Last time in this series, I covered the Federalist Nos 13-20… which are mostly dedicated to outlining why the Articles of Confederation sucked; and why the federal government musn’t.
Part 1(1-12) is HERE. (Nos. 10 and 11 are worth your time.)
Part 2 (13-20) is HERE. (No. 16 and 17 are particularly insightful)
Federalist Nos. 21-30 continues the theme of expounding the powers needed by the Federalist government. More importantly, Hamilton spends a lot of time here outlining all the necessary poowers of a federal government. Another way to TL;DR this segment of the Ferderalist Papers is to call them the “Well-Organized Militia Sections.” Hamilton makes a lot of quotes here that are easy to take out of context; but he also goes out of his way to contextualize the Second Amendment long before there was a Second Amendment. I would also TL;DR these papers by quoting No. 23.
If any plan which has been, or may be, offered to our consideration, should not, upon a dispassionate inspection, be found to answer this description, it ought to be rejected. A government, the constitution of which renders it unfit to be trusted with all the powers which a free people OUGHT TO DELEGATE TO ANY GOVERNMENT, would be an unsafe and improper depositary of the NATIONAL INTERESTS. Wherever THESE can with propriety be confided, the coincident powers may safely accompany them. This is the true result of all just reasoning upon the subject.
The emphasized lines continue the theme of implied powers (i.e. If the Constitution mandates a responsibility to the government, it is “implied” that the Constitution grants the powers to execute that responsibility effectively TOTHE GOVERNMENT. Also, Hamilton against says that a Federal government must be stong or there shouldn’t be a Federal government at all.
Federalist No. 21: Other Defects of the Present Confederati [Alexander Hamilton]
TL;DR: Federalist 21 continues the theme of calling for a stronger Federal government and specifiically discusses why tyhe United States bneeds a nnational government that can hold the States accountable. Hamilton adresses the old Tenther argument that just because powers are not explicitly granted by the Constitution; that it must be absurd to suppose such powers do not exist.
The next most palpable defect of the subsisting Confederation, is the total want of a SANCTION to its laws. The United States, as now composed, have no powers to exact obedience, or punish disobedience to their resolutions, either by pecuniary mulcts, by a suspension or divestiture of privileges, or by any other constitutional mode. There is no express delegation of authority to them to use force against delinquent members; and if such a right should be ascribed to the federal head, as resulting from the nature of the social compact between the States, it must be by inference and construction, in the face of that part of the second article, by which it is declared, "that each State shall retain every power, jurisdiction, and right, not EXPRESSLY delegated to the United States in Congress assembled."
You may also noticve the swipe at the Tenther argument, Hamilton makes at the end of the quoted passage. The continuation of this paragraph hints at the doctrine of “implied powers” that says its absurd to asargue that States Rights means the Federal government should be unable to compel States to follow laws.
There is, doubtless, a striking absurdity in supposing that a right of this kind does not exist, but we are reduced to the dilemma either of embracing that supposition, preposterous as it may seem, or of contravening or explaining away a provision, which has been of late a repeated theme of the eulogies of those who oppose the new Constitution; and the want of which, in that plan, has been the subject of much plausible animadversion, and severe criticism. If we are unwilling to impair the force of this applauded provision, we shall be obliged to conclude, that the United States afford the extraordinary spectacle of a government destitute even of the shadow of constitutional power to enforce the execution of its own laws. It will appear, from the specimens which have been cited, that the American Confederacy, in this particular, stands discriminated from every other institution of a similar kind, and exhibits a new and unexampled phenomenon in the political world.
Hamilton also mentions another flaw of the Articles of Confederation: that the lack of provisions limiting the powers of the States creates a dangerous assymetry.
The want of a mutual guaranty of the State governments is another capital imperfection in the federal plan. There is nothing of this kind declared in the articles that compose it; and to imply a tacit guaranty from considerations of utility, would be a still more flagrant departure from the clause which has been mentioned, than to imply a tacit power of coercion from the like considerations.
The want of a guaranty, though it might in its consequences endanger the Union, does not so immediately attack its existence as the want of a constitutional sanction to its laws.
As was mentioned in Federalists No. 16, 17, and 18; neutering the National government, whose powers are more in danger of being usurped by the States than it usurping State powers, is absurd and can only lead to anarchy.
The want of a mutual guaranty of the State governments is another capital imperfection in the federal plan. There is nothing of this kind declared in the articles that compose it; and to imply a tacit guaranty from considerations of utility, would be a still more flagrant departure from the clause which has been mentioned, than to imply a tacit power of coercion from the like considerations.
The want of a guaranty, though it might in its consequences endanger the Union, does not so immediately attack its existence as the want of a constitutional sanction to its laws.
This flaw was so glaring that it was fixed after the Civil War as part of the Fifteenth Amendment.
Hamilton also echoes a theme from Federalist No. 17 and No. 18: the problem of freeloaders distoorting the burdenss in a weak National government. This next passage will no doubt brring a bitter taste to those who still remember the recent debates over mandates and familiar withbillionaires not paying their fair share in taxes.
