• Slide 1: The Path to Today and How to Change the System
Welcome to the final lecture of our exploration of U.S. history and constitutional law.
• Slide 2: Menu for Episode 4
While continuing to view U.S. history through the lens of the three Areas of Contest, we will bring our story up to the present day. During the first three meetings, we have followed a chronological path up to the beginning of the 20th century.
• Slide 3: Areas of Contest
As always, we will keep the Areas of Contest in mind. As reminder, the Areas of Contest are:
— The extent of the Power of Congress over the States
— The extent of Congressional Power over the Supreme Court
— The extent of the control of the national government by Favored Minority Coalitions
• Slide 4: Area of Contest Scoreboard as of 1900
For a quick review of where we ended our last session, let’s check the Areas of Contest Scoreboard as of 1900.
We see that the Grays have the edge in all three Areas of Contest:
The white supremacist Favored Minority Faction, which was firmly entrenched in the Democratic Party Coalition, enhanced its power through voter denial laws and practices which were blessed by the Supreme Court, and
By misinterpreting the Reconstruction Amendments and hijacking them to support business interests, the Supreme Court both:
Enhanced its own power, and
Reduced Congressional power over the States
As we will see today, while the power struggles in all three Areas of Contest have changed throughout the 20th and 21st centuries, the Grays are more firmly in control now then they were 125 years ago.
• Slide 5: Favored Minority Coalitions
Favored Minority Coalition Definition: You will recall that we are referring to a Favored Minority Coalition as a political coalition which includes factions who dominate states by voter suppression laws and practices and/or who dominate less populated states which have disproportionate power in Congress and the Electoral College
We will start today with a brief look at the migration during the 20th century of the white supremacist Favored Minority Faction from the Democratic Party to the Republican Party
• Slide 6: Structural Advantages which Benefit Favored Minorities
Then we will examine changes in law and practices since 1900 which have increased the structural advantages of the current Favored Minority Coalition. These laws and practices include:
— Voter denial and suppression Gerrymandering
— Freezing the Size of the House
— The filibuster
We will explore how the power of the Favored Minority Factions have fluctuated through the 20th and 21st centuries. The power of the white supremacist Favored Minority Faction was significantly reduced during the Civil Rights Era as the result of the enactment and enforcement of the Civil Rights Act of 1964 and the Voting Rights Act of 1965. However, the structural advantages of both Favored Minority Factions are greater today than they were in 1900.
We will shift our focus to the growth of Congressional power over the States beginning with FDR and continuing until the 1980s, when the Federalist Society and the Republican Party implemented a well conceived plan to change the Nation’s jurisprudence in order to increase their control over all branches of the National government
Then we will analyze why structural advantages held by Favored Minority Factions deform the democratic process. Those advantages, combined with the party discipline imposed on other factions within the Favored Minority Coalitions, enable the Favored Minority Factions to protect and grow their power by maintaining and expanding their structural advantages.
We will end this lecture series with a description of a legislative program Congress could enact which would eliminate almost all of these structural advantages and enable a much more fluid democratic process.
• Slide 7: The Migration of Vote Suppressing
Favored Minority Faction from the Democratic Party to the Republican Party
From Jim Crow until today, the factions dominating the politics of the former Confederate states have continuously enacted laws and implemented practices which denied African-Americans the right to vote. Until the enactment of the Civil Rights Act of 1964 and the Voting Rights Act of 1965, those Favored Minority Factions were essential members of the Democratic Party coalition. This fact had many significant discriminatory policy effects, including:
— Structuring Social Security so that the jobs which most African-Americans held were excluded from the program
— Failing to act against Jim Crow laws
— Maintaining racial segregation in the Armed Forces throughout World War II
Spreading racism widely into the rest of the country, to such an extent that, for example, the Federal Housing Agency’s underwriting practices in the mid-20th century strongly favored and often required, racial covenants in developments like Levittown, NY.
After the enactment of the Civil Rights Act of 1964, LBJ predicted that the Democrats had lost the South for a generation. That prediction proved to be an understatement. Over the next 30 years, the Southern political class flipped from Democratic to Republican. The change became immediately apparent at the Presidential level, as:
— In 1968, Nixon adopted his Southern Strategy to win the Presidency.
— In 1980, Reagan put together Republican factions who solidly controlled the Southern states
— The effect continued with the election of Bush I in 1988
The transition of the Favored Minority Faction to the Republican Party coalition became complete by 1994, when the South enabled the Republicans to take control of most of the state governments in the South as well as to take control of the House of Representatives for the first time in 42 years. For the first time, the Vote Suppressing Favored Minority Faction was central to the Republican Party coalition.
• Slide 8: The Rural State advantage
Now let’s examine how the small-state advantage has played out since the Civil War. The structural advantage of the less populated states is strongest in the Senate but, as we will see, it also exists in the House and the Electoral College. Those advantages had, until about 1980, bounced back and forth between the parties:
In the Post-Civil War era, Western progressives generally aligned with the Republican Party. During the late 19th century, a powerful agrarian and populist movement emerged among farmers and westerners — strong enough to form the Populist Party, which briefly became a national force.
William Jennings Bryan’s “Cross of Gold” campaign brought many of those populist-progressive voters into the Democratic Party coalition.
After Bryan lost three Presidential elections, Republican Theodore Roosevelt’s Progressive or Bull Moose movement drew reform-minded voters, both rural and urban alike.
Although Woodrow Wilson was a Southern Democrat with racist sympathies, once he took office, he advanced progressive reforms, restoring rural support to the Democratic coalition.
In the 1930s, FDR’s New Deal, with its farm supports and nationwide public works programs, deepened that alignment, bringing many small-town and agricultural voters into the Democratic fold.
It was Ronald Reagan, however, who for the first time welded most of the structurally advantaged, less-populated states to the Republican coalition. By emphasizing cultural conservatism, energy extraction, gun rights, and resentment of federal land control in the West, the Republican Party captured — and has, for the last forty-five years, largely retained — the small-state structural advantage.
• Slide 9: Changes in Law and Practice which have Affected the Structural Advantages Held by Favored Minorities
The structural advantages of the Favored Minority Factions have increased since 1900.
Let’s start with voter denial and voter suppression.
Episode 3 ended with Jim Crow — built by state law, protected by the Court, and sustained through violence and intimidation.
