From Jefferson to Lincoln

The Supreme Court Enters the Game; Slavery: Greed and Fear

• Slide 1: From Jefferson to the Civil War

Welcome to Episode 2 of our exploration of U.S. history and constitutional law. Now we dive into the formative decades of U.S. constitutional history — from the twilight of the Federalist era through the coming of the Civil War. As we go, keep one through-line in mind: does our Constitution ultimately serve people or states as corporate fictions? You’ll hear both concepts wielded in the battle for control of the National government.

• Slide 2: Menu for Episode 2

Her, we will explore:

The Supreme Court’s entry into the political fray The struggles, hypocrisy and luck of Jefferson and Madison

How the Slave Powers, the center of the first Favored Minority Coalition, used and retained their structural advantages to control the National government, and

The Dred Scott decision, its meaning, its impact, and how Congress reacted to it

• Slide 3: The Areas of Contest

In our first lecture, we introduced the idea that American history is shaped not just by personalities or events — but by structure. And three structural contests have persisted from 1789 to the present day:

The extent of power of Congress versus the states The extent power Congressional over the Supreme Court The dominance of the national government by a Favored Minority Coalition — a political coalition which gains control of the National government because it contains: (i) factions which control states through voter denial or suppression, and/or (ii) factions which control less populated states which have disproportionate power.

Let’s see how those battles evolved from Jefferson’s presidency to the Civil War — and how they shaped the country

• Slide 4: The Supreme Court Takes the Stage

We begin with a clash that almost destroyed the federal judiciary — a constitutional standoff between Congress and the courts.

It’s 1800. Thomas Jefferson had just defeated John Adams in one of the most bitter elections in U.S. history. Before leaving office, Adams and the outgoing Federalist Congress passed the Judiciary Act of 1801 — creating new courts and stuffing them with Federalist judges. Jefferson called them the Midnight Judges to convey the idea that the change in National judiciary by the Federalist Party after they had lost the election was illegitimate. It was a great public relations smear.

In response, after he took office, Jefferson and his Democratic-Republicans — furious at this last-minute entrenchment — repealed Adams’ Judiciary Act of 1801 and passed the Judiciary Act of 1802. Worried that the Supreme Court might immediately strike down their new Federal judicial structure, Jefferson’s Congress didn’t just repeal the new courts. The Act effectively closed the Federal judiciary from July through December of 1802.

This was a constitutional crisis in all but name. Could Congress do that? Would the Court fight back?”

• Slide 5: Chief Justice John Marshall

Enter Chief Justice John Marshall. You will recall from our first session that it was his correspondence to Adams in 1798 about the XYZ Affair that led to the highest point of Federalist Party power. He was a Federalist. Cousin of Jefferson. Brilliant. Ruthless. He knows that if the Court openly defied Jefferson, Jefferson might simply ignore it — and the Court might never recover.

So in 1803, the Court handed down a decision in Marbury v. Madison. Marbury had been appointed by Adams as one of those Midnight Judges, but, as a result of a minor technicality, his appointment was not completed and Secretary of State Madison and President Jefferson refused to allow Marbury to take office. Marshall pulled a masterstroke. He said: ‘Yes, William Marbury was wronged. He should’ve gotten his commission. But — this Court cannot help him, because the law he relied on is unconstitutional.’ Boom. Marshall gave Jefferson the political win — denied Marbury relief — but he established the most important judicial principle in U.S. history: Judicial Review.

For the first time, the Court asserted the power to strike down laws passed by Congress. And Jefferson, thinking he’s won, didn’t challenge it. But the real test came one year later, in Stuart v. Laird. Here, the Court quietly upheld Congress’s power to eliminate federal courts. Judicial independence? Only within limits. Marshall’s Court was playing a long game: gain legitimacy, avoid direct conflict, and build power incrementally.

Judicial review began here — but not judicial supremacy. The political branches’ design power over the courts remained intact.

• Slide 6: Impeachment

Marshall’s strategy had the effect, while Marshall was still alive, of empowering the Court to issue decisions aligned with Hamilton’s Federalist Party vision of a strong National government. It should also have had the effect of calming the immediate political storm, but it did not.

• Slide 7: District Court Judge John Pickering

Jefferson led his Congress to impeach one Federalist appointed judge, John Pickering. Pickering was a district court judge. He was impeached by the Democratic-Republicans on the grounds of “drunkenness and unlawful rulings.” Apparently, there was some evidence of Pickering’s mental decline, so there was not much opposition to Pickering’s conviction by the Senate in 1804.