This inequality would of itself be sufficient in America to work the eventual destruction of the Union, if any mode of enforcing a compliance with its requisitions could be devised. The suffering States would not long consent to remain associated upon a principle which distributes the public burdens with so unequal a hand, and which was calculated to impoverish and oppress the citizens of some States, while those of others would scarcely be conscious of the small proportion of the weight they were required to sustain. This, however, is an evil inseparable from the principle of quotas and requisitions.
Federalist No. 22: The Same Subject Continued: Other Defects of the Present Confederation [Alexander Hamilton]
TL;DR: Hamilton argues that the Federal Goovernment SHOULD be conferred certain specific responsibilities and that this government SHOULD have the powers needed to fulfill these responsibilities. Hamilton specifically focuses on the responsibility for National Defense.
The Federalist No.22 discusses something many on the side of a strong Federal government often cite as the basis of their arguments: An expansive Commerce Clause. Hamilton makes it clear why the regulation of commerce is necessarty and why it demands strong Federal powers.
The interfering and unneighborly regulations of some States, contrary to the true spirit of the Union, have, in different instances, given just cause of umbrage and complaint to others, and it is to be feared that examples of this nature, if not restrained by a national control, would be multiplied and extended till they became not less serious sources of animosity and discord than injurious impediments to the intercourse between the different parts of the Confederacy. "The commerce of the German empire 2 is in continual trammels from the multiplicity of the duties which the several princes and states exact upon the merchandises passing through their territories, by means of which the fine streams and navigable rivers with which Germany is so happily watered are rendered almost useless." Though the genius of the people of this country might never permit this description to be strictly applicable to us, yet we may reasonably expect, from the gradual conflicts of State regulations, that the citizens of each would at length come to be considered and treated by the others in no better light than that of foreigners and aliens.
And he again adresses the freeloader problem by using the struggles of the Revolutionary armies.
This method of raising troops is not more unfriendly to economy and vigor than it is to an equal distribution of the burden. The States near the seat of war, influenced by motives of self-preservation, made efforts to furnish their quotas, which even exceeded their abilities; while those at a distance from danger were, for the most part, as remiss as the others were diligent, in their exertions.
Hamilton then does something I did not expect in these papers: he goes after the Great Compromise although I’m curious as to wyhether Madison concurs with this assessment given his views in Federalist No. 10 about ‘tyrannical majorities’.
The right of equal suffrage among the States is another exceptionable part of the Confederation. Every idea of proportion and every rule of fair representation conspire to condemn a principle, which gives to Rhode Island an equal weight in the scale of power with Massachusetts, or Connecticut, or New York; and to Deleware an equal voice in the national deliberations with Pennsylvania, or Virginia, or North Carolina. Its operation contradicts the fundamental maxim of republican government, which requires that the sense of the majority should prevail. Sophistry may reply, that sovereigns are equal, and that a majority of the votes of the States will be a majority of confederated America.
And Haamilton continues by pointing out that the Great Compromise makes no provision to account for the growth of the Union as has proven problematic in our modern era.
Besides, there are matters of considerable moment determinable by a bare majority; and there are others, concerning which doubts have been entertained, which, if interpreted in favor of the sufficiency of a vote of seven States, would extend its operation to interests of the first magnitude. In addition to this, it is to be observed that there is a probability of an increase in the number of States, and no provision for a proportional augmentation of the ratio of votes.
And we arrive at a bitter point in 2022 where the Dakotas have an effective veto over the whole country. In effect, Hamilton in No. 22 rebuts all the Madissonian talk of Republican principles in No. 10. To be honest, I am a biog men oof when Madison and Hamilton write these papers together. But full Hamiltonian thought on display is really awesome.
But this is not all: what at first sight may seem a remedy, is, in reality, a poison. To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision), is, in its tendency, to subject the sense of the greater number to that of the lesser. Congress, from the nonattendance of a few States, have been frequently in the situation of a Polish diet, where a single VOTE has been sufficient to put a stop to all their movements. A sixtieth part of the Union, which is about the proportion of Delaware and Rhode Island, has several times been able to oppose an entire bar to its operations.
It is not difficult to discover, that a principle of this kind gives greater scope to foreign corruption, as well as to domestic faction, than that which permits the sense of the majority to decide; though the contrary of this has been presumed. The mistake has proceeded from not attending with due care to the mischiefs that may be occasioned by obstructing the progress of government at certain critical seasons. When the concurrence of a large number is required by the Constitution to the doing of any national act, we are apt to rest satisfied that all is safe, because nothing improper will be likely TO BE DONE, but we forget how much good may be prevented, and how much ill may be produced, by the power of hindering the doing what may be necessary, and of keeping affairs in the same unfavorable posture in which they may happen to stand at particular periods.
Hear, hear, Mr. Hamilton.
In continuing, Hamilton may as well describbe our Russian-corrupted GOP. Notice that even his description of a hereditaaryy monarch’s advantage over a republic would’ve been inapplicapple to a certain Former Guy.
