The Bob Zadek Show

Politico’s publication of a leaked draft of the Dobbs decision has turned the Internet upside-down, with rampant speculation about who the leaker was, whether the decision is final, and what will happen next if early-term abortion once again becomes a policy issue for states to decide rather than a right upheld by the Supreme Court.

I find the details of the leak uninteresting (except insofar as it impacts the legitimacy of the court). I am much more interested in how the five Justices voting in the majority arrived at their tentative opinion.

Evan Bernick, a law professor at North Illinois University’s College of Law, is an expert on Originalism the judicial philosophy on which the Dobbs decision is ostensibly based. Bernick joined me to dissent from this assumption. Instead, he argues, Alito’s decision stems from a judicial philosophy that seeks to “stop the Court from recognizing unenumerated rights.” Bernick believes in a more activistic judiciary when it comes to defending individual rights, as we discussed [the last time he was on my show.
We discussed the constitutional considerations behind both the Roe decision and the *Dobbs* reversal of an almost 50-year-old precedent. I’ll also ask Evan how the policy issue is likely to play out in the states, with progressive states becoming destinations for women seeking abortions.

Follow Evan on Twitter, and check out his book, The Original Meaning of the Fourteenth Amendment, co-authored with Randy Barnett.

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What do competitive markets have to do with truth? Ask a philosopher and you might get one answer. Ask an economist and you will get another. Ask an economist with a philosophical grounding, and you get Art Carden’s fantastic piece, The Misuse of Knowledge in Society: Intervention Means Prices are Lying.

Carden is a senior fellow with [the American Institute for Economic Research. He joined the show to discuss the article that caught my eye on AIER.org, which is one of the best explanations I’ve ever read of the price mechanism of free markets.

What happens when we stop the price system of competitive markets from working? In a word, untruth. It’s why price-gouging laws always fail, and increase human misery. A price control, Carden says, is a kind of institutionalized lie. Just because the government says it’s so, doesn’t mean that the underlying scarcity of the good has been altered.

You don’t have to be either a philosopher or an economist to understand the importance of having reliable information when making decisions. Hear Carden’s accessible explanation of the complex topic of price theory only on the Show of Ideas, not attitude.

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Hoover Senior Fellow and host of the Defining Ideas podcast “The Libertarian” , Richard Epstein returns to the program to discuss a new case making it’s way to the Supreme Court:

This past week, the Supreme Court agreed to hear an appeal in an important case that could determine the structure of American interstate markets for years to come. National Pork Producers Council v. Ross involves a constitutional challenge to Proposition 12, a 2018 California referendum that requires all pork products sold in the state be prepared in facilities meeting California standards of animal health and safety, no matter where they are raised. As the plaintiffs explain in their brief, virtually all of the pork products (some 99.8 percent) sold in California come from out of state. On the flip-side, California represents 13 percent of the national consumer market for pork products.


In its unique and inverted version of federalism, California seems to always find a way to impose its own strict regulations on the rest of the country—using its economic might to foist “progressive values” on other states. Can California legislate outside its own borders? Well, it’s complicated.

As usual, when I’m faced with a complex hybrid legal/economic questions, I turn to the Libertarian himself. And as usual, we will try to pack a semester’s worth of economics into an hour of radio. Epstein holds positions as a law professor at NYU, a senior lecturer at the University of Chicago, and Senior fellowship at Stanford’s Hoover Institution.

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“Science,” it has been said, “advances one funeral at a time.”
In other words, what was once heterodox only became accepted as orthodox truth when the defenders of the old paradigm died off, or could no longer maintain their position of authority in the face of clear new evidence.

Dr. Jeffrey Singer – senior fellow at the Cato Institute and contributor to Reason Magazine – has been my go-to guest on topics of medical science since well before the pandemic. His latest article in the May 2022 edition of Reason takes on a set of philosophical questions about the nature of scientific truth, and how we arrive at it. In it, Singer contrasts what he calls the “Priesthood” acting as gatekeepers of information, with the sole authority to decide which experts can be heard. Using examples from the pandemic, such as the silencing and smearing of the authors of the Great Barrington Declaration, Singer points out how often the “official” narrative has been proven wrong by subsequent studies, such as those confirming that in fact lockdowns did little to slow the spread.

Now, the California Assembly is debating a bill that would threaten doctors with the loss of their license for offering any medical advice that is considered contrary to official CDC guidelines regarding vaccination. As epidemiologist and noted COVID expert Jay Bhattacharya notes, the law would essentially take away a physician's ability to offer individualized care to their patients, who may have valid reasons (like prior immunity or other conditions) for not getting the vaccine.

It appears that politics has infected our public discourse around science. Someone call the doctor! The Doctor for Liberty, that is. Singer joined me to separate the real experts from the phony high priests of the public health establishment.

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America’s high prison incarceration rates are known around the world – an embarrassment for an alleged beacon of liberty. Yet few realize that we have another problem associated with our jails. Those charged with a crime are supposed to be innocent until proven guilty, but our bail system disproportionately punishes the poor and reverses the formula – making them guilty until proven innocent.

I have previously covered the civil liberties issues associated with cash bail back in 2018, and how a wave of states was starting to test out alternatives. Since then, New York has joined that wave — eliminating their bail system for pre-trial offenders who are not deemed high risk. This is great news: other states have proven that it works to reduce jail populations and ensure that people who do not belong behind bars are released prior to trial.

