A CHANGE IS GOING TO COME
FAVORED MINORITY RULE: HOW STRUCTURAL ADVANTAGES RIG AMERICAN DEMOCRACY AND HOW TO UNRIG THEM

From the Declaration of Independence through the Age of Federalism

• Slide 1: The Rigging of the Game and What Happened Next

Welcome to Episode 1 of a lecture series on U.S. history and constitutional law. I am glad that you have joined me in this exploration.

The root of the word “history” is story, and that is how I will present this lecture series—through stories. Some of the stories are well known, but we have been taught only one side of them, often, as they say, because history is written by the victors. Some of the stories are virtually unknown, but should be known. Sometimes, knowing the stories will tell you who the victors were.

The title of this series is “A Change is Going to Come — Favored Minority Rule: How Structural Advantages Rig American Democracy and How to Unrig Them.” We will be examining the broad swath of surprising and unknown U.S. history until we finally arrive at the purpose of these lectures, so buckle up and I hope that you enjoy the ride.

• Slide 2: The Declaration of Independence

“We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness.”

These iconic words, written by Thomas Jefferson in the Declaration of Independence in 1776, still resonate today. They set the goals for the American republic.

Of course, while the words are iconic, their meaning is ambiguous and contested. The Constitution, which was written eleven years later, did not answer that question. Instead, it set up a governmental structure whose purpose was also ambiguous. Was the purpose of the national government to serve the states or the people who live in the states? That tension between people-centered and state-centered visions runs through our entire history, and we’ll see it throughout this series.

• Slide 3: The Structural Advantages Held by Favored Minorities

The struggle for control of the national government has always been a game. The Constitution sets the rules of the game. Throughout our history, the structure of our government has given disproportionate power to certain groups — what I’ll call Favored Minorities. In my definition, the Favored Minority Coalitions are coalitions which include two types of power centers:

factions which control states through the use of voter denial and suppression laws and practices, and/or

factions which control less populated states. The Constitution mandates the equal representation of states in the Senate.

The Constitution also mandated the Three-Fifths Clause, which granted disproportionate power to slave owners in both the House of Representatives and the Electoral College.

There are a number of other practices which either are not directly addressed by the Constitution, and which have either been allowed or which the country has not had the political will to confront. These practices include:

— Gerrymandering
— Voter suppression
— The frozen size of the House, and
— The filibuster

• Slide 4: The Power of Favored Minority Coalitions

These structural advantages allowed Favored Minority Coalitions to:

Elect Presidents who share their values
Control or block Congress
Shape the federal judiciary, especially the Supreme Court

Over time, the Favored Minority Coalitions have used their structural advantages to entrench and add to their advantages, and the Supreme Court has helped them in that process.

That pattern — political structure enabling minority control, validated by judicial interpretation — repeats throughout our history.

• Slide 5: Three Areas of Contest

We’ll look at American history through the lens of three Areas of Contest:

— The extent of Congressional power over the States
— The extent of Congressional power over the Supreme Court
— The control of the national government by minority political coalitions using structural advantages required or permitted by the Constitution

These areas of contest have defined the American project. Each crisis, each constitutional moment, was shaped by these three tensions.

• Slide 6: How I Got Interested in This Project

Let me share a bit about how I came to this work.

I studied Constitutional Law with Gerry Gunther at Stanford Law School more than 50 years ago. His casebook is still in print — and still widely used.

I wrote a law review note about the Equal Protection Clause of the 14th Amendment. I thought — maybe naively — that I’d found a new way to help courts realize the Framers’ original intent.

Then life happened. I became a commercial real estate lawyer. Fast-forward to 2004. The Massachusetts Supreme Judicial Court ruled in favor of same-sex marriage.

I agreed with the result — but their opinion left the door wide open for challenge. The SJC sidestepped the hard constitutional questions. I was disappointed — but my interest in constitutional law was rekindled.

• Slide 7: Covid, Retirement, and Eric Foner

I retired in 2019. Then Covid hit.

In July 2020, I read a piece in The New Yorker about a new book written by Eric Foner, a Professor of History at Columbia University. His book, The Second Founding, fanned the flame. It taught me significant history that I’d been missing.

And, with the unexpected gift of time — thanks to retirement and the global COVID shutdown — I dove back in.

The result is this lecture series.

• Slide 8: Menu for Episode 1

Here’s what we’ll be doing in this series:

In the first lecture: we will look at the Constitution — why it was written, what it says, and how it set the stage for minority control. We’ll walk through the Age of Federalism, from Washington to Jefferson’s election.

In the second lecture: we will explore U.S. history from the Jefferson Administration through the Civil War. The Supreme Court entered the scene. The Slave Power–dominated Democratic Party coalition controlled the national government. The Supreme Court’s Dred Scott opinion propelled Lincoln to the presidency and ignited the Civil War. Congress enacted a law directly defying the Supreme Court’s interpretation of the Constitution.

In the next lecture we will see how, in order to evade the 13th Amendment’s ban of slavery, the defeated Southern slave states replaced their Slave Codes with new Black Codes, effectively imposing slavery under another name. These laws led to the enactment of the 14th and 15th Amendments.