Evils of this description ought not to be regarded as imaginary. One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption. An hereditary monarch, though often disposed to sacrifice his subjects to his ambition, has so great a personal interest in the government and in the external glory of the nation, that it is not easy for a foreign power to give him an equivalent for what he would sacrifice by treachery to the state. The world has accordingly been witness to few examples of this species of royal prostitution, though there have been abundant specimens of every other kind.
And as much as we may despise the Roberts Court, we have to concede why the Federal courts should have authority through the Supremacy Clause.
We often see not only different courts but the judges of the came court differing from each other. To avoid the confusion which would unavoidably result from the contradictory decisions of a number of independent judicatories, all nations have found it necessary to establish one court paramount to the rest, possessing a general superintendence, and authorized to settle and declare in the last resort a uniform rule of civil justice.
In summation, the Federalist No. 22 is noteable not in describing the intended function of the United States government as in No. 10; but in foreseeing how problematic the Constitution would become down the line.
The organization of Congress is itself utterly improper for the exercise of those powers which are necessary to be deposited in the Union. A single assembly may be a proper receptacle of those slender, or rather fettered, authorities, which have been heretofore delegated to the federal head; but it would be inconsistent with all the principles of good government, to intrust it with those additional powers which, even the moderate and more rational adversaries of the proposed Constitution admit, ought to reside in the United States. If that plan should not be adopted, and if the necessity of the Union should be able to withstand the ambitious aims of those men who may indulge magnificent schemes of personal aggrandizement from its dissolution
And in this passage, Hamilton provides a rebuttal against those opponents of the 17th Amendment.
It has not a little contributed to the infirmities of the existing federal system, that it never had a ratification by the PEOPLE. Resting on no better foundation than the consent of the several legislatures, it has been exposed to frequent and intricate questions concerning the validity of its powers, and has, in some instances, given birth to the enormous doctrine of a right of legislative repeal.
And in his closing, Hamuilton completely condemns the ideas of nullification and secession.
However gross a heresy it may be to maintain that a PARTY to a COMPACT has a right to revoke that COMPACT, the doctrine itself has had respectable advocates. The possibility of a question of this nature proves the necessity of laying the foundations of our national government deeper than in the mere sanction of delegated authority. The fabric of American empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE. The streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority.
I change my mind, No. 22 is my NEW FAVORITE.
Federalist No. 23: The Necessity of a Government as Energetic as the One Proposed to the Preservation of the Union [Alexander Hamilton]
Federalist No. 23 continues a running them pof calling for a Federal Governmnt equal to the immense expectations of the Founders. Hamilton lists these expectations near the beginning.
The principal purposes to be answered by union are these: the common defense of the members; the preservation of the public peace as well against internal convulsions as external attacks; the regulation of commerce with other nations and between the States; the superintendence of our intercourse, political and commercial, with foreign countries.
And here I musst do something utterly disgusting and say iut turns out Stephen Miller was right. The powers of the President to protect the country are vast and will not be questtioned. Wekll, it depends on your perspective.
The authorities essential to the common defense are these: to raise armies; to build and equip fleets; to prescribe rules for the government of both; to direct their operations; to provide for their support. These powers ought to exist without limitation, BECAUSE IT IS IMPOSSIBLE TO FORESEE OR DEFINE THE EXTENT AND VARIETY OF NATIONAL EXIGENCIES, OR THE CORRESPONDENT EXTENT AND VARIETY OF THE MEANS WHICH MAY BE NECESSARY TO SATISFY THEM. The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. This power ought to be coextensive with all the possible combinations of such circumstances; and ought to be under the direction of the same councils which are appointed to preside over the common defense.
And Hamilton again raises his doctroine pof implied powers, which counters that dumb Tenther talking point. If a responsibility is given to the Federal government by the Constitution, it should foollow that it also implies the Constitution grants the Federal Government the powers ro implement those responsibilities even if it doesn’t do so explicitly.
This is one of those truths which, to a correct and unprejudiced mind, carries its own evidence along with it; and may be obscured, but cannot be made plainer by argument or reasoning. It rests upon axioms as simple as they are universal; the MEANS ought to be proportioned to the END; the persons, from whose agency the attainment of any END is expected, ought to possess the MEANS by which it is to be attained.
This doctrine has been applied to justify everything from the federal assumptioon of state debts, to the Louisiana Purchase, to the mobilization during the American Civil War, to the New Deal to, more recently, the Affordable Care Act. A lot of people don’t like this doctrine; but there it is clearly stated as part of the “Founders’ intent.” or A founder’s intent, rather.
It’s also important to stress that Hamilton favors strong powers vested on the Fedeeral Government specifically because he fears a government that has to reach for nnew powers in the name of expediency. Thus leading to our money quote.