• Slide 8: Justice Samuel Chase

The successful removal of Pickering, however, emboldened Jefferson and his partisans in their attack on the remaining Federalist Party bastion in the Supreme Court.

Jefferson next took aim at Justice Samuel Chase. Chase was an ardent Federalist. He was extremely upset about the Jefferson led reformation of the Federal judiciary, and he said so in public. Jefferson asserted that Chase’s political speeches, as well as his actions enforcing the Sedition Act of 1798, were impeachable offenses, in other words, treason, bribery or other high crimes or misdemeanors.

House had no problem issuing articles of impeachment against Chase, almost entirely along party lines. Recall that it takes a vote of ⅔ of the Senators to achieve a conviction under impeachment. Amazingly, even though the Democratic-Republicans held a 25–9 advantage in the Senate, Jefferson failed to convict Chase.

If Jefferson had successfully removed Chase from the bench, there is a significant likelihood that Marshall would have been next on the impeachment block.

• Slide 9: Jefferson and Madison: Slavery, Greed and Fear

Now, let’s zoom out. Because the story of Jefferson and Madison isn’t just about constitutional law — it’s about power, race, greed and fear.

In the Declaration of Independence, Jefferson famously wrote, ‘All men are created equal.’ But he enslaved over 600 human beings. Including Sally Hemmings — who bore him six children. His wealth, leisure, and political career were made possible by slavery. And he believed that blacks and whites could not live together in peace.

Madison was the key figure in the writing and ratification of the Constitution. But he also wrote that slaves are better off living in slavery than in freedom. Madison also owned hundreds of slaves. The wealth and status in Virginia of both Madison and Jefferson were based upon their own slave ownership which they inherited from their families. Freeing the slaves would have meant destitution for themselves.

Were Jefferson and Madison hypocrites? Yes. But they were also terrified.

Terrified by the Haitian Revolution — where enslaved people rose up and massacred white planters.

Terrified by Gabriel’s Rebellion in Virginia in 1800. Gabriel’s Rebellion was a planned slave uprising in Richmond, Virginia, organized by Gabriel Prosser, an enslaved blacksmith. Influenced by revolutionary ideals of liberty and equality circulating in the early republic, Gabriel and his followers intended to seize the Virginia state arsenal, march on Richmond, capture Governor James Monroe, and demand an end to slavery.

The plot was betrayed by informants and foiled by a thunderstorm on the night of the planned attack. Gabriel and dozens of conspirators were captured and executed. The rebellion terrified white Virginians, leading to harsher slave laws and restrictions on the movement, assembly, and education of enslaved and free Black people.

Jefferson wrote: “We have the wolf by the ear. We can neither hold him, nor safely let him go.”

That fear of violent slave revolt shaped everything — including their constitutional vision. Jefferson and Madison didn’t just want small government for abstract reasons. They wanted to keep power in Virginia — away from abolitionists in the North. They wanted local control because the local laws protected slavery.

• Slide 10: Madison’s Forked Legacy

Architect of a national Constitution, yet midwife to a state-centric rhetoric later used to resist equal citizenship and foment the Civil War This is “Madison’s forked legacy:” architect of a national Constitution, yet midwife to a state-centric rhetoric which:

Prior to the Civil War, empowered minority coalitions controlling slave states to justify disunion and the Civil War, and

After the Civil War, empowered vote denying and suppressing factions to resist equal citizenship and aggrandize their own power.

So we’ve seen the Court narrowly escape destruction, and the contradictions of Jefferson and Madison start to define American politics.

But what happens when they are actually in power? Spoiler alert: They abandon almost everything they claimed to believe in.

• Slide 11: Jefferson and Madison in Power

Jefferson ascended to the Presidency in 1801. He appointed Madison as his Secretary of State. They came with a radical agenda: dismantle centralized power, cut taxes, eliminate the national debt, and shrink the federal government. But what actually happened?

President Jefferson governed with… surprising continuity.

He kept Hamilton’s Bank of the United States. He continued to pay interest on the national debt He left the tariff in place — the very tariff he once called a tool of corruption.

So what gives? Was Jefferson a liar?

Not exactly. Like many revolutionaries, once in power, he realized: centralized structures aren’t just useful — they’re necessary. You can’t run a nation with 5 million people across a continent on anti-government slogans alone.

“Strict construction” yielded quickly to national necessity. These facts demonstrate that, even for the creators of “strict construction,” strictly construing the constitution to limit Congressional power was a tool of convenience to be used when your opponents are in power, and not a bedrock principle.

