A Legal Scholar On 10 Laws 'Ruining America'

Summary

Fresh Air: A Legal Scholar On 10 Laws 'Ruining America'

Episode Overview Released on March 24, 2025, this episode of Fresh Air delves into the critical analysis of longstanding American laws with legal scholar Elie Mistahl. Hosted by Tonya Moseley, the discussion centers around Mistahl's provocative book, Bad 10 Popular Laws that Are Ruining America. The conversation navigates through the historical and contemporary impacts of these laws, arguing that many pre-1965 statutes remain fundamentally flawed and detrimental to American society.

Guest Introduction Elie Mistahl is a distinguished legal analyst and justice correspondent for The Nation. He serves as the legal editor for the More Perfect podcast by Radiolab and holds an Alfred Knobbler fellowship at Type Media Center. Mistahl is also the author of A Black Guy's Guide to the Constitution, which provides insightful perspectives on American legal structures. In this episode, he presents his latest work, blending humor with incisive legal critique.

Choosing the Target Laws [01:25 – 02:50] Mistahl explains the rigorous selection process for the ten laws featured in his book. He emphasizes focusing on laws that are not only outdated but also inherently harmful and unnecessary, distinguishing them from those requiring reform or updates.

“The laws that I focused on in my book are both consequences, but don't need to be reformed, don't need to be massaged, don't need to be updated for the modern age. They're just stupid. And if we just got rid of them, things would be better the day after we got rid of those laws.”
— Elie Mistahl [01:38]

Pre-1965 Laws and Democratic Ideals [03:42 – 07:04] A significant portion of the discussion addresses Mistahl's assertion that laws enacted before the 1965 Voting Rights Act should be scrutinized for their constitutionality. He argues that these laws were often crafted with anti-democratic or racist intentions, effectively rendering the United States an "apartheid state" prior to landmark civil rights legislation.

“Any law passed before that the Voting Rights Act should be viewed with constitutional skepticism.”
— Elie Mistahl [04:15]

Mistahl clarifies that his stance does not call for the blanket abolition of all pre-1965 laws but rather encourages a reevaluation of their validity in today's context. He highlights the necessity of democratic participation in assessing the continued relevance of these statutes.

Immigration Laws and Current Implications [07:04 – 12:37] The conversation shifts to immigration, with Mistahl critiquing the 1921 Immigration and Nationality Act (INA). He uses the case of Mahmoud Khalil, a green card holder detained under outdated provisions of the INA, to illustrate how such laws facilitate arbitrary and unjust governmental actions without due process.

“That is dumb. That is anti democratic. That should be unconstitutional.”
— Elie Mistahl [08:06]

Mistahl traces the INA's origins to roots steeped in racist ideologies, linking it to Nazi eugenics, and underscores the lack of due process in revoking legal status under this act. He argues that contemporary applications of the INA perpetuate systemic racism and undermine democratic principles.

Voter Registration Laws: An Anti-Democratic Barrier [12:37 – 20:21] Mistahl vehemently criticizes voter registration laws, labeling them as barriers to democratic participation. He points out that unlike other democracies with universal registration, the United States imposes unnecessary hurdles that suppress voter turnout.

“Voter registration, on the other hand, is completely useless. Once we have established the rules for eligibility, everybody who is eligible should be automatically registered to vote.”
— Elie Mistahl [12:54]

He elaborates on the historical context, explaining how post-Civil War registration laws were designed to suppress votes from African Americans and immigrants, thereby maintaining political control among suburban and rural voters. Mistahl advocates for automatic voter registration to enhance participation and restore democratic integrity.

Airline Deregulation and Neoliberalism [21:12 – 28:02] One of the standout discussions revolves around the Airline Deregulation Act of 1978. Mistahl critiques how bipartisan support, particularly from figures like Senator Ted Kennedy, ushered in neoliberal economic policies that prioritized deregulation to the detriment of consumers and public welfare.

“When you give the market what should be a government function, it's not just that the government then has to bail them out when they go poorly, it's that the government never gets the benefits when they do well.”
— Elie Mistahl [26:43]

He contrasts the regulated airline industry of the past, which emphasized service over price competition, with the current deregulated environment where airlines exploit market freedoms, often requiring taxpayer bailouts while withholding benefits from the public.

Congressional Representation and Democracy [28:42 – 35:35] Mistahl addresses the flawed representation in Congress, highlighting that each representative serves approximately 700,000 people—the worst ratio among democracies globally. He traces this inefficiency back to the 1920s when the House of Representatives was capped at 435 members, stifling proportional representation growth alongside population increases.

“If you did that, you'd have to add about 700 Congress people, and that would be better. Having literally more congresspeople would be a more representative government.”
— Elie Mistahl [30:09]

He proposes adopting the Wyoming Rule, mandating one representative per 570,000 people, to ensure fairer representation and enhance the functionality of the Electoral College.

