Federalist No. 28

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Federalist No. 28
Alexander Hamilton, author of Federalist No. 28
AuthorAlexander Hamilton
Original titleThe Same Subject Continued: The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered
LanguageEnglish
SeriesThe Federalist
Publisher
Publication date
December 28, 1787
Publication placeUnited States
Media typeNewspaper
Preceded byFederalist No. 27 
Followed byFederalist No. 29 
TextFederalist No. 28 at Wikisource

Federalist No. 28, titled "The Same Subject Continued: The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered", is a political essay by Alexander Hamilton and the twenty-eighth of The Federalist Papers. The essay was published on December 28, 1787, under the pseudonym Publius, the name under which all The Federalist Papers were published. This is the last of the three essays discussing the powers of the federal government over a standing military, directly following Federalist No. 26 and Federalist No. 27. Its theme of defense would be continued for one more essay in Federalist No. 29.

Federalist No. 28 addresses circumstances in which military force may be used domestically by the federal government, with Hamilton arguing that it would be necessary only when an

natural right to self-defense. Federalist No. 28 gave a more sympathetic portrayal of state governments than most of the Federalist Papers, describing them as a check on the federal government. Since the writing of this essay, the nature of military force has fundamentally changed, rendering his equivocation of federal, state, and civilian military technology
obsolete.

Summary

Hamilton begins by acknowledging truth in the argument that

Shays' Rebellion as examples, as well as a potential conflict between New York and the Vermont Republic. He argues that a military is necessary for a country with representative government, or that it will be subject to the same instability that affected previous republics. Hamilton then proposes a scenario of several distinct confederacies of states, arguing that the same problem would still exist and that federal militaries would still be necessary. He uses this to demonstrate that combat readiness separate from militias
will always be necessary, even if it does not take the form of a unitary government of all the states.

Hamilton next argues that the federal government would not be susceptible to tyranny because its components would be a

representative government subject to the will of the people, rendering military repression of the people highly unlikely. In the event that such repression does occur, Hamilton argues that the right to self-defense
would then take precedence. He says that the support of state governments and the entire population would make it easy to defend against the federal government, while the people of one state would be unable to defend against their state government. He describes the relationship of federal and state governments as one being a check on the other. Hamilton concludes that the practical aspects of military repression by the federal government make such concerns unreasonable.

Background and publication

Federalist No. 28 was written by Alexander Hamilton. Like all of the Federalist Papers, Federalist No. 28 was published under the pseudonym Publius in New York newspapers with the intention of explaining the provisions of the Constitution of the United States and persuading New York to ratify it.[1] It was published in the Independent Journal, the Daily Advertiser, and the New-York Packet on December 28, 1787, and it was printed in the New-York Journal on January 2, 1788.[2]

Federalist No. 28 continues the arguments about use of force by the government that began in Federalist No. 24, and it directly follows Federalist No. 27 in its rebuttal of the anti-federalist argument that the military will be used to enforce federal law.[3] The essay also supported the theory posited by James Madison in Federalist No. 10, stating that "the obstacles to usurpation" increase with the increased extent of the state.[4] Hamilton's views of the use of force in relation to governance may have been influenced by examples of tyrannical government and resistance against it, including the American Revolutionary War.[5]

Analysis

Use of force by the federal government

In Federalist No. 28, Hamilton concedes the point made by anti-federalists that there are times in which military force will be used to enforce federal law. He argues that these will be rare instances of true insurrection, and that military force in these instances is justified.

political realism, describing when such a contingency would be acceptable rather than denying it outright. He insists upon the use of military force to challenge an insurrection at the local level or a state government that becomes tyrannical.[6] Much of his argumentation is in favor of the point that a federal military would supplement state militias that he considered ill-equipped to handle large-scale insurrections.[5] He does not give credence to the idea that the military could be used against the entirety of the people, which he considers to be highly unlikely to ever occur. Overall, he places more trust in the use of force by the federal government than by that of state governments, reflecting his strong belief in centralized government.[6] Hamilton also reiterates his support for representative government as the primary form of domestic security rather than codified restrictions on government or use of force against the government.[7]

Use of force against the federal government

Hamilton maintains that the citizens have the final authority over the federal government, and should this authority be lost, then the citizens do have the right to exercise

United States Constitution, though it is mentioned in the preceding Declaration of Independence.[5] As such, Hamilton's arguments are extralegal, pertaining to scenarios where federal law is no longer applicable.[7]

Federalist No. 28 gives the broadest defense of state governments of any of the Federalist Papers, tasking them with the responsibility of serving as a check on the federal government. Hamilton specifies that this is only applicable in response to federal repression of the people, which he deems highly unlikely. In all other circumstances, he remains opposed to state action that exerts authority over the federal government, condemning such action in many other essays of the Federalist Papers. Hamilton also argues that if there is no federal military to serve as a check on the states, then the states would be better positioned to repress the people for the same reason that they would be able to resist a tyrannical federal government.[6]

Aftermath

Hamilton presented further argument about how the people would protect themselves from tyrannical government in

natural rights.[7] Federalist No. 28 has been invoked in multiple Supreme Court cases to analyze Hamilton's view of the relationship between the military and the government. Justice Sandra Day O'Connor referenced it in the 1991 case Gregory v. Ashcroft, and Justice Antonin Scalia did so in the 2006 case Hamdan v. Rumsfeld.[9][10]

Hamilton's arguments regarding the use of force may be reconsidered following the development of modern militaries and

weapons of mass destruction in the 20th century. Particularly inapplicable to the 21st century is Hamilton's argument that state militias and private citizens would have access to the same military resources as the federal army. Hamilton's appeal to representative government has become the primary element of Federalist No. 28 that is applied to the present day.[5]

References

  1. ^ "Federalist Papers: Primary Documents in American History". Library of Congress. Retrieved January 21, 2023.
  2. ^ "Federalist Essays in Historic Newspapers". Library of Congress. Retrieved January 21, 2023.
  3. ^
    ISBN 978-1-4411-0814-2
    .
  4. ISBN 978-0-521-85232-6
    .
  5. ^
    ISBN 978-0-300-21645-5
    .
  6. ^
    ISBN 978-0-8131-6137-2
    .
  7. ^
    ISBN 978-0-226-21301-9
    .
  8. ISBN 978-1-931202-44-2
    .
  9. ^ "Gregory v. Ashcroft, 501 U.S. 452 (1991)". Justia Law. Retrieved February 5, 2023.
  10. ^ "Hamdan v. Rumsfeld, 548 U.S. 557 (2006)". Justia Law. Retrieved February 5, 2023.

External links

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