The Framers intended the Reconstruction Amendments to increase Congressional power over the States, but the Court refused to accept them. Congress was hamstrung. The white supremacist faction of the South effectively won the Civil War.

Then we will learn how the structural advantages of the Favored Minority Coalitions were enhanced during the 20th and 21st centuries. We will see how the Supreme Court maintained its grip on Congressional power until FDR threatened to reform it.

The power of Congress grew until the Reagan presidency, when the Republican Party and the Federalist Society executed a long-term plan to take us back to before the Civil War.

We will end this series by exploring a legislative plan, which Congress has the power to enact without amending the Constitution, that could break up our frozen political coalitions by radically reducing the structural advantages held by today’s Favored Minority Coalition, and thus enable a shift of the power balance in all three Areas of Contest.

• Slide 9: A Nation Beset by Crisis

When the Revolutionary War ended in 1783 with the signing of the Treaty of Paris, the U.S. was in crisis — internally and externally.

• Slide 10: The Disputed Continent of North America before and after the Revolutionary War

Externally:

As you can see from this map, we were surrounded by European empires — France, Britain, Spain, and Russia.

Native American nations actively resisted U.S. expansion. The U.S. was weak, vulnerable, and unstable.

Internally:

States were fighting over borders and trade.

The national government couldn’t raise funds.
Revolutionary War veterans were unpaid and angry.

Then came Shays’ Rebellion — a tipping point that exposed the Confederation’s failure. That story warrants a closer look.

• Slide 11: Shays’ Rebellion

After the Revolution, many veterans returned home to find themselves drowning in debt, only to face harsh new taxes imposed by the Massachusetts legislature under Governor James Bowdoin. These taxes were designed to pay off the state’s Revolutionary War debt — now in the hands of wealthy Boston merchants who had profited while others fought. Other states did not follow the same harsh pathway as Massachusetts.

Daniel Shays, a war veteran, led an armed uprising to shut down the courts and stop foreclosures. No other state offered Massachusetts help, underscoring the weakness of the Confederation and fueling calls for a stronger national government.

• Slide 12: Articles of Confederation

The political structure governing the nation was set by the Articles of Confederation. The Continental Congress adopted the Articles in 1777 in order to fight the Revolutionary War. Under the Articles of Confederation, the U.S. had:

— No executive
— No judiciary
— No real taxing authority
— No regulation of trade
— No national army
— No means of enforcement of laws

Each state had an equal voice, and — except when the Congress was out of session — nine out of the thirteen states were required for any action.

The Articles were a very ineffective structure for the national government, both during and after the Revolutionary War. States acted like sovereign nations. The U.S. was weaker than today’s European Union.

Throughout this lecture series we will review the impact of our governmental structure on the balance of power in all three Areas of Contest. Let’s take our first look at the Areas of Contest Scoreboard.

The Scoreboards are intended to give you an easy to understand visual of which forces held the edge in the balance of power at each constitutionally critical moment in time. You will note that, in creating the scoreboards, I have used the colors Blue and Gray, the colors of the contending Civil War armies, as I believe that the structural advantages and structural ideologies of the contending forces in the Civil War echo throughout our history and continue to exist today.

From the time that the Continental Congress agreed to the Articles of Confederation until the ratification of the 1787 Constitution:

THE FAVORED MINORITY WERE THE POLITICAL ELITES OF THE SMALL STATES — THERE WAS NO NATIONAL COURT SYSTEM AS BETWEEN THE STATES AND CONGRESS, THE STATES HELD ALL OF THE POWER.

By 1786, it was clear: we needed a new government — or we would collapse.

• Slide 13: Why Did Congress Consent to the Constitutional Convention of 1787?

After Shays’ Rebellion, it was clear to everyone — especially to people like James Madison and Alexander Hamilton — that the U.S. needed a stronger national government. The country was close to dissolving. It was weak and vulnerable to attack by foreign powers. Fear, not principle, was the major motivator for reform.

A conference held in 1786 at Annapolis, Maryland among representatives of five of the states to resolve border disputes led to a call for a broader Constitutional Convention in Philadelphia the following year.

While the Convention was originally meant to amend the Articles of Confederation, it quickly became clear — we needed a new system entirely.

• Slide 14: The Delegates to the Constitutional Convention

55 delegates from twelve states came to Philadelphia. Rhode Island boycotted. The average age of the delegates was 42, and three of the most influential delegates were in their 30s.

• Slide15: James Madison

• Slide 16: Alexander Hamilton

• Slide 17: Gouverneur Morris

Some delegates, such as Madison and Hamilton, had grand visions for a strong national government. Others were there to protect their own state’s interests — most notably the five delegates from Delaware, which was the smallest state. They were under strict instructions from their state’s legislature to preserve equal voting for states. Effectively, they were told, if you give up our equal voice in the national government, don’t come home.

• Slide 18: Control of the Legislative Branch

The core issue at the Constitutional Convention was control of the Legislative Branch. The less populated states wanted equal representation. Slaveholding states wanted to inflate their own power—counting slaves as residents of the slaveowning states for purposes of determining their relative power in Congress, even while denying slaves all rights.