But just when I thought it was time to celebrate, Reason Magazine’s Joe Lancaster informs me that these reforms are in jeopardy. New York Governor Kathy Hochul is working behind the scenes to roll back the reforms – expanding the number of crimes eligible for bail, against the findings of a new report that shows the change in the law is working as intended.

Joe Lancaster, an assistant editor at Reason, joined me to break down the findings of the report, and the status of other state-based bail reforms.

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In the years leading up to the American Revolution, a pseudonymous writer who called himself “Junius” came under scrutiny for his letters protesting the abuses by the Crown against his fellow Englishmen. Professor Jeff Kosseff recounts the myriad motivations Junius had for remaining anonymous (his identity is still not known to this day) in his new book The United States of Anonymous. From there, Kosseff explores “how the right to anonymity has shaped American values, politics, business, security, and discourse, particularly as technology has enabled people to separate their identities from their communications.”

Who are the Junius’s today whose anonymity requires protection?

Jeff Kosseff is an Associate Professor of Cybersecurity Law at the United States Naval Academy. He is the author of Cybersecurity Law (Wiley), the first comprehensive textbook on U.S. cybersecurity laws and regulations, and in Spring 2019 he published The Twenty-Six Words that Created the Internet (Cornell University Press), a nonfiction narrative history of Section 230 of the Communications Decency Act. Jeff has practiced cybersecurity and privacy law, and clerked for Judge Milan D. Smith, Jr. of the U.S. Court of Appeals for the Ninth Circuit and for Judge Leonie M. Brinkema of the U.S. District Court for the Eastern District of Virginia. He is a graduate of Georgetown University Law Center and the University of Michigan. Before becoming a lawyer, he was a journalist for The Oregonian and was a finalist for the Pulitzer Prize for national reporting.

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“This will only be the beginning.”

Those six ominous words are not what many Americans will want to hear when it comes to the increased prices they’ve been paying for everyday purchases. Whenever I want to break the bad news to my audience about the state of out-of-control spending or inflation in the United States, I turn to my friend Jonathan Bydlak. Jonathan is director of the Governance program at the R Street Institute, and the creator of SpendingTracker.org – the first ever real-time spending site that tracks the fiscal records of Members of Congress. If you’re looking for a hard dose of reality, follow Jonathan on Twitter – @JBydlak – and find out how much your representatives vote for in spending each year:
Then, give his latest essay for The Spectator a read, on the topic of what’s likely to result from our sanctions against Russia.

Who’s really behind rising gas prices? Moscow or Washington D.C.?

I continued my on-going, in-depth coverage of the Russia–Ukraine conflict with insights you won’t find anywhere else, as Jonathan Bydlak joined me for the full hour.

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The Honorable Jeffrey Sutton, chief judge of the U.S. Court of Appeals for the Sixth Circuit, joined the show to discuss his new book, Who Decides? States as Laboratories of Constitutional Experimentation.

The book comes as a sequel to his 2018 book, 51 Imperfect Solutions: States and the Making of American Constitutional Law. Astute listeners will notice an uncanny similarity between both book covers and my own book Power to the States: How Federalism 2.0 Can Make America Governable Again.
Both books broadly make a case for states to take back powers from the federal government. But where my book emphasized the virtues of experimentation at the policy level, Sutton’s books inspect the balance of powers between federal and state judiciaries. The cover of his book, arranging the outlines of each state under the capitol rotunda, foreshadows his argument that federal courts have assumed too much power to decide what count as constitutional rights.
While this may sound like a classic argument for judicial deference to the legislative and executive branches, Sutton defends a more “activistic” approach to judging at the state level. He points out that the true precedent for judicial review was not Marbury v. Madison, as we all learned in high school civics, but in the many cases preceding it in the states that established the judiciary’s role in deciding which law should apply: the “higher” law of the state constitution, or the laws passed by the legislature.

Today, as the Supreme Court increasingly weighs in on partisan topics like vaccine mandates, it’s especially important that we frame the issue correctly: it’s not a question of how we or the judges feel personally about the outcome, but about who decides.

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[@JustinTLogan](https://twitter.com/JustinTLogan) joined on the Russian invasion of Ukraine. We will have the latest updates and analysis that you won’t get on cable news – with the depth you can’t find on Twitter or social media.


[**Listen Live →**](https://860amtheanswer.com/)



Logan says, “the US military cannot — and will not — come to Ukraine’s aid.” Is there any role for western intervention? What should we make of the apparent bullying by Putin’s Russia.

As usual, restraint and insight are rare commodities.

I hope we can go deeper than the superficial narratives and media coverage thus far.

[Follow Justin’s articles and other appearances at Cato.org](https://www.cato.org/people/justin-logan)**.**

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Economists almost universally agree that immigration provides net benefits to the countries that allows it, yet the public stubbornly clings to myths about immigrants "taking our jobs," or otherwise reducing natives' welfare. Benjamin Powell compiled the best scholarly economics research on immigration, gathered by multiple experts in the field, to write the conclusive book on the subject: The Economics of Immigration: Market-Based Approaches, Social Science, and Public Policy (2015).
Since then, he collaborated with frequent guest and Cato scholar Alex Nowrasteh in revisiting the subject in the book *[Wretched Refuse? The Political Economy of Immigration and Institutions](https://www.amazon.com/Wretched-Refuse-Political-Immigration-Institutions/dp/1108702457).*

Both books mix rigorous scientific analysis from the field of economics with clear explanations of how various studies should inform public policy. **

Powell joined me to narrow the gap between public perception and economic reality when it comes to the vital issue.

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