Jefferson's most lauded accomplishment as President is the Louisiana Purchase and for good reason. In order to enable the country to grow, it was essential that New Orleans become part of the U.S. Unfortunately, for the French loving Jefferson, New Orleans, as well as the greater portion of the West, was owned by France.

• Slide 12: Map of Roads in the U.S. 1800–1820

To understand Jefferson’s most famous and important act as President — the Louisiana Purchase — you have to understand transportation. In 1800, land travel was brutally difficult.

As you can see from this map of the roads of the United States in 1800–1820, there were only a few improved routes across the Appalachians suitable for wagons. There were no railroads. For commerce and settlement, the decisive highways were waterways.

• Slide 13: Map of Major Rivers and Lakes and Lakes in the U.S .

The next map shows the major waterways and lakes in the U.S. As you can see, the major river way was the Mississippi River and whoever controlled the mouth of the river, in other words, New Orleans, controlled travel within the continent.

• Slide 14: Political Map of the U.S. and Adjacent Territories in 1800

And as you can see from this political map of the U.S. and Adjacent Territories in 1800, New Orleans was owned by the French and the Mississippi River was jointly controlled by the French and the U.S.

• Slide 15: The Louisiana Purchase

Then came the Louisiana Purchase — the moment that defined Jefferson’s presidency. Napoleon sent an expedition of 10,000 men to France’s former richest colony, Haiti. His goals were to reconquer Haiti, re-enslave the rebels, and then send his army to New Orleans. If he had been successful, that would have put a chokehold on further U.S. expansion. Instead, Napoleon was defeated by France’s former slaves and by malaria.

So, needing money both for his plans to conquer Europe and for France’s war with Britain, Napoleon offered to sell the Louisiana Territory to the U.S. — doubling the size of the U.S. overnight.

• Slide 16: Jefferson Abandons the Doctrine of Strict Construction

Jefferson jumped at the deal. But there was a problem for Jefferson: the Constitution doesn’t say the President can buy land.

Here’s Jefferson, the strict constructionist, writing to his Attorney General Levi Lincoln after the treaty is signed with France, but before ratification by the Senate:

“The general government has no powers but such as the constitution has given it; and it has not given it a power of holding foreign territory, and still less of incorporating it into the Union. An amendment of the Constitution seems necessary for this. In the meantime we must ratify and pay our money, as we have treated, for a thing beyond the constitution, and rely on the nation to sanction an act done for its great good, without its previous authority.”

So what did he do? He bought it anyway. And the Democratic-Republican controlled Senate ratified it. This was constitutional pragmatism. Or if you like, hypocrisy. Jefferson threw out his supposed principles for a massive land grab.

Either way, these facts demonstrate that, even for the creators of the “strict construction,” strictly construing the constitution to limit Congressional power is a tool of convenience to be used when your opponents are in power and abandoned when you are in control and deem it necessary to achieve your own political goals.

• Slide 17: Expansion Became a Tool of Slave

Power Jefferson’s primary goal in acquiring the Louisiana Territory was straightforward: to secure control of New Orleans and the Mississippi River so that the farms and businesses of the nation west of the Appalachian Mountains could be linked to the global economy.

In 1802, neither the United States nor the European powers even knew the true extent of the Louisiana Territory. But as we shall see, the acquisition of these vast new lands opened a dangerous political battlefield — one in which the leaders of the slave-owning South would press their structural advantages.

This is not to say that there were no other forces feeding American land hunger. In the North, the explosion of immigration continued throughout the nineteenth century and fed demand for land. Expansion also functioned as a solution to inequality, instability, and failures of governance.

Nevertheless, slave power control of the national government stood at the vanguard of America’s so-called Manifest Destiny. More land meant more states. More states meant more senators. And if slaveholders did not expand westward, they would eventually be outnumbered in Congress.

Jefferson envisioned an “empire of liberty.” For many of his political heirs, the U.S. became something else entirely — an empire in which liberty depended on the bondage of Africans and the displacement of Native peoples.

• Slide 18: The Embargo Disaster

After the Louisiana Purchase, Jefferson and his Secretary of State Madison tried an experiment in “peaceful coercion.” Actually, they tried the experiment five times and failed each time.

The first time was in 1807. With Britain and France at war, and U.S. ships getting harassed, Jefferson’s Democratic-Republican Congress enacted the Embargo Act.

The law shut down all foreign trade — hoping to force European powers to respect American neutrality.