The ruling white supremacist class of the South, its hold on power cemented by apartheid rule, remained as an essential part of the Democratic Party coalition after the Civil War, enabling Democratic Presidential victories through LBJ’s election in 1968, as well as unbroken control of the House for long stretches of time.
Once the Voting Rights Act was enforced, Black registration and officeholding rose sharply.
• Slide 10: Voter Suppression Practices after the Enactment of the Voting Rights Act of 1965
The Voting Rights Act of 1965 did not stop either the Southern states and other states outside the South from using, or attempting to use, voter suppression techniques. Most of the states which imposed these requirements have been led by Republican governments (exceptions including NH and RI). The recurring public justification is “voter fraud.”
• Slide 11: Actual Voter Fraud is Infinitesimal and Has No Effect on Elections
The main argument supporting the imposition of voting restrictions is the fear of voting fraud. The truth is that actual voting fraud is infinitesimal and has no effects on elections.
Every credible study — using different methods and definitions — reaches the same conclusion: it occurs at a level far too small to affect elections. For example:
— The database of the Heritage Foundation, a conservative organization, lists only 1,465 proven cases from 1979 to 2023, in other words 33 cases per year, and
— Professor Justin Levitt of Loyola Law School found 31 credible incidents out of over 1,000,000,000 ballots, or roughly two cases per year
The real fraud is the claim of voter fraud.
That false claim is used to justify laws that restrict voting and predictably shift political power.
• Slide 12: Gerrymandering
Let’s look at another technique to avoid the will of the majority of the electorate — gerrymandering. This is the famous gerrymander cartoon published in March, 1812 in the Boston Gazette. Here’s the backstory, some of which you are familiar with from our first two lectures:
The Embargo Act of 1807 crushed New England’s economy and, with its Enforcement Acts, turned Massachusetts against Jefferson and Madison’s Democratic-Republican party. When Elbridge Gerry became governor, he faced an impossible map — a state furious over federal policy and ready to throw his party out.
In order to maintain their control of the Massachusetts legislature, Gerry’s Democratic-Republican allies redrew Massachusetts’ districts into grotesque shapes — the first “gerrymander.” The cartoon shape is based upon the shape of a salamander. Hence, the name gerrymander, a portmanteau of Gerry and salamander. The gerrymander was born directly from the political backlash to the overreach of a national government controlled by the first Favored Minority Coalition.
The gerrymander monster they created still walks among us. Gerrymandering, once a desperate tactic to cling to power, has become a normalized method of voter suppression. Yet the same Constitution that allows gerrymandering, gives Congress full power to end it — through national voting rights and fair-district legislation.
• Slide 13: Gerrymandering from 1900 to Today
Now we let’s take a tour of the use of gerrymandering since 1900:
Early 20th Century (1900–1930s): Entrenchment and Neglect
In the early 20th century, as people moved to cities, many states simply stopped redrawing their districts. Rural areas retained far more representation than their population justified.
Legislatures, controlled by minority rural areas, used crude packing and cracking of districts to protect incumbents.
Packing means concentrating as many of the opposing party’s voters as possible into a small number of districts so the opposing party wins those districts overwhelmingly but loses influence everywhere else.
Cracking means splitting the opposing party’s voters across many districts so they are too diluted to form a majority in any of them while courts refuse to intervene, treating redistricting as a “political question.”
The process was not limited to either party. Republicans used the technique in the Northeast and Democrats used it in the South.
Mid-Century (1940s–1960s): Civil-Rights Era and Judicial Awakening
In the middle of the 20th century, Southern states used racial gerrymanders and at-large elections to suppress Black votes. Population shifts made representation wildly unequal—some districts had ten times more people than others.
Earl Warren served as Chief Justice from 1953–1969. During his aegis, the Supreme Court, for one of the few times in our history, stepped in on the side of democracy.
In 1962, the Supreme Court determined, in its opinion in Baker v. Carr, that the apportionment process is justiciable, meaning that the lower federal courts could intervene in the district line drawing process.
Two years later, in Reynolds v. Sims, the Court announced the “one person, one vote” rule, maybe the best application of the Declaration of Independence’s principle that “All Men are Created Equal.”
The next year, in 1965, Congress took a huge step in reducing the power of the vote suppressing Favored Minority Faction by enacting the Voting Rights Act of 1965. The pre-clearance provisions of the Voting Rights Act of 1965 required jurisdictions with a history of voting discrimination to obtain federal approval — either from the Department of Justice or a special three-judge court in Washington, D.C. — before making any change to their voting laws or procedures. Elimination of racial gerrymandering was one of the main targets of the pre-clearance requirements.
Post-Reynolds (1970s–1980s): Computer-Age Precision
Unfortunately, the fight for a fair democratic system is never over. In response to pressure from the National government to dismember politically and racially unfair district line drawing designed to maintain control of political factions over states, legislators quickly learned to use early computers to design more effective and longer-lasting gerrymanders.
These techniques have been used by factions in both political coalitions. Many states adopted bipartisan “incumbent-protection” maps. The Voting Rights Act of 1965, with its pre-clearance rule, remained an essential brake on these practices, preventing new maps from diluting minority voting strength.
Late 20th Century (1990s): Race and Partisanship Collide Under the Voting Rights Act, the Justice Department promoted majority-minority districts that expanded Black and Hispanic representation.
The Supreme Court, in its 1986 opinion Davis v. Bandemer, announced that partisan gerrymandering was justiciable. Justiciable means that Federal Courts had the power to prevent partisan line drawing.
However, the ideology of the majority of the Justices on the Court was starting to change. The Court never enforced the rule it announced in Davis. That allowed both parties free to entrench themselves.
• Slide 14: 2012 U.S. House Elections: Votes vs. Seats
21st Century (2000s–2020s): Algorithmic Entrenchment and Judicial Retreat
Computers got better. Digital data made precision gerrymandering almost a science. A Republican wave in the 2010 mid-term elections empowered the Republicans to aggressively gerrymander themselves into control, the Court was taken over by the judges aligned with the Favored Minority Coalition, and the brakes provided by the Voting Rights Act failed.
The 2012 elections for the House of Representatives were a travesty.
In Pennsylvania: Democrats won more votes (50.28% to 48.77%), but the Republicans took 13 out of 18 seats.
