Invoking the Constitution against fines and tainted process
In a discussion of abusive municipal fines, attorney Bill Maurer described the Excessive Fines Clause of the US Constitution as a restriction rooted in English law dating back to Henry I, in the year 1000 or 1100. He said the idea behind the clause is that government is not supposed to use fines to drive somebody absolutely into the ground, and that the problem in England was the king using fines to strip people of everything they owned. Maurer traced the restriction through Magna Carta and the English Bill of Rights, and said that when the American founders wrote the Constitution, state and federal constitutions, they also put in a restriction against excessive or cruel fining The Hidden Cause of BLM Riots (2022).
Maurer named a second tool, the Due Process Clause, and applied it to a system in which the police, the prosecutor and the judge all have a financial interest in the outcome of a case. Such a system, he said, is tainted: whether the defendant is guilty or not, the defendant has not received due process, but something that looks like process, because the outcome is foreordained. He also described using the media outside the courtroom, on the reasoning that no city council member wants to see their name in the New York Times or the Washington Post talking about how they are abusing their citizens; the firm litigates in court and in the court of public opinion to educate people that this can happen to them and that there are ways to fight back The Hidden Cause of BLM Riots (2022).
The Constitution as a voting test
Sterling Burnett told Bob Zadek that when he goes to the polls, the first issue he asks is where the candidate stands on the Constitution — not whether the candidate swears an oath, but whether he has acted in his life to defend the Constitution or has eroded it by growing government beyond the bounds specified in the Constitution. Burnett said that if a candidate has voted against the Constitution and constantly grows government beyond those bounds, the candidate does not get his vote regardless of where he stands on other issues. He described himself as a radical libertarian and Zadek as openly a libertarian How to Spot Tabloid Climate Science (2018).
Burnett added that for other people the Constitution may not be the big issue, and listed jobs, pay, and energy costs as examples of what may matter instead. He said that restricting fossil fuels, whether through taxes or cap-and-trade programs, will raise the cost of energy because the alternatives are more expensive and less efficient than fossil fuels, and called that the facts. Zadek, for his part, framed the climate debate as a divide in which those who worry most about climate care least about personal freedom and favor a top-down, tightly controlled society, and said he is not prepared to give up even a little freedom in the theoretical hope that somebody who does not yet exist on Earth might be better off How to Spot Tabloid Climate Science (2018).
Public Choice and the rules that channel self-interest
Mike Munger explained Public Choice as an approach to political science, devised in the late ’50s and early ’60s, which holds that government is not aggregate institutions but individual people with their own goals and incentives. He said Public Choice studies the interaction between rules for choosing and the likely behavior of the real human beings who occupy offices, merging psychology, political science and economics, and that a big concept in the field is aggregation — the aggregate consequences of individuals acting according to their self-interest. The market, he said, is also an aggregation process in which the baker makes bread and the butcher provides meat, and people acting in their own self-interest benefit others through the price mechanism; Public Choice asks whether that is true in politics, and the answer is generally no unless you have good rules Mike Munger is Taking Public Choice Seriously (2019).
Munger said the United States got really lucky: the system the US Constitution put together, with a set of protections for both political and economic rights, was either a work of genius or great good fortune, and it generally led even politicians acting in their own self-interest to benefit the public interest. He cautioned that you cannot assume self-interest and public interest are the same. Earlier in the exchange he distinguished bribery, which is illegal, from cronyism, which he said is not illegal but immoral, and agreed with Zadek that the problem is government making these favors legally available — a problem he said is acute for democratic governments, offering Singapore as an example of a capitalist country that is not a democracy Mike Munger is Taking Public Choice Seriously (2019).
Education and enumerated bounds
Matt Beienburg said the framers in setting up the Constitution wisely recognized that K-12 education and education more broadly is best handled at the state and local level and closer to home. He said there was never envisioned in the Constitution, in our system of government, the idea that Washington, DC, a national Secretary of Education, should dictate what schools are doing, and that this has run amok in efforts to change the direction of education from places like DC. He described schools saddled with red tape and bureaucracy, forced to waste time checking off a list to appease federal bureaucrats rather than focusing on education, and said breaking that link would let schools focus on the actual needs of kids, empower parents, and stop funneling everything back to DC and its dictates Arizona Chooses Students Over Systems - Matt Beienburg (2022).
