Federalist 29-32-The Militia and Power of the States

Captain John Parker

It is clear in reading these last few Federalist Papers that Hamilton was aware that the citizens of the various states were clearly concerned about the existence of a standing army.  In Federalist 29 Hamilton anticipates the existence of state militias that would exist as a check against the power of the federal government. 

In addition to the standing federal army, Publius believes in the existence of a state level militia.  His understanding of this concept, would consist largely of a group of officers appointed at the state level,

“RESERVING TO THE STATES RESPECTIVELY THE APPOINTMENT OF THE OFFICERS, AND THE AUTHORITY OF TRAINING THE MILITIA ACCORDING TO THE DISCIPLINE PRESCRIBED BY CONGRESS.” [1] (Emphasis in the original).  

Hamilton envisions state militias that could be called up and federalized when a threat to the country exists. He brings up the idea of ‘posse comitatus’ a phrase that we typically shorten to the more familiar ‘posse’ in western movies.  It is defined, literally, as the power of the county.  This includes the idea that citizens can come together to enforce laws at the local level and, like our westerns, includes an officer who is appointed by the state or federal government to manage and lead.  

With regard to the question of what to do about a standing army that might enable the federal government to take away the rights of the citizens, that would be unlikely to happen because of these militias, “there is a large body of citizens, little, if at all, inferior to them (the federal army) in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens.”  A warehouse of arms, stored under the control of the state, seems unlikely to qualify.  Moreover, “Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.”  It is important to read that carefully.  Hamilton is not saying that they need to be assembled to drill, rather that they should be assembled to ensure that they are properly armed and equipped. 

In Federalist 30 Hamilton goes on to discuss the subject of taxation.  To those who fear federal taxation, the existing Articles of Confederation do not have any limits on the power of the federal government to impose taxes.  They do not have the power to question the “propriety” of the reason that the funds are being requested, nor the authority to create the means for collection. The need for taxation, at the federal level, was made in earlier papers and is largely there because of the need to build and sustain a military.  In the absence of a constitution there will either be no money, or the continual squeezing of the population for more funds.   If the taxes collected to this point are sufficient for the operation of the states, then there would undoubtably be a shortfall in the event of a war or any other circumstances that required more funds.  A new federal government would be able to borrow, something that the individual states would have problems doing.  

Because it is impossible to anticipate the future needs of the federal government, Hamilton in Federalist 31 defends the absolute power of the proposed government to tax.  Hamilton acknowledges the argument that there is a limited amount of money available to tax, and that the federal government might tax so high as to limit the ability of the state governments to tax at the levels that they need to survive.  

He starts by using the enlightenment comparison of human nature and mathematics.  In the same way that, “two straight lines cannot enclose a space; and all right angles are equal to each other”, then also, “every power ought to be commensurate with its object; that there ought to be no limitation of a power destined to effect a purpose which is itself incapable of limitation.”  The citizens cannot ask of the new federal government that it provide security against the most powerful nations in the world, and at the same time not give it the authority to take the steps that are necessary for it to do so.  

And once again we see Hamilton telling those who fear a federal government that they need not because it is the intent of the drafters to confine the power of this new national government, “to the nature and extent of the powers as they are delineated in the Constitution.”

This limitation of power of the federal government is continued in Federalist 32.  He says that, “the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, EXCLUSIVELY delegated to the United States.”  Hamilton is primarily talking about taxation here, but the general sovereignty of the states is one which he is careful to support.  The exception to this sovereignty is that no state should be allowed to tariff goods from another state (internet sales come to mind here).  

Free trade among the various states would be critical to economic growth.  When Hamilton states that the states have the exclusive, “power of imposing taxes on all articles other than exports and imports,” this is more than a statement of financial policy, it is another statement that limits the power of the state.  

The reason that this is significant is that it follows the concept of negation, in that, “a NEGATION of one thing, and an AFFIRMANCE of another; a negation of the authority of the States to impose taxes on imports and exports, and an affirmance of their authority to impose them on all other articles.”  What this means is that any negation of a state right in one area is a positive affirmation of their right to act in all other areas.  The legal concept he is stating here is that, “to list is to exclude.”  Only those things specifically reserved to the federal government are their purview.

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