The Articles of Confederation as first constitution
Bob Zadek introduced William Watkins Jr. as the author of Crossroads for Liberty: Recovering the Anti-Federalist Values of America’s First Constitution, and framed the hour around a question he said he had visited perhaps three times in the show’s ten-year history: whether the founders got it wrong in replacing the Articles of Confederation in full with the Constitution, and whether ratification was a mistake. Zadek noted that the founders met in Philadelphia in May of 1787 because of the Articles. [[episodes/crossroads_for_liberty__with_william_watkins_jr|Crossroads for Liberty with William Watkins Jr. (2017)]]
Watkins described the Articles as the first national constitution, drafted by the Continental Congress, which became the Confederation Congress once the Articles were ratified. He said they set forth the relationship between the states and the national government, “to use that term loosely,” and characterized the system as state-centered: the states chose the representatives who would handle national matters, which at the time meant war with Great Britain, and retained great control over those representatives. Congress could not tax directly; requisitions and money had to come through the states. Each state, he said, expressly retained all its sovereignty and independence that it had sought from Great Britain. [[episodes/crossroads_for_liberty__with_william_watkins_jr|Crossroads for Liberty with William Watkins Jr. (2017)]]
Watkins judged the Articles a success against their two goals—independence from Great Britain and preservation of self-government in the individual states. He cited Cornwallis’s surrender to Washington and the French at Yorktown as effectively ending the revolution, with peace talks for the Treaty of Paris beginning right after. Under the Articles, he said, the states were free to run their own domestic policies and to experiment, serving as laboratories of democracy. [[episodes/crossroads_for_liberty__with_william_watkins_jr|Crossroads for Liberty with William Watkins Jr. (2017)]]
Madison, the Bill of Rights, and ambition
In a 2022 episode with Mike Munger, Zadek paraphrased Madison’s remark that if all men were angels, laws would not be needed, extending it to public officials and constitutions. Zadek argued that once government is given the exclusive lawful power to use force and coercion, controls on that force become necessary, and said the founders, having created what he called a potential monster, spent the rest of their time building in controls. Troubleshooting the Constitution (2022)
Munger tied James Buchanan’s Public Choice work to the Constitution’s design. He said Buchanan was interested in “limiting Leviathan” and in the role of constitutions in creating limits on what government could do, and that Buchanan was not an anarchist but believed government needed certain powers while remaining limited. Munger said Buchanan’s The Calculus of Consent, published in 1962, stated that its authors were writing down scientific principles behind what James Madison was trying to accomplish in the Constitution. Troubleshooting the Constitution (2022)
Munger described Madison’s argument 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, and if the President tries to grab too much, senators block that because they themselves want power. He said the point of divided government is that a substantial consensus is required, so a small group cannot grab power even with the best of motives. He added that James Buchanan won the Nobel Prize in Economics in 1986. Troubleshooting the Constitution (2022)
Zadek called the Bill of Rights the best example of the founders understanding Public Choice theory without the label but doing an inadequate job. He said calling the first ten amendments amendments is almost a misnomer because they were nearly contemporaneous—drafted a year later—and really a rider to the Constitution. Madison, Zadek said, believed the Bill of Rights was unnecessary because nothing in the Constitution gave the government the power in the first instance to abridge freedom of speech, conscience, religion, or assembly. Zadek argued that the proof Madison was naive in that regard is that litigation in support of free speech never cites the Constitution itself as not empowering government; it always cites the Bill of Rights. Troubleshooting the Constitution (2022)
Copyright as a constitutional monopoly
Zadek said copyright law has existed since the country’s founding and is specifically provided for in the Constitution, describing copyright, patent, and trademark law as a government-created monopoly. He explained the bargain: an inventor publishes the invention, telling everyone what it is and how it works, and the government says nobody may use the intellectual property without paying a royalty. Copyrights are not forever but last a finite period, after which the work enters the public domain and anyone may use it for free. Without such protection, Zadek said, there would be no incentive to invent, because a free rider could simply copy the invention. He offered as an aside that the formula for Coca-Cola is not patented, so anyone who knew it could use it for free, because Coca-Cola preferred not to publish it and to run the risk of someone figuring it out. Derek Khanna - What’s Stifling Innovation? (2014)
Derek Khanna added that copyright law, in opposition to patent law, is strictly about incentivizing content creation, and that the word the founders used was “the sciences,” by which they meant the creation of content: writing, books, maps, now music. He called it unusual, and basically an accident, that a law designed to foster content creation is now used to protect the monopoly profits of big mobile companies, and said there is no real connection in the law about why a consumer unlocking their phone should fall under copyright law. Derek Khanna - What’s Stifling Innovation? (2014)
Zadek coined the term “Big Cell” for the large mobile companies and said they take advantage of copyright law to prevent a consumer who owns the hardware from picking the carrier of their choice. Derek Khanna - What’s Stifling Innovation? (2014)
Federal criminal law and enumerated powers
In a 2022 episode on the FBI, the guest said the Constitution does not give the federal government plenary power to enforce criminal laws, and that it is very specific as to what federal criminal laws there should be—piracy is one, counterfeiting another, with a particular federal interest in preventing people from printing their own dollar bills. Over decades and centuries, the guest said, the federal government, with the aid of the Supreme Court, enacted an enormous number of criminal statutes. The FBI: Our Uninvited Federal Police Force (2022)
The guest described federal fraud as essentially undefined: the statute reaches any fraud committed through the use of the U.S. mails or in interstate commerce, or the use of telephones or the mails, so that the means supply federal jurisdiction. The crimes are ill-defined, and what counts is whatever the federal government decides should be criminal that week. The guest invoked a fundamental principle of English common law—that nobody should be prosecuted unless they knew what they were doing, intended to commit the crime, and the crime is readily defined—and said that principle has been lost in the federal system. He cited his book Three Felonies a Day: How the Feds Target the Innocent and the saying that a prosecutor can indict a ham sandwich, adding that they can indict a ham sandwich as long as it gets on the telephone. The FBI: Our Uninvited Federal Police Force (2022)
The legalism fallacy and constitutional examples
Alex Nowrasteh defined the “legalism fallacy” as the assumption that a policy is good because it is legal—a focus on legal issues that ignores consequences. In immigration, he said, people focus on the fact that there is a lot of illegal immigration but never deal with its consequences or with what causes it, and rarely ask what could make immigration more legal and whether the consequences of that policy would be good. He said the fallacy crushes interesting debate about what policy should be and reduces everyone to pretending to be a lawyer. American anxiety about immigration is unwarranted. Here’s why. (2023)
Zadek fleshed out the idea with constitutional examples: the 18th Amendment made drinking alcohol illegal, but that did not make using alcohol bad, and nobody believed Prohibition was a good idea simply because it was law. He added that women did not have the right to vote and that slavery was legal, applying the legalism fallacy to those issues, and said the law is neither good nor bad per se but good or bad according to one’s view of what society and life in the country should be like. American anxiety about immigration is unwarranted. Here’s why. (2023)
Across episodes
The excerpts do not show a single question argued across episodes with a clear change between earlier and later treatment; instead, different episodes take up different constitutional questions—the Articles versus the Constitution, Madison and the Bill of Rights, copyright, federal criminal law, and immigration—with no development the sources trace from one to the next.
What the sources do not cover
The excerpts do not describe the text or ratification of any particular amendment beyond the 18th, nor do they state what any cited case held or which amendment it turned on. They do not give the date the Constitution was signed or ratified, the names of the framers beyond Madison, or the content of the Articles of Confederation beyond the features Watkins describes. Several excerpts break off mid-sentence or mid-thought, and nothing is supplied for the missing portions.