ZadekpediaMagna Carta is not the subject of any excerpted episode of The Bob Zadek Show; it appears in four episodes as a date and a lineage — the point from which speakers trace jury trial, the Excessive Fines Clause, and the English parliamentary district.
The Excessive Fines Clause and Timbs v. Indiana
In the episode awaiting the verdict in Timbs v. Indiana, Bob Zadek introduced the Excessive Fines Clause as a right with a rich history going back to Magna Carta, “where we get most of our common law from and most of our traditions of liberty.” He argued that the Founders regarded the clause as fundamental, because a government that can levy excessive fines can destroy a person through property short of imprisonment, and that the Supreme Court had not yet applied it to the states Awaiting the Verdict in Timbs v. Indiana (2018).
Guest Sam Gedge described the Indiana Supreme Court’s position as “breathtaking”: rather than asking whether the right to be free from excessive fines is fundamental to the legal tradition, that court said it would not honor the right until the US Supreme Court directly required it, leaving Tyson Timbs and others subject to excessive economic sanctions in Indiana out of luck. Gedge said Montana, Mississippi, and courts in Michigan had taken similar views, producing a split in state and federal courts over whether state and local authorities can excessively sanction people economically under the Eighth Amendment Awaiting the Verdict in Timbs v. Indiana (2018).
Zadek put the seizure in context: Timbs faced six months to a year of house arrest and about five years of probation, plus court costs of a bit over $1,000, while the state sought a $42,000 vehicle under Indiana’s civil forfeiture statute. Gedge supplied those figures Awaiting the Verdict in Timbs v. Indiana (2018).
Jury trial and plea bargaining
Two episodes invoke Magna Carta to date the jury trial. In the Barkow episode, Zadek said that since perhaps Magna Carta 1215 or before, the right to a trial by jury of one’s peers has been cherished as part of our jurisprudence, a bulwark against extreme action by government, and that jury trials in criminal cases have virtually disappeared — about 97% of all convictions are done without one rachel_barkow_on_fixing_the_fundamentals_of_crimin. Guest Rachel Barkow called the practice a “trial penalty” rather than a plea bargain: prosecutors threaten sentences as long as life should a defendant go to trial, then offer to recommend two years in exchange for a guilty plea, using the threat to coerce people and take the jury out of the process rachel_barkow_on_fixing_the_fundamentals_of_crimin.
In the Hamburger episode, Zadek returned to the same framing, saying the right to a trial by jury goes back at least, if not before, the Magna Carta in 1215, and that a defendant signs it away to avoid over-incarceration under Congress’s harsh sentencing. He described harsh sentencing guidelines as the first step: Congress imposes them, then tells itself that defendants will be plea bargained down anyway The New Civil Liberties Movement (2021). Guest Philip Hamburger agreed that overcharging deprives people of jury rights, and added a separate objection — that the sentencing guidelines are created by a Sentencing Commission including judges, initially upheld in Mistretta v. United States, and that even in advisory status they are unconstitutional because of judicial participation in forming them The New Civil Liberties Movement (2021).
Districts and the English Parliament
In the gerrymandering episode, guest Nick Seabrook traced the origins of gerrymandering back before the United States, into English political history, to the creation of the Parliament of England after Magna Carta. He described the charter as a negotiated settlement between the British monarchy and groups who had attempted to overthrow it, in order to provide some modicum of check and democratic representation — but said it turned out to be a veneer of democracy grafted onto a system that still allowed the aristocracy and elites to dictate policy by configuring districts to keep control of the levers of power Who’s Electing Whom? Politicians or the Voters? (2022). The earliest manifestation resembling modern gerrymandering, he said, was the British “rotten borough,” where a district included so few inhabitants — in some cases less than a dozen voters — that landowners could use bribery and patronage to elect candidates of their choice Who’s Electing Whom? Politicians or the Voters? (2022).
Seabrook said the framers took steps to address problems identified in the British system, most notably allocating House seats between states on the basis of population, and early legislation requiring members to be elected from districts of roughly equal numbers of inhabitants. That opened the door to a different kind of gerrymandering, exemplified by Elbridge Gerry, Governor of Massachusetts, who in 1812 drew state Senate districts in Essex County to favor his party by packing Federalists into a single district — the technique known as “packing” Who’s Electing Whom? Politicians or the Voters? (2022).
Across episodes
Four episodes touch the topic — awaiting the verdict in Timbs v. Indiana, the Barkow episode, the Hamburger episode, and the gerrymandering episode — and the episodes show no development: Magna Carta is used in each as a fixed date for the antiquity of a right or institution, and no speaker revises or contests what an earlier one said about it.