Closing Remarks [35:35 – 37:38] Mistahl shares personal anecdotes about his upbringing and influences, underscoring the blend of personal passion and academic rigor that fuels his critique of American laws. His unique perspective as a Black legal scholar informs his comprehensive analysis of systemic legal shortcomings.

“This was fun.”
— Elie Mistahl [37:36]

Conclusion Elie Mistahl's Bad 10 Popular Laws that Are Ruining America presents a compelling argument for reexamining and repealing antiquated and harmful laws that continue to impede democratic progress and social justice. Through historical analysis and contemporary case studies, Mistahl advocates for legal reforms that align with modern democratic values and societal needs.

Notable Quotes with Timestamps

• “[...] every law passed before 1965 would be deemed unconstitutional.”
  — Elie Mistahl [00:00-00:30]

• “Voter registration... is completely useless.”
  — Elie Mistahl [12:54]

• “That is dumb. That is anti democratic. That should be unconstitutional.”
  — Elie Mistahl [08:06]

• “When you give the market what should be a government function, it's not just that the government then has to bail them out when they go poorly...”
  — Elie Mistahl [26:43]

Relevance for Non-Listeners For listeners who haven't experienced this episode, Mistahl's discussion is an eye-opening exploration of how certain entrenched laws continue to shape and often hinder the American democratic landscape. His insights not only critique existing legal frameworks but also propose thoughtful reforms aimed at fostering a more equitable and representative society.

Transcript

[Tonya Moseley]

This message comes from Capital One. Banking with Capital One helps you keep more money in your wallet with no fees or minimums on checking accounts. What's in your wallet terms apply. See capitalone.com bank for details. Capital One NA Member FDIC this is FRESH AIR. I'm Tonya Moseley. My guest today, legal scholar Elie Mistahl, says if it were up to him, every law passed before 1965 would would be deemed unconstitutional. From his view, before the Voting Rights act, the US was basically an apartheid state. Mestall's new book, Bad 10 Popular Laws that Are Ruining America, mixes humor with deep analysis to argue that our laws on immigration, religious freedom, abortion and voting rights are actually making life worse than better. They've caused, he argues, massive social and political harm and don't reflect the will of most Americans. Ellie Mistahl is a legal analyst and justice correspondent for the Nation and the legal editor of the More Perfect podcast on the Supreme Court for Radiolab. He's also an Alfred Knobbler fellow at Type Media center and the author of Allow Me to A Black Guy's Guide to the constitution. And Ellie, Ms. Stahl, as you always seem to do, you've made this subject both funny and informational. So we'll be laughing today to keep from crying. Thank you so much for this book and welcome to FRESH air.

[Elie Mistahl]

Thank you so much for having me, Tanya.

[Tonya Moseley]

Okay, so in each chapter of the book, you give an analysis of a law that you say is ruining America. There are 10 of them. How did you go about choosing which laws to focus on?

[Elie Mistahl]

That was the most difficult part of writing this book because as you can imagine, there are a lot of laws. Many of them are stupid, and I did not read them all. So trying to scope how to pick just 10 was the initial challenge of the book. And where I landed on was trying to focus on laws that could be stricken today and have life be better tomorrow. Right? There are many laws that we have that are dumb but inconsequential. Right. And there are many laws that we have that are dumb but really complicated, Right. And require not repeal, but reform, require updates, require massaging. Right? The laws that I focused on in my book are both consequences, but don't need to be reformed, don't need to be massaged, don't need to be updated for the modern age. They're just stupid. And if we just got rid of them, things would be better the day after we got rid of those laws. So that was the kind of fundamental scoping of the book. And that's How I came up with the 10 that I chose to focus on.

[Tonya Moseley]

You are saying that these laws aren't basically imperfect like the other types of laws that you mentioned. You're arguing that their very function is to harm.

[Elie Mistahl]

And what I try to do in the book is explain that the harm that these laws caused was what was intended by the people who passed them. You know, a lot of times in the book I will go into the history of how these laws came about in the first place and you will see people making terrible decisions in real time in support of these statutes and other kind of legal concepts and measures. Right. The laws that I'm focusing on are functioning as intended, if you will. And their intention was poor, their intention was bad, their intention was anti democratic or racist or again or monopolistic.

[Tonya Moseley]

I want to get to something I said when I introduced you that you feel like before 1965, really all laws before 1965 should be abolished. By and large, the United States legal system relies so heavily though on judicial precedent. So almost everything goes back to what happened before it. So your feelings that everything before 1965 is kind of in direct opposition to what America is most proud of. Can you explain that argument a little bit more?

