Jurisprudence

Lessons From American History on How to Survive Minority Rule

A sepia-toned photo of a white man in 1850s dress.
In the 1850s, Sen. James Henry Hammond (pictured) argued “mudsills” didn’t deserve the same rights and rewards as people like him. Public domain

On a recent episode of Amicus, Dahlia Lithwick was joined by Heather Cox Richardson, the historian behind the popular Letters From an American newsletter, to situate the position of minority rule in which we find ourselves within a larger historical context. A portion of their conversation, which has been edited and condensed for clarity, has been transcribed below.

Dahlia Lithwick: There is clearly a design flaw when you have gerrymandered legislative districts that are not apportioned one person, one vote. Then you have a wildly malapportioned Senate in which if you’re in California or Wyoming, you have the same amount of representation. And then you have a president who did not win the majority of the votes. So it seems as though the entire structure is existing to preserve minority rule. Then larded up over that, now you have a Supreme Court that is five justices appointed by minority-majority presidents. It just feels as though, unless I’m missing something, this is a profound design flaw, where there is no way that you’re going to have anything close to majority rule because it feels as though, at least in this moment, every branch of government has been designed to suppress majority will.

Heather Cox Richardson: The only place you’re wrong is in the word design. The system itself is not necessarily baked to do that. We are absolutely in a moment when we have gotten to a place where we have minority rule and it is baked into the system that we currently have. But the system itself doesn’t have to do that. And there are times when it has not. But one of the things that has happened at least three times in American history is we go from a period where there is a focus on equality and on rights, and when that happens, when ordinary people start to have political power, they do in fact guarantee that they retain more of the value that they produce and they want what they have done. And when that happens, the people who have tended to be able to accumulate wealth into their own hands start to worry that they are going to lose that power.

They’re really quite articulate about this in the 19th century. We’ve got people like James Henry Hammond in 1858 giving a speech in front of the Senate in which he says, “Listen, the way this country should work is that the vast majority of people are kind of dumb, and they’re kind of dull, and they’re hard workers and they make a lot of money.” I’m not making this up by the way—he actually calls them mudsills, which is the part of the wood that gets hammered into the dirt to support a plantation home, which is where he lived. He was a South Carolina senator. “And those people produce a lot. They work hard. They produce a lot. But the problem is if you let them keep what they produce, they’ll just kind of waste it. They’re going to fritter it away on stuff like food. And that’s not going to move society forward. So what you really want to do is let that wealth accumulate at the top, and people like me,” he says, “are going to go ahead and we’ve got connections and we have educations and we know how to do things and we will move society forward. And this is obviously the way things should be, because, look, we’ve got beautiful paintings on our walls, and God obviously favors us, unlike those people at the bottom of society.” And he argues, of course, this point with regard to the African American neighbors he enslaves, but he also applies that to the North. And he says, “You guys are idiots because you’ve also got this same group of mudsills, but you let them vote. And if you let them vote, they’re going to ask for more of what they’re producing. And if they do that, they’re going to redistribute wealth. And that means people like us aren’t going to have as much money and we’re not going to be able to move society forward.”

Andrew Carnegie says something very, very similar in 1890. And obviously you see the same thing nowadays with the concept of makers and takers. It’s a way of thinking. It’s a philosophy itself, but what happens when they begin to fear the idea of widespread voting is in each of the periods that I’m talking about—the 1850s, the 1890s, and now the present—is leaders start to claw back who gets to vote. First they start to suppress the vote either through, nowadays, making the lines long, or in the 1890s having grandfather clauses or understanding clauses in the Constitution, or in the 1850s making voting dependent on property. Then, when even that isn’t enough, they begin to change the media systems so that people only get access to their version of the facts. And that happened in all three of the periods I’m talking about. And then they actually start to game the system like they are nowadays, saying, “Well, we’ll gerrymander the states to the point that the Democrats basically can’t win.”