A government, the constitution of which renders it unfit to be trusted with all the powers which a free people OUGHT TO DELEGATE TO ANY GOVERNMENT, would be an unsafe and improper depositary of the NATIONAL INTERESTS. Wherever THESE can with propriety be confided, the coincident powers may safely accompany them. This is the true result of all just reasoning upon the subject. And the adversaries of the plan promulgated by the convention ought to have confined themselves to showing, that the internal structure of the proposed government was such as to render it unworthy of the confidence of the people. They ought not to have wandered into inflammatory declamations and unmeaning cavils about the extent of the powers. The POWERS are not too extensive for the OBJECTS of federal administration, or, in other words, for the management of our NATIONAL INTERESTS; nor can any satisfactory argument be framed to show that they are chargeable with such an excess.
Federalist No. 24: The Powers Necessary to the Common Defense Further Considered [Alexander Hamilton]
TL;DR: Hamilton adresses the idea that atanding armies are antithetical to Libertry when kept up at peacetime and it’s no surprise that he thinks this misconception is wrong.Why should the Federall Government be under a prohibition that only two of thirteen states have under their State constitutions?
Hamilton starts No. 24 by commenting on a common refrain from small government types.
To THE powers proposed to be conferred upon the federal government, in respect to the creation and direction of the national forces, I have met with but one specific objection, which, if I understand it right, is this, that proper provision has not been made against the existence of standing armies in time of peace; an objection which, I shall now endeavor to show, rests on weak and unsubstantial foundations.
Hamilton tends to fixate on a particular obsession of his: where aspirational goals of protecting liberty from the powers of a strong government end up compromising the National defgense. Rememmber this point as it’ll be a frequent refrain with Hamilton’s writing.
A stranger to our politics, who was to read our newspapers at the present juncture, without having previously inspected the plan reported by the convention, would be naturally led to one of two conclusions: either that it contained a positive injunction, that standing armies should be kept up in time of peace; or that it vested in the EXECUTIVE the whole power of levying troops, without subjecting his discretion, in any shape, to the control of the legislature.
If he came afterwards to peruse the plan itself, he would be surprised to discover, that neither the one nor the other was the case; that the whole power of raising armies was lodged in the LEGISLATURE, not in the EXECUTIVE; that this legislature was to be a popular body, consisting of the representatives of the people periodically elected; and that instead of the provision he had supposed in favor of standing armies, there was to be found, in respect to this object, an important qualification even of the legislative discretion, in that clause which forbids the appropriation of money for the support of an army for any longer period than two years a precaution which, upon a nearer view of it, will appear to be a great and real security against the keeping up of troops without evident necessity.
Remember that Hamilton was arguing for a federal government with sufficient power to protect the country. He fixates, specifically on those who wanted to bar it from keeping up a standing army in opeacetime as a hedge against tyranny. He reasonably points out that only two (Pennnsylvania and North Carolina) of the thirteen oriiginal States have the same proviosion in their consttitutions ; and both came to regret them during recent unrest under the Articles of Confederation.
In sumation, Hamilton opposed the idea that standing military forces in peacetime were antithetical to Liberty.
Federalist No. 25: The Same Subject Continued: The Powers Necessary to the Common Defense Further Considered [Alexander Hamilton]
TL;DR: Hamilton explains the origins of the Second Ammendment. (Spoiler Alert: the well-organized militia clause is EXTREMELY RELEVANT)
Hamilton opens this essay by explaining why it’s not a good idea to delegate the responsibility of Defense to indiividual states instead.
IT MAY perhaps be urged that the objects enumerated in the preceding number ought to be provided for by the State governments, under the direction of the Union. But this would be, in reality, an inversion of the primary principle of our political association, as it would in practice transfer the care of the common defense from the federal head to the individual members: a project oppressive to some States, dangerous to all, and baneful to the Confederacy.
Hamilton is particularly sore about the Revolutionary War period due to certain states that “freeloaded” on the more involved states.
The territories of Britain, Spain, and of the Indian nations in our neighborhood do not border on particular States, but encircle the Union from Maine to Georgia. The danger, though in different degrees, is therefore common. And the means of guarding against it ought, in like manner, to be the objects of common councils and of a common treasury. It happens that some States, from local situation, are more directly exposed.
Hamilton adds a warning that should be familiar with those of us familiar with Governor Abbott’s abuse of the Texas state militia.
Reasons have been already given to induce a supposition that the State governments will too naturally be prone to a rivalship with that of the Union, the foundation of which will be the love of power; and that in any contest between the federal head and one of its members the people will be most apt to unite with their local government. If, in addition to this immense advantage, the ambition of the members should be stimulated by the separate and independent possession of military forces, it would afford too strong a temptation and too great a facility to them to make enterprises upon, and finally to subvert, the constitutional authority of the Union.
Nonetheless, Hamilton makes a reasonable point for the need to maintain STATE MILITIAS.
The framers of the existing Confederation, fully aware of the danger to the Union from the separate possession of military forces by the States, have, in express terms, prohibited them from having either ships or troops, unless with the consent of Congress. The truth is, that the existence of a federal government and military establishments under State authority are not less at variance with each other than a due supply of the federal treasury and the system of quotas and requisitions.
Read these following lines CAREFULLY. You’ll want them handy for your next NRA gun nut.