[Elie Mistahl]

Indeed it is. It is in opposition to what America is most proud of. Because I don't think America should be particularly proud of slavery and apartheid. And when you look at the laws that were passed before 1965, what we have is a situation where not everybody who was living here under the laws had a right to have a say in what those laws were. They didn't have a right to vote. They didn't have a right to participate in the government. Not a full, fair and equal right to participate in the government. And so that is antithetical to the concept of democratic self government. Now Tanya, you did slightly misstate my position in the open because I don't say that all of the laws passed before 1965 should be immediately and forever abolished tomorrow. That is actually a little bit too extreme even, even for me. What, what I am saying is that any law passed before the 1965 Voting Rights act, which I have always said is the most important single piece of legislation ever passed in American history, cuz it's the first piece of legislation ever passed in American history that that made real the promise of democratic self government right before the 1965 Voting Rights act, we are functionally an apartheid state. So what I'm saying is that any law passed before that the Voting Rights act should be viewed with constitutional skepticism. Right. So put it like this. If all you got for why this should happen or that shouldn't happen is some law that was passed in 1921, I don't care. I just don't care. And I don't think the government should care. I don't think legislators and I don't think judges should care. If you've got an additional argument for why the law is good, well, now we can have a discussion, right? Because I'm not saying that every single law passed before 1965 was facially bad, Right?

[Tonya Moseley]

I mean, there are some that were actually really good, that moved forward, progress.

[Elie Mistahl]

The 1964 Civil Rights Act, I think, was pretty good. But I also think, and this is perhaps me being a little bit naive, I also think that the laws that were passed before the Voting Rights act, the laws that were passed before we had full, fair and equal participation in government from all Americans. The laws that were passed before that that we like, that we think are good, we could probably pass those again. At least we could try, right? So if you think that you have this law from 1921 that's still really good and really relevant and really important for the modern age, why don't you pass it again, this time asking everybody, not just rich white men, let's ask everybody if we think that law is still good, and if so, and some of them will be, then let's go.

[Tonya Moseley]

Let's talk a little bit about some of the laws that you focus on in the book. We're not gonna be able to get to all of them, but all of them in some capacity are part of the current news cycle. It's really interesting, and one big one is our immigration laws. I wanna talk about this in regards to a case that we are following right now. Palestinian activist and Columbia University graduate Mahmoud Khalil is an example of some of the problems you say are at the core of our immigration. To remind people, Khalil, who is a green card holder, was detained by ICE on March 8, accused of supporting Hamas and organizing protests on Columbia University's campus. The government has invoked elements of the 1921 Immigration and nationality act to justify his detention. And it's a law that you write about in your book. And we'll get deeper into your thesis about why you feel that this particular law should be abolished. But can you first explain the law as the government is interpreting it to detain Khalil?

[Elie Mistahl]

Yeah. So one provision of the INA of 1921 was that the Secretary of State, on their sole discretion, can revoke the Legal permanent status of immigrants. So green card holders and other work visa holders, other legal permanent residents, that the Secretary of State can revoke these legal documents on their say so if they feel that that immigrant's activities contradict some fundamental foreign interest of the United States. There's no hearing, there's no jury, there's no trial. There's just the say so of the Secretary of State. That is dumb. That is anti democratic. That should be unconstitutional. And the only reason why the government has any argument to hold, I believe, illegally hold, abduct and threaten to deport a legal green card holder like Khalil who committed no crime. Because remember, Khalil has not been charged with any crime because he didn't commit any crimes. He is being.

[Tonya Moseley]

Well, at the heart of the case is whether Khalil has First Amendment rights as a permanent residential.

[Elie Mistahl]

I would love to get to that heart of the case. But even before we get to that key First Amendment question, the fundamental hook that the government is using to hold Khalil is this determination by Rubio, by the Secretary of State of the United States, who is currently Marco Rubio, that Khalil was engaged in anti American activities. That the government even has a hook to revoke his green card. And that statute, that line, that hook comes from the 1921 Immigration Nationality act, to me is a perfect example of why these old disgusting racist laws should be repealed forthwith and on their face. Because it is these kinds of metastasizations of the racism of the past that hound us and haunt us even in our present and our future.

[Tonya Moseley]

You know, this administration has stoked this fear that more immigrants in this country means less resources, a higher chance they'll steal our jobs or commit crimes. And you're saying that characterization has no basis and is racist. And we know that because the people who made illegal re entry a felony actually said so.

[Elie Mistahl]

Yep. So the INA comes from a long congressional process. And one of the chief advocates for the INA and for the restrictions on immigration specifically for immigrants from the global south was based on the science and testimony of a guy Laughlin. Laughlin would later go on to receive a medal from the then Nazi controlled University of Heidelberg for his important scientific contributions to the theory of eugenics. When I say that America exported Nazi eugenics to the Nazis, I'm not being hyperbolic. This guy Laughlin, this is the guy that essentially told Hitler how to make eugenics work as a scientific proposition. And it's this guy and his science that the US Congress relied upon while writing the initial Ina this guy was giving congressional testimony. In those congressional testimonies, congressmen, congressmen from both political parties, by the way, were saying how important the testimony is and how important it was to, to write an immigration law that would protect the white race in America from mongrelization by the weaker and inferior races. That's literally in the Congressional record in support of the Immigration and Nationality act, which is currently being used to hold Mahmoud Khalil illegally. It is one linear story and that story is steeped in literal Nazi eugenics.

