On The Bob Zadek Show, “the Constitution” is discussed less as a fixed text than as a set of competing interpretive commitments. Guests across several episodes return to the question of whether the document’s meaning is settled at ratification and changeable only by amendment, or whether judges may update it to fit changing circumstances. The program also treats the Constitution as an object of public education and as a source of rights that, in the view of some guests, the federal government increasingly induces people to surrender.
Originalism and living constitutionalism
In a 2020 episode, Bob Zadek introduced the topic by contrasting an originalist approach to interpretation with what he called, not very helpfully, the “living constitution.” He asked guest Randy Barnett to explain the two views and why the distinction matters, noting that a possible Justice Barrett would play a role in the debate Amy Coney Barrett on Trial (2020).
Barnett defined originalism as the view that the meaning of the Constitution should remain the same until it is properly changed by amendment and not by judges. He described living constitutionalism as the opposite: the view that the meaning of a written constitution can and should be updated by judges to reflect changing times and troubles. Barnett characterized living constitutionalism as a judicial updating view rather than one treating the Constitution’s meaning as fixed.
Zadek asked for a concrete example. Barnett chose the Second Amendment right to keep and bear arms. An originalist, he said, would argue that the meaning of that right is the same today as when the Second Amendment was ratified, and the same as when the Fourteenth Amendment was ratified in 1868. He noted that opponents of gun rights sometimes make an originalist argument that the original meaning was a collective rather than an individual right. A living constitutionalist, by contrast, would treat the Second Amendment as at best a starting point or a single factor, and might argue that public safety requires strong restrictions today.
Zadek summarized the originalist position as holding that if society believes a constitutional provision is wrong, there is a mechanical way to change it — amendment — rather than judicial reinterpretation. Barnett agreed and noted that the Constitution has been changed 27 times, including the Fourteenth Amendment’s creation of federal power to police states and the Progressive Era income tax amendment. He also argued that judges undid the Privileges or Immunities Clause of the Fourteenth Amendment in the Slaughterhouse Cases five years after its enactment, which he called a form of living constitutionalism.
The National Constitution Center and the Interactive Constitution
A 2018 episode featured Sheldon Gilbert discussing the National Constitution Center. Gilbert said the Center has its origin story during the Reagan administration, when Congress issued a resolution calling for an organization with a singular purpose to educate the American public about the meaning and importance of the Constitution. He described the Center as located on Independence Mall, across from Independence Hall where the Constitution and the Declaration of Independence were signed Revenge of the Pen and the Phone (2018).
Gilbert also described the Interactive Constitution, available at constitutioncenter.org or as a mobile app. Users can look up any provision of the Constitution, read the text, and see top scholars on the right and left discuss that provision. He said the scholars begin with areas of agreement and then move to matters of debate, presenting conservative and liberal perspectives on the same part of the Constitution. Zadek praised the resource as a place to hear both sides of an issue, contrasting it with media he described as echo chambers.
The new civil liberties movement
In a 2021 episode, Philip Hamburger discussed his book Purchasing Submission: Conditions, Power, and Freedom. Zadek framed the book’s premise as the claim that the federal government either purchases or persuades individuals and entities to waive constitutional rights The New Civil Liberties Movement (2021).
Hamburger agreed, describing a progression: the Constitution gives the federal government power to enact laws limited by rights, but the government created an alternative pathway through administrative edicts that look like congressional rules but come from agencies rather than elected officials. He said the government then uses conditions — distributing money or privileges and attaching requirements — to regulate and to induce people to give up speech rights, due process rights, or jury rights. Zadek suggested the phrase “purchasing submission” was too bland and that the movement should be called one to defend constitutional freedoms; Hamburger agreed one could have called it that.
Economic liberty and state constitutions
A 2022 episode featured Jessica Thompson of the Pacific Legal Foundation discussing litigation over a food truck ordinance. Zadek asked why the claim was brought under the North Carolina Constitution rather than the U.S. Constitution Food Truck v. Farmville (2022).
Thompson said the federal Constitution should protect the right to earn a living, but that the Supreme Court has watered down constitutional protections for economic liberty over time, a decline she traced to the New Deal. She said state constitutions can provide protections beyond the federal floor, and that the North Carolina Constitution explicitly protects the right to earn the fruit of one’s labor. She noted that many other state supreme courts have interpreted due process or law-of-the-land clauses to protect a right to earn an honest living.
Thompson connected the North Carolina provision to John Locke, saying Locke was the author of the Fundamental Constitutions of Carolina in 1669 when Carolina was still a colony. She said the right to the fruits of one’s own labor runs throughout Locke’s works and the importance of property. She also described waves of litigation under the clause, including cases striking down laws as arbitrary interference with the fruits of one’s own labor, and mentioned opinions involving massage businesses, photography, and dry cleaners. Zadek observed that state constitutions have seen much less litigation and have become a source of liberties he feared were being watered down at the federal level.
Across episodes
The excerpts show the same underlying question — who decides what the Constitution means — argued in more than one episode. In the 2020 episode, Randy Barnett framed the choice as originalism versus living constitutionalism and used the Second Amendment and the Slaughterhouse Cases as examples. In the 2022 episode, Jessica Thompson shifted the venue to state constitutions, arguing that federal economic-liberty protections have been watered down since the New Deal and that state courts can raise the floor. The 2018 episode with Sheldon Gilbert and the 2021 episode with Philip Hamburger approach the Constitution from different angles — public education and conditional governance — rather than directly engaging the originalism debate.
What the sources do not cover
The excerpts do not state the outcome of the food truck litigation, the holding of the Slaughterhouse Cases beyond Barnett’s characterization, or the specific provisions of the North Carolina Constitution beyond the phrase about the fruits of one’s labor. They do not give the founding date of the National Constitution Center or the full name of the resolution that called for it. They also do not state which amendment the income tax was enacted under, beyond Barnett’s reference to a constitutional amendment allowing Congress to tax incomes.