In Wisconsin: Democrats won more votes (50.42% to 48.92%), but the Republicans took 5 out of the 8 seats.
In North Carolina: Democrats won more votes (50.60% to 48.75%), but the Republicans took 9 out of 13 seats.
The national result was appalling. The Democrats won the aggregate vote total for House seats by 1.1% (by about 1.36 million votes), and yet the Republicans achieved a huge 33-seat edge in House seats.
The next year, in Shelby County v. Holder, Justice Roberts stuck a knife into the pre-clearance provision of the Voting Rights Act. His reasoning was that, in his opinion, racial gerrymandering no longer occurred.
He made this factual determination:
In the face of a Congress's 15,000 page record which documented countless examples of flagrant racial discrimination, and
Despite the fact that Congress almost unanimously endorsed those findings. The vote for the renewal of the VRA was 390–33 in the House and 98–0 in the Senate.
To top it off, Roberts supported his opinion with a repurposed doctrine that each state was entitled to “equal sovereignty.”
• Slide 15: Rucho v. Common Cause
Six years later, in Rucho v. Common Cause (2019), Chief Justice Roberts conceded that partisan gerrymanders “seem unjust” but declared them non-justiciable in federal courts. Justice Kagan warned that the Court had abandoned its duty “at the very moment democracy was under siege.”
With Shelby County (2013), Rucho, and the Brnovich decision in 2021 (which imposed new guideposts to make it far harder to prove discriminatory voting practices), the Court has dismantled the federal voting protections that once restrained state abuses — invoking a “state equality” doctrine that eerily echoes pre-Civil War arguments against federal authority.
Today, as partisan mapmaking spreads again — Texas, Missouri, Florida, Ohio on the Republican side and California, New York, Virginia on the Democratic side — the lessons are clear:
— gerrymandering allows politicians to entrench their own power by choosing their own voters instead of the voters choosing the politicians, and
— only Congress can end gerrymandering once and for all through national voting-rights legislation.
• Slide 16: Freezing the Size of the House
Article I, Section 2, Clause 3 of the Constitution requires that the Nation take a census and determine the number of Representatives be apportioned within every subsequent term of ten years, in manner required by Congressional legislation. The last time that the size of the House was changed was pursuant to the Permanent Reapportionment Act of 1929.
The size of the House was based upon the census of 1910 when the total population was 93,000,000. Today, the population of the country is four times that size.
The “Permanent Reapportionment Act” was enacted because Congress failed to reapportion the House after the 1920 census. Many reasons have been alleged for this failure, but the real culprits appeared to have been that the rural states were afraid of losing power and prevented the reallocation from occurring.
It was said that Congress decided to cap the size of the House because, to have increased it, would have required construction of a bigger building!
Once Congress decided to cap the size of the House, it became impossible to arrive at a compromise solution to apportionment questions.
The cap on the size of the House clearly gives the voters a growing disadvantage in both the House and in the Electoral College.
• Slide 17: Eliminating the Small State Advantage in the House by Removing the Cap on House Seats
Congress has the power to change the size and apportionment of representatives in the House by simple legislation. I decided to do a test to see how much the cap on House seats disadvantages the larger states. I asked ChatGPT to determine how many House seats would be apportioned to each state based upon the following assumptions:
— No aggregate cap on the number of Representatives
— The state with the smallest population is allocated 1 representative. The state with the smallest population today is Wyoming with 577,000 people.
— Each state is allocated one representative per the number equal to the population of the smallest state. For example, if a state had twice as many people as Wyoming, it would be allocated two representatives.
It would be optimal, from the perspective of fairness, and simple mathematically, if fractional representation were permitted. Nevertheless, in order to avoid questions about the constitutionality of fractional representation, this test chart rounds all fractional apportionment up or down.
As you can see from this graph, the impact on each of the largest states is huge, at least as compared to any state which has only one or two representatives:
— California would have 16 more representatives
— Texas would have twelve more representatives, and
— Florida and
— New York would have nine more representatives each.
The more a state grows, the more harshly the 435-seat cap penalizes it, regardless of whether it leans Republican or Democratic. When I first saw these numbers, I was appalled by what looked like a massive skewing of national political power toward small states.
But when we examine the aggregate small-state bloc, the distortion is smaller than it appears. The fact that every state is guaranteed one seat and the fixed House size generates only a modest tilt in voting share towards the small states in both the House and the Electoral College.
Yet the key point remains: there is no substantive or democratic justification for maintaining an arbitrary bias in favor of smaller states. The cap is a historical accident, not a principled feature of constitutional design. It should be abolished. By artificially inflating the relative power of sparsely populated states, the cap functions as one of the structural pillars that enables stable Favored Minority Coalitions to dominate national policy even when they lack national popular support.
• Slide 18: The Filibuster
Now let’s look at another non-constitutional barrier to majority rule, the filibuster:
What it is:
— The filibuster is a Senate rule (not constitutional) that allows a minority of senators to block or delay a vote by extending debate.
— Nothing in the Constitution requires a filibuster. It’s a self-imposed Senate procedure that can be changed by a simple majority vote.
— Created by Accident
Before he left the Vice Presidency in 1805, Aaron Burr, urged the Senate to eliminate the previous question motion in order to clean up what he called redundant rules, the Senate deleted the “previous question” motion. The motion had been a tool to cut off debate.
This change accidentally enabled unlimited debate, laying the groundwork for the modern filibuster.
It was rarely used in the 19th century, although, as we discussed in our last lecture, it stopped the Federal Elections Bill of 1890, which could have stopped Jim Crow.
Until the 1970s, the filibuster was used primarily by Southern senators to block civil rights measures (anti-lynching bills, poll-tax abolition, and repeatedly civil-rights legislation).
There has been rapid growth in its use since the 1970s by both parties There have been two main Exceptions to the Filibuster
Budget reconciliation, and Nominations for judicial and executive branch nominees
Outside of those exceptions, the filibuster effectively blocks most contested legislation unless there are 60 votes. In practice, it gives a minority the power to veto the majority’s agenda on ordinary legislation and it prevented the enactment of a Voting Rights Act in 2021
• Slide 19: The Rise and Fall of Congressional Power (20th–21st Centuries)
Now that we’ve seen how the structural tools of the Favored Minority Coalitions have strengthened over the last 125 years, let’s turn to the other two Areas of Contest — between Congress and the States, and between Congress and the Supreme Court.