[Tonya Moseley]

Ellie, you actually start off the book asking the question, why isn't everyone registered to vote? Every single voter registration law you argue is anti democratic and I want you to explain what you mean.

[Elie Mistahl]

Every single one, right? So look, voter eligibility requirements are one thing, right? Voter eligibility requirements are things like you have to be 18 and you have to live in the state that you vote in and all these kinds of rules and regulations. And I can argue that some of the eligibility requirements are bad or wrong, but again, the scoping of the book, what can we repeal? I don't think that we can repeal voter eligibility requirements. We need to have some of them, even if some of them are ones that I wouldn't agree with or like. Voter registration, on the other hand, is completely useless. Once we have established the rules for eligibility, everybody who is eligible should be automatically registered to vote. And that is not just me saying that. That is most of the democratic world saying that America is unique in its double hurdles to voting, right? We call ourselves the greatest democracy in the world. We are not, we are not in the top 10 because other countries have universal registration, have some, most other countries have some form of universal registration so that if you are eligible to vote, you are automatically then registered to vote. You don't have to go through a two step process. Hey, I'm eligible and now also I'm registered. That is insane. And that is straight up anti democratic.

[Tonya Moseley]

Let's go to the period after the Civil War when registration laws actually took effect. Can just remind us of that time period, right?

[Elie Mistahl]

So first of all, registration was not endemic to the founding of this country, right? Whatever you think about James Madison and Thomas Jefferson and them, they weren't running around requiring pre election registration for eligible voters. Now obviously I disagree strongly with Thomas Jefferson's eligibility requirements. But for the 15 rich white men Thomas Jefferson thought should be eligible to vote, they didn't have to register to vote. Voter registration really only became a thing in America after the Civil War and it really only became a thing in America after the Civil war in the north because you had this exodus of newly freed black people migrating to the North. You had this influx of immigrants from across the pond migrating to the north to places like New York, specifically to places like New York City. So all of a sudden New York State fearing the black and Irish swelling of New York City and how that would overwhelm and overrun upstate voters, that's when you get the first real voter registration requirements in the north, specifically in New York City. Laws that are designed to make it harder for migrating black folks and new immigrants into New York City who are eligible to vote, to register to vote, because that suppresses the vote of New York City and maintains the superiority of suburban. It wasn't suburban at that point. Rural upstate and Long island voters to still keep control of New York State as a polity. That's where they come from.

[Tonya Moseley]

I thought it was so interesting in the book how you talk about like some states make the voting process more difficult than others. I didn't really realize that New York, of the 50 states like it has.

[Elie Mistahl]

We'Re easily one of the worst.

[Tonya Moseley]

Give us just like a few examples of why that is. It's really an interesting thing. And actually in opposition to some others, like I think you mentioned, North Dakota is the only state that does not have voter registration rules. But. Yes. What makes New York so difficult?

[Elie Mistahl]

Well, first of all, we don't have same day registration in New York. Right. You have to register at least 10 days before the election to participate in an election in New York. And while 10 days might not seem like a lot of time, it's if you are a politically active person who listens to things like Fresh Air. But if you're a non political person who is right now listening to espn, being able to register to vote on the same day you actually go to vote for the election is kind of really convenient. Right? But New York doesn't have same day registration on election day. New York has nothing involving what's called portability. And that is critical for a market like New York. So portability means I'm registered in one county and then I move. Does my registration follow me or do I have to re register in the new county that I move to? And in New York there is no portability. So you constantly have to re register every time you change counties. But think about how damning that is in a place like New York City where if you move from Manhattan to Brooklyn, as many people do as they have children, if you move from Manhattan to Westchester, as I did when I realized that My kid couldn't live in a shoebox. You have to re register when you move to Brooklyn or when you move to Westchester or when you move to Long Island.

[Tonya Moseley]

One of the things your book does in talking about these bad laws is kind of give the reader like open up the reader's mind to a vision of what would our society look like if these laws were no longer in existence or we had a chance to vote for them for a new set of laws. How would overhauling voter registration from your view, actually change society?

