The concept on the show
State sovereignty is treated on The Bob Zadek Show as the constitutional arrangement by which states retain governing authority independent of Washington. Frank Buckley, author of American Secession, described the founding conception as divided sovereignty: a state would be sovereign with respect to state powers, and the federal government would be sovereign with respect to its powers. He noted that at the Framers’ Convention Alexander Hamilton echoed the British view that there could be only one sovereign, but that this was not the document that came out of Philadelphia in 1787 Did California Just Declare Itself a Nation-State? (2020).
Buckley also observed that the line between state and federal power has since been blurred, and that state sovereignty became disreputable because of the way it was used by racists in Southern states. What he described Gavin Newsom as attempting was a recovery of the original understanding of American federalism, in which states are sovereign within their scope of competence. In his account, not all wisdom emanates from Washington, D.C., and different states trying different things used to be called the laboratory of the states Did California Just Declare Itself a Nation-State? (2020).
The Articles of Confederation as a compact among states
Bob Zadek drew a contrast between the Articles of Confederation and the Constitution of 1787. In his framing, the Articles said nothing about the relationship between the citizen and his or her government; it was a compact between states, an agreement among states on how they could live together for mutual benefit, while the state constitutions governed the relationship between citizens and their state governments [[episodes/crossroads_for_liberty__with_william_watkins_jr|Crossroads for Liberty with William Watkins Jr. (2017)]].
William Watkins Jr. agreed and supplied the mechanism. Under the Articles, Congress did not have the power to act directly upon individuals; the states served as mediating bodies between the people and the government of Congress. Only with the Constitution of 1787 could the national government act directly on individuals. Watkins called the intermediary body a great palladium of liberty, protecting the people from the national government and the powers it could impose [[episodes/crossroads_for_liberty__with_william_watkins_jr|Crossroads for Liberty with William Watkins Jr. (2017)]].
Amendments and court decisions blamed for the shift
Zadek opened a Super Bowl Sunday episode by calling the week a black one in American history, citing two events. On February 3rd, 1913, the 16th Amendment was ratified, proposed by William Howard Taft, then president; Zadek identified it as the income tax and said life changed after that date. He then described Franklin Delano Roosevelt’s 1937 plan to pack the Supreme Court after the Court had been finding New Deal legislation unconstitutional, and the threat to increase the number of justices to 15 unless the Court backed down. As was said at the time, a switch in time saved nine [[episodes/crossroads_for_liberty__with_william_watkins_jr|Crossroads for Liberty with William Watkins Jr. (2017)]].
A 2019 episode with Randall Holcombe, identified as a professor of economics at Florida State University and a research fellow at the Independent Institute, is described as exploring how constitutional changes like the 17th Amendment and landmark Supreme Court cases like Munn v. Illinois eroded state sovereignty and economic freedom, leading to the expansive administrative state seen today Randall G. Holcombe on Liberty in Peril (2019). The excerpt itself is a synopsis rather than a transcript, so it supplies the case name and the amendment but no holding.
Zadek returned to the 17th Amendment in 2016, after the death of Justice Antonin Scalia. He argued that the list of issues then before the Supreme Court—voting rights, abortion, affirmative action—were, as the founders saw it, the province of the states rather than federal issues. Scalia’s passing, in his telling, was a reminder of how much power had been ceded or taken from the states and given back to Washington. Among his proposed remedies: undo the 17th Amendment, diminish the power of the Supreme Court over our lives, that unelected body, and return more power to the people Sarah Stillman on Minors on the Sex-Offender List (2016).
California, the coronavirus, and the word “nation-state”
In April 2020, Zadek raised Gavin Newsom’s public complaint about how President Trump and the federal government were handling coronavirus control and shelter-in-place. According to Zadek, Newsom said he was not getting his share of supplies and announced that California would exercise its power as a nation-state, acquiring its own ventilators and testing kits and using its bargaining and buying power to separate itself economically from Washington. Zadek called the speech possibly a mini Fort Sumter attack Did California Just Declare Itself a Nation-State? (2020).
Buckley’s response was deflationary. He said there is no magic particularly about the word nation by itself, and that one could imagine different nations within a single country—Quebec describing itself as a nation within Canada, Scotland as a nation within Great Britain. Coupling nation with state, however, suggests something more: a degree of independence. Newsom’s talk of California going its own way on the epidemic, Buckley said, was benign and consistent with the Trump administration’s approach of letting different states compete, which is what federalism was all about. If what is being discussed is a return to the early federalism of the founders rather than the Civil War, that is a good thing Did California Just Declare Itself a Nation-State? (2020).
Zadek pressed the point that states are already structurally independent of Washington in matters such as stay-at-home orders, quarantine and the police power, and that federal return-to-work guidance was expressed as guidance rather than mandate. Buckley answered that independence brings with it the concept of sovereignty, and that the British had found it a stumbling block: they could not conceive that America or the individual colonies could be sovereign in any respect, since there could be only one sovereign Did California Just Declare Itself a Nation-State? (2020).
Federal criminal law as a sovereignty problem
A 2022 episode on the FBI approaches the topic from criminal law. The excerpt states that the Constitution does not give the federal government plenary power to enforce criminal laws, and that it is specific about which federal criminal laws there should be—piracy and counterfeiting among them, with a particular federal interest in preventing people from printing their own dollar bills. Over the decades and centuries, the excerpt says, the federal government with the aid of the Supreme Court has enacted an enormous number of criminal statutes The FBI: Our Uninvited Federal Police Force (2022).
The mechanism described is jurisdictional rather than substantive. Federal fraud is essentially undefined; the statute reaches any fraud committed through the use of the mails or in interstate commerce, so that a crime committed while traveling from New Jersey to New York is federalized, and the use of telephones or the mails supplies the hook. The excerpt invokes a fundamental principle of English common law—that nobody should be prosecuted for something unless they knew what they were doing, intended to commit the crime, and the crime is readily defined—and says that principle has been lost in the federal system. The cited basis is the book Three Felonies a Day: How the Feds Target the Innocent, and the summary line is that the feds can indict a ham sandwich as long as the ham sandwich gets on the telephone The FBI: Our Uninvited Federal Police Force (2022).
Across episodes: no single arc
The excerpts do not show a developing argument so much as a recurring one. The 2016 episode ties state sovereignty to Supreme Court reform after Scalia’s death; the 2017 episode locates the loss of state mediating power in the replacement of the Articles of Confederation by the Constitution of 1787; the 2019 episode attributes erosion to the 17th Amendment and Munn v. Illinois; the 2020 episode treats California’s self-description as a nation-state as a possible recovery of divided sovereignty; and the 2022 episode treats the federal criminal code as a further transfer of authority away from the states. Bob Zadek advances the federalism framing in each; William Watkins Jr., Randall Holcombe and Frank Buckley each supply a distinct historical or doctrinal mechanism.
What the sources do not cover
The excerpts do not state the holding of Munn v. Illinois or which amendment any case turned on, and they do not identify the 17th Amendment’s content beyond Zadek’s call to undo it. The Articles of Confederation excerpts do not give ratification dates or describe Shays’ Rebellion, though a section heading names it. The 2019 Holcombe episode survives only as a synopsis, and the 2022 FBI excerpt breaks off mid-discussion, so several claims attributed to those episodes rest on summary rather than on the speakers’ own words.