The Founders’ checks and balances are fraying but holding — barely. Whether they keep holding is up to ‘We the People.’
The Founders’ checks and balances are fraying but holding — barely. Whether they keep holding is up to ‘We the People.’
T wo-hundred-and-fifty years after America’s Founding Declaration, the citizenry has grown discomfited and demoralized. Polls show support for democracy itself is down, especially among the young. So the semiquincentennial is a good time to take account of the ideals that represent the genius of America, and to ask whether they can be reengaged to improve our governance today.
That genius and those ideals include singular devotion to the rule of law, checks and balances, and James Madison’s insight in Federalist No. 47 that concentration of all power in the same hands is “the very definition of tyranny” — even when, as Jefferson observed, the concentrator may be himself elected. Also included among our Founding ideals was dedication to the precepts of republican virtue: self-restraint, self-improvement, humility, and respect for the moral and civic duty to serve the public interest over individual private interests.
The Framers designed a presidency subordinate to the law and to fundamental principles of morality. They declined to create a Machiavellian Prince — a ruler free to act ruthlessly, in defiance of legal, moral, and social norms, so long as he alone deemed his ends to justify his means. As Harvard’s great political scientist Harvey Mansfield explained in Taming the Prince, the Constitution established a strong president, but one dependent on the people’s will, the legislature’s authority, and an independent judiciary.
The Founders knew that it was not only the virtue of the nation’s leaders, but also of the citizenry, that was crucial to the survival of the Republic. Benjamin Franklin warned the Constitutional Convention that a government “can only end in despotism . . . when the people shall become so corrupted as to need despotic government, being incapable of any other.” And Alexander Hamilton warned, in Federalist No. 1, that “men who have overturned the liberties of republics . . . commenc[e] demagogues, and en[d] tyrants.”
America began with good reason to believe itself exceptional. John Winthrop promised a “city upon a hill.” Thomas Paine, whose Common Sense lit the revolutionary fire, declared that “the cause of America is in a great measure the cause of all mankind.” And, as for who would be the King of America? “In America THE LAW IS KING” (his capitalization!). Alexis de Tocqueville later wrote of a people he found to be “quite exceptional” — who were unburdened by suffocating hereditary structures, self-governing, civically engaged, inclined toward virtue by “self-interest rightly understood.” He also foresaw our national obsession with the law and legalism: “Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.”
America also had luck: Founders who, while not angels — and, on slavery, far worse — acted primarily as fiduciaries of the public trust rather than to line their own pockets. They called this virtue “disinterestedness.” Their model was George Washington, who, as a boy, copied out, among his over 100 other rules of civility, the rule: “Labour to keep alive in your Breast that Little Spark of Celestial Fire called Conscience.” The Framers were realists. They knew future presidents would not all be Washingtons, so they designed “precautions for keeping [rulers] virtuous whilst they continue to hold their public trust.” And Madison told the Virginia ratifying convention: “To suppose that any form of government will secure liberty or happiness without any virtue in the people, is a chimerical idea.” Virtuous leaders without virtuous followers can go only so far.
The inheritance was threefold: the Declaration’s creed of equality; the Constitution’s checks and balances designed to prevent tyranny; and an abiding rule of law instead of the rule of men. Lincoln took the creed as his mandate — rather than surrender the proposition that all men are created equal, “I would rather be assassinated on this spot” — and the Civil War and the Fourteenth Amendment essentially re-founded America on these principles.
The rule of law has mostly held. In Marbury v. Madison, the Supreme Court declared that in “a government of laws, and not of men,” it is “emphatically the province and duty of the judicial department to say what the law is.” In Youngstown, the Court stopped President Harry Truman from seizing the steel mills, even in wartime and notwithstanding the national security context. Justice Robert Jackson’s concurrence anticipated precisely the present weakness in our constitutional governance where a president would dispense with the constraints of law and separated powers: “Congressional inertia, indifference or quiescence,” Jackson wrote, would “enable, if not invite, measures on independent presidential responsibility.” Jackson’s essential lesson was that history has discovered “no technique for long preserving free government except that the Executive be under the law.”
America now confronts a challenge to that technique. In Donald Trump, we have a president who will not agree to be governed by quaint theories of checks and balances, at least so long as Congress can fairly be described as inert, indifferent, and quiescent. Madison believed that an ongoing contest of wills between ambitious legislators and chief executives would keep arbitrary power in check: “Ambition must be made to counteract ambition.” He would be astonished by today’s legislative capitulation.
