Publius [Hamilton]: Federalist Number 28.
Publius has tuned to the justification of “energy” or power in the federal government—in particular, the power of military self-defense. In #27 he began consideration of perhaps the most sensitive topic in a federal system, namely, military defense against internal rebellions. He argued that union finds its primary bulwark in peaceful habits of cooperation. Frequent appeals to armed enforcement of the Union will only weaken the Union—either by fostering resentments piqued by fresh injuries or by transforming that union into a tyranny that rules by nothing more than force. The careful limitation of federal powers—”the enumerated and legitimate objects of [the government’s] jurisdiction”—coupled with the structural device of divided and separated powers within the federal government itself, should work to strengthen the Union over time.
Nonetheless, times will come when only force can preserve the Union. Publius addresses this likelihood in Federalist #28, making this paper one of his most candid and tough-minded performances.
Recall the fundamental law of contract enunciated in #22: No party to a contract may unilaterally and legally violate the contract. This maxim of course provided the crux of the Founders’ argument in the Declaration of Independence; King and Parliament had violated the unalienable rights of the colonists by unilaterally altering the terms of their governing charters, leading ultimately to acts of war against the colonists by the King, funded by the Parliament. The revolution occurred not because the colonists rebelled but because the British government had.
At least as often, some part of the people will rebel. Indispensable to good government, rule by law will not always suffice. Rebellion causes an immediate emergency but, more importantly, it “eventually endangers all government”; rebellion in one place can spread to others, plague-like. Publius remarks that this will hold regardless of whether the country remains united, inasmuch as an America divided into one, a few, or many sovereignties will still suffer the occasional insurrection.
As a revolutionary warrior, Publius maintains the right to revolution against tyranny. The “original right of self-defense” part of our natural right to life, always remains “paramount” to “all positive forms”—i.e., all conventional, man-made forms—”of government.” The human institution of government rightly serves God’s ‘institution’ of human nature, and when the human contradicts the divine, the divine rightly asserts priority. This much we know from the Declaration of Independence: In some circumstances even the rule of law rightly gives way to illegal but just force.
Publius then advances a much more surprising argument, one based on prudential reasoning not logical deduction from first principles. Usurpation of citizens’ rights by “the national rulers” will find stiffer resistance than usurpation by the rulers of the member states. The lesser governments within the states—townships, counties—have relatively weak governments and so would likely lose any contest of arms to a state-capital cabal, especially if the state government controlled the militia. A usurpatory federal government, however, would face opposition by the states—by experienced public officials with every motive to remain alert to encroachments on their constitutional rights. The federal government under the new Constitution will check usurpatory moves by the states; the states will retain the power to check federal usurpation. “The people, by throwing themselves on either scale, will infallibly make it preponderate.” By ratifying this Constitution the people will do just that, peacefully, but they could also do so in war, if they judge it necessary—as they had, in 1776.
Here the argument of Federalist #10 for the value of an extensive republic reappears. There, extensiveness of territory diluted factions: groups of citizens acting some way “adverse to the rights of other citizens”—individuals—or to the “permanent and aggregate rights of the community”—the society as a whole. Here we see the reverse situation; a group of citizens acting in defense of their rights, in accordance with the permanent and aggregate rights of the community, will find refuge in the size of America. States distant from the usurpers who’ve seized the capital city would have time and space in which to organize themselves militarily and fight back.
This raises an obvious question: What if an unjust group or faction controlled distant states? Could the federal government suppress the rebellion? Publius cannot predict the outcome of such a struggle. If asked, he could only say that under the weak government of the articles, no such just suppression could occur at all.
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