Zadek, putting the question, said government would lose control over the content of education as the program flourished, and asked whether it was too optimistic to imagine decreased influence of Washington over K-12 education. He called the federal Department of Education ill-conceived, irrelevant and unnecessary, and said that although it claims not to influence content, it does, whether through guidance or through legislation Arizona Chooses Students Over Systems - Matt Beienburg (2022).
Constitutional erosion and constitutional design
Michael Strong, speaking with guest host Charlie Deist and co-host Joe Quirk, called the US a great innovation in government 250 years ago but said we need a lot more, and that the Constitution has gradually been eroded, mostly over the 20th century. He said part of the response could be to go back to the original US Constitution, and that he is excited about city-states, Native American reservations and seasteads as opportunities for many more innovations in government, some of which will do a better job of protecting human rights and property rights and creating wealth, prosperity, happiness and well-being. He described governance as a hard issue and observed that even among Silicon Valley innovators or cutting-edge progressives there is a notion that government consists of the Constitution, or maybe the Constitution with a whole lot more redistribution Michael Strong on Creating a World in Which All Humanity Flourishes (2017).
Strong drew historical parallels: Periclean Athens, one of many Greek city-states, produced democracy, logic, tragedy, history, philosophy and the writing of history; the Renaissance produced Italian city-states including the Republic of Venice and the Republic of Florence, each with a slightly different governance model; the Hanseatic League was another group of independent city-states; and much of the wealth of Northern Europe traces to seeds started then, including city-states that eventually became Holland, the first commercial republic. He compared governance models to corporate governance, noting that corporate law has one standard model and that the B Corporation is another, and said any group of people could set their own rules for how an entity would be governed Michael Strong on Creating a World in Which All Humanity Flourishes (2017).
Vít Jedlička, describing the constitution of the Free Republic of Liberland, said he was very much inspired by the US constitution, a little bit from Swiss democracy, and a little bit from Singapore meritocracy, combining the three with a fresh look at how to keep a constitution from going bad as, he said, happened in the United States where many of the original principles are broken these days. He said Liberland divided government into three branches similar to those in the United States: the Congress forms a government, the government proposes laws, and the assembly or Congress must approve them. In that institution, he said, people do not vote one person, one vote but one person and as many merits as they have, so that people who have done more for the country or paid more voluntary taxes have a bigger say — a principle he said needs to be fixed in regular democracy Founding the Free Republic of Liberland (2021).
Jedlička said a law or regulation created by the government is subject to three vetoes: by citizens, one person, one vote, where a majority of society can get rid of any law; by a Senate, some sort of House of Elders; or by a Constitutional Court. He said it is very important that the state create as little law as possible and that there be many ways to get rid of laws so the system does not get clogged up as in modern societies, and that this element of Swiss democracy, which he called quite unique and working very well there, was adopted as well Founding the Free Republic of Liberland (2021).
Across episodes
The excerpts do not show a single question argued across episodes so much as a recurring reference point. Strong says the Constitution has been eroded and should be returned to; Jedlička says many of its original principles are broken and builds protections into a new constitution instead; Munger says the American system was a work of genius or great good fortune whose rules generally channeled self-interest toward the public interest; Burnett makes a candidate’s fidelity to the Constitution his first voting test; Maurer uses two of its clauses as litigation tools; and Beienburg reads it as reserving education to the states and localities. The excerpts show no development between the earlier and later treatments, only these separate uses.
What the sources do not cover
The excerpts do not state the text of any constitutional provision, the holding or amendment at issue in any case, or the outcome of any litigation. They do not give the date of the Constitution’s framing or ratification, the names of its drafters, or the number of amendments. They do not describe how the Excessive Fines or Due Process Clauses have been interpreted by courts, or what Timbs v. Indiana decided. They also do not state the legal status of Liberland or the details of its constitution beyond the structure Jedlička describes.