Guest Blogger: Marc S. Lampkin, partner at Quinn Gillespie and Associates LLC and graduate of Boston College Law School

Monday, June 7th, 2010

Federalist #29 written by Hamilton continues the focus on the subject of the militia and the standing army.  Hamilton is quite enthusiastic in embracing the needs for a common or national military force. He explains, “THE power of regulating the militia, and of commanding its services in times of insurrection and invasion are natural incidents to the duties of superintending the common defense, and of watching over the internal peace of the Confederacy.

In Hamilton’s view, the efficiencies of having one national force as opposed to 13 were significant enough even to overcome the fear that this national force might oppress the people.  Since domestic rebellions in a given state were of interest to the national government (as part of its responsibilities for national defense) as well as to the particular state where the rebellion occurred, it wouldn’t be necessary for a state to expend the resources necessary to handle such a capability and the national force would provide a sufficient capacity to handle such problems.

Arguably, Hamilton claims there could even be advantages that a national force might have over a state force in such a situation. He says, “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.

In Federalist #29, Hamilton wants to respond to those who say that the new Constitution would be far better if somehow the national defense power remained diffused between the several states.  Hamilton believes this would be in the long term destructive to the new American nation.  Moreover, remarkably he turns the argument on itself.  If a standing army is a threat to liberty he asks, why have thirteen standing threats?  Hamilton asserts, “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.

A second point that Hamilton makes is that sometimes the type of federal or national response needed may not include the need for lethal force.  Because the federal government might have various alternatives to pick from it may not see the need to respond first with a purely military show of force.  A federal government may have a variety of administrative forms that it can use to respond to a given situation, varieties that a state government might not have or if it does to have it across multiple states would be unnecessarily duplicative and therefore inefficient.

Next Hamilton directly addresses Posse Comitatus – also sometimes referred to as sheriff’s posse – originally part of the English common law it involves the authority of a law enforcement officer to obtain assistance from non law enforcement personnel to assist him in keeping the peace or to pursue and arrest a felon.  Hamilton insists that critics can’t have it both ways.  They cannot say that the federal Constitution should be opposed because it does not explicitly provide for this authority or be opposed because its power to engage in posse comitatus is unlimited.  Hamilton argues, It would be as absurd to doubt, that a right to pass all laws NECESSARY AND PROPER to execute its declared powers, would include that of requiring the assistance of the citizens to the officers who may be intrusted with the execution of those laws, as it would be to believe, that a right to enact laws necessary and proper for the imposition and collection of taxes would involve that of varying the rules of descent and of the alienation of landed property, or of abolishing the trial by jury in cases relating to it.”

Then Hamilton turns to the question of the threats associated with the national militia.  Repeating arguments he has made earlier, Hamilton expands upon the concept that not only would 13 armies be unnecessarily duplicative, but it also would be financially and personally burdensome on the people as the force necessary by the aggregation of the states armies across the several states would be greater than the total force used by the national level and even this wouldn’t succeed because the burden would ultimately be rejected by the people. Hamilton explains, “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: and the experiment, if made, could not succeed, because it would not long be endured.

Finally, Hamilton asks whether the critics who worry about the national militia are being serious.  After all the national army is not made up of people from a foreign land, he says.  “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?”

In addition, how could the federal government agree to unfairly subdue a state when not only the state is represented in the federal government, but all of the other states through their representatives would need to consent to such an action. “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?

In Hamilton’s considered view opposing the new constitution over the issue of a militia at the federal level is a red herring.  The benefits of having national concentrated authority far outweigh any perceived gains of dispersing this authority over multiple states.

Marc S. Lampkin, partner at Quinn Gillespie and Associates LLC is a graduate of Boston College Law School


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