• Slide 19: The Virginia Plan

Madison arrived in Philadelphia with a plan, the so-called Virginia Plan. It was based upon his deep study of democracies of the past. He entered the Convention believing that a large republic would generate many cross-cutting “interests” (for example, creditors/debtors, regional, economic, religious, personal-leader followings). Because these interests would combine and recombine on an issue-by-issue basis, no single permanent majority would dominate; instead, shifting coalitions would check one another.

Madison did not anticipate the development of political parties which would prevent this fluidity of voting by enforcing party discipline among their legislative members, even against the interests of their constituents.

Madison also believed that equal suffrage among sovereign members, without a stronger national authority, leads to faction, usurpation, and collapse. He held up as an example the ancient Greek Amphictyonic League, which was structured this way and was defeated by Philip II of Macedon. His Virginia Plan proposed a bicameral legislature, with representation of each state in both houses being based on relative population.

This would have eliminated the small-state advantage — but it included a huge concession to the South: slaves would count as three-fifths of a person.

Northern delegates objected. As Elbridge Gerry (whose name lives on to this day for his gerrymandering of Massachusetts) asked:

“Why should blacks, who are property in the South, count more than the horses and cattle of the North?”

Still, the delegates from the slaveowning states demanded both: representation and ownership.

• Slide 20: The Connecticut Compromise

After weeks of deadlock, Roger Sherman of Connecticut proposed the so-called Connecticut Compromise:

Representation in the House based on population, including the Three-Fifths Clause Equal representation of each state in the Senate, and the Senate does not have the power to initiate taxing and spending bills.

The Connecticut Compromise was a tactical alignment between the small states and the slave states to achieve their goals of disproportionate power over both legislative branches.

The slave bonus was an extreme example of inflating the power of a minority faction which controlled a state by denying the right to vote of residents of that state. This dynamic has played out almost continuously throughout U.S. history.

The Connecticut Compromise passed narrowly — 5–4, with one state abstaining. You might ask, where was the compromise? What did the Northern states get in return for this compromise? Not much, according to Gouverneur Morris. On August 8, 1787, Morris gave speech to the Convention excoriating slavery and the likely impact of the Three-Fifths Clause.

• Slide 21: Gouverneur Morris’s Speech on Slavery

Here is what Morris said, as reported by Madison in his Notes on the Constitutional Convention:

Mr. Gouverneur Morris moved to insert ‘free’ before the word ‘inhabitants.’ Much, he said, would depend on this point. He never would concur in upholding domestic slavery. It was a nefarious institution. It was the curse of Heaven on the States where it prevailed.

Compare the free regions of the Middle States, where a rich and noble cultivation marks the prosperity and happiness of the people, with the misery and poverty which overspread the barren wastes of Virginia, Maryland, and the other States having slaves. Travel through the whole continent, and you behold the prospect continually varying with the appearance and disappearance of slavery. The moment you leave the Eastern States, and enter New York, the effects of the institution become visible. Passing through the Jerseys and entering Pennsylvania, every criterion of superior improvement witnesses the change. Proceed southwardly, and every step you take, through the great regions of slaves, presents a desert increasing with the increasing proportion of these wretched beings.

Upon what principle is it that the slaves shall be computed in the representation? Are they men?

Then make them citizens, and let them vote. Are they property? Why, then, is no other property included? The houses in this city (Philadelphia) are worth more than all the wretched slaves who cover the rice swamps of South Carolina.

The admission of slaves into the representation, when fairly explained, comes to this,—that the inhabitant of Georgia and South Carolina who goes to the coast of Africa, and, in defiance of the most sacred laws of humanity, tears away his fellow creatures from their dearest connexions, and damns them to the most cruel bondage, shall have more votes in a government instituted for protection of the rights of mankind, than the citizen of Pennsylvania or New Jersey, who views with a laudable horror so nefarious a practice.

He would add that domestic slavery is the most prominent feature in the aristocratic countenance of the proposed Constitution. The vassalage of the poor has ever been the favorite offspring of aristocracy.

And what is the proposed compensation to the Northern States, for a sacrifice of every principle of right, of every impulse of humanity? They are to bind themselves to march their militia for the defence of the Southern States, for their defence against those very slaves of whom they complain. They must supply vessels and seamen, in proportion to representation.

It is idle to suppose that the General Government can stretch its hand directly into the pockets of the people, scattered over so vast a country. They can only do it through the medium of exports, imports, and excises.

For what, then, are all the sacrifices to be made? He would sooner submit himself to a tax for paying for all the negroes in the United States, than saddle posterity with such a Constitution.”

So spoke Gouverneur Morris. And, despite the abolition of slavery at the end of the Civil War through the 13th Amendment, we shall see that Morris’ observations about the corrupting and distorting effects arising from disproportionate representation echo strongly throughout our history and even more so today.

• Slide 22: Impact of the Three-Fifths Clause

The Three-Fifths Clause established the structural advantage held by a Favored Minority Faction at the foundation of our nation. The Three-Fifths Clause inflated Southern power in the House and the Electoral College, allowing the Southern Slave Power to control the Presidency and Congress well beyond their demographic weight. This structural advantage proved critical in enabling the factions which controlled slaveowning states to dominate the national government until the Civil War.