[Elie Mistahl]

Well, I like to think of it this way. The high watermark for voter participation in this country happened before we had voter registration, right? We had 80, almost 90% turnout before voter registration laws attacked the country. There are a couple of other stories about that. There are a couple other reasons for that. We're a bigger country now than we were in the 1800s, yada, yada, yada. But I believe strongly that if we just had a voter eligibility requirement and everybody who was eligible to vote was automatically registered to vote, we would see participation shoot on up in this country. And voter participation not just for presidential elections, but for all of the other elections all the way down the ballot for the off year elections, for the congressional midterms, for state and local elections. People think about re registering around the four year presidential election cycle. People often don't even know when, when their local elections are taking place. But if everybody was pre registered, if everybody was automatic, everybody who was eligible was automatically registered, then you could literally say, hey Jim, it's Tuesday. We gotta go vote today. Really? What? I didn't know we had a day. Yeah, we do, Jim. Let's go. And we could just go and vote and go home and go back to espn. That's how you, you want to make voting as frictionless as possible if you want to increase participation.

[Tonya Moseley]

Okay, let's take a break. Our guest today is legal scholar and author Ellie Mistahl. We'll be right back after a short break. I'm Tanya Moseley and this is FRESH air.

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[Tonya Moseley]

Okay. I was really fascinated by your chapter on airline deregulation. I love the title, who Gave Away the Skies to the Airlines? And this is an important chapter because you have this theory that Democrats embracing neoliberalism actually kick started with President Carter signing the Airline deregulation Act of 1978 into law. Explain and say more about that.

[Elie Mistahl]

Yeah, Tanya, So behind the curtain here, the inside baseball scoop is that this is the first chapter that I wrote for the book, Right. And I know it sounds weird because airline deregulation, like, how is that nearly as important as immigration or voting rights, which we've just discussed? But I really hate flying.

[Tonya Moseley]

I think all of us do by now. I mean, very few people love it still.

[Elie Mistahl]

And I have to say, in part.

[Tonya Moseley]

Because of what has happened over the decades. Yes, continue.

[Elie Mistahl]

And because of law school, I had such a strong kind of understanding that the reasons why I hate flight, flying are on purpose. The airlines are doing this on purpose. The laws have been constructed to allow the airlines to make me personally hate flying on purpose. Right. But when I sat down to research it, I, like I usually do, kind of initially thought, all right, so where are the bad Republicans? Right? Where are the Republicans? How did they do this? Let me explain it. Right? And as I, you know, every kind of new book or new article, new case I would read, it was just like, oh, there are the Democrats again. Oh, there are some more Democrats. Oh, oh my goodness, there's all of the Democrats. And so it really kind of shaped a lot of the book to really, as I said in the beginning, the scoping of, let's think about the popular laws, let's think about the laws that had broad bipartisan support. And airline deregulation had broad bipartisan support. So broad that its critical sponsor in the Senate was so called well known liberal lion, Edward M. Kennedy of Massachusetts. And so the entire chapter is kind of explaining how a fundamentally conservative Republican laissez faire economic theory deregulation championed by one of the most racist lawyers and impactfully racist humans in American history, Robert Bork. For those playing along at home, Bork is the guy Nixon found to eventually fire everybody during the Saturday Night Massacre. Right, That's Bork.

[Tonya Moseley]

Yeah. He was a Yale law professor, right? Robert Bork, Yes. And he invented this case for airline deregulation.

[Elie Mistahl]

How does Bork's ridiculous, untested, unproven conservative deregulation theory capture Ted Kennedy and become the standard operating procedure of the Democratic party. And my chapter explores how exactly that happened. It was a heist.

[Tonya Moseley]

Right. So, okay, I think you're not alone in feeling, as I said, irrationally angry at the state of airline travel because of this. But to make this make sense for anyone under 40, can you first describe what airline travel looked like before Danish?

[Elie Mistahl]

Well, you know, I only know about the glory days of airline travels from my father and I kind of talk about that in the book. But basically, service was king. Service was king in the old days of airline travel because the airlines couldn't change their prices very much. Prices were fixed by the federal government. There was a regulatory agency called the Civil Aeronautics Board, the cab, which literally had price fixing on airfares. So if you wanted to grow your business as an airline, you couldn't overcharge people, you couldn't undercharge people, you couldn't compete on price. The only way you could compete was on service. And so that's why flying used to be awesome, because service was king. It was the only way to get people to fly. Right.

[Tonya Moseley]

But that price fixing, like the fixing of the price though, I mean, it was also very expensive to fly, right?

[Elie Mistahl]

Well, see, there's. The economists disagree. It was expensive to fly some places, but it was cheaper than it is now to fly some places, but it was cheaper to fly other places. Right. And the difference between what was overly expensive and what was fairly priced dependent on how popular the route was because of, because the point of the price fixing was not just the big bad government stamping down the businesses and innovation. That wasn't why they were price fixing. They were price fixing to try to encourage airlines to fly to low populated routes.

