June 2, 2010 – Federalist No. 26 – The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered, For the Independent Journal (Hamilton) – Guest Bloggers: Daren Bakst, J.D., LL.M., Director of Legal and Regulatory Studies at the John Locke Foundation and Troy Kickler, Ph.D., Director of the North Carolina History Project

Wednesday, June 2nd, 2010

At the start of Federalist No. 26, Alexander Hamilton addresses the challenging balancing act required between legislative power and liberty.  Using this as a jumping off point, he makes the case that the legislature must have the power to provide for the national defense.

While he acknowledges the balancing of interests, he argues that the scales tip toward having strong legislative power when it comes to national defense.  Restraining legislative authority in the area of national defense “is one of those refinements which owe their origin to a zeal for liberty more ardent than enlightened.”

He explains that it would “endanger the public safety” if there were “impolitic restrictions on the legislative authority.”  He goes on to suggest that anarchy would result and the American people would not support such an anarchy.

Hamilton then turns his attention to the question of standing armies during peacetime.  Pointing to England, he explains how it had lived under the rule of monarchs who had almost unlimited power.  After the Revolution of 1688, the monarch’s power to raise armies was drastically reduced.

The only manner in which an army could exist in peacetime was with the consent of the Parliament.  As Hamilton argues, even in England where the desire for liberty during this time was great, the only restraint believed necessary was to prohibit the executive from having sole power to raise armies.

The British revolutionaries who fought for liberty knew that there was a need for troops in peacetime.  There always needed to be troops ready to meet any contingency that faced the nation.  By placing power with the legislature, this was the proper balance between liberty and public safety.

According to Anti-Federalists, in particular Brutus in his “Tenth Letter,” those opposed to standing armies in peacetime were concerned with executives gaining excessive power.  To support this argument, they used Rome and Britain as examples.

In Rome, writes Brutus, Julius Caesar changed “it [Rome] from a free republic…into that of the most absolute despotism.”  In Britain, the armies had been used by Oliver Cromwell to take away the people’s liberty.

Hamilton though counters these concerns by stressing the role of the legislature.  One key protection was the appropriations process.  The legislature must, every two years, vote on whether to allow a military force.  Their constituents could hold them accountable at the ballot box if their actions were inconsistent with their will.

Further, according to Hamilton, state legislatures would protect their citizens.  Hamilton saw a strong federalist system where states fought against the encroachments by the federal government.  States would not simply voice their concerns, but they would be the vehicles by which the citizens would be protected.

Since Hamilton’s time, a key component to the power of state legislatures has been lost. Until 1913, state legislatures had the power to elect Senators.  They were not elected like they are now by a direct vote of the people.  This was a major check that states possessed in preventing excessive national power.

However, under the current system, state governments are mere shadows of what Hamilton envisioned.  This does undercut his argument.  The federal government has become a behemoth with state governments beholden to it due to an over-reliance on federal funds.

Fortunately, the military has never posed a significant threat to domestic tranquility.  This can be attributed to numerous factors, including the legislative check on executive power that Hamilton articulates in Federalist No. 26.  Given our country’s past and current foreign threats, he appears to have been correct in espousing the need for a standing army in peacetime.

– Daren Bakst, J.D., LL.M., is Director of Legal and Regulatory Studies at the John Locke Foundation and Troy Kickler, Ph.D., is Director of the North Carolina History Project.

11 Responses to “June 2, 2010Federalist No. 26 – The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered, For the Independent Journal (Hamilton) – Guest Bloggers: Daren Bakst, J.D., LL.M., Director of Legal and Regulatory Studies at the John Locke Foundation and Troy Kickler, Ph.D., Director of the North Carolina History Project”

  1. Jace Broadman says:

    So much of what’s in our Constitution is a result of the experiences that our founders had had before — things that worked and things that didn’t. This practical approach to setting up rules makes a big difference. Something as straightforward as the legislature’s role in defense was improved by the trial and error of the founders. I guess this makes me wonder why so many rules and proposed laws today seem to defy this tradition. Cap and Tax and the health care takeover come to mind. Have these worked anywhere before? Why must we be the experimenters?