Here I expect we shall be told that the militia of the country is its natural bulwark, and would be at all times equal to the national defense. This doctrine, in substance, had like to have lost us our independence. It cost millions to the United States that might have been saved. The facts which, from our own experience, forbid a reliance of this kind, are too recent to permit us to be the dupes of such a suggestion. The steady operations of war against a regular and disciplined army can only be successfully conducted by a force of the same kind. Considerations of economy, not less than of stability and vigor, confirm this position. The American militia, in the course of the late war, have, by their valor on numerous occasions, erected eternal monuments to their fame; but the bravest of them feel and know that the liberty of their country could not have been established by their efforts alone, however great and valuable they were. War, like most other things, is a science to be acquired and perfected by diligence, by perserverance, by time, and by practice.
When Scalia INVENTED the individual right to bear arms, he cited passages from No. 25, 27, 28, and 29. Naturally, he twisted these texts out of context to justify a partisan conclusion favvored by the NRA. Alexander Hamilton had a specific vision of the “right to bear arms” and it didn’t look anything like Scalia’s or the NRA’s.
Federallist No. 26: The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered [Alexander Hamilton]
TL;DR: Hamilton talks about the best balance between a strong government and individual rights. Also he ends up tallking about the Second Amennment…. or rather, the idea and history behind it. This isd the Federalist Paper your average gun nut is likely to cite; but it should also be the one you are familiar with should you want to argue reasonable gun regulation.
Hamilton starts No. 26 by talking about the tricky balancing act the Constitution must undertake between empowering the government; and guaaranteeing liberty.
IT WAS a thing hardly to be expected that in a popular revolution the minds of men should stop at that happy mean which marks the salutary boundary between POWER and PRIVILEGE, and combines the energy of government with the security of private rights. A failure in this delicate and important point is the great source of the inconveniences we experience, and if we are not cautious to avoid a repetition of the error, in our future attempts to rectify and ameliorate our system, we may travel from one chimerical project to another; we may try change after change; but we shall never be likely to make any material change for the better.
Hamilton raises an idea that lost its relevance after the expansion of the U.S. Army during the American Civil War. He is vwehemently opposed to DUISARMING THE STATES via legistlation.
The idea of restraining the legislative authority, in the means of providing for the national defense, is one of those refinements which owe their origin to a zeal for liberty more ardent than enlightened. We have seen, however, that it has not had thus far an extensive prevalency; that even in this country, where it made its first appearance, Pennsylvania and North Carolina are the only two States by which it has been in any degree patronized; and that all the others have refused to give it the least countenance; wisely judging that confidence must be placed somewhere; that the necessity of doing it, is implied in the very act of delegating power; and that it is better to hazard the abuse of that confidence than to embarrass the government and endanger the public safety by impolitic restrictions on the legislative authority.
What follows this passage is one of Scalia’s favorite out of context quotes tyhat is also popular asmong 2A nuts. Hamilton cites the example of the English banning STANDING ARMIES to protect their liberties from their monarchy; and calls such a prohibition unwidse and unneccesary in the United States.
At the revolution, to abolish the exercise of so dangerous an authority, it became an article of the Bill of Rights then framed, that "the raising or keeping a standing army within the kingdom in time of peace, UNLESS WITH THE CONSENT OF PARLIAMENT, was against law."
In that kingdom, when the pulse of liberty was at its highest pitch, no security against the danger of standing armies was thought requisite, beyond a prohibition of their being raised or kept up by the mere authority of the executive magistrate. The patriots, who effected that memorable revolution, were too temperate, too wellinformed, to think of any restraint on the legislative discretion. They were aware that a certain number of troops for guards and garrisons were indispensable; that no precise bounds could be set to the national exigencies; that a power equal to every possible contingency must exist somewhere in the government: and that when they referred the exercise of that power to the judgment of the legislature, they had arrived at the ultimate point of precaution which was reconcilable with the safety of the community.
In the United States, many founders were overenthusiastic to put this ban into the Articles of Confederatiuon which is what Hamiilton meant when he asgued for something that sounds like the Secopond Amendment. In short, Scalia and the NRA took No. 25 iout of context.
Hamilton also takers time to address the possibility of more conspiracy theories about tthe government seizing power to hinder liberty.
Schemes to subvert the liberties of a great community REQUIRE TIME to mature them for execution. An army, so large as seriously to menace those liberties, could only be formed by progressive augmentations; which would suppose, not merely a temporary combination between the legislature and executive, but a continued conspiracy for a series of time. s it probable that such a combination would exist at all? Is it probable that it would be persevered in, and transmitted along through all the successive variations in a representative body, which biennial elections would naturally produce in both houses? Is it presumable, that every man, the instant he took his seat in the national Senate or House of Representatives, would commence a traitor to his constituents and to his country? Can it be supposed that there would not be found one man, discerning enough to detect so atrocious a conspiracy, or bold or honest enough to apprise his constituents of their danger?