• Slide 20: Pre-FDR (Before 1932)
The Court Constricts Congress
In the first third of the 20th century, Congress steadily expanded national power through antitrust laws, national infrastructure, and the income-tax and women’s-suffrage amendments. Yet the Supreme Court acted as a brake — using doctrines like “freedom of contract” and narrow readings of the Commerce Clause to shield business interests and strike down economic- and labor-reform laws.
By the early 1930s, the Supreme Court blocked most efforts to respond to the Great Depression by opining the Congress did not have the power to enact those laws.
Those laws included:
— The National Industrial Recovery Act (which was intended to prevent overproduction by regulating interstate commerce)
— The Railroad Retirement Act (which would have created a federal pension system for railroad workers)
— The Farm Bankruptcy Act (which would have protected farmers from foreclosure)
— The Agricultural Adjustment Act (which was intended to prevent overproduction of agricultural products by taxing food processors and used the money to pay farmers to farm less acreage).
— The Bituminous Coal Conservation Act (which was intended to regulate wages, hours, prices and practices in the coal industry), and, most importantly for this lecture series:
— The First Municipal Bankruptcy Act (which was intended to let municipalities and other political subdivisions seek Federal bankruptcy protection).
The Court asserted that the concept of state sovereignty prevented Congress from establishing bankruptcy protection for entities created by states. Chief Justice Roberts dredged up the similar state sovereignty rhetoric in his Shelby County opinion.
• Slide 21: FDR and Congress Strike Back
After this string of judicial defeats, Franklin Roosevelt’s 1936 landslide was a referendum on whether the people’s pgovernment could govern.
Confronted with overwhelming public pressure, the Court reversed course — upholding the Social Security Act and other New Deal measures.
The Court’s change in jurisprudence was called the “switch in time that saved nine,” meaning that the change enabled the Court to avoid expansion which had been threatened by FDR.
Congress reinforced FDR’s electoral victory by reenacting the Municipal Bankruptcy Act, which the Court had just struck down; this time with changes which did not affect the basic point that Congress was now authorizing municipal bankruptcies.
The second time the Court was faced with determining the constitutionality of the Municipal Bankruptcy Act, the Court backed off.
This Depression Era episode, like Act CXI of 1862, showed that Congress, backed by the electorate, can compel the Court to yield.
• Slide 22: FDR to the Rehnquist Era: National Power Ascendant (1933–1980)
Over the next half-century, Congress’s reach grew enormously — driven by the Depression, two world wars, the Cold War, and rapid economic and population growth.
Even Southern “Favored Minority” power brokers embraced this expansion of Congressional power over the States when it served regional interests — military bases, water projects, and social-security programs — while resisting civil-rights enforcement and national labor power.
By the late 1970s, nearly everyone accepted a strong national government; yet the seeds of backlash were being sown.
• Slide 23: From Reagan to MAGA: Reviving “States’ Rights” Revival to Cut Congress Down
Beginning in 1980, a new coalition of business interests, religious conservatives, and the Southern bloc — Reagan’s “three-legged stool” — worked to re-localize veto power over Congress through both statehouses and the courts.
The language was “states’ rights,” but the goal was clear: restore structural advantages to the less-populated states and restrict Congress’s ability to act nationally unless aligned with the Favored Minority Coalition.
Over the last three decades, the Supreme Court has repeatedly trimmed federal power — narrowing Congress’s reach under the Commerce and Spending Clauses, reviving state sovereign immunity, and gutting key protections of the Voting Rights Act.
The current through-line is simple: less Congress, more states, more Court.
• Slide 25: The Structural Advantages of the Favored Minority are Rooted in the Abuse of Federalism
The structural advantages of Favored Minority factions are rooted in the abuse of federalism.
They arise when:
— factions control states through vote denial or dilution, and/or
— factions control less-populated states with outsized national power.
Federalism becomes a tool not for local administration, but for national entrenchment of those factions.
• Slide 26: Madison Initially Believed that States Should be Subordinate in All Matters of National Concern
During the run-up to the Constitutional Convention, Madison concluded that the Articles of Confederation had failed because the states retained too much independent authority. He did not propose abolishing them outright, but he believed their power should be subordinate to a genuinely national government. The states should remain only to handle local administration — what Madison called “the lesser objects of public administration.”
His view was that:
— the new federal government must act directly upon individuals, not merely through the states (a key change from the Confederation system); and
— the national government should have final authority in all matters of national concern. Madison even proposed that the Constitution provide to Congress a veto over state laws.
• Slide 27: Is the Purpose of the National Government to Serve the States or the People?
Other delegates had a less charitable view of the continued existence of states.
On June 29, 1787, Alexander Hamilton, New York’s delegate to the Convention, observed:
“As States are a collection of individual men… which ought we to respect most, the rights of the people composing them, or of the artificial beings resulting from the composition?”
And, the next day, James Wilson of Pennsylvania questioned:
“Can we forget for whom we are forming a Government? Is it for men, or for the imaginary beings called States?”
To be sure, there were others, the so-called Anti-Federalists, who would place the States above all.
• Slide 28: Madison’s Vision for a Large Functioning Democracy: Fluid Issues Based Coalitions
Madison arrived in Philadelphia with a plan, the Virginia Plan which we discussed in our first lecture. The Plan 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, North v. South, different economic blocs, different religious systems, and personal-leader followings). Each state is effectively an interest group based upon geography.
Madison proposed that these interests would combine and recombine on an issue-by-issue basis, so that no single permanent majority would dominate; instead, shifting coalitions would check one another. I believe that this vision is what a functioning democracy should strive for. This vision is the good prong in Madison’s forked legacy.
• Slide 29: Fear of an Oppressive Majority Leads to Actual Oppression of the Majority by Favored Minority Factions
Madison’s biggest concern was that there would develop a majority which would oppress the minority. Instead, the concessions in the Constitution to the slave owning states and to the less populated states, together with the immediate creation of a relatively rigid two party system, led to the almost continuous oppression of the majority by Favored Minority Factions. These conditions arise because of several facts:
— Favored Minorities use their structural advantages to entrench and expand those advantages;
— Favored Minorities will never give their structural advantages voluntarily;
— Favored Minority Factions demand that the other members of their coalitions defend and adopt both the structural advantages and the policy preferences of the Favored Minority Factions; and
— Favored Minority Coalitions implement party discipline to enact legislation to achieve those goals, often against the interests of the other members of the Favored Party Coalition and their constituents.