[Tonya Moseley]

You know, today, I think one of many things with airline travel that people get upset about. Well, first off, it does seem like prices are all over the map. It just, you know, there seems to be, it's just, it's all based on the market. But what people really get upset about is how these incredibly profitable airlines continually get bailed out by taxpayers. What could travel actually look like if airlines were regulated today?

[Elie Mistahl]

Right. Well, this is also, this is also the problem of neoliberalism, right? It's seeding to the market what should be a government function, but then still having the government there to back up the market every time it fails. And that is a great business if you are one of the deregulated businesses. Right? Because that means you get to keep all of the profits when things are going well and get bailed out when things are going poorly. The airlines have had massive repeated shocks after 911 during COVID That's just in the past 20 years, right? 25 years. Yet we bailed them out. When the airlines are doing great, do they pay us back? Do they give the money back? No, no, no, son. No, that's not how it works. That's one of the fundamental flaws of neoliberalism. When you give the market what should be a government function, it's not just that the government then has to bail them out when they go poorly, it's that the government never gets the benefits when they do well. And that's the definition of the airline industry. They get all of the profits when things are fine and we have to pay for them anyway when things go wrong.

[Tonya Moseley]

Okay, Ellie, let's take a short break. If you're just joining us, my guest today is legal scholar and author Ellie Mistahl. We'll continue our conversation after short break. This is FRESH air. We don't have time, Ellie, to go through all of the laws that you've highlighted in your book, but I do want to quickly go through a few more of your arguments. We have, as you state, the least representative democracy among all wealthy nations in the world. But break this down because I think many people believe it's the exact opposite. We send representatives that in theory are supposed to represent us in Washington. Or why is this system flawed?

[Elie Mistahl]

Our House of Representatives. Right. The House Chamber of Congress. Right. Which is our most basic federal representative. Right. Your individual congressperson is the closest person to the actual people. One congressman in America represents around 750,000 people. I don't remember the exact number. I wrote it down so I didn't have to remember the exact number. But it's somewhere in the order of one to seven hundred or so thousand. Right. That's the representative ratio of the country, one representative per 700 or so thousand people. Right. That ratio is the worst ratio of any country that calls itself a democracy in the world. And what that means is that in every other single country, one representative represents fewer people than one representative represents. Here our ratio is the worst of any country that calls itself a democracy. That's what I mean when I say that we have the least representative government amongst major democracies. I don't mean that in terms of feeling. I mean that in terms of mathematical fact.

[Tonya Moseley]

You write that. I mean, it's really nearly impossible to overhaul the Senate short of abolishing the Constitution. But overhauling the House is another matter. What is your idea?

[Elie Mistahl]

Well, it didn't Always used to be this way, Right. We are capped at 435 representatives. Right. That's how many people are in the House. Why is that the cap? Is that cap required by the Constitution? No. Did we come up with 435 and we all. No. We used to. Everybody knows after every census, every 10 years we have a census and we all go through the process of redistricting and we find out that like some states gain representatives and some states lose representative and we shuffle everybody around. That used to not happen for the first 150 years. Whenever there was a new census, instead of moving congressmen around, they just added congressmen so nobody lost representation. So the ratios remained relatively stable. Right. So if you, if California ends up needing five more reps, instead of taking those five reps from New York, you just give California five more reps. Boom, problem solved. We did that until the 1920s.

[Tonya Moseley]

What happened in the 1920s that changed this?

[Elie Mistahl]

As with almost every story in this country, black people happen, right? The 1920s saw increasing relevance of people living in cities, urban people happened. Right? And so the 1920 census saw for the first time that real shift from an agricultural rural society to an urban city society. Right. And so the redistricting that would have had to happen after the 1920 census would have given a lot more power to states that had large cities in it, as opposed to states that were mainly rural or agrarian. And the people who controlled the government at that point, it was Woodrow Wilson who was one of the most racist presidents we've ever had. They didn't like it so much that they just ignored the 1920 census. We call the, the scholars call the 1920 census the lost census because it's the only census where no redistricting happened whatsoever. They just, they were just, oh, look at these numbers. Now we're not going to do it this time. And they just did not redistrict for an entire 10 year cycle. Over those 10 years, they came up with their plan. And that plan was to cap the number of congressional representatives. So in 1920, we were at 435 congressmen. And as we get to 1930s, as we get the 1930 census, which shows the same things because it's not like people were moving back to the farm, but by the 1930 census, we have now capped the number of Congresspeople at 435. And so instead of adding representatives to states with large cities, we then just start moving them around between each other. And that is why we're here today, folks.

[Tonya Moseley]

Okay, so this was done until the 1920s. But what you're talking about here would change the Electoral College, too, right?