But the Convention also framed the presidency with George Washington before its eyes — a president who pledged to a foundation for government predicated on “the pure and immutable principles of private morality,” by which he meant virtue, honesty, and respect for what the Declaration invoked as the “Laws of Nature and Nature’s God.” Our Framers never could have expected a president to profess to be restrained “only by my own morality,” rather than by law and fiduciary duty to the public. That is not the hallmark of a constitutional presidency; it is instead a Prince’s creed.
On the legal front, the current-day news is mixed. On emergency tariff powers, the Supreme Court deferred to Congress and reined in the president. On birthright citizenship, the justices sided with the plain words of the Fourteenth Amendment over the president’s intransigent ones. And in the Census and Federal Reserve cases, the chief justice called out presidential “pretexts,” reminding judges that they are “not required to exhibit a naivete from which ordinary citizens are free.” Put less euphemistically, this means that many judges, and some justices, believe the present government is routinely lying to them.
Overall, though, the Court has catered to untrammeled presidential power by summarily reversing scores of lower-court rulings on its “shadow” docket, often without explanation. But the unmitigated apogee of undue deference to the presidency came in Trump v. United States. There, the Court’s majority invented a nearly absolute presidential immunity from federal criminal law and did so in a case concerning the efforts of a president qua candidate to overturn an election by hook or by crook. Unless we can find a way to fix this, America can no longer claim that no man is above the law.
When told that Washington would surrender power after winning the Revolution, King George III said: “If he does that, he will be the greatest man in the world.” But Washington’s virtue no longer reigns in our land. Our president now teaches that honor is for chumps, and that imperious and corrupt behavior is the coin of the realm. So what is a nation to do? First, we shouldn’t completely panic — not yet, anyway. The rule of law is substantially alive and reasonably well outside of the White House. Second, Congress must simply start doing its job again, mustering its institutional ambition to counter the president’s. That remedy is inherently political; it lies with the voters who may very well deliver a strong opinion on this score in the forthcoming midterms. Third, lower-court judges must stay strong — civil society has won case after case against the president’s campaign of retaliation against ideological opponents. As Georgetown Law professor Stephen I. Vladeck has argued, Supreme Court justices should reinforce and insist on due respect from the Executive for the role of their fellow judges rather than undermine them via shadowy, emergency decisions.
Fourth, the Supreme Court must more forcefully and unequivocally uphold the Framers’ checks and balances, as did Justice Jackson and the Court in Youngstown. Effective and overt checking and balancing is especially critical when one party controls all three branches. As Harvard’s Richard Re has starkly observed, “judicial review may be most needed as a supplemental source of checks and balances in eras of strongly unified government.” The Court must desist from inordinately protecting the president — literally the most powerful person in the world — in the name of separation of powers. Such solicitude for unilateral authority risks the very concentration of power — in one branch, indeed one individual — that so terrified the Framers. All of the justices of the Supreme Court would do well to channel Common Sense and Marbury and emphatically demand that in America “the law is king,” not the president.
Fifth, Americans on the right and left should unite on civic education about our Founding ideals — a conversation Justices Sotomayor and Gorsuch have joined together. If Lincoln and Frederick Douglass could agree about the transcendent inspiration of the Declaration, Democrats and Republicans should be able to agree on the importance of teaching it better to new generations. Sixth, leaders at every level — parents, teachers, pastors, coaches, CEOs, public officials — must model self-restraint and morality, quintessential republican virtues, to better govern our baser appetites.
Finally, as any rock-ribbed Reagan Republican like me would advise, look back to Reagan. At Westminster in 1982, he predicted that “the march of freedom and democracy . . . will leave Marxism-Leninism on the ash-heap of history” and proposed a campaign “to foster the infrastructure of democracy.” “Democracy is not a fragile flower,” he said. “Still it needs cultivating.” His proposal became the National Endowment for Democracy — bipartisan, transparent, and chartered to promote free expression, free elections and the rule of law abroad. Congress should now do the same at home. This administration, which has sought to zero out NED’s funding, should instead reverse course and embrace an “America’s Endowment for Democracy” — the AED, a defibrillating wake-up shock for domestic civic complacency, and an excellent legacy for any president and Congress.
What could be more genius, or more virtuous, than reinvigorating our democratic ideals by retraining America on its Founding principles? “We the People” would then possess both the understanding and the means to tame a Machiavellian presidency — just as our Founders intended 250 years ago.
This essay is adapted from remarks delivered on October 2, 2026, to the 62nd Economic Conference of the Progress Foundation in Zurich.