• Slide 30: History of Favored Minority Using Party Discipline to Enhance their Structural Advantages
The creation and long term dominance of Favored Minority Factions is the bad prong of Madison’s forked legacy.
History demonstrates that this is an accurate description of our democracy in action.
Here is a list of major moments when Favored Minority Coalitions used party discipline to protect or enhance their structural advantages. There are undoubtedly others, including the legislation which Trump is threatening to enact to change voting procedures during his current administration. We have discussed several of these historical events during this series.
War of 1812 Declaration (June 1812)
Let’s start with Declaration of War which started the War of 1812 against Britain:
Madison’s Democratic–Republicans pushed the war resolution through on party-line votes — every “yes” was a Democratic-Republican. Federalists uniformly opposed the Declaration.
The Hoped for Payoffs of the first Favored Minority Coalition were the territorial ambitions of the western and southern slave owner war hawks (Florida, Canada, western lands). While the war itself did not achieve this aim, it set the stage for the explosive 19th century growth of the U.S. and slave state admissions to come.
Mexican-American War Declaration (May 1846)
Our next example is the declaration of the next War, the Mexican-American War.
President Polk framed the conflict as defensive. He asserted “American blood on American soil” and he rallied Democratic Congressmen with party discipline. He and his Southern congressional allies applied heavy pressure that pulled reluctant Northern Democrats into line.
The Structural Advantage Payoff which Polk and his allies sought to achieve was the acquisition of vast new territories for potential slave-state expansion: California, New Mexico and Arizona. This play did not work out so well for the Southern Favored Minority Coalition, as none of these areas ever became slave states.
Kansas-Nebraska Act (1854)
The enactment of the Kansas-Nebraska Act in 1854 was a classic example of a Favored Minority Faction imposing its will on the other members of its coalition through party discipline in the hopes of expanding the structural advantages of the Favored Minority Coalition.
President Pierce and Senator Douglas made support for repeal of the Missouri Compromise a Democratic loyalty test, effectively coercing wavering Northern Democrats into voting “aye.”
The Hoped for Structural Payoff was the opening of all unorganized U.S. territory to slavery under the doctrine of “popular sovereignty,” giving the Slave Powers a pathway to increase its Senate representation and thus its institutional leverage.
Defeat of the Lodge “Force Bill” (1890–91)
Next, we look forward 37 years into the post-Civil War Era. The Democratic Party coalition maintained a unified filibuster in the Senate to block Henry Cabot Lodge’s federal elections bill despite passage of the bill in the House and national outrage over Southern fraud.
As we discussed at the end of our last lecture, if Lodge’s elections bill had been enacted, its enforcement may well have prevented and dismantled the Jim Crow regimes of the South. Instead, the Favored Minority Democratic coalition was successful in blocking the bill through uniform support of the filibuster, aided by splits in the Republican Party coalition.
The Structural Payoff for the vote denying Favored Minority Faction was massive: It preserved their ability to virtually eliminate Black voting, — cementing white supremacist rule over the Southern states until the 1960s and increasing their power over the national government by effectively converting the original 3/5 clause to a 5/5 clause.
Permanent Apportionment Act (1929)
The next example is the Permanent Apportionment Act of 1929. As we learned earlier today, this Act has capped the size of the House at 435 for a century. The Republican leadership achieved this structural advantage for the less populated states by enforcing caucus unity.
The Act froze the size of the House even as the population exploded in urban states — thereby amplifying small-state power in both the House and the Electoral College to this day.
Senate “Nuclear Option” on Supreme Court (2017)
Moving closer to the present day, during Trump’s first term, the Republicans’ eliminated the filibuster for Senate ratification of appointments to the Supreme Court. This was a critical entrenching move employed by today’s Favored Minority Coalition. The Republican caucus voted almost unanimously to abolish the 60-vote cloture rule for Supreme Court confirmations to seat Gorsuch and ultimately to create a super-majority of Republican appointed Federalist Society ideologues on the Supreme Court.
The Structural Payoff has been immense: This amendment of the filibuster rules enabled the Republicans to install a Court super-majority that is actively working to turn the Scoreboard gray by changing the balance of power in all three Areas of Contest.
The Court has:
Increased the power of the current Favored Minority Coalition by protecting partisan gerrymandered maps (Rucho) and curtailing federal voting-rights protections
• Slide 31: Justice Roberts: Equal Sovereignty of the States is More Important than Equal Rights of U.S. Citizens
The Court has diminished the power of Congress over the States by, for example:
ignoring Congressional findings of continuing suppression of racial discrimination supporting the renewal of the Voting Rights Act, and
shackling the power of Federal agencies through its creation of the Major Questions Doctrine and its elevation of the Non-Delegation Doctrine.
The Major Questions Doctrine requires hyper-explicit congressional authorization for any regulation which the Court determines is important. The effect of this judge-made rule is a power grab. It strips Congress of its capacity to legislate broadly and transfers decisive policy-making power to the Supreme Court itself.
The Non-Delegation Doctrine, which undercuts the rule making power of federal agencies, has a similar power shifting effect.
It is very clear that the conservatives have been working to re-create a pre-Civil War jurisprudence in order to disempower Congress and raise up the States. Roberts’ justification for overturning the pre-clearance requirements of Section 5 of the Voting Rights Act was a repurposed doctrine of “equal sovereignty of the States.”
In other words, in Roberts’ opinion, it is more important to treat the imaginary beings, the States, equally than to treat the actual citizens of the States equally.
• Slide 32: The Court as Superlegislature-Justice Gorsuch: The Court Writes Law for the Ages
And in the struggle for power between Congress and the Court, the Court has assumed both its own omnipotence and the power to write law. Justice Gorsuch gave the game away in 2023 during the oral argument for the Presidential immunity case, Trump v. the United States. He declared: “We’re writing a rule for the ages.”
That was an extraordinary admission, that the Court was not resolving a case, but creating constitutional law from whole cloth. It was the same audacious posture Chief Justice Taney took in Dred Scott, when, having found that the Supreme Court had no jurisdiction over the case because Scott was a slave, Taney nevertheless proclaimed sweeping doctrines about race and slavery.
