Zadekpedia

Ask BobAsk a question of every episode, 2009–2023 — answers cite the minute

Constitutional Law

7 min read

Part of The Constitution and the courts.

Start here

Every episode (32)

Who argued it

Ilya Somin ×3 · Todd Zywicki ×2 · Alex Nowrasteh ×2 · Gene Healy ×2 · Ilya Shapiro ×2 · Nick Seabrook · Ned Foley · Ilan Wurman · Bob Levy · Jenin Younes · Philip Hamburger · Trevor Burrus

Federalism · Supreme Court · Separation of Powers · Administrative State · Donald Trump · Executive Power · Immigration · High Crimes and Misdemeanors

Background

Constitutional law, as discussed across episodes of The Bob Zadek Show, concerns the structural limits the Constitution places on government and the institutional question of which branch — or which level of government — gets to decide contested questions. Guests return repeatedly to federalism, judicial deference, and the distinction between rights written into the text and rights the Supreme Court has recognized without a textual anchor.

Federalism and criminal law

In a 2009 episode on hate crimes legislation, Bob Zadek argued that federal criminal statutes intrude on a domain that has belonged to the states since the country was founded: “States, since the country was founded, states have been in charge of determining what acts are crimes and setting the punishment.” He described the federal government as having no police force and accused hate crimes legislation of violating “core principles of federalism” and of setting up a bidding war among groups seeking inclusion on a list of lives deemed more valuable. Hate Crimes Legislation (2009)

Jacob Sullum added that the legislation had passed both houses of Congress and looked likely to be enacted, and that beyond the question of federal authority it created a double jeopardy problem. Zadek explained the Fifth Amendment guarantee that no person shall be put twice in jeopardy for the same offense, and described a scenario in which a defendant acquitted in state court could be tried again federally for the same act. Sullum noted that the Supreme Court does not treat this as double jeopardy because two different sovereigns are involved, so that the same underlying behavior counts as two different crimes. Hate Crimes Legislation (2009)

Deference and judicial review

In a 2020 episode, Josh Blackman defined judicial deference as the practice of letting the elected branches make difficult decisions rather than the unelected branch. He noted that Supreme Court justices are not elected and serve for life, while members of Congress and the president can be voted out of office. Deference, he said, was very popular during the New Deal, but in the 1950s and 1960s the Court began creating exceptions, and that move away from deference paved the way for the Court to assert broad power over social legislation. Eight-Dimensional Chess (2020)

Zadek pressed Blackman on his phrase “screwed up,” asking whether it meant enacting legislation that violates the Constitution rather than merely making bad policy. Blackman agreed, saying that unless there is a clear violation of the Constitution the Court will step out, though he added that the Constitution does not always give clear guidance and that judges sometimes must exercise discretion. He said he is not a fan of deference in all contexts and that once courts shed deference they become something of a super-legislature, which he linked to contentious nominations. Zadek framed the Court’s role through Marbury v. Madison as guardian of the Constitution exercising judicial review. Eight-Dimensional Chess (2020)

Originalism and unenumerated rights

A 2020 episode with Randy Barnett, a constitutional law professor, framed the confirmation of Amy Coney Barrett as a contest between originalism and living constitutionalism, and raised the “presumption of liberty” and the centralization of power in Washington. Barnett’s position, as summarized in the episode, is that a return to the original meaning of the Constitution would restore federalism and reduce social conflict by allowing diverse state-level solutions. Amy Coney Barrett on Trial (2020)

In two 2022 episodes, Clark Neily described Dobbs v. Jackson Women’s Health Organization as holding that there is no constitutional right to an abortion, overruling about 50 years of precedent beginning with Roe v. Wade, which had held that there is a constitutional right to an elective abortion. Neily said five justices held that this is not a plausible way to read the Constitution. Dobbs, the Democratization of Rights, and the Disaster of Qualified Immunity (2022) Dobbs, the Democratization of Rights, and the Disaster of Qualified Immunity (2022)

Neily distinguished enumerated rights, such as freedom of speech, from unenumerated rights not specifically articulated in the text. He gave the right to travel around the United States and the right to guide the upbringing of one’s own child as examples of unenumerated rights that have been enforced for over a hundred years. The question he posed is whether the Court “invents” such rights or “recognizes” them as among the unalienable natural rights we all possess. On abortion, he said some people think the ability to terminate a pregnancy is among those natural rights and others do not, and that he and Jay Schweikert argued reasonable libertarians can see it either way. Dobbs, the Democratization of Rights, and the Disaster of Qualified Immunity (2022)

Across episodes

The same question — whether unelected judges or the elected branches should decide — runs through the 2020 Blackman episode and the 2020 Barnett episode, and reappears in the 2022 Neily episodes, where the Court’s withdrawal from the abortion question is described as returning the issue to the states. The episodes show no resolution of the disagreement; Blackman says he is not a fan of deference in all contexts, while the 2022 framing presents Dobbs as a shift of power back to the states. The 2009 hate crimes episode approaches the same structural question from the opposite direction, arguing that Congress rather than the states had overstepped.

Backlinks