• Slide 23: Impact of the Equal Representation of the States in the Senate

The equal representation of the states in the Senate, irrespective of population, was an unfortunate holdover from the Articles of Confederation. The reality of the structure was, and is, that every time a state enters the Union, the question becomes a political issue. The drawing of state lines is itself a form of long-term gerrymandering.

While the structure did not initially benefit the Southern states directly, it laid the seeds for political conflict and the hope for structural advantage. Every time a new state joined the Union, the question became a political struggle.

Before the Civil War, the question was always whether or not a new state would be a slave state or a free state. After the Civil War, the question was, and is, which political party will control the new state’s government.

• Slide 24: The Electoral College

Let’s look at the Electoral College. Each state’s number of electors in the Electoral College is equal to the number of its Representatives plus the number of its Senators.

So small states got a Senate bonus, and slave states got a slave bonus.

This guaranteed almost unbroken control of the national government by the first Favored Minority coalition — from Jefferson until Lincoln, either directly through the Three-Fifths Clause or as an essential part of the Democratic Party coalition.

• Slide 25: Congress v. the Supreme Court

Now let’s examine the power of the Judiciary. There was almost no discussion of the Supreme Court at the Constitutional Convention. But Article III of the Constitution makes it very clear:

Congress has full control over the inferior federal courts.

Section 1 of Article III makes crystal clear that Congress can create and recreate the lower courts by legislation. In addition, Congress has explicit direct power over the Supreme Court.

With two exceptions, Congress has the power to enact legislation both controlling the types of disputes that the Court has jurisdiction to hear and the manner in which the Court can consider those cases.

The only types of cases which Congress does not have the explicit power to eliminate from the Court’s jurisdiction are cases included in what is called “original jurisdiction:” a small number of cases where either a state is a party or an ambassador and certain types of public officials are a party.

Moreover, the Court’s power is limited to the judicial power — specifically the power to decide cases and controversies between parties. The Court does not have the power to make law. The Court’s power to influence anyone who is not a party before the Court is through precedent — what is called stare decisis. In other words, the concept is that if the Court decided a case on the same facts between one set of parties, it would do the same if other parties brought a dispute on the same facts before the Court.

The Court’s power is entirely contingent on Congressional design. The idea of three “co-equal branches” is a myth. In the Founders’ minds, Congress was supreme. This construct is very different from the popular understanding of today.

The bottom line is that Article III of the Constitution gives the Court judicial power only; Congress designs the federal judiciary and can shape the Supreme Court’s appellate docket.

• Slide 26: Congress v. the States

Let’s turn to another Area of Contest: the extent of Congressional power over the States.

The Supremacy Clause — Article VI, Clause 2 — says:

“This Constitution and the laws of the United States made in pursuance thereof… shall be the supreme Law of the Land…” That means when federal law and state law conflict, federal law wins. But how much law can Congress pass? That depends on how you read Article I, Section 8.

• Slide 27: The Heart of Congressional Power: Article I, Section 8

Section 8 begins with a broad grant:

Congress may “lay and collect Taxes… to provide for the common Defence and general Welfare…”

That sounds sweeping — but the general grant of power is followed by a list of 16 specific powers: establishing post offices, coining money, raising sarmies, regulating interstate commerce, etc.

• Slide 28: Last Paragraph of Article I, Section 8

Then comes the Necessary and Proper Clause, which says Congress can make laws “necessary and proper” to carry out its other powers.

There’s a broad reading and a narrow reading of Section 8. We will see that this dispute became the focal point of political contention during the first 30 years of the Republic.

Hamilton and the Federalist Party always argued for a broad reading.

Initially, when Madison and Jefferson were out of power, they and their Democratic-Republican followers asserted that Congress’s powers must be strictly construed, meaning that Congress’s power should be limited to the words in the document. However, they changed their tune when they were in power.

• Slide 29: The First Three Areas of Contest Scoreboard

Let’s now revisit our three Areas of Contest — and see how the 1787 Constitution set the stage for the power struggles to come.

First, the structure of government — the Senate, the Electoral College, the Three-Fifths Clause — baked in the disproportionate power of political factions which controlled less populated states and political factions which controlled slaveholding states. From day one, the Senate, Electoral College, and Three-Fifths Clause hard-wired minority leverage into national power.

Second, Congress is given broad power over the courts — but after the Founding Period, Congress has rarely exercised its powers over the Court, the primary exception being the immediate post-Civil War period. We will take a closer look at this era in our next session.

Third, the Supremacy Clause makes it clear that, in its areas of competence, Congress has undisputed power over the states. However, the extent of those powers has been contested from the beginning.

• Slide 30: The First Washington Administration

Let’s now turn to what happened once the Constitution took effect.

Washington became the first President. He was universally respected, but he did not see himself as partisan — he saw himself as above politics. However, that didn’t stop politics from forming against him and his policies.

He assembled the first Cabinet:

Thomas Jefferson — Secretary of State
Alexander Hamilton — Secretary of the Treasury
Henry Knox — Secretary of War
Edmund Randolph — Attorney General

In Congress, James Madison is now a powerful figure — elected to the House from Virginia. Jefferson (who did not attend the Constitutional Convention) and Hamilton were like oil and water. They represented fundamentally different visions of America.

