Federalist No. 28

Federalist No. 28
Alexander Hamilton, author of Federalist No. 28

Author	Alexander Hamilton
Original title	The Same Subject Continued: The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered
Country	United States
Language	English
Series	The Federalist
Publisher	The Daily Advertiser The Independent Journal The New-York Packet
Publication date	December 28, 1787
Media type	Newspaper
Preceded by	Federalist No. 27
Followed by	Federalist No. 29

Federalist No. 28, titled "The Same Subject Continued: The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered," is a political essay by Alexander Hamilton and the twenty-eighth of The Federalist Papers. The essay was published on December 28, 1787, under the pseudonym Publius, the name under which all The Federalist Papers were published. This is the last of the three essays discussing the powers of the federal government over a standing military, directly following Federalist No. 26 and Federalist No. 27. The theme of defense would be continued once more in the following essay, Federalist No. 29.

Federalist No. 28 addressed circumstances in which military force may be required to be used domestically by the federal government. Hamilton argued that federal intervention would be necessary only in case of an insurrection. He challenged the idea that a federal military would be necessarily a repressive tool in the hands of the federal government, arguing that misuse of federal power would be restrained by the nature of representative government. In any case state governments and the people would have a natural right to self-defense against federal government repression. Federalist No. 28 gave a more sympathetic portrayal of state governments than most of the Federalist Papers, ascribing to them a role in checks and balances with the federal government. Since the writing of this essay, the nature of military force has outstripped Hamilton's concerns, making armed resistance to government power impractical.

Summary

Hamilton acknowledged that military force is sometimes necessary in the course of governing, though he rejected the idea that it would be the standard method by which the government would enforce the law. He specified that use of force by the federal government would only be necessary to suppress an insurrection that a state government could not control on its own. He cited the Pennsylvania Mutiny and Shays' Rebellion in Massachusetts as examples, as well as a potential conflict over property disputes between New York and the Vermont Republic. He argued that a military is necessary for a country with representative government, or that it would be subject to the same instability that affected previous republics. Hamilton argued that even in a scenario in which several distinct confederacies of states existed rather than one union, the same problem would plague them. Federal militaries would still be necessary. His argument was meant to demonstrate that combat readiness separate from militias is always necessary, even if it does not take the form of a unitary government of all the states.

Hamilton then argued that the federal government would not necessarily be susceptible to tyranny as the Anti-Federalists feared because in a representative government the officials are subject to the will of the people who could replace them. He believed this made any concern of military repression of the people unlikely. In the event repression did occur, Hamilton argued that the right to self-defense would justify the people and the states to resist it. He claimed that state governments and the people together would be better able to defend against federal government repression than the people of a single state against their state government based on the size and scope of the nation. He described the relationship of federal and state governments as a check upon each other. Hamilton concluded that the practical aspects of military repression by the federal government make the concerns of the Anti-Federalists unreasonable.

Background and publication

Federalist No. 28 was written by Alexander Hamilton. Following the Constitutional Convention in 1787, Hamilton worked with James Madison and John Jay to write a series of essays to explain the provisions of the Constitution of the United States and persuade New York to ratify it. They published these essays in New York newspapers under the shared pseudonym Publius. It was published in the Independent Journal, the Daily Advertiser, and the New-York Packet on December 28, 1787, and it was printed in the New-York Journal on January 2, 1788.

Federalist No. 28 continued the arguments about use of force by the government that began in Federalist No. 24, and it directly followed Federalist No. 27 in its rebuttal of the anti-federalist argument that the military would be used to enforce federal law. The essay also supported the theory posited by James Madison in Federalist No. 10, stating that "the obstacles to usurpation" increase with the increased extent of the state. Hamilton's views of the use of force in relation to governance may have been influenced by examples of tyrannical government and resistance against it, including the American Revolutionary War.

Analysis

Use of force by the federal government

In Federalist No. 28, Hamilton conceded the point made by Anti-Federalists that there are times in which military force will be used to enforce federal law. It was a common practice of the period eventually outlawed in the United States by the Posse Comitatus Act during the administration of President Rutherford B. Hayes in the wake of Reconstruction after the Civil War. He argued that true instances of insurrection would be rare, but that military force in these instances is justified. Anti-Federalists feared the federal use of the military as a form of political repression against the people. Hamilton's argument was grounded in political realism. Rather than deny that force might be necessary he addressed the times when its use would be acceptable. He insisted upon the use of military force to challenge an insurrection at the local level or a state government that becomes tyrannical. His argument was that a federal military would supplement state militias that were ill-equipped to handle large-scale insurrections. He gave little credence to the idea that the military would be used against the entirety of the people, considering it highly unlikely. Overall, he placed more trust in the use of force by the federal government than by that of state governments due to his belief that the quality of the leadership would be better and further removed from the passions of local factions. Hamilton was a proponent of strengthening the federal government based on the weaknesses of the Articles of Confederation. Hamilton reiterated his support for representative government as the primary form of domestic security rather than codified restrictions on government or use of force against the government.

