Gary Johnson and the 2012 Libertarian Nomination
In a January 2012 episode, Bob Zadek interviewed Governor Gary Johnson, the Libertarian candidate for President, describing him as a former two-term Governor of New Mexico who had announced his candidacy for the Libertarian nomination. Zadek noted that the Libertarian Party is on the ballot in all 50 states and cited a poll indicating that about two-thirds of Americans would consider voting for a third-party candidate. The Triumph of Principle Over Politics (2012)
Johnson told Zadek that the number one issue was the economy and jobs, and that the President could play the biggest role in creating a level playing field for everybody to be able to get those jobs. He promised to submit a balanced budget to Congress in 2013 and to advocate throwing out the entire federal tax system and replacing it with the Fair Tax. He described the Fair Tax as doing away with all existing federal tax—income tax, corporate tax—and with withholdings, replacing them with a 23% consumption tax, and doing away with the 16th Amendment. He said it was cost-neutral over a very short amount of time and would make goods and services 23% more competitive. The Triumph of Principle Over Politics (2012)
Johnson also cited a study of all the presidential candidates and their records on job creation, saying he had the best record of everybody running for President. He said that as Governor of New Mexico he did not create one single job but contributed to the notion of a level playing field through rules and regulations that made job creation easier in the private sector. He also mentioned an ACLU report that graded all the presidential candidates on civil liberties, in which Barack Obama took third place, Ron Paul took second place, and Johnson received the highest grade. The Triumph of Principle Over Politics (2012)
Judge Jim Gray and the Philosophy of Libertarianism
In an April 2013 episode, Zadek described Libertarianism as a philosophy, a point of view, a way of examining and testing the relationship of citizens and their government. At its core, he said, it focuses on the preservation of individual freedom, private property, and the right to live one’s life as you wish, so long as in doing so you don’t cause harm to the person or property of someone else. He said he did not aspire for the Libertarian Party to become a dominant political party, noting that third parties are never very successful in the United States and that the deck is stacked against them. We Are All Libertarians (2013)
Zadek argued that as Democrats and Republicans struggle to find common ground, the common ground is the Libertarian approach, and that both of the two main political parties find themselves gravitating towards a Libertarian point of view. He introduced Judge Jim Gray as the guest, identified as the 2012 Libertarian Vice Presidential Candidate. The episode’s topics included healthcare, immigration, the drug war, and foreign policy, followed by Zadek’s critique of the nanny state and government intrusion into parenting and local revenue collection. We Are All Libertarians (2013)
Damon Root on the Libertarian Legal Movement
In a November 2014 episode, Damon Root described the conservative legal movement as the product of a response to the liberal court victories of the ’50s and the ’60s, the Warren and the Burger Courts, and as modeled on the civil rights movement achieving success through legal means. He said this movement had grown up over the past 40 years, was extremely influential, had control of the Supreme Court, and was very influential within the right and within the Republican Party. Zadek identified the Federalist Society as perhaps the point organization in all of this, and Root agreed it was a key organization. Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014)
Root described a libertarian insurgency growing up within the ranks of that broader movement that disagrees with conservatives on a number of issues, with the real fault line over the question of the role of the courts and whether courts should be deferential to the elected branches. He said that for conservatives of the past 30 years, one of the key issues had been privacy—sexual privacy, birth control, abortion—because the right to privacy is an unenumerated right not listed in the Constitution. He noted that in 1965 the Supreme Court said you have a right to privacy and struck down a Connecticut law which banned the sale of birth control to married couples, and that a few years later the court said that within that right to privacy there is also a right to an abortion. Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014)
Root said conservatives don’t like those opinions, thinking them untethered from the text of the Constitution, and that Justice Scalia held to that line consistently. The libertarian legal movement, by contrast, says there is a right to privacy in the Constitution and that the state should not be able to prevent married couples from obtaining birth control devices to use in the privacy of their own home, since they are not harming anyone. Root said people like Scalia, Robert Bork, and John Roberts apply a deferential philosophy also in economic regulation cases, abiding by the New Deal constitutional settlement and treating economic rights and unenumerated rights in a second-class way, while libertarians disagree. Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014)
Root said Scalia debated libertarian law professors over whether the Constitution requires courts to actively protect economic liberty, with Scalia saying it does not and would be a terrible idea, and that Bork and Roberts felt the same way, which came out in the healthcare case. He said it is fair to call it a war because libertarians, who have been a very small section within the broader conservative legal movement, have been waging a very aggressive campaign, a war of ideas, trying to persuade conservatives to come around to their point of view, and that they have had quite a bit of success. Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014)