• Slide 31: Hamilton’s Vision vs. Jefferson’s Fears

As Secretary of the Treasury, Hamilton laid out an ambitious national agenda:

— Creation of a national bank
— Assumption of state war debts
— Support for manufacturing, and
— Closer ties with Britain

Hamilton came to this understanding from his youth as a business person on the small island of Nevis in the Caribbean and from his studies at King’s College (now Columbia) in New York City.

Jefferson and Madison were horrified:

— They said that they want an agrarian republic.
— They feared centralized financial power.
— They said that Hamilton’s policies were a path to monarchy and corruption.

They purported to be afraid that the nation would adopt the British model of monarchy and aristocracy. However, were they really just trying to replicate the slaveowning Virginia landed aristocracy of which they were a part and to whom they owed their wealth and privilege? Were they afraid of centralized financial power because it would strengthen competing Northern states?

Washington was also Virginian and a slave-owning planter. However, much to the dismay of Jefferson and Madison, the President supported the policies of his Secretary of the Treasury and Revolutionary War aide Hamilton rather than those of his Secretary of State.

• Slide 32: The Compromise of 1790

• Slide 33: 

A pivotal moment occurred. Madison and Jefferson had sufficient support from their Southern allies in Congress to prevent the enactment of Hamilton’s legislative program. But Hamilton, Jefferson, and Madison struck a deal.

Jefferson and Madison agreed to support Hamilton’s plan for the national government to assume the Revolutionary War debt of the states (remember that Shays’ Rebellion was caused because of Massachusetts’s heavy-handed attempt to retire its debt).

And in exchange, the capital of the new nation would be moved south — from New York to Philadelphia for 10 years, then to a new federal city to be built in the swamps near Virginia: Washington, D.C.

This deal is immortalized in the musical Hamilton, in the song “The Room Where It Happens.”

This deal also had long-term consequences. On the plus side, it set the nation on a path towards a financially strong national government. On the minus side, the location of the nation’s capital adjacent to the future secessionist rebels almost handed the Confederacy an immediate victory in 1861.

• Slide 34: The French Revolution: Initial Support

In 1789, the same year that the Constitution was ratified and went into effect, the French Revolution began. At first, Americans were ecstatic. After all, France had helped us win independence. Now, everyone expected that the French would follow our example.

Even Federalists initially supported the French Revolution. But then… the guillotine started to fall.

• Slide 35: The Execution of Louis XVI

King Louis XVI was executed in 1793, and the monarchies in charge of European nations and empires were appalled.

The U.S. split in its reaction:

Federalists were alarmed by the bloodshed and revolutionary extremism.

Jefferson and Madison’s followers, who became the Democratic-Republican Party, continued to support the French cause, believing that the ideals of liberty justified the violence.

• Slide 36: Lafayette and His Family in the Olmutz Prison

Jefferson defended the French Revolution even after Lafayette — his friend and an American war hero — was imprisoned.

And he continued to support France even though, between 1789 and 1800, there were five very different administrations of the French government — running from King Louis XVI’s monarchy to the vengeful Jacobins under Robespierre to the ineffective five-man Directory to Emperor Napoleon.

This split in the American polity foreshadowed the first real political parties in America.

• Slide 37: France at War with Europe

After executing the King, France went to war with nearly every European power:

— Britain
— Austria
— Prussia
— Russia

Despite chaos at home, France’s armies performed remarkably well — especially under Napoleon.

But the British Navy still ruled the seas — and that posed a big problem for America.

• Slide 38: Washington Declares Neutrality

Washington saw the danger and declared neutrality.

He knew the U.S. was not ready for war — with either side.

But neutrality is harder than it sounds. Can a weak nation truly be neutral in a global war?

• Slide 39: The Genet Affair

In early 1793, the Girondists were in charge of French foreign policy. They sent a young diplomat, Edmond Genet, to the U.S. His mission:

Stir up revolts in Spanish Florida, British Canada, and the Louisiana Territory Enlist Americans to fight for France Demand repayment of Revolutionary War debts, and Use American ports as French naval bases Genet arrived in Charleston, not Philadelphia — and he began organizing militias and privateers without approval of the U.S. government.

Jefferson, as Secretary of State, was caught in the middle. He sympathized with Genet—but knew Genet was overstepping his. Jefferson wanted to support France, but he was in Washington’s cabinet.

Genet insulted Washington. Washington demanded that France recall Genet.

By then, the French government had changed — again. Genet’s allies had been guillotined. If he returned home, he would likely have been executed.

So Genet asked for political asylum. Washington granted Genet asylum. Jefferson resigned from his position as Secretary of State. These events accelerated Jefferson’s project of building the Democratic-Republican Party in opposition to Washington and his administration.

• Slide 40: British Aggression at Sea

Meanwhile, Britain was also causing problems for the U.S.:

— The British imposed a naval blockade on French trade.
— The British seized U.S. ships heading to French colonies.

The British Impressed American sailors into the Royal Navy. The British had some justification for these actions. Significant numbers of British sailors, who had themselves been forced into service, jumped ship, claimed U.S. citizenship, and then sailed on U.S. ships. The British claimed the right to recover these men.