Instead, it wrecked the U.S. economy. Especially in New England — where Federalist merchants went bankrupt. This was Jefferson’s most aggressive use of federal power — and it was a spectacular failure. Farmers and shippers smuggled goods across the Canadian border.

He sent the Navy to enforce the embargo — against his own citizens. Opposition exploded. Jefferson ended his presidency politically wounded and unpopular — and handed the mess to James Madison.

• Slide 19: Madison’s War of 1812

Cue “forked legacy:” Madison inherited both a national project he helped design and a states’ rights rhetoric he helped popularize — those two paths now collided.

Madison took office hoping for stability. But he caved to pressure from the “War Hawks” in Congress — including Henry Clay and John C. Calhoun — led the country into a conflict with Britain.

The War of 1812 was a disaster:

U.S. forces invaded Canada — and failed; The Nation’s military weakness was exposed, and internal divisions deepened.

• Slide 20: The Burning of Washington

Two years into the war, Madison and Congress fled Washington, as British troops burned the White House and much of the town to the ground.

The U.S. survived because Britain was more focused on Napoleon.

When the war ended in 1815, nothing had changed on paper. But politically, everything was different.

• Slide 21: The Collapse of the Federalists

Unaware that the war was about to end, as the British, on the advice of the victorious Wellington, were preparing to enter into the Treaty of Ghent, New England Federalists held the Hartford Convention. Madison and his ruling Democratic-Republican Party were worried that New England might secede by following the logic of Madison and Jefferson’s Virginia and Kentucky Resolutions.

In fact, the Federalists took a more moderate approach. They correctly argued that the war was a disaster and that the South had too much power. The Convention issued a report demanding that the Constitution be amended to eliminate the Three-Fifths Clause, the primary structural advantage held by the Southern states.

This demand demonstrated that the Federalists clearly understood that the struggle for control of the National government is a game and the rules of the game had been rigged against them.

But history isn’t kind to losers. The war ended. Two months later, Andrew Jackson won the needless Battle of New Orleans. And the Federalists were branded as traitors.

Within a few years, the party collapsed.

So Jefferson and Madison came to power promising limited government — and left behind a bigger, more centralized, and more fragile Union.

Next, we’ll see how one branch of the government — the Supreme Court — quietly built itself into the true guardian of national power.

• Slide 22: The Nation Building Decisions of the Marshall Court

While Democratic-Republican Presidents and Congresses stumbled through wars and embargoes, one branch of government steadily built power: the Supreme Court, under Chief Justice John Marshall. Marshall served as Chief Justice from 1801 to 1835 — 34 years. That’s longer than any other Chief Justice in U.S. history.

And under his leadership, the Court became the central institution for implementing Hamilton’s Federalist Party vision, defending national power against state resistance.

This wasn’t done through drama or public battles. He built legitimacy through careful doctrine, brick by brick, case by case.

• Slide 23: Martin v. Hunter’s Lessee (1816)

One of those bricks is the case of Martin v. Hunter’s Lessee.

The Virginia courts resisted Supreme Court review. They said: “We don’t care what the Supreme Court says. We’re not bound by their decisions.”

But the U.S. Supreme Court said, “Oh yes, you are.”

The Supreme Court asserted final authority over state courts in matters of federal law. This was, and is, critical — because without that, the Constitution would have become optional at the state level.

It was also deeply controversial. Many Jeffersonians saw this as a judicial coup. But Marshall didn’t back down. He knew that a fragmented legal system would be a weak one.

• Slide 24: McCulloch v. Maryland (1819)

And then came McCulloch v. Maryland — perhaps the most important case in early U.S. history.

The question was can Congress create a national bank?

Using Madison and Jefferson’s old strict construction argument, Maryland said no, there is nothing in the Constitution which expressly grants the power to create a bank to Congress — and Maryland tried to tax the federal bank out of existence.

Marshall’s answer: Congress absolutely can create a bank — even if it’s not listed in the Constitution — because it is “necessary and proper” to execute its powers.

And no, Maryland can’t tax it. “The power to tax involves the power to destroy,” he wrote. What was at stake here isn’t just a bank — it’s the meaning of federal power.

Marshall said: the Constitution isn’t a straitjacket. It’s a living framework that gives Congress discretion.

That view — a broad interpretation of the power of Congress under the Constitution — became foundational for the modern state.

• Slide 25: Cohens v. Virginia (1821)

In Cohens v. Virginia, Marshall reaffirmed that the Supreme Court can overrule state supreme courts — even in criminal cases, if they raise Federal issues. This was a direct confrontation with state sovereignty. Jefferson and his followers had imagined a system where states could resist the federal government.