[Elie Mistahl]

So I'm saying that we should stop doing that. We should just add more Congresspeople. Right? And there are various different ways that we can think about adding more congresspeople, various different numbers that we could go for. I like what the scholars call the Wyoming rule. Right. Every single state gets at least one representative, no matter how unpopulated that state is. Currently, our smallest state by population is Wyoming. Wyoming has around 570,000 people, right. And they get one congressional representative. So let's just use what's called the Wyoming rule. Everybody. Every 570,000 people get one representative, right? That's. That should be our ratio. Not 1 to 750 or whatever, 1 to 570. That's what Wyoming gets. That's what everybody should get. Right? If you did that, you'd have to add about 700 Congress people, and that would be better. Having literally more congresspeople would be a more representative government. Now, Tanya, you mentioned the Electoral College. You always hear, especially liberals complain about the Electoral College. Look, I don't like it neither, but you can't change the Electoral College without a constitutional amendment. You can change the number of congresspeople just by a simple piece of legislation, which, again, we did for about 150 years. If you added 700 congresspeople, do you know what that does to the Electoral College? It makes it way, way more representative of the larger states. Right. So imagine how many extra Congress people would end up in California or New York if we went to the Wyoming rule. And by the way, that's not necessarily partisan, because the other states that we get a lot more congresspeople are Florida and Texas. So it doesn't fix all of the inherent unfairnesses of the Electoral College, but it certainly makes the election for president far more indicative of the number of people who live in this country as opposed to the land that people happen to live on. I promise you, in a world with 700 extra Congress people, Mike Johnson is not the speaker of the House. I promise you that right now.

[Tonya Moseley]

Ellie, your father was, like, the first black American elected to the Suffolk county legislature. Yes. You grew up. You were steeped in this. What books and writers were you reading when you were coming of age?

[Elie Mistahl]

Oh, back in the day.

[Tonya Moseley]

Yeah. Yeah. That, like, led you to your sensibility and understanding.

[Elie Mistahl]

Oh, man. Nothing political. I'm reading Ralph Wiley on ESPN and in Sports Illustrated, man. When I'm seven or eight. Right. I'm a baseball kid when I'm seven and eight, my first big political influence was John McLaughlin because we had one TV in our house. And so, you know, while other kids got to watch like Sunday morning cartoons and Saturday morning cartoons, we had to watch all the political shows. And so I would always watch McLaughlin because McLaughlin, when that was over, I got the TV so I could play Atari after McLaughlin. So I spent a lot of time there are my mom still has tapes of me, like arranging my like, you know, action figures around and going issue number one. He man, why is like, I would literally record myself doing that? Like, that's how much of a nerd I was. So that was a huge political influence for me. Obviously, my parents and they were, you know, my parents were act both my mom and my dad were on the activist side of this. And so that was a huge influence in terms of my, like, sensibility of how important these kinds of things are. But a lot of my style when I was in college and law school, right. This is mainly during the Bush administration, Right. And so the most prominent liberal talker in my orbit was Keith Olbermann. And for most of my kind of career, I've kind of thought, well, what if Keith Olbermann was black and had a law degree? How would that turn out? That's kind of what I am.

[Tonya Moseley]

Ellie Mistahl, thank you so much.

[Elie Mistahl]

Thank you so much for having me. This was fun.

[Tonya Moseley]

Elie Mistahl's new book is Bat 10 Popular Laws that Are Ruining America. Coming up, our TV critic reviews Ludwig, a charming new mystery series from BritBox. This is FRESH AIR. The streaming service Britbox has a new mystery series called Ludwig, starring David Mitchell as a very improbable yet effective investigator. Our TV critic David Biancooli says everything about this new series is charming, surprising and delightful, and also refreshingly lighthearted. Here's his review.

[D]

In the US murder mystery series built around eccentric but intrepid investigators have been around forever. And the best of them, from Columbo to Sherlock, have made an indelible mark on TV history. Currently, we have such shows as Elsbeth Matlock and Only Murders in the Building, all of which playfully present crimes solved by people with unusual but ultimately lovable personalities. A new Britbox import, a mystery series called Ludwig, is even lighter and flat out fun to watch. Created and written by Mark Brotherhood, it arrives with one of the most original and captivating variations on the entire TV mystery genre. Here are the basics. Two very intelligent children, identical twins John and James, grow up sharing their youth with a best friend, Lucy after the twins are traumatized by the sudden abandonment by their father, their lives take different paths. James becomes a police inspector and marries Lucy. John, who's got just as keen a mind but has become isolated and reclusive, ends up designing and publishing all sorts of puzzles. And then, after John goes missing while working on a case, Lucy contacts his twin brother, her old friend, and begs him to visit her. When he does, she hits him with a very bizarre request. John is played by David Mitchell from Peepshow. Lucy is played by Anna Maxwell Martin from Good Omens.

[E]

Which brings me to the big favor.

[F]

Lucy. I'm not sure.