The British continued to occupy Western forts that they promised, in the Treaty of Paris, to leave after the Revolution. By Western forts, I mean forts in the old Northwest, the lands which would become the states of Ohio, Indiana, Illinois, and Michigan.

The British armed Native Americans who were resisting U.S. expansion.

And finally, the British refused to compensate Southern slaveowners for slaves who had escaped to British lines during the war.

These unresolved issues led to one of the most consequential diplomatic moves of the decade: the Jay Treaty.

• Slide 41: The British Free the Slaves — The Black Exodus to Nova Scotia

Let’s pause on a critical but often overlooked episode.

During the Revolution, Britain made strategic use of slavery to weaken the American South: In 1775, Lord Dunmore promised freedom to slaves who fled to British lines.

In 1779, British General Henry Clinton expanded that promise through the Philipsburg Proclamation.

After the war, the British evacuated thousands of freed Black people from the U.S. Some were resold into slavery in the Caribbean.

But around 4,000 settled in Nova Scotia, where their descendants live today.

What does this have to do with the Jay Treaty?

Southern slaveowners demanded compensation for these enslaved people — turning foreign policy into a fight about slavery and property.

• Slide 42: The Jay Treaty

To resolve these growing conflicts, Washington sent Chief Justice John Jay to Britain in 1794. In the present day, it is difficult to imagine a sitting Supreme Court Justice directly involved in foreign affairs. Imagine Trump sending John Roberts to Russia to negotiate the end of the war in Ukraine with Putin.

It wasn’t easy for Jay to get the attention of the British Foreign Secretary, Lord Grenville. The British had bigger fish to fry. They were involved in controversies and battles around the world. France declared war on Britain in February 1793, and there had been major land and sea battles. Jay was made to wait ten days before meeting with Grenville.

Once they met, Jay negotiated a controversial treaty.

On the plus side from the American’s point of view:

— The British agreed to vacate their Western forts.

— The U.S. got most-favored-nation status in trading with the British. This meant that the British agreed that they would impose no higher duties or restrictions on American ships or goods than Britain imposed on any other country.

— They agreed to reciprocity: if Britain gave another nation lower tariffs or special access, the U.S. automatically enjoyed the same treatment, and

— The U.S. was given equal footing in colonial and European trade, except in the Caribbean.

These were very important concessions, as they normalized trade between the U.S. and Britain and led to American prosperity during the Age of Federalism.

On the minus side:

The British refused to stop either the impressment of U.S. sailors or the seizure of U.S. ships trading with France. However, the British did agree to pay for any U.S. ships and cargo seized by them and to neutral arbitration to resolve disputes about the amounts due from the British. So U.S. merchants did not object.

And, to the chagrin of the Southern slave owners, they refused to pay compensation for the freed slaves.

The Treaty enraged Jeffersonians — especially in the South. But Washington supported it, and the Senate ratified it, as it barely cleared the required ⅔ approval by the Senate: 20–10.

Washington supported the Treaty primarily because the Treaty, which was limited in duration, would give time for the U.S. to grow stronger to confront the much stronger British and French.

• Slide 43: French Retaliation and Monroe’s Sabotage

France was furious about the Jay Treaty.

They began seizing U.S. ships, just as the British had done.

And America’s ambassador to France, James Monroe, made things worse.

Monroe — a Jefferson ally — undermined his own government. He went beyond his instructions from Edmund Randolph, who was then Secretary of State. Monroe told the French, in substance:

“Wait out this president. Our next election will deliver your friends — Jefferson and Madison.”

The Democratic-Republican Party sabotaged the Federalist Party’s foreign policy. As we will see, this theme recurs at the highest levels of the Party until Jefferson and Madison take control of the national government.

Washington recalled Monroe in disgrace. But the damage was done.

• Slide 44: The First Contested Election — Adams v. Jefferson

After the Jay Treaty was signed, Jefferson and Madison formally organized opposition to Federalist policies.

— They attacked the Jay Treaty.
— They built support through newspapers and local political clubs.
— They rallied around France and agrarian idealism.

Initially, a large part of the U.S. populace supported Jefferson and Madison’s complaints. However, by early 1796, public opinion had turned in favor of the Treaty, both because Washington supported the Treaty, but more importantly, because commerce picked up. As neutral carrying trade expanded during the European wars, U.S. exports jumped over 300%, from about $8 million in 1795 to $26 million in 1796.

The Treaty was the central issue in the presidential campaign between Adams and Jefferson, and Adams won.

• Slide 45: The Adams Administration: Adams Was Ill-Prepared for the Presidency

John Adams became President in 1797. But Adams was in a weak position:

He wasn’t Washington’s political heir — that was Hamilton. He did not attend Cabinet meetings as Vice President. As a result, he did not participate in most of the decisions made by the Washington Administration.

He chose to continue with the same Cabinet Secretaries who were in Washington’s last Cabinet. Unfortunately for Adams, that Cabinet was loyal to Hamilton, not to him. Adams lacked the party-building instincts to unify the Federalists.

