Federalist 29
Debates over the Constitution always involved the balance between granting a power and limiting it. Some may have argued that the Constitutional system did not sufficiently limit a power, while others may have preferred seeing that power expanded, but no one argued for a power to exist without limits. The question always revolved around the structures and procedures of those limits and who would exercise the power to restrain power. Nor could it be doubted that the primary vestment of the power to restrain power belonged to the people. Granted, the Constitution attempted to use the mechanisms of government to restrain itself, but that was for the most part a secondary check.
In last week’s essay on Federalist 28 I argued that Hamilton believed whatever dangers a standing army posed could be mitigated both by the states and by insurrections. These imperfect restraints posed their own challenges, which simply testified to the common belief that the very idea of popular government created insoluble problems. At best, popular government solved the problem of legitimacy at the price of stability. For critics of the Constitution, Hamilton’s assurances that insurrections would likely enjoy success against the federal government rang hollow, in no small part because they assumed the centralization of power was not static but likely to increase. No one at that time could anticipate how technological revolutions would alter the balance, but those advances accelerated rather than altered a trend. Along those lines, under the theory of divided sovereignty, so long as the states could retain their sovereignty then Hamilton’s argument concerning state resistance remained plausible, but the Anti-federalists had no confidence that the states would be able to do so in the long run.
So if neither insurrection nor state sovereignty would provide an adequate check on a standing army, what would? In Federalist 29 Hamilton reviews a couple of important arguments, but also draws our attention to the necessity of a well-armed citizenry. Over the course of this essay I will draw parallels between Hamilton’s argument and the Second Amendment.
Hamilton began the essay by stating the need for a “well-regulated” militia, by which he meant one that was disciplined, organized, and well-provisioned. Clearly his war experience proved to him that the “minuteman” concept could not accomplish the goal of independence; only a professional army could do that. His earlier arguments against the utility of state militias now emerged into a permanent, professionally-trained army. But what would keep that military from oppressing its own citizens? Hamilton shared the widespread belief that civilian control would provide an adequate check.
This control would manifest itself in three ways. First, the members of the military, themselves drawn from the citizenry, would not likely oppress friends and neighbors: “Where in the name of common-sense, are our fears to end if we may not trust our sons, our brothers, our neighbors, our fellow-citizens? What shadow of danger can there be from men who are daily mingling with the rest of their countrymen and who participate with them in the same feelings, sentiments, habits and interests?” Second, the president (George Washington notwithstanding) was not to be a military chieftain but a citizen leader of the army (three of the first four presidents had no significant military experience). Third, officers would be appointed by state legislatures, and those legislatures would only commission persons loyal to their particular state. Hamilton did not foresee how the military would become a main mechanism for deracinating the public.
Hamilton also addressed the relationship between the standing army and the historic role of the posse comitatus. The anti-federalists had worried that the standing army would substitute itself for the historic operations of the posse comitatus — the mechanism by which local law officials could solicit the help of local citizens for purposes of law enforcement — and thus impose itself on localities and citizens. The Constitution had not allowed for the posse comitatus and the tenth amendment, not yet in consideration, offered no protection. Instead Hamilton tried to allay anti-federalists fears — ironically, as it would turn out — with reference to the “necessary and proper” clause found in Article I, section 8 of the Constitution. The anti-federalists regarded this clause as perhaps the most menacing one in all the Constitution, but here Hamilton used it to suggest that the posse comitatus would be provided for under the “necessary and proper” clause’s broad powers. This might well qualify as one of the great examples of giving a penny and taking a dollar in all the debates. I’ll have much more to say about the clause in later essays, but readers should be alert to the fact that Hamilton used it here in a rather expansive manner.
The Federal Farmer raised the problem of the posse comitatus in his third letter. There, he worried that the people ambitious for life in the Capitol would be the same people likely to want to employ a standing army to nefarious purposes. In an early observation that military service could turn into a giant workfare program, he wrote that “An army is a very agreeable place of employment for the young gentlemen of many families,” and continued that “should one fifth, or one eighth part of the men capable of bearing arms, be made a select militia, as has been proposed, and those the young and ardent part of the community, possessed of but little or no property, and all the others put upon a plan that will render them of no importance, the former will answer all the purposes of an army, while the latter will be defenceless.” Like many anti-federalists, the Federal Farmer believed that military matters running through Congress ought to command a ⅔ or ¾ supermajority for passage. The writer Centinel worried that the standing army would be employed for tax collection, and this confluence of taxation and military power would destroy liberty.
Hamilton did assume the primacy of state loyalties. Soldiers in Virginia, if ordered to march on Massachusetts, would stop at the national capitol on the way there (New York, at the time) and take care of business with the idiots who made the order in the first place. No sane person would urge the citizens of one state to march on another, even though he suggested the possibility with reference to Shays rebellion, and considering possibility of it could only result, Hamilton argued, from a lack of good sense.