Marshall was building something very different — a national government, with the Supreme Court as its final voice.

• Slide 26: The Logic of Marshall’s Strategy

How did he get away with it? It is astonishing given that the Jefferson/Madison coalition and their political heirs were directly in control of the Presidency and Congress for most of Marshall’s tenure as Chief Justice.

First, Marshall wrote opinions which were clear and memorable.

Second, he usually convinced the entire Court to speak with one voice — unanimous rulings that looked like consensus and projected legitimacy.

Third, he avoided unnecessary fights, asserting power while limiting the immediate political cost. Remember: in Marbury, he ruled against his own party’s interests to protect the Court. And in Cohens, after asserting the Supreme Court’s power to review the Virginia Supreme Court’s decision, he ruled in favor of Virginia — the Cohens’ convictions were affirmed.

Fourth — and crucially — Supreme Court justices had life tenure. Jefferson and Madison might rage in private, but the only way that they could have removed Marshall would have been impeachment by the House and conviction by the Senate.

The failure of the Democratic-Republican controlled Senate to convict Justice Samuel Chase in 1806 after the House passed a trumped up impeachment buried that possibility.

Over time, people just got used to the idea that the Court was the final arbiter.

The next chapter of this story is more violent, more unstable, and more dangerous. It’s the rise of the Slave Power — and the structural conquest of the federal government by a Southern minority faction.

• Slide 27: Expansion as Strategy

By the 1820s, slavery was no longer just a regional institution — it was the foundation of Southern political strategy.

Why? Because the Constitution’s structure rewards land and bodies — not just voters. In the House and the Electoral College, enslaved people counted as three-fifths of a person for apportionment. That gave slave states more seats in the House and more electors in the Electoral College.

In the Senate, every new state means two more votes.

And so, the South pursued an aggressive strategy of territorial expansion to maintain its advantages in controlling the National government.

• Slide 28: Missouri Compromise (1820)

It started with Missouri. When Missouri applied for statehood as a slave state, Northern politicians pushed back.

A compromise was fathered by Henry Clay: Missouri entered as a slave state, Maine entered as a free state, and Congress drew a line — latitude 36°30′ — above which slavery would be banned in the Louisiana Territories.

It was meant to preserve the balance in the Senate. But it was also a warning sign: slavery was now shaping national geography.

• Slide 29: Indian Removal and Southern Ambition

Next came Indian Removal — an effort to clear the Southeast for slave-based cotton production. In 1830, Andrew Jackson signed the Indian Removal Act which authorized the President to negotiate coercive treaties which forced Native Americans to exchange their home territories for land, money and protection out west.

The Supreme Court issued three major decisions affecting the Native Americans during this period, two of which undercut their rights, and the third in stark contrast. In 1823, Justice Marshal and the Court found, in Johnson v. McIntosh, that Native Americans had no ownership rights in land, although he did acknowledge that they had “occupancy” rights.

Then, after Jackson signed the Indian Removal Act, Georgia sought to take over 5 million acres of land occupied by the Cherokee tribe. The Tribe appealed to the Supreme Court to prevent their eviction, contending that its government was equal to a state and therefore it had the right to bring suit for relief.

Marshall’s 1831 opinion in Cherokee Nation v. Georgia would seal the destiny of the Cherokees. It said the Court had no authority to decide the case; it declared that the tribe was neither a state nor a foreign nation but was only a “domestic dependent nation” that had been reduced to “a pupilage” — the status of a child, beginning to learn.

But, a year later, Marshall and the Court seemed to have second thoughts. Samuel Worcester, a Christian missionary to the Cherokees in Georgia, had been convicted in state court of living on tribal lands without a state permit.

He appealed to the Supreme Court, challenging state power to prosecute him. In Worcester v. Georgia, Marshall, writing the Court’s opinion, ruled that the state had no authority to impose its laws on the tribe. Georgia ignored the Court’s opinion.

• Slide 30: Andrew Jackson President

Andrew Jackson supported Georgia not the Court. The famous line attributed to him — “John Marshall has made his decision; now let him enforce it” — is probably apocryphal, but it captures the reality — the Court’s authority ultimately requires executive and legislative support.

• Slide 31:  The Trail of Tears

Jackson and his successor Martin Van Buren proceeded with Jackson’s Indian Removal policy, leading to the infamous Trail of Tears, mass forced migration, death, and national moral catastrophe.