Hamilton concludes by saying this kind of danger is unavoidable; BUT IT IS ALSO MORE LIKELY TO ARISE IN SEPARATE STATES THAN IT IS IN A UNION
But it is an evil infinitely less likely to attend us in a united than in a disunited state; nay, it may be safely asserted that it is an evil altogether unlikely to attend us in the latter situation. It is not easy to conceive a possibility that dangers so formidable can assail the whole Union, as to demand a force considerable enough to place our liberties in the least jeopardy, especially if we take into our view the aid to be derived from the militia, which ought always to be counted upon as a valuable and powerful auxiliary. But in a state of disunion (as has been fully shown in another place), the contrary of this supposition would become not only probable, but almost unavoidable.
Federalist No. 27: The Same Subject Continued: The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered [Alexander Hamilton]
TL;DR: After a lot of build-up. Hamilton finally discusses the Second Amendment, or rather the idea behind it,. This essay is importasnt to understand whast he means by the “right to bear arms.”
Hamilton starts this essay by adressing the supposition that the Federal government will be able to impose its tyranny on the Statesthrough coercion by military force.
IT HAS been urged, in different shapes, that a Constitution of the kind proposed by the convention cannot operate without the aid of a military force to execute its laws. This, however, like most other things that have been alleged on that side, rests on mere general assertion, unsupported by any precise or intelligible designation of the reasons upon which it is founded. As far as I have been able to divine the latent meaning of the objectors, it seems to originate in a presupposition that the people will be disinclined to the exercise of federal authority in any matter of an internal nature. Waiving any exception that might be taken to the inaccuracy or inexplicitness of the distinction between internal and external, let us inquire what ground there is to presuppose that disinclination in the people.
He continues by dismantling the absurb argument for putting a primacy on States’ rights.
Various reasons have been suggested, in the course of these papers, to induce a probability that the general government will be better administered than the particular governments; the principal of which reasons are that the extension of the spheres of election will present a greater option, or latitude of choice, to the people; that through the medium of the State legislatures which are select bodies of men, and which are to appoint the members of the national Senate there is reason to expect that this branch will generally be composed with peculiar care and judgment; that these circumstances promise greater knowledge and more extensive information in the national councils, and that they will be less apt to be tainted by the spirit of faction, and more out of the reach of those occasional ill-humors, or temporary prejudices and propensities, which, in smaller societies, frequently contaminate the public councils, beget injustice and oppression of a part of the community, and engender schemes which, though they gratify a momentary inclination or desire, terminate in general distress, dissatisfaction, and disgust.
To rebut that long argument above, Hammilton offers this
It will be sufficient here to remark, that until satisfactory reasons can be assigned to justify an opinion, that the federal government is likely to be administered in such a manner as to render it odious or contemptible to the people, there can be no reasonable foundation for the supposition that the laws of the Union will meet with any greater obstruction from them, or will stand in need of any other methods to enforce their execution, than the laws of the particular members.
Hamilton raises the possibility thast tyranny is far mortre likely to arise WITHIN a single STate thasn it is to be imposed on it from a Federal body. He makes the argument that the Federal government should be better positioned to defeat such tyerannies.
The hope of impunity is a strong incitement to sedition; the dread of punishment, a proportionably strong discouragement to it. Will not the government of the Union, which, if possessed of a due degree of power, can call to its aid the collective resources of the whole Confederacy, be more likely to repress the FORMER sentiment and to inspire the LATTER, than that of a single State, which can only command the resources within itself? A turbulent faction in a State may easily suppose itself able to contend with the friends to the government in that State; but it can hardly be so infatuated as to imagine itself a match for the combined efforts of the Union. If this reflection be just, there is less danger of resistance from irregular combinations of individuals to the authority of the Confederacy than to that of a single member.
The highlighted line above also suggests Hamilton never intended the Right to Bear arms as a defense against tyranny to be exercisesd by disparate individuuals.
Hamilton also makes an observation which is relevant to any fledgling democracy trying to copy the North American model… and also explains why so many opponents of tthe Federal Government are so obsessed with “small government.
A government continually at a distance and out of sight can hardly be expected to interest the sensations of the people. The inference is, that the authority of the Union, and the affections of the citizens towards it, will be strengthened, rather than weakened, by its extension to what are called matters of internal concern; and will have less occasion to recur to force, in proportion to the familiarity and comprehensiveness of its agency. The more it circulates through those channls and currents in which the passions of mankind naturally flow, the less will it require the aid of the violent and perilous expedients of compulsion.
Hamilton ends this piece by practically saying that the “right to bear arms” ought to be preserved as a means to national defense when the Union is in a pinch; but thata Union that relies more on coercion and force to enforce its laws will not be a good one.
Federalist No. 28: The Same Subject Continued: The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered [Alexander Hamilton]
TL;DR: By now, the average reader might be tiring of Alexander Hamilton; but Hamilton continues this second amendm,ent themer of his.
Hamilton opens by admitting that the possibility of the Federal Government resorting to force can never be fully ruled out becausse rebellions and insurrections are maladies that inevitably arise from the body politic as natural tumors are from the human body. He ad admits that the idea of governing merely by the force of law is foolhardy and is only possible in the imaginations of political philosophers who are determined to deny the evidence of biotter experience.