  2. Susan Craig says:

    I’ve always felt that reform and power are pendulums which never stops at the bottom of the swing in perfect balance. The first, as an example, unions vs. owners, in the late 19th century owners were developing fiefdoms within their spheres so to empower the labor force unions were developed. In government it is liberty vs. order. What is counter intuitive is that reasonable boundaries are necessary to fulfill the promise of the Declaration of Independence for Life, Liberty and the Pursuit of Happiness. Rules like Fences make good neighbors.

  3. Jimmy Green says:

    As with our constitution the legislature does indeed have the power to provide for the national defense in Section 1 article 8 of the constitution. I’m not certain how the Federal Government got around the issue of “no appropriation of money to that use shall be for a longer term than two years.”
    The concern is in today’s world the executive branch is more inclined to initiate war regardless of the congress. I think WWII was the last time the legislature actually declared war as constitutionally required. Today the military is essentially at the Presidents disposal to be sent wherever, whenever. Does this imply the executive branch not the legislative is actually in charge of providing for the common defense? It seems a power vacuum has played out between the two branches and the Congress has surrendered its authorizations for war. This should be troubling to everyone. Besides this issue I do agree that in theory the legislative branch should have what ever power is needed to provide for the common defense. Although I’m not certain how to determine what size of a standing army we truly need.

    As Professor Kickler and Bakst pointed out “The federal government has become a behemoth with state governments beholden to it due to an over-reliance on federal funds”.
    This can be seen quite acutely in what former President Eisenhower termed the military industrial complex.
    Today’s attempts to kill most any major weapons system take a Herculean effort. Not because every weapons system is needed or wanted but simply because the cancellation of said system will involve the loss of thousand of jobs across many states. The congressman of those states will fight tooth and nail to maintain those jobs. And the defense contractors are clever enough to spread the development across as many states as necessary to ensure its survival. Sadly even weapon systems the pentagon does not want are built because the congressman is unwilling to allow the jobs to be lost. This is a detriment to the military and taxpayers.

    The mention of Rome via the Anti Federalist papers is amusing in that it’s hard to see that occurring to our republic currently. However as with Rome the executive power increased until Caesar took control as virtual dictator effectively ending any remnants of a republic. Today as I mentioned a power vacuum has been occurring in which the executive branch is wielding more power simply by taking it from the legislative branch.. This jeopardizes the check and balances needed to maintain a healthy republic especially in times of war. Although I don’t think were close to crossing a Rubicon in America I definitely have my concerns about the average citizens role as seemingly something less then “We the people” .

  4. Jimmy Green says:

    Sorry meant to say Article 1 section 8

  5. Dale Morfey says:

    Congress essentially delegated to the President, via the War Powers Act, the ability to respond to an act of war quickly (which the President already had under the Constitution) and to become involved in military actions that constitute acts of war.

    Congress has tried to delegate away one of their most important functions and We The People have allowed them to do so – to our shame.

    Remember the old saying “An ounce of prevention, is worth a pound of cure.”…? There being a time for everything… now is the time for the pound.

  6. James Roman says:

    James Madison Federalist papers
    Military: country capable of supporting without breaking the bank.
    Population 300 million

    Army 1/100 population= 3 million
    organized Militia 25 * Army= 75 million

    Militia@Large rest of population capable of bearing arms

  7. Barb Zakszewski says:

    Basically, every “war” since the Korean “War”, that the United States has fought in, has been Unconstitutional, in a strict sense. The President can go before Congress as FDR did in WWII, and ask for a declaration of War. But not even the Gulf wars and the current conflicts in the middle East are constitutionally declared wars, because the President has not done his Constitutional duty properly and Congress certainly has not either. No doubt, Congress has abdicated its role, in favor of politics and winning elections. Several of the wars including Korea and Vietnam have been police actions that the spineless United Nations have gotten us involved in. I would love to have seen GW Bush go before Congress after 9/11 and request a declaration of war, but against whom? The Taliban, Al-queda. Terrorists are much more elusive and undefined than a Nazi Germany or an imperalist Japan. So instead, we fought against and continue to fight these elusive terrorists, without an actual declaration of war. I don’t know what the answer is here, the United States must defend itself, but to grant SOO much power to one individual certainly cannot be what the Founders intended. We must go back to the Constitution and to the arguments made in the Federalist and see what those intentions were and try to find the answers that are already there.