• Slide 32: Texas and the Mexican War

Meanwhile, American settlers — many of them slaveholders — flooded into Texas, which was still part of Mexico.

When Mexico outlawed slavery, these settlers rebelled — and formed the Republic of Texas.In 1845, Texas was annexed into the U.S, over the objections of many Northerners.

In 1846, President Polk provoked a war with Mexico by placing U.S. troops in a contested area. Mexican cavalry attacked a U.S. patrol. In a manner with striking similarities to the way that the Gulf of Tonkin incident instigated the Vietnam War, Polk used this incident to provoke the Mexican-American War.

Many in the North objected believing that the purpose of the war was to expand slave territory within the U.S. Abraham Lincoln, as a young Congressman from Illinois, was in this camp. He unsuccessfully introduced a resolution in the House, the so-called Spot Resolutions, which demanded that Polk disclose the actual location of the incident.

The result of this war was that the U.S. won and gained half of Mexico’s territory, including California, New Mexico and Arizona. Once again, the question became: Would these new lands be free or slave?

• Slide 33: Why Did the National Government Continue to Favor the Slave Powers Even though the Numerical Advantage of the Three-Fifths Clause Shrank after the Monroe Administration

Now let’s pause for a moment and ask a hard question: how did the South maintain its grip on national power even as its numerical advantage — the so-called “slave bonus” of the Three-Fifths Clause — began to shrink after 1820?

The answer lies in the Democratic Party coalition. Southern Democrats were its core, but they were joined by a powerful bloc of Northern Democrats — especially in Pennsylvania, New York, and the Old Northwest — who consistently made common cause with the slaveholding South.

Why? First and most importantly, electoral math. No Democrat could win the presidency without sweeping the South. Party unity demanded compromise, and compromise almost always meant giving the South what it wanted.

Second, economics. Northern merchants, shippers, bankers, and insurers made enormous profits from the Southern cotton economy and feared any disruption to that trade.

Third, shared prejudice. Many Northern Democrats opposed abolition not only for political reasons, but because they feared racial equality and economic competition from free Black labor.

The result was not constant formal control of every institution, but something more important: effective control over national policy. Through this coalition, slaveholding interests dominated the House, the Senate, and the Presidency until 1860.

The antebellum Favored Minority Coalition governed by combining structural advantage, economic leverage, and shared prejudice with an ideology that converted those interests into constitutional principle. Their ideology emphasized limited national power, non-interference, and judicial finality to protect slavery.

The constitutional arguments now advanced by today’s Republican politicians and judges closely track the arguments stated explicitly in the Democratic Party platforms of 1856 and 1860, which insisted, and I quote, that:

“the federal government is one of limited powers, derived solely from the Constitution, and the grants of power therein ought to be strictly construed,” and

“Congress has no power under the Constitution to interfere with or control the domestic institutions of the several States.”

• Slide 34: Democratic Party Platform (1856)

“The Federal Government is one of limited powers, derived solely from the Constitution; and the grants of power shown therein ought to be strictly construed by all the departments and agents of the Government.”

Democratic Party Platform (1860)

“We recognize the authority of the Supreme Court of the United States as the proper and only tribunal to decide all judicial questions arising under the Constitution.”

I am not claiming that today’s Republican Party and the antebellum Democratic Party are identical in ideology or purpose. I am claiming that they deploy the same constitutional moves to serve the same structural function — allowing a favored minority to dominate national policy while presenting that dominance as constitutional fidelity.

In 1860, Democrats made this explicit by declaring that they would “recognize the authority of the Supreme Court of the United States as the proper and only tribunal to decide all judicial questions arising under the Constitution.” Then, as now, limits on federal power and judicial supremacy function less as neutral principles than as tools for entrenching minority rule.

• Slide 35: The 1850s — The Nation on the Brink

By 1850, the Democratic coalition led the Nation to the brink of Civil War. The Compromise of 1850 was an attempt to defuse the conflict. It:

— Abolished the slave trade in Washington
— Added California as a state, a free state because the gold miners of California at the state convention did not want to compete with slave labor
— Deferred the entry of New Mexico and Arizona as states
— Enacted a stronger fugitive slave law.

The Compromise did not work. It led to riots in Boston in 1852 when Federal agents picked free black men off the streets.

• Slide 36: Stephen Douglas

As the decade rolled on, the Slave Power dominated Democratic coalition tried to take control of the Federal government in perpetuity. Stephen Douglas was a Democratic Senator from Illinois. One of his goals was to establish Chicago as the northern terminus of the first transcontinental railroad. That would have required the creation of the State of Nebraska, which given white settlement patterns, was likely to be a free state.