Use of force against the federal government

Hamilton maintained that the citizens have the final authority over the federal government, and should this authority be lost, then the citizens are justified in exercising its right of self-defense by engaging in conflict with the federal government. Hamilton's argument echoes those made by political philosopher John Locke a century earlier. Given the size of its population and land area Hamilton argued that self-defense in the United States would be considerably easier than in a smaller country where the government would hold the advantage. Hamilton also proposed that in our federal system, the state governments would serve as a basis of coordination not possible by citizens of individual states. Hamilton's arguments are extralegal, addressing scenarios for which federal law is no longer applicable. Hamilton's insistence on the right to self-defense against a repressive government is not mentioned in the United States Constitution, but it is the rationale for the American independence from Great Britain as expressed in the Declaration of Independence.

Federalist No. 28 gave the broadest defense of state governments of any of the Federalist Papers, tasking them with the responsibility of serving as a check on the federal government. Hamilton specified that this is only applicable in response to the unlikely case of federal repression of the people. In all other circumstances, he remained opposed to state action that exerts authority over the federal government, condemning such action in many other essays of the Federalist Papers. Hamilton alternatively argued that if there is no federal military to serve as a check on the states, then the states would be better positioned to repress the people for the same reason that they would be able to resist a tyrannical federal government.

Legacy

Hamilton continued his argument on safeguarding from repressive government in Federalist No. 29, referencing the right to bear arms. The argument that states had the right to defend themselves from the federal government would later be invoked by those in favor of nullification or secession, though in those cases the argument was often made as one of legal rights rather than natural rights. Federalist No. 28 has been invoked in multiple Supreme Court cases to analyze Hamilton's view of the relationship between the military and the government. Justice Sandra Day O'Connor referenced it in the 1991 case Gregory v. Ashcroft, and Justice Antonin Scalia did so in the 2006 case Hamdan v. Rumsfeld.

Hamilton's arguments regarding the use of force are anachronistic. The Posse Comitatus Act forbids the use of the military in civilian police matters and the development of modern militaries and weapons of mass destruction in the 20th and 21st century make citizen rebellion virtually impossible. State militias and private citizens would not have access to the same military resources as the federal army. Hamilton's appeal to representative government has become the primary element of Federalist No. 28 that is applicable in the present day.

References

ISBN links support NWE through referral fees

• Epstein, David F. The Political Theory of The Federalist. Chicago, IL: University of Chicago Press, 2007. ISBN 978-0226213002
• Johnson, Calvin H. Righteous Anger at the Wicked States: The Meaning of the Founders' Constitution. New York, NY: Cambridge University Press, 2005. ISBN 978-0521852326
• Levinson, Sanford. An Argument Open to All: Reading “The Federalist” in the 21st Century. New Haven, CT: Yale University Press, 2015. ISBN 978-0300199598
• Millican, Edward. One United People: The Federalist Papers and the National Idea. Lexington, KY: University Press of Kentucky, 2014. ISBN 978-0813160337
• Potter, Kathleen O. The Federalist's Vision of Popular Sovereignty in the New American Republic. New York, NY: LFB Scholarly Publishing, 2002. ISBN 978-1931202442
• Scott, Kyle. The Federalist Papers: A Reader's Guide. London, U.K.: A&C Black, 2013. ISBN 1441185860

External links

All links retrieved June 29, 2026.

• Full text of Federalist No. 28 at Avalon Project
• "Federalist Essays in Historic Newspapers," U. S. Library of Congress
• "Federalist Papers: Primary Documents in American History" U. S. Library of Congress
• The Federalist (Dawson)/28 Wikisource

Credits

New World Encyclopedia writers and editors rewrote and completed the Wikipedia article in accordance with New World Encyclopedia standards. This article abides by terms of the Creative Commons CC-by-sa 3.0 License (CC-by-sa), which may be used and disseminated with proper attribution. Credit is due under the terms of this license that can reference both the New World Encyclopedia contributors and the selfless volunteer contributors of the Wikimedia Foundation. To cite this article click here for a list of acceptable citing formats.The history of earlier contributions by wikipedians is accessible to researchers here:

• Federalist No. 28  ^history

The history of this article since it was imported to New World Encyclopedia:

• History of "Federalist No. 28"

Note: Some restrictions may apply to use of individual images which are separately licensed.