Jefferson became his Vice President — thanks to the absurd original rules of the Constitution. There was no separate election for Vice President. Instead, the second-place finisher became Vice President. This provision of the Constitution demonstrated that the Founders were not considering the possibility of opposing political parties. Another aspect of those rules would also play a major role in the next election, the election of 1800.

• Slide 46: Adams’ Foreign Policy: Caution and Balance

Adams tried to follow Washington’s lead — neutrality and moderation.

He sent a delegation to France to ease tensions.

Adams’s initial intention was to include Jefferson or Madison as delegates. Both declined. Worse still, Jefferson, knowing of Adams’s plans, intervened directly with the French representative in the United States. He held confidential meetings at his Philadelphia home with the French consul, Joseph Létombe, and advised him that France should not make any deal with the Adams delegation.

Rather, he urged the French to stall and wait four years, when the friends of France — Jefferson, Madison, Monroe, and their party — would win the next presidential election. Jefferson’s intervention is documented in French diplomatic correspondence.

Jefferson’s actions echoed Monroe’s statements to the French during the Jay Treaty negotiations, and they constituted an incredible breach of his oath, as Vice President, to the Constitution and might be considered treason, if the US were then at war with France.

One of the amazing things to me about this incident is that it is barely known. I only found out about it by reading a footnote in a Wikipedia article. That footnote led me to a great book, The Age of Federalism by Stanley Elkins and Eric McKitrick. In that book, I found another footnote which cited the correspondence, from the files of the French government, quoting Létombe’s correspondence disclosing the discussion with Jefferson.

• Slide 47: The XYZ Affair

The U.S. delegation consisted of three men — John Marshall, Elbridge Gerry, and Charles Cotesworth Pinckney.

Marshall was a Federalist, the second cousin of Jefferson, and a future Secretary of State and Chief Justice of the Supreme Court. He also disliked Jefferson.

Charles Cotesworth Pinckney was a slaveowner from South Carolina. He was a Federalist because he supported the idea of a strong national government. He was alarmed by the radicalism of the French Revolution.

As we know, Gerry was a delegate to the Constitutional Convention and a future gerrymandering governor of Massachusetts. He declined to sign the Constitution. He was a Democratic-Republican. Adams chose him to balance the delegation politically.

When the U.S. delegation arrived in France…

They were ignored by the French Foreign Minister, Talleyrand, and then approached by his agents — known to history as X, Y, and Z.

They were told by the French representatives that Talleyrand would not meet with them unless the U.S. paid:

50,000 pounds sterling as a bribe to Talleyrand 32 million florins as a loan to France (that’s over $900 million in today’s dollars).

The Americans refused. Talleyrand kept the Americans waiting for five months before meeting with them. Given the backdrop of the bloody French Revolution, the Americans feared for their own safety.

Marshall reported back to Adams. Adams initially withheld Marshall’s correspondence — he wanted to avoid war with France.

But when the Democratic-Republicans blamed the delegation for the failure of their mission, Adams released the letters from Marshall.

The American public reacted to the correspondence with a strong surge of patriotic support for the Federalist-led government.

• Slide 48: Alien and Sedition Acts

The failure of the mission to France and the continued French attacks on U.S. shipping led to a naval war between the U.S. and France, the so-called Quasi-War.

The release of the Marshall letters caused widespread outrage. The public felt that the U.S. had been insulted by Talleyrand’s behavior. As a result, the Federalist Party enjoyed the highest level of public support in its history, leading to the Federalists’ victory in the 1798 midterms.

They now controlled all portions of the national government:

— The Presidency
— The Senate
— The House
— The Supreme Court

This was their moment of maximum power.

What do they do with it?

They enacted legislation to expand the national army, with the intent of strengthening coastal defenses and increasing the size of the army.

They expanded the Department of the Navy, under Benjamin Stoddert, with the intent of building a Navy. Stoddert proved to be very effective, and the U.S. Navy won most of the naval engagements during the Quasi-War.

But the Federalists also passed some of the most controversial legislation in U.S. history. In 1798, Congress passed four laws: Alien Friends Act — which empowered the President to deport any non-citizen deemed “dangerous” (never used, expired in 1800).

Alien Enemies Act – which provides that, during wartime or invasion, the President can detain or deport male citizens of enemy nations. This is the law which Trump has been attempting to use to deport people whom he claims to be invading the U.S. within the meaning of the 1798 Act.

A Naturalization Act — which extended the residency requirement for an immigrant to become a U.S. citizen from five to 14 years, and

The Sedition Act — which criminalized “false, scandalous, or malicious writing” against the President or Congress.

The Sedition Act is the most infamous of these laws. It was used to prosecute newspaper editors, silence critics, and jail opposition voices. It would appear to have been a clear violation of the First Amendment’s guarantee of free speech.

As I mentioned, the Alien Enemies Act is the law which President Trump is attempting to use to deport people whom he claims are invading the U.S. within the meaning of the 1798 Act. The initial argument which Trump made in support of his use of the Alien Enemies Act was that the U.S. is being invaded by Venezuelan drug dealers. This argument would seem to be very weak, given that there were actual military hostilities between France and the U.S. leading to the enactment of the Alien Enemies Act. Could creating an argument supporting Trump’s use of the Act be one of the reasons why Trump initiated his attack on Venezuela on January 3, 2026? Someday, we will see what the Supreme Court says about that.