[E]

Okay, so I went into his home office looking for clues as to what he might have been working on, and there's nothing. He's been hidden in there for two months, nothing to show for it. Now, either he took his files and tatty orange notebook with him, or it's in his other office, the one at the police station. Now, I can't access that. In fact, the only person that can is James or somebody who looks remarkably like him. No, it's nothing. It's easy. It is in and out.

[Elie Mistahl]

Are you.

[F]

No, absolutely not.

[E]

I've been there. I know the layout. You won't have to talk to anybody, really.

[F]

And if they talk to me, just.

[E]

Stick to small talk. Just keep walking.

[F]

What small talk? Have you heard my small talk? This right now, is about as good as it gets.

[E]

Look, I've met most of his colleagues. I mean, I can brief you on all of them. Certainly enough to get you through a piddly little visit to the office. Just there and back.

[F]

Lucy, stop. That would be illegal.

[D]

Reluctantly, John goes to the police station, pretending to be his brother. But before he can look for clues there, he's taken to a nearby office building, the scene of a freshly committed murder. The only possible suspects, the ones still on site, are isolated in a conference room. And John, whom his colleagues think is James, is expected to crack the case. At first he freaks, but then he imagines it as a type of puzzle, his specialty, and starts writing things enthusiastically on a whiteboard, running down the variables.

[F]

Okay, so what we're looking at here is a concatenation of syllogisms, obviously a series of statements and propositions, one of which will be false, but which we can weed out via a process of cross reference and deductive reason. It's a logic puzzle. In this room, we have seven subjects or suspects. I will label you A to G for simplicity. Three definitive facts presumably connected the fire door alarm, the phone call, and the murder itself. I'll be able then 1 to 33 plus of course, the alleged movements of everyone in this column within the time scale of the factual events contained in this one, which we'll put into a third column of seven T to Z. So C was exiting the elevator in the foyer at the same time as D was leaving by the front. Both statements confirm the other, which means that neither C nor D could have been present at factual events one and two. So we can cross those off, which naturally means we can also put crosses here and here and here, since this dictates that A and E could not have been present at that location at that time, or else they would have crossed with C or D. Do you follow?

[D]

No the first season of Ludwig contains six episodes, which show John continuing to impersonate his brother while trying to solve his disappearance. He's also faced with a different murder case or different puzzle each week, which he tackles while working with and fooling his colleagues. It's a strong ensemble led by Dipo Ola as his new partner and Garen Howell, who plays Dennis Whitaker on the Pit as a young member of his team. And the guest stars are valuable too, especially the great Derek Jacoby in a later episode. For Ludwig to work, the mysteries have to be clever, the clues have to be credible but not obvious, and their performances have to have to be enjoyable. Check, check, check. As John and Lucy, David Mitchell and Anna Maxwell Martin are loads of fun, especially when they're together, and the style of the show is infectious and almost musical. The series is called Ludwig for a reason, which it reveals in time, and that connection allows for plenty of music from the Beethoven canon, which is heard often and winningly from start to finish. Ludwig is a winner, and I'm happy to report it's not really finished yet. The producers already have committed to a Season two, which makes me smile almost as much as watching Ludwig.

[Tonya Moseley]

David Biancooli is a professor of television studies at Rowan University. He reviewed Ludwig, now streaming on Britbox. Tomorrow on Fresh Air, veteran reporters Annie Carney and Luke Broadwater share an insider's look at a dysfunctional Congress. The body elected in 2022 passed fewer bills than any Congress since the Great Depression, instead engaging in partisan infighting, petty feuds and occasionally physical threats among members. Their book is called Madhouse. I hope you can join to keep up with what's on the show and get highlights of our interviews. Follow us on Instagram prfresh. Air Fresh Air's executive producer is Danny Miller. Our technical director and engineer is Audrey Bentham. Our managing producer is Sam Brigger. Our interviews and reviews are produced and edited by Phyllis Myers, Annmarie Boldonado, Lauren Krenzel, Teresa Madden, Monique Nazareth, Thea Chaloner, Susan Yakundi and Anna Bauman. Our digital media producer is Molly CV Nesper. Roberta Shorrock directs the show with Terry Gross. I'm Tanya Moseley.

[C]

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[Tonya Moseley]

On your support to ensure that the reporting and programs you depend on thrive. Make a recurring donation today to get special access to more than 20 NPR podcasts. Perks like sponsor free listening, bonus episodes, early access and more. So start supporting what you love [e-mail].

[Elie Mistahl]

Making time for the news is important, but when you need a break, we've.

[D]

Got you covered on All Songs Considered, NPR's music podcast. Think of it like a music discovery show, a well deserved escape with friends and yeah, some serious music insight.

[Elie Mistahl]

I'm gonna keep it real. I have no idea what this story is about. Hear new episodes of All Songs Considered every Tuesday.

[D]

Wherever you get podcasts.