So, once more, Hamilton invokes his favorite political tool of last resort: the state militias.
Should such emergencies at any time happen under the national government, there could be no remedy but force. The means to be employed must be proportioned to the extent of the mischief. If it should be a slight commotion in a small part of a State, the militia of the residue would be adequate to its suppression; and the national presumption is that they would be ready to do their duty. An insurrection, whatever may be its immediate cause, eventually endangers all government.
Hamilton then extends this thought experiment to another kind of insurrection: a large one that cannot be dealt with locally by the States such as the Whiskey Revolt that pervaded the Articles of Confederation period. . He uses this to argue for giving the Federal Government the means to pprotect the member States.
It is this scenarion that establishes why a single federal union would be better able to deal with this kind of mergency than separate smaller repunblics. Bassaiclly, imagine the Civil War multiplied oover two or even four republics.
He then gets to his point … that the federal government shouldn’t be able to prevent the States or itself from maintaining militias or armed forces.
pendent of all other reasonings upon the subject, it is a full answer to those who require a more peremptory provision against military establishments in time of peace, to say that the whole power of the proposed government is to be in the hands of the representatives of the people. This is the essential, and, after all, only efficacious security for the rights and privileges of the people, which is attainable in civil society.
This will be where Hamilton makles that money quote Scalia and other 2A nuts like to take out of context.
If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success than against those of the rulers of an individual state. In a single state, if the persons intrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair. The usurpers, clothed with the forms of legal authority, can too often crush the opposition in embryo. The smaller the extent of the territory, the more difficult will it be for the people to form a regular or systematic plan of opposition, and the more easy will it be to defeat their early efforts.
In those highlighted lines, you see the importance of the well-regulated militia clause of the Second Amendment. A critical theme of the Federqalist Papers is that a Republic is a goivernment of a delegated authority. Ham,ilton continues this theme tby saying that the Right of Self-Defense is better delegated to the State governments.
It may safely be received as an axiom in our political system, that the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority. Projects of usurpation cannot be masked under pretenses so likely to escape the penetration of select bodies of men, as of the people at large.
Hamilton further reinforces this point with two more arguments: a.) that the Federal government will be less able to supress rebellion by multiple states due to the sheer size of the Union; and b.) that any military force SHOULD be regulated by the resources of the country. This again brings up another money quote about the well-regulted part of the Second Amendment.
We should recollect that the extent of the military force must, at all events, be regulated by the resources of the country. For a long time to come, it will not be possible to maintain a large army; and as the means of doing this increase, the population and natural strength of the community will proportionably increase. When will the time arrive that the federal government can raise and maintain an army capable of erecting a despotism over the great body of the people of an immense empire, who are in a situation, through the medium of their State governments, to take measures for their own defense, with all the celerity, regularity, and system of independent nations? The apprehension may be considered as a disease, for which there can be found no cure in the resources of argument and reasoning.
Federalist No. 29: Concerning the Militia [Alexander Hamilton]
TL;DR: Yes. Another Hamilton one….anmd still about defense issues and the Militia. He did serve in the Continental Army and write 51 of these essays. Obviously, it’s about militias again. To Hamilton’s mind a well-regyulated militia is the best alternative to giving everyone guns and trying to train those into something resembling an effective fighting force. In short, the Second Amendment exiiusts to s[pare everyone the hassle of living in an armed camp; and the iinjurous expense of having to train so many people to fgight effectivelyrather thann engaging in useful economic activity.
Hamilton opens No. 29 by bringing up the i,[portance of regfulating a militia again. This should take greater significance goiven the underperformance of a badly regulated army in Ukraine.
It requires no skill in the science of war to discern that uniformity in the organization and discipline of the militia would be attended with the most beneficial effects, whenever they were called into service for the public defense. It would enable them to discharge the duties of the camp and of the field with mutual intelligence and concert an advantage of peculiar moment in the operations of an army; and it would fit them much sooner to acquire the degree of proficiency in military functions which would be essential to their usefulness.
HAamilton makes a show of emphasizing the importance of militias to the security of the United States. You will also notice eerily similar wording to the Secoind Amendment.
If a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security. If standing armies are dangerous to liberty, an efficacious power over the militia, in the body to whose care the protection of the State is committed, ought, as far as possible, to take away the inducement and the pretext to such unfriendly institutions.
Hamilton also expounds about the concept of the Posse Commitatus; namely the power of a government to call onthe militia in periods of peace. He uses this to reassure that even if given superintendent powers over state militias, the federal government wouldn’t be able to use these militias to impose tyranny in the United States. This principle is codified in the Posse Commitatus Act
In the middlew of No. 29. Hamilton makes another money quote. He insists yupon a WELL-REGULATED MILITIA because the alternative would be arming everyoone and having themnm be a disorganized ineffective mob lest the effort take up considerable expense for little reward.
