The Constitution of the United States is treated across The Bob Zadek Show as a compromise document whose allocation of power was contested from the first Congress onward. Guests describe both the seizure of powers the text assigns elsewhere and the grounding of judicial authority in the document’s own provisions.
Washington and the seizure of congressional power
In an episode on the invention of the presidency, Harlow Giles Unger describes the early House of Representatives as chaotic: Southern slave masters, Northern abolitionists and Western pioneers who spat tobacco, with one representative arriving with hunting dogs at his side. No one would listen to anyone else, and except for the first Congress, which Unger calls an elite group of founding fathers, the House debated constantly without getting anything done. As a result, presidents beginning with Washington began to take the law into their own hands and act unilaterally How Washington Invented the Presidency (2013).
Unger says Washington established what he calls seven pillars of executive power not granted to him by the Constitution — powers that belonged to the House of Representatives but that Washington seized out of necessity, having taken an oath to preserve, protect and defend the Constitution. Unger frames the motive as preserving the spirit of the document even at the cost of violating its letter. When the first Congress recessed in 1789 without leaving money for the President to spend, Washington sent his Treasury Secretary to banks in New York City, then the temporary capital, and borrowed money on his own word — in effect appropriating and spending without the consent of Congress, though the Constitution clearly gives that power to Congress. The following year, with Congress out of session and Indian nations in the West attacking American settlers and defeating a force of American militiamen, Washington drafted 2,000 troops and sent them to war without congressional consent. Unger calls this a declaration of war and a blatant violation of the Constitution, which states that Congress shall declare war and does not give the executive that power How Washington Invented the Presidency (2013).
Unger draws out the precedent: in the centuries that followed, the United States was officially at war more than a dozen times, but Congress declared war only five of those times — in the Mexican War, the Spanish-American War, the War of 1812, and the two World Wars. In the other wars, presidents sent troops onto foreign soil into battle on their own. Unger distinguishes Washington, who was defending American lives, from successors for whom that was not the case in many instances How Washington Invented the Presidency (2013).
Bob Zadek notes that Washington arrived to an office with little to do — he answered a few letters, spent time with Martha, rode his horse and worked around the home, and felt useless. There were not even laws to enforce, since Congress had not yet passed one; the first act of Congress was the Oath Act, creating the oath of office for other governmental officials. Zadek asks whether Washington felt uncomfortable accumulating presidential power that did not expressly exist How Washington Invented the Presidency (2013).
Unger answers that Washington acted consistently with his oath, calling the Constitution the heart of the American government and system, and that his oath required him to protect American citizens. Unger calls the borrowing of funds a blatant violation, though one that did not involve that much, and calls sending troops to war against the Indians a blatant violation of a Constitution that clearly states Congress shall declare war. Washington’s view of the document evolved: he had presided over the Constitutional Convention and was the first to sign it, and he described it as a compromise among conflicting interests around the country — not what everybody wants, but worth trying, with Article 5 available to amend it. Unger says Washington was willing to give it a shot, and when he saw it did not work he acted immediately and decisively, as a man of battle who had been tested How Washington Invented the Presidency (2013).
Judicial review and Article 3
In an episode on legitimacy crises, Bob Zadek describes judicial review as the Supreme Court being the final arbiter of whether an act of government is constitutional, and says it is nowhere provided for in the Constitution — that the founders left open who is the final arbiter of whether government behavior is constitutional How to Create a Legitimacy Crisis (2019).
Ilya Somin disagrees, saying he thinks it is in the Constitution: Article 3 says the courts have jurisdiction to decide cases arising under the laws and the Constitution of the United States, and one cannot decide those cases without the right to make the final decision and have it followed. Somin says that is how most of the founding fathers understood things, and cites the Federalist Papers, where James Madison wrote that the courts would be the arbiters of disagreements over the relative scope of powers between the states and the federal government. It would make no sense, Somin argues, to say the courts will decide those issues if the states and the federal government were not required to obey the court’s decision How to Create a Legitimacy Crisis (2019).
Zadek raises Hamilton’s observation that the Supreme Court was, at the moment of founding, the weakest branch, because it had no armies to enforce its rules and no control over the purse — so there was not, at least in Hamilton’s mind, much optimism about how vigorous the Court would become. Somin responds that nobody could be sure in 1787 how effective the Supreme Court would be, but that Hamilton did agree the other branches had a duty to obey the court’s decisions. The difficulty, Somin says, is that it is hard to guarantee that obedience, especially with a new government just being established, so American institutions rest at least in part on political norms that say people have to obey certain decisions even if they do not like the result How to Create a Legitimacy Crisis (2019).
Across episodes
The two episodes touch the Constitution from different directions — Unger on the early presidency’s seizure of powers textually assigned to Congress, Somin on the textual and Federalist grounding of judicial review — and the excerpts show no development of a shared question between them.
What the sources do not cover
The excerpts do not describe the text of the Constitution beyond the war-declaration clause, Article 3’s jurisdictional language and Article 5’s amendment provision, nor do they name the Oath Act’s formal title or date. They do not state which amendment any case turned on, and no case name appears in either excerpt. The excerpts also do not say when the Constitution was signed or ratified, or where the Constitutional Convention met.