The Democratic Party controlled both houses of Congress. The Southerners’ price for the admission of Nebraska was the admission of Kansas as a new state and the repeal of the Missouri Compromise ban of slavery in the northern portion of the former Louisiana Territories.

• Slide 37: Kansas-Nebraska Act and Bleeding Kansas

Douglas sought to engineer this deal by proposing that the determination of whether each state would be free or slave would be made based upon “popular sovereignty.” Theoretically, that meant that the issue would be determined by vote of the white male “citizens” of each state.

In actuality, the Act meant war, as armed infiltrators from both slave states and free states flooded into Kansas leading to a series of violent confrontations and assassinations. Pro-slavery actors instigated much of the early and headline violence, but by mid-1856 both sides were using force, and “Bleeding Kansas” became a cycle of raids and reprisals.

In the U.S. Senate, Charles Sumner was beaten unconscious with a cane on the floor — by a pro-slavery congressman. This wasn’t compromise anymore. It was a slow-motion civil war.

All of this led to a judicial bombshell — one of the most infamous decisions in U.S. history. Dred Scott. And then… to a man from Illinois who called the country back to its democratic principles — and used Congress, not the Court, to end slavery’s expansion.

• Slide 38: Dred Scott v. Sandford (1857)

In 1857, the Supreme Court handed down a decision that is commonly understood to be its worst decision ever:

Dred Scott v. Sandford.

Dred Scott, was an enslaved man, had lived for years in free territory. He sued for his freedom. Unfortunately, his suit would ultimately be determined by the Supreme Court, which had been shaped by the structural advantages held by the Slave Powers — five Justices had owned slaves, and two others were Northern Democrats.

• Slide 39: James Buchanan

President-elect James Buchanan, another in the long-line of Presidents in the thrall to the South, wanted to add to those structural advantages by enabling all new states to become slave states. So he wrote to his pals on the Court and demanded a broad ruling. They responded to his pressure.

• Slide 40: Roger Taney

Chief Justice Roger Taney — a former slaveholder — delivered the opinion:

Black Americans, free or enslaved, cannot be citizens. He reached this conclusion despite the fact that there had been many African-American citizens from the Founding until the date that Taney issued his opinion, and

Congress had no power to prohibit slavery in the Territories and the Missouri Compromise was therefore unconstitutional. He reached this conclusion despite the facts that:

Article IV, Section 3, Clause 2 of the Constitution, expressly and without qualification grants to Congress the power to enact legislation governing U.S. territories, and

Throughout almost the entirety of U.S. history to the date Taney issued his opinion, Congress, including the Congress which ratified the 1787 Constitution, used that power to enact law banning slavery from U.S. Territories.

This was a judicial and political power grab — an attempt to settle the slavery issue once and for all… in slavery’s favor.

• Slide 41: The Political Fallout

Instead of resolving anything, the Dred Scott decision ignited a firestorm.

Northern outrage is swift.

• Slide 42: Abraham Lincoln

Abraham Lincoln — still a relatively unknown lawyer — seized on the moment. In speeches across Illinois and in the famous Lincoln-Douglas debates, he challenged the Court’s authority to dictate national policy.

• Slide 43: The 1860 Election

The Court’s opinion had an unexpected result. It split the Democratic Party. To the Southern slave owning wing of the Democrats, the Court’s decision was the victory they had craved. It opened the territories to the possibility of new slave states. Moreover, they, and many in the North, believed that the Court was signalling that the Court might interpret the Constitution to require Northern free states to recognize slavery within their borders.

To Douglas, however, the Court’s opinion in Dred Scott is a rejection of popular sovereignty, Douglas’ vision of how to solve the conflict between the North and the South. So, in the Presidential election of 1860, the Northern Democrat-Southern slave owner coalition, in place since the days of Jefferson and Madison, split.

Douglas ran for President as the Northern Democratic candidate and John C. Breckinridge ran for President as the Southern Democratic candidate. This allowed Lincoln to win the Presidency without a single electoral vote from the South and less than 40% of the popular vote.

The Slave Power coalition, long dominant, had lost its grip. Southern states seceded — not because they were being oppressed, but because they had lost structural control.

The Civil War began not as a war over abolition — but as a war over majority rule. And during that war, Lincoln and the Republican Congress would do something extraordinary — something few Americans today remember.

