Self-Coup and the Constitution

Abstract

A “self-coup”—or “autogolpe”—is the sudden seizure of power by a President or other chief executive in contravention of a nation’s laws. Although the term “self-coup” is relatively new, the phenomenon was familiar to the Framers, who made references at the Constitutional Convention to historical and contemporaneous episodes that we would now likely label “self-coups.” After the Convention, both Alexander Hamilton and James Madison addressed the self-coup threat in the Federalist Papers, presenting two contrasting but potentially complementary visions of how the new Republic might manage the risk of a presidential power grab. The Hamiltonian approach focused on presidential selection mechanisms and incentive structures, with the goal of guaranteeing that the Commander-in-Chief would have neither the inclination nor motivation to pursue a self-coup. The more familiar Madisonian model emphasized institutional checks and balances designed to ensure that the other branches and the states could and would restrain a President who went rogue.

This Essay seeks to trace the Hamiltonian and Madisonian models from inception through the bloody events of January 6, 2021, which marked the violent crescendo of the first self-coup attempt in American history. Although Hamilton and Madison both failed to foresee key legal and political developments, their writings on self-coup proved surprisingly prescient in significant respects. Consistent with Hamilton’s vision, “peer review” in presidential selection produced a line of leaders who—until Trump—were committed to playing by the constitutional rules of the game. But whereas Hamilton thought that the locus of peer review would be the Electoral College, instead it was the major political party establishments that came to fulfill the peer review function. Meanwhile, presidential incentive structures evolved in ways that favored the peaceful transition of power, even though the particular incentive that Hamilton emphasized—the perpetual prospect of reelection—never took on the central role that Hamilton ascribed to it. Madison, for his part, correctly anticipated that multiple layers of institutional safeguards would be necessary to check the President, though arguably the most important safeguard—the internal separation of powers within the executive branch—was one that Madison overlooked.

Following the Hamiltonian and Madisonian logics across the centuries can help us better understand how the United States avoided a self-coup attempt for so long and why that streak ended when it did. Reflecting on Hamilton and Madison’s insights, as well as their oversights, also can shed light on institutional reforms that may reduce the risk of another attempted self-coup or, worse yet, a successful one. Changes to the presidential primary process and tailored standards for post-presidential prosecution can shore up American democracy’s Hamiltonian defenses. Amendments to the process of filling executive branch and Supreme Court vacancies can bolster the Madisonian model’s multiple layers of protection. And beyond generating specific policy proposals, the Hamiltonian and Madisonian models—along with 235 years of intervening experience—can offer us a clearer view of American democracy’s strengths and vulnerabilities in the wake of the country’s first attempted self-coup.

Keywords: self-coup, constitution, January 6

JEL Classification: K00, K1, K10, K16, K19, K42