Constitutional law, as discussed across episodes of The Bob Zadek Show, is treated less as a fixed body of doctrine than as a contested set of questions about the allocation of power among the federal government, the states, and the courts. Guests and host return repeatedly to federalism, judicial deference, and the interpretation of unenumerated rights, with the Dobbs decision serving as a late-period focal point.
Federalism and criminal law
In a 2009 episode on hate crimes legislation, Bob Zadek argued that federal criminal law violates core principles of federalism, since states have been in charge of determining what acts are crimes and setting punishment since the country was founded. He described the legislation as putting federal law “right smack in the middle of criminal law” and warned that it creates class and group jealousy and a bidding war among pressure groups seeking inclusion on a “my life is more valuable” list Hate Crimes Legislation (2009).
Jacob Sullum added that the federal hate crime legislation had passed both houses of Congress and looked likely to be enacted. He identified a double jeopardy problem arising from the federal government getting involved in things it has no authority to be involved in under the Constitution. Zadek explained that the Fifth Amendment provides that no person shall be subject for the same offense to be put twice in jeopardy, and that under the legislation the feds could try a person again for the same crime after a state acquittal. Sullum noted that the Supreme Court does not consider this double jeopardy because two different sovereigns are involved, making it in effect two different crimes even though the underlying behavior is exactly the same Hate Crimes Legislation (2009).
Judicial deference
In a 2020 episode, Josh Blackman defined deference in constitutional law terms by contrasting the accountability of elected branches with the life tenure of Supreme Court justices. Because justices are not elected and serve for life, the preference historically was for the elected branches to make tough decisions, with the court deferring unless Congress, the president, or state governments clearly violated the Constitution. Blackman said this model was very popular during the New Deal in the 1930s, but that in the 1950s and 1960s the court began creating exemptions where deference was not warranted, a move that paved the way for broad judicial power over social legislation Eight-Dimensional Chess (2020).
Zadek pressed Blackman on whether “screwed up” meant enacting legislation that violates the Constitution rather than merely making bad policy. Blackman agreed, saying that unless there is a clear violation of the Constitution the court will step out, though he noted the Constitution does not always give clear guidance and judges sometimes must use their own discretion. He added that he is not a fan of deference in all contexts and that once courts shed deference they become something of a super-legislature, making nominations contentious Eight-Dimensional Chess (2020).
Originalism and the confirmation battle
A 2020 episode on Amy Coney Barrett’s Supreme Court confirmation featured Randy Barnett, identified as a constitutional law professor at Georgetown Law. Zadek framed the discussion around how the Supreme Court, a branch with no budget and no power to enforce its rulings, comprised of nine unelected justices serving for life, had become so important, and whether that is healthy. He listed Barnett’s books, including Our Republican Constitution, Restoring Our Lost Constitution, The Structure of Liberty, and An Introduction to Constitutional Law, subtitled 100 Supreme Court Cases Everyone Should Know Amy Coney Barrett on Trial (2020).
The episode’s stated topics include originalism, living constitutionalism, the Fourteenth Amendment, the Privileges or Immunities Clause, the Slaughterhouse Cases, the presumption of liberty, judicial deference, federalism, and the Second Amendment. The excerpt’s substantive discussion of these topics is not present in the available text, which ends at the heading “Originalism vs. Living Constitutionalism” Amy Coney Barrett on Trial (2020).
Dobbs and the democratization of rights
Two 2022 episodes with Clark Neily, identified as Vice President for Criminal Justice at the Cato Institute, addressed the Dobbs decision. In the first, Neily said that Dobbs v. Jackson Women’s Health Organization held quite simply that there is no constitutional right to an abortion, overruling about 50 years of precedent starting with Roe v. Wade, which had held that there is a constitutional right to have an elective abortion. Five justices held that this is not a plausible way to read the Constitution Judicial Round-Up with Clark Neily (2022).
Neily distinguished enumerated from unenumerated rights, noting that the right to travel around the United States and the right to guide the upbringing of one’s own child are nowhere mentioned in the text of the Constitution yet have been enforced by the Supreme Court. He framed the question as whether the court “invent” or “recognize” such rights, and said that on abortion some people think the ability to terminate a pregnancy is among the unalienable natural rights and others think it is not. He and Jay Schweikert wrote a piece for Cato’s blog arguing that reasonable libertarians can see it either way, with powerful arguments and objections on both sides Judicial Round-Up with Clark Neily (2022).
In the second episode, the same exchange appears, with Neily repeating that Dobbs held there is no constitutional right to abortion and that Roe and Casey were overruled. The episode’s topics also include qualified and absolute immunity, Section 1983, and police accountability, though the excerpt does not develop those subjects Dobbs, the Democratization of Rights, and the Disaster of Qualified Immunity (2022).
Across episodes
The excerpts show the same underlying question — who should decide contested moral and legal questions, courts or elected branches — argued across more than a decade. In 2009, Zadek and Sullum framed federal hate crimes legislation as a federalism and double jeopardy problem. In 2020, Blackman described the historical shift away from judicial deference and its consequences for nominations. In 2022, Neily described Dobbs as returning abortion policy to democratic processes while acknowledging that reasonable libertarians disagree about whether abortion is an unenumerated right. The later episodes do not resolve the tension the earlier ones raise; they restate it in different doctrinal settings.
What the sources do not cover
The excerpts do not state the state in which any city is located, the name of any bill, the full holding of any case beyond what is quoted, or the titles and fields of most participants beyond what the labels provide. The Amy Coney Barrett episode’s substantive discussion of originalism, the Fourteenth Amendment, the Privileges or Immunities Clause, and the Slaughterhouse Cases is not present in the available text. The 2022 episodes’ treatment of qualified and absolute immunity, Section 1983, and police accountability is likewise not developed in the excerpts.