  8. Thanks to everyone who joined our discussion today, and to our Guest Constitutional Scholar Bloggers, Daren Bakst and Troy Kickler!

    I asked you all last night to help us recruit kids to enter the We The People 9.17 Contest, Entries due July 4! Thank you!! We have had several new online signups today at http://constitutingamerica.org/contestsignup.php Please keep spreading the word!!

    Here is one additional request – as you recruit young people to the contest, please ask their parents, and the older kids, to join us on this blog! We learn so much from each other. The more people we have participating, the more we learn!!

    Tonight, the first paragraph of Federalist #26 grabbed my attention. I even printed it off and carried it down the hall to show my husband who was trying to watch TV in peace! But as he read the sentences below, he agreed – these words ARE relevant today:

    IT WAS a thing hardly to be expected that in a popular revolution the minds of men should stop at that happy mean which marks the salutary boundary between POWER and PRIVILEGE, and combines the energy of government with the security of private rights. A failure in this delicate and important point is the great source of the inconveniences we experience, and if we are not cautious to avoid a repetition of the error, in our future attempts to rectify and ameliorate our system, we may travel from one chimerical project to another; we may try change after change; but we shall never be likely to make any material change for the better.

    I admit I had to look up a few words. I had a vague understanding of their meanings, but reading the definitions added to the richness of Hamilton’s message.

    ameliorate – to make or become better, more bearable, or more satisfactory; improve; meliorate.

    chimerical – 1 : existing only as the product of unchecked imagination : fantastically visionary or improbable
    2 : given to fantastic schemes

    Even though Publius uses this first paragraph to make his case for the legislature to have the power to provide for national defense, these words reverberate with meaning, as I think of the numerous ways the balance between “legislative power and liberty” (thank you Mr. Bakst & Kickler for that phrase) has been disrupted.

    Our founders created a system of checks and balances, and nothing less than our freedom is dependent upon its equilibrium. Whether we tip too far towards anarchy, as Hamilton feared if the legislature wasn’t granted the power to provide for the national defense, or too far towards government control in our lives, the result is a deviation from the system of government our founding fathers so carefully designed. When “We the people” allow the government to get out of balance, we allow our liberty to fade, creating those “inconveniences,” Hamilton references, and we fail to make “any material change for the better.”

    Good night and God Bless!

    Cathy Gillespie

  9. “…the state legislatures, who will always be not only vigilant, but suspicious and jealous guardians of the rights of the citizens, against encroachments from the federal government, will constantly have their attention awake to the conduct of the national rulers, and will be ready enough, if anything improper appears, to sound the alarm to the people, and not only to be the VOICE, but if necessary, the ARM of their discontent.”

    When I read these words of Alexander Hamilton, I think to myself, “ WHAT HAPPENED?” This is one of the absolute best paragraphs in the Federalist Papers! When one wants to know what’s the big deal about the Federalist Papers, when someone wants to know why the United States Constitution important, when someone says, “We haven’t strayed that much from the Constitution,” I would direct them to this paragraph in Federalist Paper No. 26.

    These are the words that define the vision of our founding fathers, and the structure of the United States Constitution, in regard to restraining the federal government.

    “the state legislatures, who will always be not only vigilant, but suspicious and jealous guardians of the rights of the citizens”

    “against encroachments from the federal government, will constantly have their attention awake to the conduct of the national rulers”

    “and will be ready enough, if anything improper appears, to sound the alarm to the people, and not only to be the VOICE, but if necessary, the ARM of their discontent.”

    What are our state legislatures doing? They are not representing us in the U.S. Congress anymore and the federal government has tied their hands.
    The tenth amendment needs to be revisited and rekindled.

