).

Madison proposed solutions to factions, ultimately deciding that a large republic is the best method to address factions. This was the opposite of what was previously theorized. He argued that this would work because a large number of people will result in several interests that will prevent the danger of factions. His hope that a national government would result in people who would arise above a State interest.

No. 51

Federalist No. 51 is characterized to outline how to combat ambition in facts. The famous line in the document is that “ambition must be made to counteract ambition.” How so? Through checks and balances and separation of powers. However, this separation of powers is not a perfect separation. There is overlap between the different bodies.

There is another separation of power that acts as an additional security. This is federalism (a separation from federal and state governments).

The paper also makes a proclamation that the legislative brach is designed to be the most powerful branch of government. Is this true?


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Will Laursen

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