Observations on Federalist No. 25

In Federalist No. 25, Hamilton continues his discussion in favor of consolidating power under the control of the national government.  In particular, the power concerned in this essay is that of the defense establishment.  Just as Hamilton defended and argued for the proposed Constitution on a variety of different tacks, so too did its opponents.  In fact, many of Hamilton’s arguments were in response to, or perhaps in anticipation of those offered by the anti-Federalists.  In No. 25, Hamilton paints the fear of a standing army, as a mere straw man.

Aside from the obvious historical purpose, support for ratification of the Constitution, Hamilton’s perspective is interesting to consider in terms of its ramifications for the present day.  In the lifetime of this writer, few Americans have ever been concerned about the notion of a standing army.  Hamilton would appear to have called things correctly in suggesting that,

… As far as an army may be considered as a dangerous weapon of power, it had better be in those hands of which the people are most likely to be jealous than in those of which they are least likely to be jealous.

Hamilton was depending upon the continual distrust and suspicion of the people toward a federal government, more than that toward the States.  However, as time has passed, the federal government has assumed more and more of what has historically been state government responsibility, and except for those on the right, much of the populous is no longer suspicious or “jealous” of the federal government.  Consequently, it might behoove us to consider Hamilton’s subsequent sentence in this light.

For it is a truth, which the experience of ages has attested, that the people are always most in danger when the means of injuring their rights are in the possession of those of whom they entertain the least suspicion.

Despite Mr. Obama’s weak protestations to the contrary, the passage of the most recent Defense Authorization Act includes provisions for the use of the military domestically, to detain American citizens.

… it is the firm position of the Obama Administration that suspected terrorists arrested inside the United States will—in keeping with long-standing tradition—be processed through our Article III courts.  As they should be.  Our military does not patrol our streets or enforce our laws—nor should it.

In other words, don’t worry about what the law actually says, trust us.

Hamilton viewed misuse of the military by the federal government as unlikely unless there were substantial collusion between the Congress and the President.

The supposed utility of a provision of this kind [prohibition against maintaining a standing army by the federal government] can only be founded on the supposed probability, or at least possibility, of a combination between the executive and the legislative, in some scheme of usurpation.

What Hamilton might not have foreseen was the virtual abdication of authority by the Congress to the President, which has characterized the recent years – even to the extent of not controlling the purse strings of government by failing to pass a budget.  However, Hamilton doesn’t bother to address either the likelihood of this collusion or the abdication of power by the Congress.   Instead he says that prohibiting standing armies doesn’t solve this problem.  What’s interesting is that he drops this problem in front of the reader and indeed expands upon in it, noting that crises may be easily manufactured, but he never addresses it.  One can almost hear the words, “never let a good crisis go to waste.”

Should this [collusion between the President and the Congress] at any time happen, how easy would it be to fabricate pretenses of approaching danger! Indian hostilities, instigated by Spain or Britain, would always be at hand. Provocations to produce the desired appearances might even be given to some foreign power, and appeased again by timely concessions. If we can reasonably presume such a combination to have been formed, and that the enterprise is warranted by a sufficient prospect of success, the army, when once raised, from whatever cause, or on whatever pretext, may be applied to the execution of the project.

There are other aspects of Hamilton’s arguments which transcend his original purpose as well.  A big part of Hamilton’s justification for maintaining a standing army is practicality and prudence.  It might be disastrous to be required by constitutional precept, to be in a state of unpreparedness until such time as the country is attacked.

… All that kind of policy by which nations anticipate distant danger, and meet the gathering storm, must be abstained from, as contrary to the genuine maxims of a free government. We must expose our property and liberty to the mercy of foreign invaders, and invite them by our weakness to seize the naked and defenseless prey, because we are afraid that rulers, created by our choice, dependent on our will, might endanger that liberty, by an abuse of the means necessary to its preservation.

It’s a good argument and we would do well to look at the underlying assumption of weakness inviting attack.

Hamilton and many of his contemporaries were fed up with having a weak central government, incapable of protecting the people, or doing anything without the complete unanimity of its members. It is in this context that he refers to the “rights” of government.

[The example of Massachusetts superseding its own constitution restrictions on a standing army in case of internal revolt] also teaches us, in its application to the United States, how little the rights of a feeble government are likely to be respected, even by its own constituents. And it teaches us, in addition to the rest, how unequal parchment provisions are to a struggle with public necessity.

But the last phrase is the one that bears most scrutiny.

This two-edged argument concludes with Hamilton’s warning about fettering the government in areas in contradiction to self preservation – natural law.

… nations pay little regard to rules and maxims calculated in their very nature to run counter to the necessities of society.

When the laws are not respected, they are ignored.  When they are ignored in one area, they will likely be ignored in another.

Wise politicians will be cautious about fettering the government with restrictions that cannot be observed, because they know that every breach of the fundamental laws, though dictated by necessity, impairs that sacred reverence which ought to be maintained in the breast of rulers towards the constitution of a country, and forms a precedent for other breaches where the same plea of necessity does not exist at all, or is less urgent and palpable.

Hamilton warned that violations of the rule of law in emergency situations form precedents for other violations where no emergency exists, weakening the “sacred reverence” with which the Constitution is regarded.  He did not foresee the possibility of an executive wanting to do exactly that.