On the 2012 healthcare case, Root said one question was whether Congress had authority under the Commerce Clause to impose the individual mandate, a debate happening since the New Deal over how broad the Commerce Clause is. He identified Randy Barnett, a law professor at Georgetown, as one of the lawyers who was the architect of that legal challenge, arguing for a very narrow reading of the Commerce Clause. Root said Barnett argued a medical marijuana case at the Supreme Court in 2005 and lost, because the court said the Commerce Clause is broad enough to trump—with California having legalized medical marijuana and the federal government saying it was still illegal under federal law. Zadek called that the Raich case and a painful decision. Root said Barnett lost, with Scalia and Kennedy voting against him in favor of a broad Commerce Clause power, and that just seven years later Barnett’s arguments became the default conservative position, with the entire conservative movement lining up against Obamacare. Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014)
Root said Michael Greve, who wrote the review for the Wall Street Journal, conceded in that piece that libertarians have gained quite a bit of ground and that the libertarian view is much more dominant on the right than it was 30 years ago, as the result of decades of intellectual war through law review articles, speeches, debates, and court cases. Zadek said the libertarian movement is intellectually alive, with brilliant writing and aggressive active scholarship, and that libertarians are on a roll and often at the head of the table leading the debate. Root agreed, saying that can be seen in gun control and the healthcare debate, and that the traditional conservative view of deference has fallen out of favor largely on the right. Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014)
Zadek listed gay marriage, gun control, legalization or decriminalization of marijuana and other controlled substances, and Rand Paul’s reducing the nature of punishment for low-level drug offenses as libertarian issues now being discussed in America. He said the warriors in the battle against Obamacare are for the most part libertarian or libertarian-leaning attorneys, with strong support from libertarians. Root identified the King v. Burwell case, with the folks at the Cato Institute, law professor Jonathan Adler, and Michael Cannon at Cato being huge in creating that legal challenge and identifying the problem with the law, which the Supreme Court was going to take up that year. Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014)
Timothy Sandefur and the Libertarian Constitution Project
In a November 2021 episode, Zadek described the National Constitution Center as the only organization chartered by Congress to further the understanding and appreciation of the Constitution, located in Philadelphia and nonpartisan. He said it commissioned three teams of scholars—a libertarian team, a progressive team, and a conservative team—each working independently to write or rewrite the Constitution in a way more consistent with their respective values. The teams delivered three different Constitutions that differed quite dramatically in some respects, though all were more or less consistent with the current Constitution in terms of structure, and in many ways the three teams reached very similar conclusions. Timothy Sandefur on The Libertarian Constitution (2021)
Zadek introduced Timothy Sandefur as Vice President for Litigation at the Goldwater Institute, who litigates extensively on property rights and individual freedom issues, is the author of many books, an adjunct scholar with the Cato Institute, a graduate of Hillsdale College and of the Chapman School of Law, and a professor of law at George Mason University’s Antonin Scalia School of Law. Sandefur was a team member on the libertarian team. Sandefur said of their work, “we rescued the Constitution.” The episode’s topics included federalism, property rights, the income tax, the Commerce Clause, the administrative state, impeachment, judicial review, and occupational licensing. Timothy Sandefur on The Libertarian Constitution (2021)
David Boaz on The Libertarian Mind
A 2015 episode featured David Boaz, Executive Vice President of the Cato Institute, discussing his book The Libertarian Mind. The episode explored core principles of libertarianism—individual rights, spontaneous order, and limited government—while tracing its historical roots through the abolitionist and feminist movements. The conversation applied these principles to contemporary issues, including the failures of the drug war, the unintended consequences of the welfare state, and the tension between religious freedom and anti-discrimination laws. The topics listed for the episode included the Religious Freedom Restoration Act (RFRA). David Boaz on The Libertarian Mind (2015)
Across episodes: the libertarian project
The excerpts show the same question—how libertarianism should be pursued—argued across multiple episodes. In 2012, Gary Johnson framed the project electorally, seeking the Libertarian nomination for President and promoting the Fair Tax and a balanced budget. In 2013, Zadek framed it philosophically, describing Libertarianism as a lens for examining the relationship of citizens and their government and expressing skepticism that the Libertarian Party would itself become dominant. In 2014, Damon Root described a libertarian insurgency within the conservative legal movement, waging a war of ideas through law review articles, speeches, debates, and court cases, with the libertarian view becoming much more dominant on the right than it was 30 years ago. In 2021, Timothy Sandefur described participating in the National Constitution Center’s project to rewrite the Constitution along libertarian lines. The excerpts show a development from electoral politics toward legal and constitutional strategy, though the episodes do not present a single unified account of that shift.
What the sources do not cover
The excerpts do not state the outcome of Johnson’s bid for the Libertarian nomination, the results of any election, or the rulings in the cases discussed beyond what the speakers say. They do not give the founding date of the Libertarian Party, the Cato Institute, the Federalist Society, or the Goldwater Institute, nor the full names or titles of several figures mentioned only in passing. The excerpts do not state which amendment the Raich case or the healthcare case turned on, nor the holding of King v. Burwell. Several sections break off mid-sentence or mid-exchange, and no excerpt covers the show’s final episodes or its conclusion.