Washington’s precedents and the early House
Harlow Giles Unger described the first House of Representatives as initially chaotic, with conflicting interests—Southern slave masters, Northern abolitionists, Western pioneers—and one representative who walked in with hunting dogs. Except for the first Congress, which included an elite group of founding fathers, the House was constantly debating and not getting anything done, and presidents beginning with Washington began to take the law into their own hands and act unilaterally. How Washington Invented the Presidency (2013)
Unger said Washington established what he called seven pillars of executive power not granted to him by the Constitution—powers granted to the House of Representatives that Washington seized out of necessity, believing his oath to preserve, protect, and defend the Constitution required him to violate its letter to preserve its spirit. When Congress recessed in 1789 without leaving money, Washington sent his Treasury Secretary to banks in New York City, then the temporary capital, and borrowed money on his own authority, asserting powers of appropriating and spending money that the Constitution gives to Congress. The following year, with Congress out of session and Indian nations attacking American settlers, Washington drafted 2,000 troops and sent them to war without congressional consent—what Unger called a declaration of war and a blatant violation of the Constitution, which states that Congress shall declare war. How Washington Invented the Presidency (2013)
Unger noted that in the centuries that followed, the United States has been officially at war more than a dozen times, but Congress has declared war only five of those times: the Mexican War, the Spanish-American War, the War of 1812, and the two World Wars. Unlike Washington, who was defending American lives, many successors sent troops to war without that justification. How Washington Invented the Presidency (2013)
Bob Zadek observed that Washington arrived to a government with no laws to enforce—Congress had not yet passed even one law—and that the first act of Congress was the Oath Act, which created the oath of office for other governmental officials. Unger said Washington’s view of the Constitution evolved: he presided over the Constitutional Convention and was the first to sign the document, but he described it as a compromise between conflicting interests, telling people to try it and use Article 5 to amend it if they did not like how it worked. When he saw it did not work, he acted immediately and decisively. How Washington Invented the Presidency (2013)
Judicial review and the problem of double deference
Keith Whittington said he is skeptical that the United States would have adhered as closely as it has to the Constitution over time without courts reminding us of our constitutional obligations. The constitutional framers, especially James Madison, placed their bets on bicameralism, the presidential veto, and the ways legislators are elected—counting on Congress to take its constitutional responsibility seriously and debate constitutional limits, on the presidential veto to restrain Congress, and on voters to care about the Constitution and vote violators out. Whittington said we are probably more pessimistic about those mechanisms working effectively. Reviewing Judicial Review (2020)
Bob Zadek responded that expecting legislators or executive branch officials to voluntarily control their motivation and urge to get reelected out of fear of violating the Constitution is absurdly aspirational. Reviewing Judicial Review (2020)
In a later episode, Bob Zadek described a system of double deference in which each side deflects responsibility to the other, leaving We the People with no advocate for the Constitution. He said the Constitution is not merely parchment but our line of defense against expansive government depriving us of our rights, and that it both provides the mechanical building blocks for government and states that in exchange for seeding power to the government—power that otherwise resides in us—we give that power under strict controls and conditions. Once no branch protects the Constitution from infringement, the barrier starts to crumble. Randy Barnett agreed that the Constitution just drops out because the Supreme Court cites Congress and Congress cites the Supreme Court. Amy Coney Barrett on Trial (2020)
Barnett said originalism holds that the Constitution should constrain everybody, not just the courts but Congress as well, but if the courts do not hold Congress to it, Congress will not hold itself to it. He compared the Supreme Court’s role to his work as a felony review assistant in the Cook County State’s Attorney’s Office, where felony charges in Chicago could not be brought unless a felony review assistant signed off, causing police to do better work before asking for approval. If nobody checks your work, you can get away with more. Amy Coney Barrett on Trial (2020)