"The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss. It would form an annual deduction from the productive labor of the country, to an amount which, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the States. To attempt a thing which would abridge the mass of labor and industry to so considerable an extent, would be unwise
A reasonable modern obserever might rightly point out that the proper solution too the problems Hamilton highlights is a professional arm; but remember that the United States did not get a professional army until necessitated by the Civil War. As he pointed out in No. 28, there was massive suspicion of standing armies during the post-Revolutionary period. Hence, Hamilton solved the problems of national defense by making the roudabout solution of having the Second Amendment. The gun nuts are trying to solve problems that have long since ceased to exist.
Federalist No. 30: Concerning the General Power of Taxation
TL;DR: Hamilton reinforces his previous point that a government must have the powers to execute its responsibilities. Hence, he argues, it follows that the federal government should have unlimited powers of taxation to match its unlimited power for the natiional defence.
Hamilton is nothing but consistent in his insistence on the doctrine of implied powers. Consequently, he lays out the extensive powewrs of taxation implied by the powers of national defense. Chief among those implied powers; is the power to raise funds foor the militiias and fleets Hamilton says are necessary to protect the United States. More importantly, he argues that this implied power of taxation goes beryond the duty of national defence.
IT HAS been already observed that the federal government ought to possess the power of providing for the support of the national forces; in which proposition was intended to be included the expense of raising troops, of building and equipping fleets, and all other expenses in any wise connected with military arrangements and operations. But these are not the only objects to which the jurisdiction of the Union, in respect to revenue, must necessarily be empowered to extend. It must embrace a provision for the support of the national civil list; for the payment of the national debts contracted, or that may be contracted; and, in general, for all those matters which will call for disbursements out of the national treasury. The conclusion is, that there must be interwoven, in the frame of the government, a general power of taxation, in one shape or another.
He cites the historical example of the Ottoman Empire whosde sultan did not have the power to impose taxes which had led to governors going about in a roundabout way of raising revenue (i.e. pillage and confiscation). He also discusses the inadequate powers of the SArticles of Confederation to raise enough money for its functions which lkeads to this conclusion:
What remedy can there be for this situation, but in a change of the system which has produced it in a change of the fallacious and delusive system of quotas and requisitions? What substitute can there be imagined for this ignis fatuus in finance, but that of permitting the national government to raise its own revenues by the ordinary methods of taxation authorized in every well-ordered constitution of civil government? Ingenious men may declaim with plausibility on any subject; but no human ingenuity can point out any other expedient to rescue us from the inconveniences and embarrassments naturally resulting from defective supplies of the public treasury.
Hamilton goes on to address a common rebuttal to the government’s powers of taxation.
he more intelligent adversaries of the new Constitution admit the force of this reasoning; but they qualify their admission by a distinction between what they call INTERNAL and EXTERNAL taxation. The former they would reserve to the State governments; the latter, which they explain into commercial imposts, or rather duties on imported articles, they declare themselves willing to concede to the federal head.
This was a gray area in Constitutional law up until the Civil War, when the Sixteenth Amendment gave the Federal Government explicit powers to tax income directly. In any case, Hamilton considered that split scheme oillogical.
This distinction, however, would violate the maxim of good sense and sound policy, which dictates that every POWER ought to be in proportion to its OBJECT; and would still leave the general government in a kind of tutelage to the State governments, inconsistent with every idea of vigor or efficiency. Who can pretend that commercial imposts are, or would be, alone equal to the present and future exigencies of the Union?
In other words, it’\s dumb to saddle the Federal Government with unlimited responsibilitiues; but give it limited means. Hamilton moves on to entertain the idea and vconcludes that there will be serious consequences should a limited government find itself at war.
What would be the probable conduct of the government in such an emergency? Taught by experience that proper dependence could not be placed on the success of requisitions, unable by its own authority to lay hold of fresh resources, and urged by considerations of national danger, would it not be driven to the expedient of diverting the funds already appropriated from their proper objects to the defense of the State? It is not easy to see how a step of this kind could be avoided; and if it should be taken, it is evident that it would prove the destruction of public credit at the very moment that it was becoming essential to the public safety. To imagine that at such a crisis credit might be dispensed with, would be the extreme of infatuation. In the modern system of war, nations the most wealthy are obliged to have recourse to large loans. A country so little opulent as ours must feel this necessity in a much stronger degree. But who would lend to a government that prefaced its overtures for borrowing by an act which demonstrated that no reliance could be placed on the steadiness of its measures for paying? The loans it might be able to procure would be as limited in their extent as burdensome in their conditions. They would be made upon the same principles that usurers commonly lend to bankrupt and fraudulent debtors, with a sparing hand and at enormous premiums.
Since No. 11 and No. 22, I have marveled at how forward-looking Alexander Hamilton was. Two of his ideas in No. 30 even made it as Amendments to the Constitution: The aforementioned 16th Amendmment; and the Full Fasith and Credit Clause of the 14th Amendment as argued here. Hamilton would no doubt pull his hair at the existence of today’s debt ceiling.
I’ll end this installment here. Making these ispretty time consuming. I’ll try to cover Nos. 31 — 40 next time. Leet me know your thoughts. :) Thanks.