Are suppositions of this sort the sober admonitions of discerning patriots to a discerning people? Or are they the inflammatory ravings of incendiaries or distempered enthusiasts? If we were even to suppose the national rulers actuated by the most ungovernable ambition, it is impossible to believe that they would employ such preposterous means to accomplish their designs.Subsequent events demonstrated that those ravings were not as inflammatory as Hamilton believed.
Hamilton in this essay also walked back an earlier argument he had made. He had previously argued that the military had to be large enough to address any contingency, but in this paper recommended “the formation of a select corps of moderate extent.” The alternative to a well-trained but limited army would be to draw from the citizenry, in times of emergency, sufficient arms and men to secure the state." This disruption to home life and local economy would be less tolerable to Americans than having a permanent army.
Finally, Hamilton indicated that “to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens.” The argument rings hollow in part because Hamilton insisted early in the same essay that the whole point of a standing army is that it would be better trained and armed than the citizens. Still, this idea of a well-armed citizenry providing the main check against the dangers of a standing army would get codified later in the ratification of the second amendment.
Given the heated debates still extant over the second amendment, in no small part due to its seemingly confusing language, a review of its history is in order. As I’ve demonstrated in previous essays, the main influence on the American Constitutional system was the British Constitution and the common law tradition in England that had operated for nearly 700 years. Throughout that history, courts consistently affirmed the right “to keep and bear arms” as an essential element of self-preservation, the most important law of nature. In its early iterations the common law didn’t deal much with firearms, but the English Bill of Rights (1689), an essential document to our founders, allowed that Protestants “may have arms for their defence suitable to their conditions, and as allowed by law.” The Pennsylvania Constitution of 1776 made the connection between bearing arms and self-defense — especially against a standing army — even more explicit: “That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.” Blackstone’s commentaries, a definitive source on the common law and an authoritative one for the founders, also made the same argument. (1:139)
A proper understanding of the second amendment may also be gleaned from the congressional debates over the Bill of Rights (1789). The members went back and forth over the exact language, but no one questioned the basic assumption that the keeping and bearing of arms were essential to self-defense and a check on the power of government. (The Bill of Rights applies to the government and not private entities.) As Eldridge Gerry put it: “This declaration of rights, I take it, is intended to secure the people against the mal-administration of the Government; if we could suppose that, in all cases, the rights of the people would be attended to, the occasion for guards of this kind would be removed.” While it is dangerous to attempt to derive meaning from rejected versions of a text, Aedanus Burke’s suggestion during the debates that the amendment read “A standing army of regular troops in time of peace is dangerous to public liberty, and such shall not be raised or kept up in time of peace but from necessity, and for the security of the people, nor then without the consent of two-thirds of the members present of both Houses; and in all cases the military shall be subordinate to the civil authority” does draw attention to the shared concern over a standing army.
The reading of the second amendment — that a well-armed citizenry formed a bulwark against the dangers of a standing army — received uniform agreement by subsequent interpreters. St. George Tucker in his edition of Blackstone’s Commentaries wrote: “The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.” Justice Joseph Story, a high federalist and nationalist, in his definitive commentaries on the Constitution (1833) observed “It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace,” and that “The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.”
The Court majority relied on this history in its controversial ruling in the most important gun control case to date: District of Columbia v. Heller. I need not go into the details of the case but will instead reiterate the fact that the court recognized the second amendment as applying to individual Americans possessing a (not unlimited) right to keep and bear arms as part of the system of order liberty enshrined in the Constitution. Drawing on English history, the Court repeated the argument made by Gerry and others during the first Congress that when governments try to suppress dissident views the first thing they do is attempt to disarm the citizenry. One leading anti-federalist, John Smilie, had made precisely this argument during the ratification debates. As the Court’s majority wrote in Heller: “It was understood across the political spectrum that the right helped to secure the ideal of a citizen militia, which might be necessary to oppose an oppressive military force if the constitutional order broke down.”
Hamilton’s writings on the standing army may be the most consequential thing he wrote, not only because of the outsized role the military has played in American history but mainly because his ideas parted from tradition and even from the orthodox views of other federalists. The anti-standing army sentiment, articulated in the Declaration of Independence, informed the revolution itself, those sentiments later codified in the second, third, and fourth amendments. The key issue involved the states and how politicians could coordinate the principle of federalism with a national army. Hamilton’s break with orthodoxy resulted in attempting to convince ratifiers of their collective interests, embodied in and defended by an energetic central government in possession of a powerful military force.
Director of the Ford Leadership Forum, Gerald R. Ford Presidential Foundation
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