Copyright and the enumerated powers
Bob Zadek opened a 2014 episode by describing copyright as a government-created monopoly, noting that copyright law “has been around since we have had a country” and is “specifically provided for in the Constitution.” He explained the bargain as the founders framed it: an inventor publishes the invention, the government bars others from using it without paying a royalty, and after a finite period the work enters the public domain. Without that protection, he said, there would be no incentive to invent, because a free rider could simply copy the work. He offered the formula for Coca-Cola as an aside—unpatented, and therefore free for anyone who knew it, because the company chose secrecy over publication. Derek Khanna - What’s Stifling Innovation? (2014)
Guest Derek Khanna supplemented that account, distinguishing copyright from patent law. Copyright, he said, is strictly about incentivizing content creation; the founders’ word was “the sciences,” by which they meant writing, books, maps and now music. He called it basically an accident that a law designed to foster content creation was being used to protect the monopoly profits of large mobile companies, and said there is no real connection in the law between consumer phone unlocking and copyright. Zadek coined the term “Big Cell” for the industry he said was taking advantage of copyright law to prevent a consumer who owns the hardware from choosing a carrier. Derek Khanna - What’s Stifling Innovation? (2014)
Replacing the Articles of Confederation
William Watkins Jr., author of Crossroads for Liberty: Recovering the Anti-Federalist Values of America’s First Constitution, joined the show in 2017 to argue that the Articles of Confederation were the first national constitution and a success on their own terms. Zadek framed the episode around a question he said he had visited before: did the founders get it wrong, and was ratification of the Constitution a mistake? He noted that the founders met in Philadelphia in May 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 drafted by the Continental Congress, later the Confederation Congress once ratified, and as setting forth the relationship between the states and the national government, “to use that term loosely.” It was a state-centered system: states chose the representatives who handled national matters, which at the time meant war with Great Britain; Congress could not tax directly, and money came through the states by requisition; each state expressly retained its sovereignty and independence. Measured against its two goals—independence from Great Britain and preservation of self-government in the individual states—Watkins called the Articles an absolute success, pointing to Cornwallis’s surrender to Washington and the French at Yorktown and the peace talks for the Treaty of Paris that followed. Under that system, he said, states were free to run their own domestic policies and to serve as laboratories of democracy. [[episodes/crossroads_for_liberty__with_william_watkins_jr|Crossroads for Liberty with William Watkins Jr. (2017)]]
Public choice and constitutional limits
In a 2022 episode, Mike Munger tied the Constitution to James Buchanan’s public choice economics. Munger said Buchanan, who won the Nobel Prize in Economics in 1986, was interested in “limiting Leviathan” and in the role of constitutions in creating limits on government; Buchanan was not an anarchist but wanted government’s powers bounded. Munger said Buchanan’s The Calculus of Consent, published in 1962, described itself as writing down the scientific principles behind what James Madison was trying to accomplish in the Constitution, and that Buchanan was surprised the argument proved controversial. Troubleshooting the Constitution (2022)
Zadek paraphrased Madison’s remark that if all men were angels, laws would be unnecessary, extending it to public officials and constitutions: once government is given the exclusive lawful power to use force and coercion, controls on that force become necessary. Munger agreed that Buchanan was channeling Madison, quoting Buchanan’s formulation that we cannot rely on good people and need good rules, and citing Federalist No. 51 on separation of powers, where ambition counteracts ambition. He described divided government as deliberately frustrating: a small group cannot grab power without substantial consensus, and the filibuster, the Senate and the Supreme Court are features to be valued rather than obstacles to be removed. Troubleshooting the Constitution (2022)
Zadek then called the Bill of Rights the best example of the founders understanding public choice without the label while doing an inadequate job. He argued that calling the first ten amendments amendments is almost a misnomer, since they were drafted roughly a year later and functioned as a rider to the Constitution. Madison, he said, believed the Bill of Rights unnecessary because nothing in the Constitution gave the government the power to abridge speech, conscience, religion or assembly in the first instance; the proof of Madison’s naivety, in Zadek’s view, is that free speech litigation always cites the Bill of Rights rather than the Constitution itself. Troubleshooting the Constitution (2022)
The federal criminal code
Harvey Silverglate, author of Three Felonies a Day: How the Feds Target the Innocent, argued in a 2022 episode that the Constitution does not give the federal government plenary power to enforce criminal laws. He said the document is specific about which federal crimes there should be, naming piracy and counterfeiting—the latter reflecting a particular federal interest in preventing people from printing their own dollar bills. Over decades and centuries, he said, 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)
Silverglate described federal fraud as essentially undefined: the statute reaches fraud committed through the U.S. mails or in interstate commerce, and those means supply federal jurisdiction. He gave the example that traveling from New Jersey to New York after committing a crime federalizes what was done. The crimes are ill-defined, he said, and what counts as criminal is whatever the federal government decides should be criminal that week. He invoked the common law principle 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. His summary: it is not substantively what you do but your use of the mails, the telephone or interstate commerce, and the grand jury will indict a ham sandwich as long as the ham sandwich gets on the telephone. The FBI: Our Uninvited Federal Police Force (2022)
The legalism fallacy
Alex Nowrasteh, in a 2023 episode, described 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, it means people focus on the fact that there is a lot of illegal immigration without dealing with its causes or asking how immigration could be made more legal and whether the consequences of that would be good. He said the fallacy crushes interesting debate about policy and reduces everyone to pretending to be a lawyer. American anxiety about immigration is unwarranted. Here’s why. (2023)
Zadek extended the concept to constitutional history, offering the 18th Amendment as an example: drinking alcohol became illegal, but that did not make alcohol bad to use, and nobody believed Prohibition was a good idea simply because it was law. He then pointed to the Constitution itself, observing that women did not have the right to vote and that slavery was legal, and applying the legalism fallacy to both: the law is neither good nor bad per se, but good or bad as it complies with a 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 Constitution is treated across at least five episodes, and the excerpts show no single developing argument so much as a recurring set of pressure points: the copyright clause and enumerated powers in 2014, the Articles of Confederation and ratification in 2017, public choice and the Bill of Rights in 2022, the federal criminal code in 2022, and the legalism fallacy in 2023. What changes between the earlier and later treatments is the target rather than the thesis: the 2014 and 2017 episodes ask whether the founding settlement was a mistake or a bargain, while the 2022 and 2023 episodes ask whether the limits written into that settlement still bind. Mike Munger supplies the most explicit bridge, reading Madison through James Buchanan, while Bob Zadek carries the framing question—whether the founders got it wrong—from the Watkins episode into the later discussions.
What the sources do not cover
The excerpts do not supply the text, ratification history or amendment-by-amendment content of the Constitution, nor do they identify which provisions governed the cases and statutes discussed. Several speakers are named without their titles or fields being stated in the excerpts, and the 2021 episode on Abraham Lincoln and the “second founding” appears only as a topic list with no quoted exchange. Where an excerpt ends mid-sentence—as with the 2022 federal criminal code episode and the 2023 immigration episode—the discussion stops there.