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Constitutional Law I
University of Cincinnati School of Law
Bryant, A. Christopher

FRAMING AND RATIFICATION
Federalist Papers
1. Federalist No. 10
a.   The Anti-Federalists said that a popular government can’t sustain itself over a large territory and a large number of people.  Ex. Rome.  They argued for small republics with small populations and similar values.
b. Madison argued that precisely because the US is big it will be more stable.
                                                            i.        More opinions will prevent Congress from infringing on the minority rights
1. Country is diverse, full of small religious and ideological groups that will form smaller factions.
                                                          ii.        Factions will not be able to gain force.  Will be contained to states.
c.   Madison says that coming together as one is impracticable, impossible and not a good idea.  He realizes that factions will exist, but if small, they will balance each other out.
d. Modern political parties are not “factions” as Madison saw them.  Factions were interested in single issues.  Political parties are coalitions of factions because they represent a number of interests.
2. Federalist No. 51
a.   Madison realizes the Congress is going to be the biggest threat to liberty; suggests a bi-cameral house with different election terms to ensure accountability to the people (House) and ensure stability (Senate).
                                                            i.        System of checks and balances in new central government created to prevent factionalism and self-interested representation
1. Bicameralism
2. National representation
b. The intermingling of the three branches keeps one branch from gaining too much power.
                                                            i.        Madison says that total separation is impracticable.  We need overlap to ensure adequate checks and balances.
c.   The separation of powers between the federal and state governments provides another check against abuse of power
Articles of Confederation
3. The Articles of Confederation
a.   The federal government had very limited power.
b. The Articles were written to circumscribe the rights of the central government.  Their focus was to protect states rights.
c.   The Articles were a bit more than a military alliance; they were kind of like the European Union.  States gave up part of their sovereignty to the feds.
d. Stated that all powers not expressly given to the federal government are relegated to the states.
4. Problems with the Articles of Confederation
a.   Failure of the States to pay taxes
b. Economic Failures
c.   Enforcement
d. Debtor-relief legislation/private debt
                                                            i.        Shay’s Rebellion: Farmers marched east to the capital. Wanted states to print more money so the state could pay off their debts immediately. This would have caused inflation which would have eased the debts of the farmers.
                                                          ii.        Legislation defers time for payment of debt; can pay with paper money, no interest

ent.  They saw this as a new Parliament.
7. Constitutional Limits on Federal Power
a.   Checks and Balances (Federalist 51)
                                                            i.        Separation of powers – divide powers among the 3 branches of government.
b. Federalism
                                                            i.        10th Amendment – doctrine of enumerated powers.
1. All powers not delegated to the federal government reside with the states
2. Article I, § 8, Clause 18 give Congress powers.
                                                          ii.        Federal government expressly made supreme over States
8. State Fears during Ratification
a.   States had fear of standing army and structural fears (federal govt. exceeding the power they were given)
                                                            i.        Madison promised a Bill of Rights. 
                                                          ii.        Madison distract the Anti-federalist with a proposed Bill of Rights, but in fact almost all of the structural concerns were ignored
9. Bill Of Rights
a.   Instead of granting the anti-federalists a bunch of states rights, the Bill of Rights granted individual rights.