What Would Patrick Henry Say Today?

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.

Ignorance and superstition are fertile grounds for the rise of a dictator. The dictator will promise to bring it all under control. He/she will pander to the nation’s less-thinking and vicious actors. With their aid, he/she can become president, the legislature can be populated with toadies, and the courts packed with loyalists or otherwise deprived of their power. Independent media and press are gradually eliminated as only state-approved podcasts and other media are allowed to cover the executive and his subservient Congress and judges. Opposition leaders and parties are prevented from participation in rigged elections that maintain a democratic façade as in Russia. Loyal military leaders are installed. Public and private institutions are forced to toe the line and fire employees who dissent. The dictator may seek new territory for the nation.

A citizenry educated in American history and civics is essential. If citizens do not understand how the American government was designed to work and how they can control it, they will not trust it and will or may seek to overturn it. Citizens and leaders must understand that once the courts have finally adjudicated a matter, such as that an election was not stolen, that is to be the end of the matter.

John A. Ragosta’s recent book, For the People. For the Country: Patrick Henry’s Final Political Battle, describes how the elderly, retired, and frail Patrick Henry, who had initially opposed the new Constitution without amendments, answered George Washington’s call in 1799 to reenter politics to oppose Thomas Jefferson’s Kentucky and Madison’s Virginia Resolutions. These Resolutions essentially called on states to nullify federal law, specifically the Alien and Sedition Acts, which outlawed criticizing Congress and President John Adams. Washington saw the Resolutions as threatening to destroy the nation.

In his last speech, Henry declared that overturning the government was justified only when oppression was intolerable and could not be otherwise addressed. He noted that our system allowed for offensive laws to be otherwise addressed in that they could be repealed or changed by the people’s elected representatives. He contrasted it with taxation without representation in Parliament and the ignored petitions to the King that had left the colonials with no means to otherwise address British oppression.

Patrick Henry would observe today that our system still provides a means for perceived oppression to be otherwise addressed. Should people complain that the period between a presidential election and the inauguration is too short for the court’s consideration of an election contest, there are ways to lengthen that period by a constitutional amendment to move the inauguration date or by legislation changing the date for the presidential election. Even where a “wicked man” is elected to the presidency, along with a legislature of toadies, the people can change that legislature in two years, potentially enabling impeachment, change the legislature and president in four years, and exercise First Amendment and other Constitutional protections. People can also seek protection in the courts.

Henry would presumably say today that as long as these remedies are available, they must be used. If a tyrant refused to abide by or effectively or outright terminated these interdependent rights and remedies, Henry would again declare, “give me liberty or give me death.”

Daniel O. Jamison is a retired attorney.