Liberty as a limit on government, not a government possession
In the 2015 episode on the drug war and private prisons, Bob Zadek states that governments do not have rights: the question is whether government is exceeding its authority as granted to it by ultimately the Constitution, and states do not have rights per se, though the people who live in a state do Lucy Steigerwald on The Drug War and Private Prisons (2015). He frames the war on drugs as depriving millions of Americans of their liberty, and says that politicians have cheapened the value of liberty by being so quick to take it away. Governments, in his account, are the only institutions with the lawful power to deprive Americans of their liberty, and America has abused that sacred privilege of preserving liberty by criminalizing non-criminal behavior. He asks elected officials to respect the importance of an American’s liberty and not take it away for political purposes and for purposes that are in the first instance unconstitutional.
Lucy Steigerwald’s contribution to the same episode is the concrete machinery of deprivation. She says the increase in the prison population began to explode three decades ago when Ronald Reagan decided to militarize the war on drugs, and that this is why there are 2.3 million people in prison and jails today, against something like 300,000 prison-wise three decades ago. She describes civil asset forfeiture as directly prioritizing police toward drug crimes over legitimate crimes because they can benefit through seized cash or materials, cars, and other property sold for revenue, and says mandatory minimums kept people in prisons for longer for drug and non-violent gun crimes. She argues that people have lost the ability to tell that sending somebody to prison is a really big deal, and that for a non-violent offender, even a thief, the conversation should be about restitution to the victim rather than the state’s punishment. She invokes the voluntarist formula “no victim, no crime.”
Zadek supplies the Latin distinction behind that formula: malum per se for acts no culture or society would dispute are bad, and malum prohibitum for acts that are bad because an elected official says so. He says drug use was never considered a bad act in any society in the history of man on earth, and that it became bad only in the early 20th century of the United States, for racial rather than medical reasons. He also raises a federalism question: since it took a constitutional amendment, the 18th Amendment, to give Congress power over the manufacture and sale of alcohol, why does criminalizing drug use not require an amendment too. He says Washington has used taxing statutes and the Commerce Clause as the hook, and that the states are fighting back, which he calls healthy for federalism and for the balance between state and federal power.
Economic liberty as a second-class right
In the 2020 episode on the mini-administrative state, Zadek argues that economic liberty has become a second-class set of rights relative to political liberty. He contrasts the angry protests that would greet government interference with freedom of the press, free speech, freedom of assembly or freedom to practice religion with the absence of comparable protest when government interferes with economic rights, and he describes the right to enter into a bargain with another consenting adult and have that contract, if it doesn’t harm anybody, be enforceable. He says it has therefore been relatively easy for the executive branch to further deny people the right to earn an honest living The Mini-Administrative State (2020).
Glenn Roper, of the Pacific Legal Foundation, describes the doctrinal mechanism. He says that when regulations are challenged under economic rights or economic liberties, courts apply what they call the Rational Basis test, meaning that if a rational reason can be identified for a restriction, the restriction will be upheld, unless the legislature or the governor was actually acting irrationally in a way that makes no sense. He says courts go further and imagine other reasons the government may have for a restriction, and uphold it if any rational reason can be imagined. He characterizes this as a far departure from the understanding at the founding and throughout much of American history, and says PLF’s mission is to re-enshrine the value given to economic rights, which he glosses as the right to make a living, to run your business, and to pursue a profession of your choice.
The presumption of liberty and judicial deference
In the 2020 episode on Amy Coney Barrett, Zadek credits Randy Barnett with the phrase “presumption of liberty,” and constructs the parallel himself: the cornerstone of criminal law is the presumption of innocence, the burden is on the state because liberty is more important and we would rather err on the side of preserving liberty, and since every law deprives us of a liberty — we must do something or cannot do something else — the presumption should be on liberty Amy Coney Barrett on Trial (2020). Barnett agrees with the framing and turns to his disagreement with Barrett over deference. He says he strongly supports her confirmation notwithstanding the disagreement, calling her an originalist who understands what originalism is, and predicting that where the Constitution is clear about either allowing something or prohibiting something she will enforce it as written more likely than most other people who would be appointed to the Supreme Court, with the wrinkle of her view of stare decisis.
The disagreement concerns what happens when Congress exercises one of its powers in a way that is either unnecessary or improper. Barnett says Barrett would be more deferential to the opinion of Congress, and that she puts it as Congress getting to make policy judgments while courts are not competent or capable of making policy judgments — a statement he agrees with as stated. He does not think it is a policy judgment for a court to ask Congress to explain why it is doing what it is doing and why it is necessary and proper, and then exercise independent judgment over that claim. He describes the result of the deference she and many other conservatives favor as a system of double deference: the court defers to Congress on whether the action is within its power, the congressman asked about constitutionality defers to the Supreme Court, and when each side defers to the other, what drops out of the equation is the Constitution — in particular constitutional limits on legislative power at the federal level and at the state level.
Across episodes
The topic recurs in the 2015 drug-war episode, the 2020 mini-administrative-state episode and the 2020 Amy Coney Barrett episode, with the treatment shifting from liberty as the value destroyed by criminal sentencing to liberty as the value courts fail to protect through rational-basis review and deference; Zadek advances the framing in each, Steigerwald supplies the incarceration and forfeiture particulars, Roper the rational-basis doctrine, and Barnett the presumption of liberty and the double-deference critique. The 2020 PRIME Act episode touches the topic only in Zadek’s closing thanks to Thomas Massie, where he calls Massie essential to the freedom and the liberty of all of us and our listeners Prime time for the PRIME Act (2020).
What the sources do not cover
The excerpts do not define liberty systematically, nor do they trace its treatment across the show’s full run. They do not state the outcome of any case, the text or holding of any amendment beyond the 18th Amendment reference, or the founding date of any institution named. Several excerpts break off mid-sentence or mid-exchange, and nothing is reported here from beyond those breaks.