Then, as now, the Court stepped outside the Constitution to enhance the power of a Favored Minority Coalition. And just as Congress answered Dred Scott with Act CXI of 1862, repudiating the Court’s attempt to nationalize slavery, the people have always retained the power to correct such judicial usurpations through legislation grounded in their own constitutional authority.
• Slide 33: Frog Boiling Time is Over
Starting with the Rehnquist Court, the jurisprudential strategy of the Federalist Society’s justices was one of cautious, incremental change across all three Areas of Contest.
I liken their long-term approach to the apocryphal recipe for boiling a frog: turn up the heat little by little until the frog finally realizes what’s happenig — but by then it’s too late.
That slow-boil strategy ended with the collapse of the filibuster as a moderating force, McConnell’s blocking Merrick Garland’s nomination to the Supreme Court, Justice Ginsburg’s death, and the rush to confirm Amy Coney Barrett in the final weeks of Trump’s first term.
With a supermajority secured, we’ve seen a hurricane of decisions driving the law backward — toward the ideological world of the pre-Civil-War Democrats and the Confederate rebels.
Filibustered Voting-Rights Reform (2021–22)
Lastly, sadly but instructively, there is the failure of the Voting Rights reform legislation which would have been enacted during Biden’s first two years, but for the party discipline of the unified Republican caucus plus two Democratic procedural holdouts, Senators Manchin and Sinema.
The Structural Advantage Payoff of this exercise of party discipline has been the preservation of the ability of Favored Minority Factions to control states both through political gerrymanders and restrictive voting laws. This story represents a real lost opportunity, because if Manchin and Sinema had been willing to eliminate, amend or suspend the filibuster, it is likely that the entire political landscape for the 2024 elections and beyond would have been completely different, as both the Republican and Democratic coalitions would have scrambled to adjust to the new rules.
This episode is instructive because it was only the filibuster and party discipline which was able to prevent the enactment of laws which would have eliminated many of the structural advantages of the current Favored Minority Coalition.
Our history shows that the danger is not majority rule, but the loss of fluidity in the system Madison designed.
When the Court constrains Congress, or when party discipline locks every issue into rigid camps, the result is the same: Favored Minority Factions gain the ability to rule across all issues, blocking the shifting coalitions that genuine republican government requires.
The real task, then, is not to replace one permanent power with another, but to restore motion —to let different majorities form and dissolve as citizens and representatives align around particular issues. When Congress acts boldly within its constitutional powers, it can reopen that Madisonian arena of compromise and contest — where no single faction governs everything, but where the people, through their representatives, can govern something.
• Slide 34: Areas of Contest Scoreboard Today: Gray All the Way
Let’s take a look at the Areas of Contest Scoreboard Today. It’s all gray as:
the Republican Party includes two Favored Minority Factions, through control of small states and by using voter suppression techniques and gerrymandering to control other states.
The Supreme Court is both blessing the use of those techniques and taking an axe to Congressional power over the states.
Congress’s practical power is narrowed — especially when it tries to protect voting rights and equal citizenship.
• Slide 35: A Democracy Agenda: The Constitution Does not Have to Be Amended to Change the Balance of Power in Each of the Areas of Contest
Before we turn to the legislative plan that closes this series, we need to challenge an assumption that keeps most Americans — and most scholars — feeling helpless.
The assumption is this:
“Unless we amend the Constitution, nothing structural can change.”
This idea has become so widespread that even some of the best historians repeat it as if it were a constitutional fact.
If that idea were true, then yes — our democracy would be permanently deformed by the structural advantages of small states, the Electoral College, and the Senate, with the Supreme Court acting as the ultimate guardian of minority rule.
But that idea is not true. And believing it hands a permanent veto to the Favored Minority Coalitions that have shaped American politics since the Founding.
Congress has used its constitutional powers to reshape national structure before.
Let me remind you of two moments.
Act CXI of 1862 — passed in direct defiance of the Supreme Court’s Dred Scott decision — abolished slavery in the territories. Congress did not wait for an amendment. It asserted its own constitutional authority.
75 years later, when the Court struck down the first municipal bankruptcy statute, Congress responded with a revised law — the 1937 Municipal Bankruptcy Act — that the Court then upheld. Congress legislated until it prevailed.
These examples are not anomalies.
They reveal that Congress possesses dormant constitutional powers that can rebalance the relationships among the branches and the states without Article V.
And this is the pivot point of the entire lecture series:
If we truly wish to unrig the structural advantages of modern Favored Minority Coalitions, the path does not run through the restrictive amendment clause in the Clause — Article V. The path runs through Congress’s power to enact legislation under Articles I, III, and IV.
Most people don’t realize that the balance of power in each of the Areas of Contest can be changed without amending the Constitution.
Congress can reduce the Senate bias without abolishing the Senate.
It can diminish the Electoral College’s distortions without an amendment.
It can limit the Supreme Court’s ability to entrench minority rule by exercising its powers, both express and implied, under Articles I, III and IV of the Constitution.
That is where we turn next:
a legislative blueprint that would disrupt today’s frozen political coalitions, strengthen majority rule, and restore the dynamic, evolving democracy the Framers believed they were designing.
What I am about to describe is not aimed at instituting particular policy goals, except for one-this Agenda is aimed at making our government a government of the people working for the people instead of a government of the states working for the states.
We will start with legislation which, if enacted and enforced, would dismantle the structural advantages of Favored Minority Coalitions,
In order to reduce the disproportionate power in the Senate of the current Favored Minority Coalition, Congress could add new states which are not controlled by that Coalition — D.C. and P.R.
In order to eliminate the shrinking power of the voters of the largest states and the disproportionate power of the less populated states in both the the House and the Electoral College, Congress can eliminate the cap on House seats and expand the House (using ratio of 1 representative per population of smallest state)
As we have seen throughout this series voter suppression and gerrymandering are the most important tools wielded by Favored Minority Factions. These deforming advantages can be completely eliminated by Congressional legislation.
Congress can enact a National Voting Rights Act which would:
eliminate gerrymandering by creating neutral redistricting standards and commissions, proportional thresholds, federal review, and
impose uniform federal voting standards and rules for all levels of state and Federal elections.
The goal of these standards and rules should be to make it easy for all citizens over the age of 18 to vote, to make it easy to count and verify the results, and to protect the voters foreign and partisan interference.