B Slide 49: Kentucky and Virginia Resolutions

With the Supreme Court full of Federalist appointees, Jefferson and Madison didn’t challenge the Sedition Act in court.

Instead, they did something far more dangerous. They authored the Kentucky and Virginia Resolutions, asserting that States can nullify Congressional laws which they believe to be unconstitutional.

Every other state legislature rejected these resolutions. But the idea of state nullification had been introduced.

These resolutions would form the highly contested basis for three subsequent risks to the Union:

In 1814, Madison and his followers feared that New England would secede at the tail end of the War of 1812.

In 1832, there was the so-called Nullification Crisis, where John C. Calhoun, then Governor of South Carolina, refused to pay tariffs imposed by Congress.

And, of course, in 1861, the Civil War started when the Southern states justified their secession by relying upon the Kentucky and Virginia Resolutions.

• Slide 50: The Bizarre Election of 1800

Let’s talk about the 1800 election. It’s one of the strangest — and most consequential — in U.S. history. The key facts are:

Federalists controlled all three branches of the national government just two years earlier.

The U.S. had just won a naval war.

The nation was enjoying prosperity fueled by the Jay Treaty’s stabilization of foreign trade, so one would think that the Federalists had the edge going into the election.

There was no national popular vote — state legislatures mostly chose electors.

Hamilton, the most important Federalist Party operative in New York, actively undermined Adams’s candidacy:

By urging Federalists to vote for Charles Cotesworth Pinckney, who was running for Vice President on the Federalist Party ticket, instead of Adams, and

By writing a 50-page broadside with arguments against Adams’s candidacy which hurt the Federalists.

Ultimately, through the efforts of Aaron Burr (who was running for Vice President on the Democratic-Republican ticket with Jefferson), the New York legislature voted for Jefferson and Burr.

Jefferson and Burr tied with 73 electoral votes each.

Burr refused to back down and the absurd rules of the Constitution did not require him to do so.

The election went to the House of Representatives. An election in which the House determines the President is called a contingent election. The rules of a contingent election are that each state gets one vote. It took 35 ballots to break the tie.

The tie was broken in Jefferson’s favor because Hamilton lobbied the Delaware Representative, the Federalist James Bayard, Jr., to vote for Jefferson rather than Burr.

The reason that Hamilton supported Jefferson over Burr is that he believed Burr was dangerously unprincipled while Jefferson, though an opponent, had fixed principles and a respect for constitutional limits. Hamilton warned Bayard that preferring Burr would be “ruinous” to the country, arguing Jefferson was “in every view less dangerous than Burr”— it is better a man with “wrong principles” than one with no principles at all.

What caused the chaos?

Electoral College design flaws (no separate votes for President and Vice President).

The Three-Fifths Clause slave bonus — without it, Jefferson would not have won.

Hamilton’s final act — he broke ranks and threw his support to Jefferson, calling Burr unprincipled and dangerous. It was not a surprise that three years later Burr shot Hamilton in their infamous duel.

Given Hamilton’s break with Adams, we can speculate that the Federalists would not have arrived at this fate if, in response to Jefferson and Madison’s many activities in opposition to Washington’s administration, some of them near treasonous, Washington had built his own party and caused Hamilton and Adams to work together and agree upon an order of succession.

• Slide 51: Areas of Contest Scorecard — 1800

We will end the first lecture of this series by evaluating the three Areas of Contest after the election of 1800. Where did things stand after Jefferson took office?

Congress vs. the States — Unclear

The Federalist Party, despite the resistance of Jefferson, Madison, and the Democratic-Republican Party, and their arguments that the powers of Congress must be strictly construed, enacted strong nation-building legislation, including assumption of the states’ Revolutionary War debts and the establishment of a national bank, a national army, and a national navy. However, while the Supremacy Clause suggests primacy of Congress, it was not clear how far its power extends, and states continued to act as near-sovereign entities.

Congress vs. the Courts — Congress was in control by default

The Court has been largely absent during the Federalist period. Interpretations of the Constitution have been shaped by Congress and the Executive, not the judiciary — yet.

Structural Advantages held by Favored Minorities — Clear win for the slave owning factions and the factions controlling less populated states

The first Favored Minority Coalition — the Slave Power and its northern allies—now controlled the presidency and Congress, thanks to:

— The Three-Fifths Clause
— Equal representation in the Senate
— The rules of the Electoral College

The rules of the game, as written in the 1787 Constitution, enabled control by the first Favored Minority coalition.

I hope you enjoyed our initial foray into the earliest years of U.S. history. The headlines for our next session:

Jefferson and Madison abandon their supposed strict constructionist principles to double the size of the Nation and embark on a questionable war with Britain;

John Marshall, as Chief Justice, survives Jefferson and Madison’s assault on the Federal Judiciary and strengthens the power of Congress over the states;

The ⅗ clause enables the slave owning Southern states to dominate the National government until the Civil War; and

The Supreme Court’s Dred Scott opinion leads to Congress’s statutory repudiation of the Supreme Court!

Continue to Script of Episode 2 >