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This is the Fourth in a series of ten essays revisiting my book, Giving Up Is Unforgivable: A Manual For Keeping A Democracy, which was released a year ago. I wrote about the series of essays here. If you’re just finding Civil Discourse through The Republic, Revisited essays, I hope you’ll subscribe—it’s free—and join us.
What did the Founders mean to create when they created the presidency—and how is it different from having a king? Even as the “No Kings” movement grew in popularity because of Donald Trump’s perceived desire to take on that role, he never addressed the issue. He’s never denied his desire for an ever more powerful presidency invoking his “Article II” powers He’s never pushed back, never said he doesn’t want to be a king, or worse, a dictator. “Except for Day One,” Trump said during the campaign, “No, no, no, other than day one…After that, I’m not a dictator.” His love of strongman leaders like Vladimir Putin, Kim Jong Un, and Viktor Orbán suggests at what he desires the most for himself.
In my book, Giving Up Is Unforgivable: A Manual For Keeping A Democracy, I trace the origins of the Founding Fathers’ views on the power of the presidency they created and how it should be kept in check. Theirs was not an argument for a weak presidency, and neither is mine. It’s an argument for a presidency that is subject to checks and balances that prevent abuses of power while promoting its lawful exercise. Donald Trump has given us an object lesson in why those checks are so important.
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“The powers of the presidency are best understood in the context of the rights of kings. Or rather, in contrast to them, because that’s the situation the Founding Fathers were trying to avoid. Kings can declare war and deploy forces; they have all the power. In our Constitution, the president is the general in charge of the military, but his power is shared and constrained. Only Congress can declare war.
The Federalist Papers explain the architecture of our government, particularly the division of power and the concept of checks and balances, designed to prevent any one branch of government from accumulating power and exercising it on its own behalf, not the people’s. Presidents are elected to no more than two terms of four years. They can be impeached for misconduct and, in the language of Federalist 69, ‘afterwards be liable to prosecution and punishment in the ordinary course of law.’
In other words, a president is not supposed to be a king. That is central tenet to the balance of power established by the Founding Fathers who sought to guard against the concentration of power in one place.
At this point, we need to take up what’s called the unitary executive theory. It’s a theory about presidential power that originated on the far right of the political spectrum among those who desired a more powerful, even an omnipotent, presidency. Now it’s in vogue. In fact, in its Trumpian incarnation, it’s the only theory about the presidency that matters.
The unitary executive theory had its origins among small-government conservatives who were concerned that an expansive sprawl of executive branch agencies seemed destined to wrest the lawful powers of a president out of his grasp at the same time both the courts and Congress were shackling the president’s power. They believed that post-Watergate reforms had gone too far. The unitarians reasoned that because Article II, Section 1 of the Constitution provides that ‘the executive Power shall be vested in a President of the United States of America,’ the president must hold all, or at least most, of that power, to wield as he pleases, unimpeded by the courts, Congress, or civil servants in the federal bureaucracy. As Harvard Law professors Cass R. Sunstein and Adrian Vermeule explain Section 1 of Article II, ‘Those words do not seem ambiguous. Under the Constitution, the President, and no one else, has executive power.’ It’s a very muscular vision of the presidency.
The current version of the unitary executive seems to turn the sensibilities of small-government conservatives on their head. It would permit a president to make all decisions while demanding unquestioning allegiance from the executive branch workforce. Anything else, so the explanation goes, would prevent the president from fully implementing whatever mandate he believes the voters have given him. Rather than doing away with the conservatives’ hated nanny state, today’s unitary executive seems to want to control it for himself. In its most extreme expressions, the unitary executive cannot be prosecuted for criminal acts committed in office as long as they are arguably connected to official duties. That’s how the Supreme Court saw it in Trump v. United States. This unitary executive can swamp the other two branches of government and cement his control, behaving in ways no other citizen or institution can.
In practice, it’s less a political theory and more a power grab."
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Make no mistake: The Founding Fathers did believe in a powerful executive. But they emphasized, at the same time, that a president must be accountable. The Federalist Papers may seem to some to be the stuff of dry history. It’s time to change that. There is a lot they can teach us that matters today if we’re going to hold on to democracy.