    Have we proceeded too far to save America? Will we ever get back to the true intention of our Constitutional government? Will American’s ever cut the umbilical cord?
    Are we to watch our flag burning in the street as citizens insist that the government owes them benefits? Will the age of entitlement ever be replaced by the original age of entrepreneurial vigor? Are we to sink on the same ship as Greece? Our GNP is projected to meet Greece’s GNP by 2020.

    How will America survive?

    If American’s do not know what they have they will not know when it is slowly being taken away from them.

    As Alexander Hamilton states,“Schemes to subvert the liberties of a great community, require time to mature them to execution.”

    The time has come and the alarm must sound before it is too late. What are our state legislatures doing? They are not representing us in the U.S. Congress anymore and the federal government has tied their hands.

    The tenth amendment needs to be revisited and rekindled.

    We must act now before America’s great liberties are swallowed into the great abyss of socialism and democracy fails – but this will happen only if we let it. We must be the VOICE and the ARM of discontent. The best way to do this is by education. We must educate our friends, our family, our neighbors, our CHILDREN about the United States Constitution, the Federalist Papers and our country’s founding principles.
    We must be vigilant!

    It begins with YOU. Spread the word about our website and “90 in 90,” and our contest for kids!

    God bless you!!
    God bless America.

    Janine Turner
    June 2, 2010

  10. “…the state legislatures, who will always be not only vigilant, but suspicious and jealous guardians of the rights of the citizens, against encroachments from the federal government, will constantly have their attention awake to the conduct of the national rulers, and will be ready enough, if anything improper appears, to sound the alarm to the people, and not only to be the VOICE, but if necessary, the ARM of their discontent.”

    When I read these words of Alexander Hamilton, I think to myself, “ WHAT HAPPENED?” This is one of the absolute best paragraphs in the Federalist Papers! When one wants to know what’s the big deal about the Federalist Papers, when someone wants to know why the United States Constitution important, when someone says, “We haven’t strayed that much from the Constitution,” I would direct them to this paragraph in Federalist Paper No. 26.

    These are the words that define the vision of our founding fathers, and the structure of the United States Constitution, in regard to restraining the federal government.

    “the state legislatures, who will always be not only vigilant, but suspicious and jealous guardians of the rights of the citizens”

    “against encroachments from the federal government, will constantly have their attention awake to the conduct of the national rulers”

    “and will be ready enough, if anything improper appears, to sound the alarm to the people, and not only to be the VOICE, but if necessary, the ARM of their discontent.”

    Have we proceeded too far to save America? Will we ever get back to the true intention of our Constitutional government? Will American’s ever cut the umbilical cord?
    Are we to watch our flag burning in the street as citizens insist that the government owes them benefits? Will the age of entitlement ever be replaced by the original age of entrepreneurial vigor? Are we to sink on the same ship as Greece? Our GNP is projected to meet Greece’s GNP by 2020.

    How will America survive?

    If American’s do not know what they have they will not know when it is slowly being taken away from them.

    As Alexander Hamilton states,“Schemes to subvert the liberties of a great community, require time to mature them to execution.”

    The time has come and the alarm must sound before it is too late. What are our state legislatures doing? They are not representing us in the U.S. Congress anymore and the federal government has tied their hands.

    The tenth amendment needs to be revisited and rekindled.

    We must act now before America’s great liberties are swallowed into the great abyss of socialism and democracy fails – but this will happen only if we let it. We must be the VOICE and the ARM of discontent. The best way to do this is by education. We must educate our friends, our family, our neighbors, our CHILDREN about the United States Constitution, the Federalist Papers and our country’s founding principles.
    We must be vigilant!

    It begins with YOU. Spread the word about our website and “90 in 90,” and our contest for kids!

    God bless you!!
    God bless America.

    Janine Turner
    June 2, 2010

  11. Neil Simpson says:

    It helps me a great deal when I see the explanation. It seems unusual that there was such a controversy over the control of the military. But that does seem to show that our founders had a lot of foresight in that they anticipated problems and then resolved them. I guess what I don’t understand is how we’ve gotten so far away from that ability. Are modern Americans less bright or is the divine no longer influencing our nation’s path?

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