they mistrusted those who were not educated or well-born or well-to-do. More specifically, they feared the people’s power because, possessing, and esteeming, property, they wanted the rights of property protected against those who did not possess it. In the notes he made for a speech in the Constitutional Convention, James Madison wrote of the “real or supposed difference of interests” between “the rich and poor” — “those who will labor under all the hardships of life, and secretly sigh for a more equal distribution of its blessings” — and of the fact that over the ages to come the latter would come to outnumber the former. “According to the equal laws of suffrage, the power will slide into the hands of the latter,” he noted. “Symptoms, of a leveling spirit, as we have understood, have sufficiently appeared in certain quarters to give notice of the future danger.” But the Framers feared the people’s power also because they hated tyranny, and they knew there could be a tyranny of the people as well as the tyranny of a King, particularly in a system designed so that, in many ways, the majority ruled. “Liberty may be endangered by the abuses of liberty as well as by the abuses of power,” Madison wrote. These abuses were more likely because the emotions of men in the mass ran high and fast, they were “liable to err … from fickleness and passion,” and “the major interest might under sudden impulses be tempted to commit injustice on the minority.” So the Framers wanted to check and restrain not only the people’s rulers, but the people; they wanted to erect what Madison called “a necessary fence” against the majority will. To create such a fence, they decided that the Congress would have not one house but two, and that while the lower house would be designed to reflect the popular will, that would not be the purpose of the upper house. How, Madison asked, is “the future danger” — the danger of “a leveling spirit” — “to be guarded against on republican principles? How is th

The executive power in our government is not the only, perhaps not even the principal, object of my solicitude. The tyranny of the legislature is really the danger most to be feared, and will continue to be so for many years to come. The tyranny of the executive power will come in its turn, but at a more distant period.

to produce. As John Adams wrote, “Property monopolized or in the Possession of a few is a Curse to Mankind. We should preserve not an Absolute Equality. — this is unnecessary, but preserve all from extreme Poverty, and all others from extravagant Riches.”1 Here are ten steps that I think might help put us more on the course intended by the Revolutionary generation, to help us move beyond where we are stuck and instead toward what we ought to be: 1. Don’t panic Did the founders anticipate a Donald Trump? I would say yes. As James Madison wrote in the most prominent of his contributions to the Federalist Papers, “Enlightened statesmen will not always be at the helm.”2 Just after Aaron Burr nearly became president, Jefferson wrote that “bad men will sometimes get in, & with such an immense patronage, may make great progress in corrupting the public mind & principles. This is a subject with which wisdom & patriotism should be occupied.”3 Fortunately the founders built a durable system, one that often in recent years has stymied Trump. He has tried to introduce a retrogressive personal form of rule, but repeatedly has run into a Constitution built instead to foster the rule of law.4 Over the last several years we have seen Madison’s checks and balances operate robustly. Madison designed a structure that could accommodate people acting unethically and venally. Again, our national political gridlock sometimes is not a bug but a feature. It shows our system is working. The key task is to do our best to make sure the machinery of the system works. This begins with ensuring that eligible citizens are able to vote. This ballot box is the basic building block of our system. We should appreciate how strong and flexible our Constitution is. It is all too easy, as one watches the follies and failings of humanity, to conclude that we live in a particularly wicked time. In a poll taken just as I was writing the first part of this book, the majority of Americans surveyed said they th

As they knew, Aristotle warned that inequality brought instability, while Plato believed that demagogues exploited free speech to install themselves as tyrants. In founding a democratic republic upon law and establishing a system of checks and balances, the Founding Fathers sought to avoid the evil that they, like the ancient philosophers, called tyranny.

America was founded by men who understood that the threat of domestic tyranny is as great as any threat from abroad. If we want to be worthy of their legacy, we must resist the rush toward ever-increasing state control of our society. Otherwise, our own government will become a greater threat to our freedoms than any foreign terrorist.

In 1823 Thomas Jefferson, who as we shall see had long and painful experience with this incredible system, described it as, “The most dangerous blot on our Constitution, and one which some unlucky chance will some day hit.” Today the danger is more grave than when Jefferson put his finger on it.

The majority’s single-minded fixation on the President’s need for boldness and dispatch ignores the countervailing need for accountability and restraint. The Framers were not so single-minded. In the Federalist Papers, after “endeavor[ing] to show” that the Executive designed by the Constitution “combines . . . all the requisites to energy,” Alexander Hamilton asked a separate, equally important question: “Does it also combine the requisites to safety, in a republican sense, a due dependence on the people, a due responsibility?” The Federalist No. 77, p. 507 (J. Harvard Library ed. 2009). The answer then was yes, based in part upon the President’s vulnerability to “prosecution in thecommon course of law.” Ibid. The answer after today is no. Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law. Moving forward, however, all former Presidents will be cloaked in such immunity. If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop. With fear for our democracy, I dissent.