Bob Zadek suggested that We the People need a public defender in every case arguing and protecting the Constitution, since both the legislative and executive branches abdicate that role—something like independent counsel or an Inspector General to be the guardian of the people’s rights under the Constitution. Amy Coney Barrett on Trial (2020)
Public Choice and the Madisonian design
In a 2022 episode, Bob Zadek argued that anyone who petitions the government is trying to use force—armed persuaders—to get customers they cannot get in the market, because government is the only organization lawfully allowed to force people to do things. He described the population as supplicants coming to government asking for help, where the help they want is to get them customers or money. Troubleshooting the Constitution (2022)
Mike Munger identified this as rent-seeking, the pursuit of artificial benefits: if a corporation can get the government to limit its competition, it can make more money faster without creating value. He asked why anyone would think a system based on majorities would protect minorities or that a system based on power would protect the weak, since the government cares least about the poor because they have no power. State activity is based on coercion and the threat of violence, while market activity is based on voluntary exchange. Troubleshooting the Constitution (2022)
Munger said James Buchanan started writing in the late 1950s and during the 1960s with co-authors, interested in what he called limiting Leviathan—the role of constitutions in creating limits on what government could do. Buchanan was not an anarchist; he believed government needed powers, but he wanted to limit Leviathan. Munger said the idea that the constitution should limit what government does remains controversial, citing the filibuster, the Second Amendment protecting gun rights even when a majority wants to take them away, and the First Amendment protecting speech even when controversial. Buchanan won the Nobel Prize in Economics in 1986. Troubleshooting the Constitution (2022)
Munger said Buchanan’s book The Calculus of Consent, published in 1962, stated that all he was doing was writing down some of the scientific principles behind what James Madison was trying to accomplish in the Constitution. Bob Zadek paraphrased Madison’s statement that if all men were angels, we would not need laws, adding that if all public officials were angels, we would not need constitutions—the purpose of the constitution being to recognize that once government is given the exclusive power to use force and coercion, there must be controls on that force. Troubleshooting the Constitution (2022)
Munger said Buchanan argued that we cannot rely on good people but need good rules, so that even bad people act as if they were good because the structure of the constitution creates incentives and imperatives. Madison wrote in Federalist No. 51 that the advantage of separation of powers is that ambition can be made to counteract ambition: the Senate wants more power, the President wants more power, so if the President tries to grab too much, members of the Senate will block that because they themselves want power. Divided government means a substantial consensus is required, and a small group cannot grab power even with the best of motives. Troubleshooting the Constitution (2022)
Bob Zadek called the Bill of Rights the best example of how the founders understood Public Choice theory without the label but did an inadequate job. He said calling the first ten amendments amendments is almost a misnomer because they were almost contemporaneous—drafted a year later—and really a rider to the Constitution rather than amendments. Madison in particular believed the Bill of Rights was unnecessary, saying nothing in the Constitution gives the government the power in the first instance to abridge freedom of speech, conscience, religion, or assembly. But Zadek said the proof that Madison was naive in that regard is that any litigation in support of free speech never cites the Constitution itself as saying the Constitution does not empower government; it always cites the Bill of Rights, which means without the Bill of Rights the Constitution did not do it. Troubleshooting the Constitution (2022)
Across episodes
The excerpts show the same question—whether constitutional limits can be enforced—argued across episodes with different emphases rather than a developed arc. Unger (2013) describes Washington’s unilateral actions as founding precedents for executive power; Whittington (2020) and Barnett (2020) debate whether courts or structural mechanisms can restrain Congress and the executive; Munger and Zadek (2022) trace the problem to Madisonian design and Public Choice theory. No episode directly responds to another.
What the sources do not cover
The excerpts do not state the outcome of any case, the name of any bill, or which amendment any case turned on. They do not provide the text of the Constitution, the full list of Washington’s seven pillars, or the content of the Oath Act beyond its creation of an oath for governmental officials. They do not describe how the Bill of Rights was ratified or what specific litigation Zadek had in mind.