So first they start with suppressing the vote. Then they start with changing the media landscape, and then they go forward and say, “I’m just going to change the way things are.” And when even that doesn’t work, in all three of the periods I’m talking about, they say, “OK, we’re really in trouble now. We better make sure that nobody can change the way the system works by baking it into the Supreme Court.” So in the 1850s, you have the Roger Taney court going ahead and saying, “We’re just going to go ahead and advance the interest of the elite slaveholders through the courts, even though they absolutely do not have the numbers—they’re only about 1 percent of even the Southern population, let alone the American population.” In the 1890s, you have the Melville Fuller court. They try and bake their vision into the Supreme Court. And I will point out that we don’t retain the decisions from the Taney court or the Fuller court. And I expect the decisions of the Roberts court will also in 20 to 30 years be largely replaced.

Justice Ginsburg used to always say, “It’s a pendulum. It swings back and forth.” For an awful lot of folks who listen to this show, this is an apocalyptic, once-in-a-lifetime abuse of the levers of government and the court that we’ve never seen before. And what you’re saying is, “Oh, buddy, no, no, no. This is something that happens and it’s corrected.” It’s corrected by a move back to that first vision of democracy you described: You pass H.R. 1, you give statehood to D.C. and Puerto Rico. You make sure everybody can vote. You do all the things that should have been done, by the way, after Bush v. Gore and the motor voter law to ensure that voting is easy as opposed to difficult. This is correctable. What other big structural changes have to happen to get the pendulum to swing back?

First of all, to go back to the project of democracy—which I think is really where we need to be—I hear this all the time: This is it. It’s over. We’re done. They’ve got the court. And I just want to put that as an intellectual problem. If we are a democracy, how does a small minority retain power? What does that look like? What does it look like if in fact we have a Supreme Court that takes away things that 80 percent of us want? Does that mean we all go, “OK, it’s over now”? I just don’t see Americans saying, “OK, yeah, I’m going to do exactly what the justices say.” A great example of this is the Dred Scott decision of 1857, which was enormously unpopular for various reasons that I won’t go into here, but Americans didn’t go, “Oh, yeah, that’s right.” No, a small minority of Americans went, “Yeah, that’s right. We’re going to abide by the Supreme Court.” And the vast majority of Americans were like, “Ain’t happening here.”

So the question is, first of all, what does that look like? This is one of the things I keep hammering on: It is not sustainable for us to have a president who is in power with only a minority of the popular vote. And I think it’s really astonishing where we are right now in America, that we have somebody running for reelection who is making no pretense to winning a majority. He is simply trying to game the system, and that’s never happened before. And that’s really important. The Supreme Court is not reflecting where the majority of Americans are; that is not sustainable. Gerrymandering does not reflect where people are; that is not sustainable. The Electoral College doesn’t reflect where people are; that is not sustainable. The Senate does not reflect America; that is not sustainable.

So where does the change come from? And the answer to that depends on how you see the world. I am an idealist, so I believe that the world changes according to the way people think and the pressure that we put on our representatives, because if we vote them out, the people that we elect to make our laws are going to reflect more what we want them to do. And I think one of the problems that we’ve had since the Warren court, since the Berger court, and really since the New Deal, is that a lot of Americans thought our system was done. That we were going to have Social Security. We were going to have Medicare. We were going to have basic protections for minorities, for women. Those things just were there. I remember students saying to me, 20 years ago, when I talked about attacks on women’s reproductive rights and them saying to me, “Oh, you’re just an old feminist. These are never going away. No one’s going to put up with it.” And I kind of wish I had the list of those students in front of me to say, “Should we talk again?”

But I think now Americans recognize that they need to put skin in the game. And every time that I’ve talked about the 1950s, and then the 1960s, or the 1890s and the 1900s, or the 1860s and the 1870s, what changed the American government was the American people stepping up to the plate and saying, “This is what democracy means. This is what we stand for.”

To hear the rest of their conversation, listen below, or subscribe to the show on Apple Podcasts, Overcast, Spotify, Stitcher, Google Play, or wherever you get your podcasts.