The Founding Fathers expected the courts and Congress to act as a check on the presidency, not to succumb to it. Consider the power of the president to make foreign treaties and agreements. The founders concluded that power should be shared with the Senate. In Federalist 75, Hamilton wrote:
It must indeed be clear to a demonstration that the joint possession of the power in question, by the President and Senate, would afford a greater prospect of security, than the separate possession of it by either of them.
There was real appetite at the time of the founding to carefully allocate power and impose checks and balances because the colonists were done with the rule of kings.
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Human beings are attracted to power, and even the best-intentioned people can find the temptation hard to resist. When that power is the power of government, power over the people, it must be protected zealously from abuse. In Federalist 51, Madison wrote about the potential problems in terms that ring true today:
It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary.
Madison understood that elected officials, and especially presidents, would not always prioritize our “communal interests,” that government officials would inevitably push legislation and policies that were in their own interests, not their constituents’. And so the Founding Fathers created a system designed to protect people from government, one entrenched in the institutions themselves. In order to keep the presidency from becoming too powerful, Congress and the courts hold some share of power for their own and have the ability to check the executive branch. Other institutions, like the press, hold a president accountable by educating the electorate. Our military is civilian led, a deliberate choice made to lessen the risk of a military coup. And in the post-Watergate era, at least until recently, the Justice Department has not cooperated with the White House over who should be prosecuted and who shouldn’t be. Instead, it has made those decisions independently, based solely on the facts and the law, so criminal prosecution cannot be wielded as a political tool.
It is the balance among the institutions, as much as the institutions themselves, that provides security for our democracy.”
As I wrote the book in early 2025, my sense was that the guardrails were gone and Donald Trump would continue to pursue his desire for unchecked power. I wish that I had been wrong. But here’s the thing: he has now gone too far. That moment I posited, when the fever dream that is Donald Trump bursts and America comes to its senses? That seems to have happened on Tuesday.
This is not a moment to pump the brakes or negotiate with Donald Trump. It’s a moment to recognize what he has tried to do to this democracy and would doubtless have continued to do had Americans not risen up and spoken with a unified voice: “No Kings.” Corruption, competence, and costs all matter to voters. Fixing the problems Donald Trump has created is now something Congress can begin to work on come January. Can Congress and the lower federal courts impose limits on a runaway president? You bet they can. And it’s about time.
But there’s more to this moment. Saying no to kings is a good beginning. Now, we have to push beyond that and say yes to the kind of government the Founders intended us to have, and we can’t do that unless we understand what it means:
A government where no one is above the law.
A government where Congress exercises its own constitutional authority instead of surrendering it to the president.
A government where the courts are able to enforce the law without fear or favor.
A government where public servants work for the American people, not for the president, and personal loyalty to him is not in issue.
A citizenry that understands democracy is something that all of us have to work hard to preserve.
Right now, the questions I wrestled with while writing Giving Up Is Unforgivable feel more urgent to me than ever. When I wrote the book, I was trying to explain what we stood to lose and how we could prevent it. Now, we have a real chance to staunch the bleeding and begin reclaiming what is ours. But we can’t restore a constitutional democracy unless we understand how it’s supposed to work in the first place.
The book is a roadmap. And it’s also what we’re doing here at Civil Discourse. We’ve always been about more than simply understanding the news. We’ve been working to understand our responsibility to each other and to our country. It’s about rejecting cynicism and despair and committing to the hard work of democracy, even when it’s difficult or inconvenient. No one gets to be a spectator when our liberty is at stake.
So if you haven’t read Giving Up Is Unforgivable, I hope you’ll pick up a copy. Please read it, talk about it, and pass it along to someone who needs a reminder that the American experiment is worth fighting for. If you’re new to Civil Discourse, I hope you’ll join us and become part of this community. You can subscribe for free, and this is a great place for everyone who believes democracy is worth the effort.
The Founders didn’t give us a king. They gave us a republic, and the responsibility to keep it. Now it’s our turn.
We’re in this together,
Joyce