These standards and rules should include early voting, mail-in voting, designating voting days for Presidential and biennial Congressional elections as National holidays, and enforcement by the Department of Justice.
Congress should provide adequate funding for states to purchase equipment and software to implement the required voting procedures.
As we have discussed, while voter fraud is virtually non-existent, decades of republican fear-mongering has so deeply baked the fear of this bogeyman into a significant part of the population that a National Rights Act should create mechanisms verifying voter qualification, so long as those mechanisms are easy for all citizens over the age of 18 to satisfy.
Congressional Authority: There is no question that Congress has explicit authority, under Article I, Section 4 of the Constitution, to implement all of these standards and procedures for Congressional elections.
While Congressional authority to enact legislation standardizing state elections is not explicit, it should be no less clear.
Congress can rely upon:
1) The Republican form of government clause, which reads: “The United States shall guarantee to every State in this Union a Republican Form of Government.”
Voter suppression laws and practices in any state are used for the express purposes of assuring that the factions currently remain in power in those states no matter what the desires of a majority of the citizens of those states. Congress would have a very solid basis for banning those practices on the grounds that they undermine a republican form of government.
2) Another basis supporting the concept that Congress has the power to enact legislation protecting equal voting rights within states are the 14th Amendment’s privileges or immunities and equal protection clauses. The privileges or immunities clause, which, as we know from Senator Howard’s speech to the Senate, was intended to include voting as a fundamental right, and it is no stretch to understand that the equal protection clause guarantees that every citizen’s vote counts the same.
If Congress were to enact a Voting Rights Act of the nature which I have described, the legislation could include provisions which would go a long way to ensuring compliance by the States:
As I mentioned, it could provide the carrot of funding for the states for the costs (which would, for example, require standardized equipment) of implementing the laws.
It could also impose the never used penalty of Section 2 of the 14th Amendment by defining any State’s failure to comply with the Act as “abridging” the right to vote of its citizens and by threatening a proportionate reduction in the number of Representatives of any state which Congress finds has materially hindered the right to vote of any of its citizens.
Another enormous problem which we have not previously discussed in this series is the huge and corrupting influence of money in politics.
Congress could attack this problem by reenacting a version of the McCain-Feingold Campaign Finance Reform Act.
The challenge to enacting campaign finance reform legislation is, of course, that enactment of such a law would directly defy the Supreme Court’s interpretation, in 2010, of the First Amendment in Citizens United v. the Federal Election Commission. Congress should remember that it has its own power to interpret the Constitution in defiance of the Court’s opinions and that has done so before, enacting Act CXI of 1862 in defiance of the Dred Scott opinion, enacting the Second Bankruptcy Act in defiance of the Court’s 1935 opinion in the U.S. v. Bekins.
The Filibuster: Assuming, that a majority of Representatives and Senators reach the conclusions which I have just described, the last remaining legislative barrier to enactment of this program, which I will call the Democracy Agenda, would be the filibuster
As we know, the filibuster is a Senate rule which can be eliminated, amended or suspended by a vote of the majority of the Senators. So, in the face of what undoubtedly would be the party discipline of the the current Favored Minority Coalition, if the Democrats hold the Presidency and the majorities in the House and the Senate, they can, and they should, either amend, suspend or repeal the filibuster in order to enact the Democracy Agenda.
Keep in mind that any changes in the number of Representatives and Senators arising from the Democracy Agenda would automatically impact the structure of the Electoral College, since the number of Electors assigned to each State is simply the sum of its Representatives and Senators.
• Slide 37: How to Restore Congressional Power Over the Court through Legislation
It would not be surprising if the Democracy Agenda were enacted, the current Supreme Court would try to undermine it. Congress has the tools to confront that threat.
There has been a growing discussion over how Congress might deal with the Supreme Court. After Justice Ginsberg died and Coney Barrett’s rushed confirmation, the clamor was so great that President Biden called together a 36 professor commission to review the history of the Court and analyze possibilities.
This commission issued a report which offered a plethora of ideas.
We can break the choices down to five categories which Congress has the power to enact through legislation:
— Changes in the Supreme Court’s structure
— Changes in Supreme Court’s practices
— Changes in changes in Supreme Court Jurisprudence
— Reenactment of legislation to overturn the Court’s interpretation of laws
— Direct defiance of the Supreme Court’s ‘interpretations of the Constitution
Let’s consider these categories one at a time:
As to changing the structure of the Court:
The most obvious change would be adding justices. There is no question that Congress can do this and has done it many times throughout our early history.
Since both sides can play this game, I wouldn't add Justices unless some version of the Democracy Agenda were simultaneously enacted.
A second structural approach would be for Congress to enact legislation imposing term limits on the time that a Justice can act as a Supreme Court judge and combine that change with a law which grants to each President the power to appoint an equal number of Justices to the Supreme Court.
There are constitutional questions to this approach because of lifetime appointment requirements for Article III judges. There are some plausible ideas that might address the constitutional questions, such as creating separate panels on the Supreme Court and different categories of Supreme Court Justices.
If term limits and an equal appointments structure were already in place, that would have done a great deal to moderate the partisan flavor of the Court. Even if this idea gains traction, it would take a generation to fully implement such a plan. So, it is incumbent on Congress to consider other ideas.
Another explicit control which Congress has over the Court is the power to determine the types of Appellate cases the Court may hear.
This Congressional power derives from Section 2 of Article III, which reads:
“In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”
Section 2 means that, with the limited exceptions of cases where the State is a party and cases where ambassadors and certain other public officials are a party:
— Congress has the power to strip the Court of its jurisdiction to decide any other types of cases
— Congress has the power to prevent the Court from reviewing certain laws, for example, the constitutionality of the Voting Rights Act,
— Congress has the power to create new courts to consider particular types of issues, and, as we will discuss, the power to regulate the manner or jurisprudence which the Court uses to interpret Congressional laws
Now let's glance at legislation which Congress could enact which would control the practices of Supreme Court Justices, specifically Ethics and transparency codes and an Independent recusal process. Lower court Federal judges are already subject to reporting requirements by law and ethical and recusal standards pursuant to the self-imposed Code of Judicial Conduct. Neither of these applies to Supreme Court Justices.