This commonwealth is determined, as it doubts not its co-states are, to submit to undelegated and consequently unlimited powers in no man, or body of men, on earth; that, if the acts before specified should stand, these conclusions would flow from them — that the general government may place any act they think proper on the list of crimes, and punish it themselves, whether enumerated or not enumerated by the Constitution as cognizable by them; that they may transfer its cognizance to the President, or any other person, who may himself be the accuser, counsel, judge, and jury, whose suspicions may be the evidence, his order the sentence, his officer the executioner, and his breast the sole record of the transaction; that a very numerous and valuable description of the inhabitants of these states, being, by this precedent, reduced, as outlaws, to absolute dominion of one man, and the barriers of the Constitution thus swept from us all, no rampart now remains against the passions and the power of a majority of Congress, to protect from a like exportation, or other grievous punishment, the minority of the same body, the legislatures, judges, governors, and counsellors of the states, nor their other peaceable inhabitants, who may venture to reclaim the constitutional rights and liberties of the states and people, or who for other causes, good or bad, may be obnoxious to the view, or marked by the suspicions, of the President, or be thought dangerous to his or their elections, or other interests, public or personal; that the friendless alien has been selected as the safest subject of a first experiment; but the citizen will soon follow, or rather has already followed; for already has a Sedition Act marked him as a prey: That these and successive acts of the same character, unless arrested on the threshold, may tend to drive these states into revolution and blood, and will furnish new calumnies against republican governments, and new pretexts for those who wish it to be believed that man cannot be governed but by a rod of iron; that it would be a dangerous delusion were a confidence in the men of our choice to silence our fears for the safety of our rights; that confidence is every where the parent of despotism; free government is founded in jealousy, and not in confidence; it is jealousy, and not confidence, which prescribes limited constitutions to bind down those whom we are obliged to trust with power; that our Constitution has accordingly fixed the limits to which, and no farther, our confidence may go; and let the honest advocate of confidence read the Alien and Sedition Acts, and say if the Constitution has not been wise in fixing limits to the government it created, and whether we should be wise in destroying those limits; let him say what the government is, if it be not a tyranny, which the men of our choice have conferred on the President, and the President of our choice has assented to and accepted, over the friendly strangers, to whom the mild spirit of our country and its laws had pledged hospitality and protection; that the men of our choice have more respected the bare suspicions of the President than the solid rights of innocence, the claims of justification, the sacred force of truth, and the forms and substance of law and justice. In questions of power, then, let no more be said of confidence in man, but bind him down from mischief by the chains of the Constitution.

Our second basic founding document, the Constitution, is basically a design how to prevent someone becoming a tyrant. It assumes that if we have three parts of the government they will balance each other, but what we saw unfold in the impeachment trial was the opposite. The Congress gave way, and then Justice Roberts also gave way. So that at the end... we have a much, much stronger executive claiming nearly absolute power, which is something that the Founders were precisely trying to prevent.

For the first time in American history, the Executive Branch of our government has not only condoned but actively promoted the treatment of captives in wartime that clearly involves torture, thus overturning a prohibition established by General George Washington during the Revolutionary War. It is too easy — and too partisan — to simply place the blame on the policies of President George W. Bush. We are all responsible for the decisions our country makes. We have a Congress. We have an independent judiciary. We have checks and balances. We are a nation of laws. We have free speech. We have a free press. Have they all failed us? Why has America's public discourse become less focused and clear, less reasoned? Faith in the power of reason — the belief that free citizens can govern themselves wisely and fairly by resorting to logical debate on the basis of the best evidence available, instead of raw power — remains the central premise of American democracy. This premise is now under assault.

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny.

Mr. MADISON thought it would be proper, before a choice shd. be made between a unity and a plurality in the Executive, to fix the extent of the Executive authority; that as certain powers were in their nature Executive, and must be given to that departmt. whether administered by one or more persons, a definition of their extent would assist the judgment in determining how far they might be safely entrusted to a single officer. He accordingly moved that so much of the clause before the Committee as related to the powers of the Executive shd. be struck out & that after the words "that a national Executive ought to be instituted" there be inserted the words following viz. "with power to carry into effect the national laws, to appoint to offices in cases not otherwise provided for, and to execute such other powers "not Legislative nor Judiciary in their nature," as may from time to time be delegated by the national Legislature." The words "not legislative nor judiciary in their nature" were added to the proposed amendment in consequence of a suggestion by Genl. Pinkney that improper powers might otherwise be delegated.

Does Madison's belief that separation of powers is necessary to prevent tyranny necessarily require a presidential system or even judicial review? As I pointed out, this reading makes Madison silly, or at least a casualty of historical developments, since almost all other democratic countries have rejected the first and some the second. Of course, like all others of his time Madison had to make judgments about constitutional arrangements with very little directly relevant historical experience to go on. Hindsight gives us the advantage of nearly two centuries of later experience, during which most of the stable democracies adopted a parliamentary system, only a few chose a presidential system, and none adopted the American presidential system.

Our founders were insightful students of human nature. They feared the abuse of power because they understood that every human being has not only "better angels" in his nature, but also an innate vulnerability to temptation — especially the temptation to abuse power over others. Our founders understood full well that a system of checks and balances is needed in our constitution because every human being lives with an internal system of checks and balances that cannot be relied upon to produce virtue if they are allowed to attain an unhealthy degree of power over their fellow citizens.