Thousands gather for People’s March on Washington

In Federalist 10, explaining some of the protections of the new Constitution in 1787, James Madison observed that, “Enlightened statesmen will not always be at the helm….” The Founders defined tyranny as the legislative, executive, and judicial powers all being combined in the hands of a single individual or small group of people. So, they divided these three powers into separate and independent branches of the government that checked and balanced each other, preventing this accumulation of power. If, however, the people elected an authoritarian president and a legislature of toadies, who allowed this president to install a compliant judiciary, this protection could be lost. Hence, when asked shortly after the Constitutional Convention concluded in 1787 what the delegates had created, Benjamin Franklin responded, “A republic, if you can keep it.”

Echoing Madison, the Supreme Court in 1866, in Ex Parte Milligan, 71 U.S. 2 (1866), wrote, “Wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln” as they overturned Lambden Milligan’s conviction before a military commission under martial law in Indiana during the Civil War. Milligan was charged with aiding a secret society that gave material support to the rebellion, conspiring to free Confederate prisoners, and conspiring to raid northern arsenals to come to the aid of the South. The Court’s five-member majority ruled that martial law could not be imposed in states where the civilian courts were open and functioning. Four members of the Court disagreed because state courts could be open and functioning but be in the hands of rebels. Martial law may again be tested, but more fundamental questions are how to prevent the rise of a tyrant in the first place and what remedies are available should the voters elect one.