The recall of Gavin Newsom and the “double blow” to freedom
In a March 2021 episode on the effort to recall Gavin Newsom, Bob Zadek framed the recall as a rejection of the premise that ordinary citizens are incapable of making decisions about their own lives. He described a theme running through Kevin Kiley’s book Recall Gavin Newsom: The Case Against America’s Most Corrupt Governor: that almost everything Newsom did rested on the assumption that citizens cannot decide matters such as driving for Uber, wearing a mask, going to a restaurant or a gym. Zadek said the message of the recall petition was, in substance, that Newsom should butt out and let people run their lives, and he characterized that request as neither Democratic nor Republican, neither ideological but personal and intimate The Case for Recalling Gavin Newsom (2021).
Kiley agreed and extended the point. He said that when Newsom tried to control lives by fiat, it was a double blow to freedom: on one level a violation of personal liberty to order one’s life as one sees fit, and at the same time a blow to collective freedom as self-governing communities and to the ability of citizens to participate in their own government and direct their own political destiny. Kiley tied that ability to the founders’ idea of personal freedom and to a notion of self-government that he said had been eroded for a long time but had totally collapsed in the preceding year. He said he hoped the recall and Newsom’s ouster could revive freedom in both senses—personal freedom and self-government The Case for Recalling Gavin Newsom (2021).
On the procedural status, Kiley said the deadline to gather signatures had passed and the campaign had gathered in excess of 2.1 million, with roughly 1.2 million verified; the number of verified signatures needed is 1.5 million. He said an official announcement that the recall election was on would probably come in late April, that the legislature had passed a bill a few years earlier to stretch out the process, and that the ultimate election would likely not take place until later that year, perhaps in the fall or even November The Case for Recalling Gavin Newsom (2021).
Federal tax conditions and commandeering the states
In an October 2021 episode with Philip Hamburger of the New Civil Liberties Alliance, Zadek set up the Build Back Better tax mandate as an example of federal taxation drawing money from the states’ tax pool and then offering it back on condition that states not lower their taxes. Hamburger said the condition was that states, upon receiving federal money, may not lower their taxes, and he called it clearly unconstitutional. He gave several reasons: that spending to the states is unconstitutional; that it is a condition on the states attempting to regulate them, which should be done through an act of Congress rather than through condition; and that it commandeers one of the states’ central policies by directing how they engage in taxation in exchange for federal money The New Civil Liberties Movement (2021).
Hamburger said the Supreme Court had complicated these matters by holding that the federal government cannot commandeer the states coercively, which the federal government read as a license to commandeer through conditions on the theory that conditions are consensual rather than coercive. He argued this rearranges the structural relationship of the federal government to the states, which he described as independent sovereigns, and that people have a right to govern themselves in their localities. Federalism, he said, is not just a structural matter; it is “our freedom of self-government.” He characterized the condition as an attempt by the federal government to purchase its way out of the constitutional structure and to deprive people of the right of self-government in the states, and said he thought the courts would hold it unconstitutional The New Civil Liberties Movement (2021).
Balancing self-government and liberty in constitutional design
In a December 2021 episode on a conservative draft constitution, Ilan Wurman described how his team handled the post office: they kept it, placing it in Article I, Section 11 of their reorganized document, with the power to carry the mail along post roads if Congress can establish them pursuant to the Necessary and Proper Clause. He said they amended the language to give Congress power to establish a system for the prompt and efficient delivery of the mail, which he said does not necessarily mean a monopoly on delivery and could allow private contractors The Conservative Constitution (2021).
Asked about the founding principles that drove his drafting, Wurman compared his approach to the progressive and libertarian Constitutions. He said the libertarian Constitution’s authors liked to say they mostly started with the existing Constitution and after every clause said, in his paraphrase, that they meant it—as though the founders’ Constitution were a libertarian Constitution. Wurman said that was not so: the founders’ Constitution protected liberty but also sought to enable self-government for the common good. He said the national government was one of limited and enumerated power, but under the original Constitution the states could legislate over all avenues of life, including public welfare, health, safety and morals legislation The Conservative Constitution (2021).
Wurman said the progressives focused on democratic accountability and equality, while the conservatives’ animating principle was that a constitution for a free society must balance self-government and liberty. He described those two objectives as in tension, noting that self-governing majorities often infringe the rights of minorities, and said crafting a constitution that balances them is difficult. He said he believed those were the founders’ principles too—that the founders cared about liberty and even more about ordered liberty, but also cared about self-government and legislating for the common good The Conservative Constitution (2021).
Majority rule, pluralities and the Madisonian premise
In an August 2022 episode, Ned Foley began from what he called the Madisonian premise of the system. He cited Madison’s phrase that ambition must counteract ambition and the idea that men are not angels, and said a full understanding of the Madisonian concept requires adequate virtue to run a democracy or republic, because with zero virtue no rules or institutions will suffice. Foley said humans are not angels but also not devils, so institutions must be designed to take human nature as it is and achieve as close as possible to the collective public interest given each person’s natural self-interest Enhancing Trust in Democracy (2022).
Foley said the system is in disequilibrium, and that Madison hoped to create a Constitution without political parties at all, which quickly did not happen. He identified two structural features to focus on. One is the vote-counting process itself and the problem of election denialism: chain-of-custody rules and ballot-security rules to maximize trust, even where the reasons for distrust are not valid, because the distrust is significant and dangerous enough to address. He placed Electoral Count Act reform within those technical rules for counting votes and certifying results Enhancing Trust in Democracy (2022).
The other structural reform Foley described as just as important and not getting enough attention: the mathematical problem of taking disparate voter preferences and producing an election result. He said people are not taught this well in grade school, and that as long as there are more than two options, figuring out what a majority wants is tricky. With two choices, the choice that gets the most votes is definitionally a majority; with three or more, “more” can be a plurality rather than a majority. He gave the example of three options A, B and C, where A gets a plurality between 35 and 40 percent, but a majority of voters would vote against A in a two-way choice against B or against C—so A would lose any two-way choice yet is the plurality in a three-way choice Enhancing Trust in Democracy (2022).
Foley said society has tried to pretend there are only two parties, while the Libertarian Party and the Green Party exist, and that society is uncertain about its own electoral system. He said that at the same time Madison was writing the Constitution, other Enlightenment thinkers, particularly in France, were thinking about these issues with more mathematical sophistication, and that reintroducing their insights into the constitutional tradition would help build new structures better serving the Madisonian premise Enhancing Trust in Democracy (2022).
Across episodes
The topic recurs across all four episodes, but the treatment shifts with the setting rather than developing along a single line. Kiley (March 2021) frames self-government as collective freedom under threat from a governor’s rule by fiat; Hamburger (October 2021) frames it as the federalism right of localities against federal conditions on spending; Wurman (December 2021) frames it as one of two principles—alongside liberty—that a constitution must balance; and Foley (August 2022) frames it as the majority-rule problem that institutional design must solve. Each guest advances the concept from within his own subject matter, and the excerpts show no shared argument developing between them.
What the sources do not cover
The excerpts do not state the city or state in which any episode was recorded, the name or text of the Build Back Better tax-mandate provision, or the holding of any case beyond Hamburger’s general account of Supreme Court commandeering doctrine. They do not give the outcome of the Newsom recall, the fate of the New Civil Liberties Alliance litigation, or the final content of the conservative draft constitution beyond the post office clause. Several passages break off mid-exchange—Zadek’s closing prompts in the Hamburger and Wurman episodes, and the Foley episode’s final section—and nothing after those breaks is reported here.