ZadekpediaCopyright and the enumerated powers
Derek Khanna and Bob Zadek discuss copyright as a government-created monopoly specifically provided for in the Constitution. Zadek describes copyright law as a monopoly the government grants so that nobody can use an inventor’s intellectual property without paying a royalty, with a finite term after which the work enters the public domain; without it, he says, there would be no incentive to invent because a free rider could simply copy. Khanna adds that copyright, unlike patent law, is strictly about incentivizing content creation, and that the founders’ word was “the sciences” — which he says meant the creation of content. He calls it unusual and basically an accident that a law designed to foster content creation is now used to protect the monopoly profits of big mobile companies, arguing there is no real connection in the law to why a consumer unlocking their own phone should fall under copyright. Derek Khanna - What’s Stifling Innovation? (2014)
Replacing the Articles of Confederation
William Watkins Jr., author of Crossroads for Liberty: Recovering the Anti-Federalist Values of America’s First Constitution, tells Zadek that the Articles were the first national constitution, drafted by the Continental Congress and setting forth the relationship between the states and the national government. He describes a state-centered system in which states chose their representatives, Congress could not tax directly, and requisitions and money had to come through the states, with each state expressly retaining its sovereignty and independence. Measured against its goals — independence from Great Britain and preservation of self-government in the individual states — Watkins calls the Articles an absolute success, noting that after Cornwallis surrendered to Washington and the French at Yorktown the revolution was for practical purposes over and peace talks for the Treaty of Paris began. Under the Articles, he says, states were free to run their own domestic policies and serve as laboratories of democracy. Crossroads for Liberty with William Watkins Jr. (2017)
Public Choice and the structure of limits
Mike Munger tells Zadek that James Buchanan, who won the Nobel Prize in Economics in 1986, was interested in what he called limiting Leviathan — the role of constitutions in creating limits on what government could do. Munger says Buchanan’s The Calculus of Consent, published in 1962, claimed only to write down the scientific principles behind what James Madison was trying to accomplish in the Constitution. Zadek paraphrases Madison’s remark that if all men were angels we would not need laws, and says the purpose of the Constitution was to build controls on the force government exclusively may lawfully use. Munger cites Federalist No. 51 on separation of powers, where ambition counteracts ambition, and argues that divided government requires substantial consensus so that a small group cannot grab power. Zadek calls the Bill of Rights the best example of the founders understanding Public Choice without the label but doing an inadequate job, noting that Madison believed it unnecessary because nothing in the Constitution gave the government the power in the first instance. Troubleshooting the Constitution (2022)
Federal criminal law and enumerated powers
Zadek argues that the Constitution does not give the federal government plenary power to enforce criminal laws, and is very specific about which federal criminal laws there should be — piracy and counterfeiting among them, with a particular federal interest in preventing people from printing their own dollar bills. Over decades and centuries, he says, the federal government with the aid of the Supreme Court has enacted an enormous number of criminal statutes. Federal fraud, he says, is essentially undefined: the statute reaches fraud committed through the mails or in interstate commerce, so the means supply jurisdiction while the crime is ill-defined. He invokes the common-law principle that nobody should be prosecuted unless they knew what they were doing, intended to commit the crime, and the crime is readily defined, and says that principle has been lost in the federal system — the basis of his book Three Felonies a Day: How the Feds Target the Innocent. The FBI: Our Uninvited Federal Police Force (2022)
The legalism fallacy
Alex Nowrasteh defines the legalism fallacy as the assumption that a policy is good because it is legal — a focus on legal issues that ignores consequences. Zadek illustrates it with the 18th Amendment, noting that drinking alcohol became illegal but nobody believed Prohibition was a good idea simply because it was law, and extends the point to the Constitution: women did not have the right to vote and slavery was legal. The law, Zadek says, is neither good nor bad per se but good or bad according to our view of what society should be like. Nowrasteh adds that the immigration law is not even clear because there is no coherent set of rules. American anxiety about immigration is unwarranted. Here’s why. (2023)
Across episodes: the founding as mistake or as incomplete
Two episodes frame the founding as a question of error. In 2017 Zadek asks Watkins whether replacing the Articles of Confederation in full with the Constitution was a mistake and whether ratification was a mistake, and Watkins answers that one must first know a mistake was made before proceeding on any policy issue. In 2022 Zadek and Munger treat the same design as sound in principle but ask whether the founders did as good a job as they could have, with Zadek calling the Bill of Rights an inadequate job and Munger saying we know a lot more than we did in 1787 and 1789. The episodes show no resolution between the two treatments. Crossroads for Liberty with William Watkins Jr. (2017) Troubleshooting the Constitution (2022)