Senator Sheldon Whitehouse of Rhode Island proposed just such a law in both this Congress and the last one — the Supreme Court Ethics, Recusal and Transparency Act. In the last Congress, the filibuster blocked the bill. There is essentially no path for the bill unless the filibuster is eliminated, amended or suspended.
Congress could also enact legislation which regulates the Court’s jurisprudence, specifically the way in which the Courts interpret Congressional legislation
As we just read, Section 2 of Article III gives Congress the power to regulate the way in which the Court hears cases. And, as we discussed earlier, the Court has imposed doctrines about the manner in which Congressional laws may be interpreted, such as the Major Questions Doctrine, the Non-Delegation Doctrine, and the Chevron Doctrine (which we haven’t touched on) which have the effect of limiting Congressional power. Section 2 gives Congress the power Congress could enact legislation which prohibits the Court from employing these doctrines
The last two tools which Congress may wield against the Court are more confrontational, the power to overturn or defy Supreme Court interpretations-of the law and of the Constitution
No one has any question that if the Supreme Court issues an interpretation of a Congressional law, that Congress has the power to amend or restate existing laws to overturn the Court’s interpretations of those laws. This is standard practice in our system. When the Supreme Court interprets a statute in a way Congress disagrees with, Congress can simply reenact the law — often with clarifying language or explicit findings — to restore the meaning it intended all along.
There are many examples where is approach could be used, starting with the Voting Rights Act of 1965 which the Roberts Court is in the process of eviscerating
Congress could also enact laws which strengthen existing Court constitutional decisions, such as same sex marriage decision of Obergefell.
And finally, Congress could follow the path of the Civil War and Depression Congresses and enact legislation in direct defiance of the Supreme Court interpretations of the Constitution
Legislative examples of such direct defiance might be:
Enacting, in defiance of the Supreme Court’s 1997 opinion in City of Boerne v. Flores, a Voting Rights Act which explicitly finds that voting is a fundamental right under the privileges or immunities, equal protection, and enforcement clauses of the 14th Amendment, and
Re-enacting, in defiance of the Supreme Court’s 2010 opinion in Citizens United, campaign finance reform law limiting and regulating campaign contributions.
This approach has rarely been tried, but as we have seen, with both Act CXI of 1862 and the Second Municipal Bankruptcy Act, Congress has that power and has used it.
I must end these analyses by speculating that aggressive actions by Congress in defiance of the Court could lead to a constitutional crisis, particularly if states under the control of the Favored Minority Coalition defied Congress and followed the Court-remember the Kentucky and Virginia Resolutions of 1798 which we discussed in Episode 1. The difference between then and now is that Jefferson and Madison did not appeal to the Supreme Court, so the Court was not in the picture.
In my judgment, the crisis isn’t worth having over any of the policy issues. But it is worth having in order to enact the Democracy Agenda in order to remove the deforming structural advantages which have always benefited the Favored Minority Factions.
• Slide 38: How to Restore Congressional Power Over the States
Let’s take a quick look at legislation affecting the struggle between Congress and the States. This Area of Contest significantly overlaps the contest between Congress and the Supreme Court. That shouldn’t be a surprise, because the Court regularly has weighed into the battle between Congress in the states.
Briefly, Congress could enact legislation which is founded on broad readings of Congressional power under the spending power, the commerce clause, and the general welfare clauses of Article I, Section 8 and under the enforcement provisions of the Reconstruction Amendments, including the legislation we have discussed today.
In order to strengthen Administrative Agencies, Congress could modernize the Administrative Procedure Act and reaffirm that delegations of its powers to administrative agencies are necessary.
And, lastly, asserting Congress’s Right to Define Fundamental Rights of Citizens and Enact Legislation under Sections 1 and 5 of the 14th Amendment would enable Congress to negotiate political settlements of many of the culture war issues, in lieu of the fiat decisions of the right wing court.
• Slide 39: Areas of Contest Scoreboard After Enactment of Democracy Agenda
Now, for a last look at the scoreboard as it would look after the enactment of the Democracy Agenda:
STRUCTURAL ADVANTAGES OF THE FAVORED MINORITY COALITION
All structural advantages of the Favored Minority Factions would be eliminated, except for the structure of the Senate. And the structural advantage in the Senate of the less populated states would be moderated both by adding states presently controlled by the opposing political coalition, and by eliminating or amending the anti-majoritarian filibuster.
The result would be the likely reconfiguration of the existing Republican and Democratic, and more flexible, changing, issues based coalitions
CONGRESS v. THE SUPREME COURT
Congress asserts its constitutionally granted — both explicit and implicit — powers over the Court.
By exercising its Article III and necessary-and-proper authorities, Congress re-establishes an accountable judiciary
The Court remains independent in judgment but no longer supreme in power.
CONGRESS v. THE STATES
Congress asserts its power to enact and implement legislation protecting and enhancing the fundamental rights and general welfare of the people.
Through renewed national legislation — covering representation, voting rights, and equal protection — Congress restores the federal principle as a partnership, not a hierarchy, ensuring that the rights of citizens do not depend upon the state in which they live.
• Slide 39: Trump Demonstrates that the Struggle for National Power is a Game and that the Rules Matter
The lesson of this lecture series is that, in a democracy, rules and practices which give political groups disproportionate power distort the game.
Instead of acting to represent the actual interests of their constituents, the Favored Minority groups come to dominate the political coalitions of which they are part and all of the factions in Favored Minority Coalitions accept party discipline and the policy preferences of the Favored Minority.
Today’s political news supports the thesis of this series. When Donald Trump advocates redrawing maps to “pick up five House seats,” or demands elimination of the filibuster so that national voting laws can be rammed through, he demonstrates that he understands that the struggle of the National government is a game and the key to the game are the rules of the game. He is willing to ignore the rules in order to reset the rules to achieve his goal of entrenching the current Favored Minority Coalition for the foreseeable future.
If the Democratic Party coalition regains control over the Presidency, the House and the Senate, the most important item on their agenda must be the enactment of legislation intended to achieve the goals of the Democracy Agenda. The Democracy Agenda doesn’t predetermine policy outcomes; its enactment would remove structural distortions so shifting coalitions can bargain in the open, and no party can rule by procedural entrenchment alone. Reform requires changing the rules that create structural advantages leading to disproportionate power.
A change will come when the people realize that the deforming grip of favored minority factions can be broken by Congress without amending the Constitution!
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