The U.S. Constitution is treated across The Bob Zadek Show as the central artifact of American government and the recurring subject of disputes over its origins, its design and the scope of the powers it grants. Guests and host return to three questions: whether replacing the Articles of Confederation with the Constitution was a mistake, whether the Constitution’s structure reflects a theory of self-interested political behavior, and whether its enumerated powers have been read to authorize federal action far beyond what the text specifies.
The Articles of Confederation and the ratification question
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 episode around a question he summarized in his own words: whether the founders got it wrong, whether it was a mistake to replace 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, and that this was perhaps the third time in the show’s ten-year history that he had visited the question [[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 characterized the system as state-centered: the states chose the representatives who would go to the seat of government and handle national matters, which at the time meant war with Great Britain, and the states had great control over those representatives. Congress did not have the power to tax directly; requisitions and money had to come through the states. Each state expressly retained all its sovereignty and independence that it had sought from Great Britain. Watkins said the Articles were a success when measured against their goals — independence from Great Britain and the preservation of self-government in the individual states — and that once Cornwallis surrendered to Washington and the French at Yorktown, the revolution was for all practical purposes over, 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, ambition and the logic of checks and balances
In a later episode, Mike Munger told Bob Zadek that James Buchanan began writing in the late 1950s and wrote a number of things during the 1960s with co-authors, and that one of Buchanan’s interests was what he called limiting Leviathan — the role of constitutions in creating limits on what government could do. Munger said Buchanan was not an anarchist; he believed government needed these powers but wanted Leviathan limited. Munger argued that the idea that a constitution should limit what government does remains controversial, and gave as examples the filibuster limiting what the Senate can do, the Second Amendment protecting gun rights even if a majority want them taken away, and the First Amendment protecting speech even when it is controversial and a majority want it taken away. He noted that 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, and that Buchanan was surprised the argument was controversial because it was already embodied in the document. Zadek paraphrased Madison’s remark about angels and laws, and said the purpose of the Constitution was to recognize that once government is given the exclusive power to use force and coercion, controls on that force are necessary. Munger said James Buchanan argued that we cannot rely on good people and need good rules, and that Madison wrote in Federalist No. 51 that the advantage of separation of powers is that ambition can be made to counteract ambition. Munger described the system of checks and balances and divided government as frustrating to those who believe they know the answer, but said the point is that divided government requires substantial consensus, and that a small group cannot grab power even with the best of motives 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, and said calling the first ten amendments amendments is almost a misnomer because they were drafted a year later and were really a rider to the Constitution. He said Madison in particular believed the Bill of Rights was unnecessary, on the view that nothing in the Constitution gave the government the power to abridge freedom of speech, conscience, religion or assembly in the first instance. Zadek said the proof that Madison was naive in that regard is that litigation in support of free speech always cites the Bill of Rights rather than the Constitution itself Troubleshooting the Constitution (2022).
Enumerated powers and the federal criminal code
In an 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 — naming piracy and counterfeiting, 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 has enacted an enormous number of criminal statutes. Federal fraud, the guest said, is essentially undefined: the statute reaches any fraud committed through the use of the U.S. mails or in interstate commerce, or through the use of telephones or the mails, so that the means supply federal jurisdiction while the crimes themselves are ill-defined. The guest described 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 said that principle has been lost in the federal system. The guest’s book Three Felonies a Day: How the Feds Target the Innocent rests on the argument that it is not substantively what you do but your use of the mails, the telephone or the means of interstate communications or commerce, and repeated the saying that a grand jury can indict a ham sandwich as long as the ham sandwich gets on the telephone The FBI: Our Uninvited Federal Police Force (2022).
The copyright power and the legalism fallacy
Bob Zadek told Derek Khanna that copyright law has been around since the country has existed, is specifically provided for in the Constitution, and is a government-created monopoly: if you invent something new and publish it, telling everybody exactly what it is and how it works, the government says nobody can use your intellectual property without paying you a royalty. Copyrights are not forever but last a finite period, after which the work enters the public domain and anybody can use it for free. Zadek said the reason for copyright law is that without it 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 anybody who knew it could use it for free, because Coca-Cola preferred not to publish it and to run the risk of somebody figuring it out. 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 he said they meant the creation of content. Khanna 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).
In a later episode on immigration, Alex Nowrasteh described the legalism fallacy as the assumption that a policy is good because it is legal — a focus on legal issues that ignores consequences. Zadek illustrated the fallacy with the 18th Amendment, saying drinking alcohol became illegal but that did not make using alcohol bad, and that nobody believed Prohibition was a good idea simply because it was law. Zadek then extended the example to the Constitution, observing that women did not have the right to vote and that slavery was legal, and said 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 as inheritance and as constraint
The excerpts show the same underlying question — whether the Constitution’s limits hold — argued in more than one episode, but not as a developing thesis. In the 2017 episode, Watkins and Zadek ask whether ratification itself was a mistake and treat the Articles as a successful, state-centered alternative; in the 2022 episode, Munger and Zadek treat the Constitution’s design as sound and ask whether its limiting logic is still respected, with Munger citing Buchanan’s The Calculus of Consent and Madison’s Federalist No. 51 and Zadek calling the Bill of Rights an inadequate afterthought. The later treatment shifts from whether the document should have been adopted to whether its constraints are observed, and the figures who advance each are Watkins on the Articles and Munger on Public Choice. The 2022 FBI episode and the 2014 Khanna episode supply concrete instances of enumerated powers — the criminal law power and the copyright power — being read expansively, while the 2023 immigration episode uses the Constitution’s history of slavery and disenfranchisement to illustrate the legalism fallacy.
What the sources do not cover
The excerpts do not describe the text or ratification mechanics of any particular article or amendment beyond the general references above, and do not state what any cited case held or which amendment it turned on. They do not give the date the Constitution was drafted or ratified, the state in which any city mentioned is located, or the names of bills. Several excerpts break off mid-sentence or mid-exchange, and the article stops where they stop.