• Slide 44: Lincoln’s First Inaugural Address

In his first inaugural address, Lincoln spoke directly to the Court’s decision in Dred Scott and the question of judicial supremacy. He said:

“The candid citizen must confess that if the policy of the government... is to be irrevocably fixed by decisions of the Supreme Court... the people will have ceased to be their own rulers.”

He was not rejecting the Court’s role — but he was warning against turning nine unelected judges into the ruling power of the republic.

• Slide 45: Congress Enacts a Law Overturning the Supreme Court’s Interpretation of the Constitution

In 1862, Congress passed, and Lincoln signed, Act CXI, entitled An Act to secure Freedom to all Persons within the Territories of the United States. It reads:

“[T]here shall be neither slavery nor involuntary servitude in any of the Territories of the United States now existing, or which may at any time hereafter be formed or acquired by the United States, otherwise than in punishment of crimes whereof the party shall have been duly convicted.

This law directly defied the holdings of the Dred Scott decision: Because Black Americans could no longer be enslaved in the Territories they could become citizens of the United States, and because Congress exercised its power to prohibit slavery in the territories.

Act CXI is almost completely unknown, but it shouldn’t be. When the Court sought, for only the second time, to limit Congressional power by judicial fiat, Congress rejected the Court’s opinion. Its true meaning for today is that Congress has its own power to interpret the Constitution and can enact legislation defying the Supreme Court’s interpretation of the Constitution.

• Slide 46: Scoreboard and Reflection

We will end our second lecture by checking the Areas of Contest Scoreboard at the end of the Civil War before Lincoln’s assassination:

Favored Minority Rule — It was broken by the 1860 election. The Slave Power coalition collapsed. But then the Favored Minority Faction which controlled the slave states, made an incredibly bad strategic decision.

They seceded from the Union, abandoned the game, and started to play another game which they hoped to win-war. The Slave Powers did not have to take this approach. After the election of 1860, the South still had a majority in the Senate. They could have stalled any meaningful changes in their long term position just by using the existing rules under the Constitution. Instead, by leaving the playing field, Congress was able to implement the Republican Party platform and enact historic national legislation which changed the country forever:

• Slide 47: National Legislation Enacted During the Civil War Only Because the South Seceded

— The Legal Tender Act, which authorized the Federal government’s use of paper money
— The National Banking Act, which established system of Federal banks across the nation
— The Homestead Act for government lands, of which there were a lot
— The Morrill Land Grant Act for universities promoting practical arts in agriculture and mining 
— The Pacific Railroad Act enabling the transcontinental railroad
— The Income Tax of 1861

As we just discussed, Act CXI, which banned slavery from the Territories Congress vs. the States — The National government established its power over the states by:

Defeating the rebel states militarily in the Civil War Enacting legislation designed to enhance the power, wealth, and happiness of the people throughout the Nation.

However, the strict constructionist view of Congressional power imposed by the hypocritically applied strict constructionist ideology of Jefferson and Madison still remained. We will see, in our next session, how Congress, under Republican Party leadership, amended the Constitution in order to strengthen Congressional power over the States. We will also see how, once the rebel states were allowed to reenter the Union, the white supremacists of those states regained and even enhanced their structural advantages.

• Slide 48: Legislation Enacted by Congress to Control the Supreme Court and the Federal Judiciary

Congress vs. the Court — Congress assumed its dominant role over the Court by exercising its express and implied powers under Article III to control the Court. As we have seen, the Dred Scott opinion undermined Congressional confidence in the Supreme Court.

In response, Congress enacted legislation which:

— Directly defied the Dred Scott opinion
— Reduced the number of Circuit Courts in the South and added a new Circuit Court in the West
— Reduced and increased the number of Supreme Court Justices
— Stripped the Supreme Court of appellate jurisdiction over habeas corpus cases.

In our third lecture, we will turn to the moment when the structural advantages baked into the Constitution of 1787 were finally confronted directly: the Reconstruction Amendments, the 13th, 14th and 15th and Reconstruction itself.

For the first time in American history, the national government attempted to dismantle the structural advantages of a Favored Minority Coalition through both constitutional amendment and federal legislation.

We will see how close the United States came to a genuinely multiracial democracy — and how quickly that effort was undone. Not by accident, and not by popular will alone, but through a coordinated retreat: presidential sabotage, congressional exhaustion, and, most decisively, a Supreme Court that reinterpreted the Reconstruction Amendments to neutralize their force.

Episode 3 is the story of the road not taken — and why the failure of Reconstruction still defines American constitutional law today.

Continue to Script of Episode 3 >