Your Constitutional Right to Crypto | Richard Jackson

Do we have a right to own crypto assets? We brought the perfect guest that walks us through the Constitution and the Bill of Rights in order to make the case for our already existent constitutional right to Crypto. Richard is the Deputy AG for the State of Oklahoma for Technology & Digital Assets. He’s an economist at heart, turned legal and crypto native, working to make Oklahoma the most crypto friendly state in the union. ------ 📣 SPOTIFY PREMIUM RSS FEED | USE CODE: SPOTIFY24 https://bankless.cc/spotify-premium ------ BANKLESS SPONSOR TOOLS: 🐙KRAKEN | MOST-TRUSTED CRYPTO EXCHANGE https://k.xyz/bankless-pod-q2 ⁠ 🦄UNISWAP | BROWSER EXTENSION https://bankless.cc/uniswap ⚡️ CARTESI | LINUX-POWERED ROLLUPS https://bankless.cc/CartesiGovernance 🛞MANTLE | MODULAR LAYER 2 NETWORK https://bankless.cc/Mantle 🌐 OBOL | STAKE ON DVs, SCALE ETHEREUM https://bankless.cc/obol 🗣️TOKU | CRYPTO EMPLOYMENT https://bankless.cc/toku ------ ✨ Mint the episode on Zora ✨ https://zora.co/collect/zora:0x0c294913a7596b427add7dcbd6d7bbfc7338d53f/43?referrer=0x077Fe9e96Aa9b20Bd36F1C6290f54F8717C5674E ------ TIMESTAMPS 0:00 Intro 7:47 Constitution 101 11:08 The Bill of Rights 16:51 The Right to Crypto 30:23 1st Amendment 42:29 2nd Amendment 50:29 4th Amendment 1:02:20 5th Amendment 1:11:54 3rd Amendment 1:18:51 9th & 10th Amendment 1:27:00 6th, 7th & 8th Amendment 1:30:12 How to Secure Our Rights 1:37:18 Why Fight in the US 1:43:16 The Oklahoma Case 1:46:18 Closing & Disclaimers ------ RESOURCES Richard Jackson https://x.com/RickJacksonOK https://x.com/RickJacksonOK) ------ Not financial or tax advice. See our investment disclosures here: https://www.bankless.com/disclosures ⁠

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:00Speaker 00

  And they said, you know what? The future of the United States, the future of the state flows through novel and emerging technologies. Let's start the process of getting intelligent, getting smart so that we can preserve fundamental rights of crypto, so that we can have a regulatory environment where builders can come and they understand the rules and we know what was expected and people can enjoy both their rights and also the technology in new ways.

• 0:26Ryan Sean Adams?

  Welcome to Bankless, where today we explore the frontier of your constitutional right to crypto. This is Ryan Sean Adams. Got a solo episode today, just me, and I'm here to help you become more bankless. If you're listening here and you are a citizen of the United States of America, you have a constitutional right to crypto. This isn't a bold claim. This is written in black and white in the first 10 amendments of the Bill of Rights in the Constitution. In today's episode, legal mind Richard Jackson makes that case. And as a listener, you get to be the jury and decide whether he's right. If you're not an American citizen, there's something here for you as well.

• 1:04Ryan Sean Adams?

  This is a look into the source code running America, the parts in particular that were put in place to preserve individual freedoms. Here's how I think of it. If Bitcoin is a freedom protocol for money and Ethereum is a freedom protocol for property, then the US Constitution is a freedom protocol for running a society. Now, it's not to say the US always runs its code perfectly, but at its best, it recalls these freedoms in the future and lives up to them. And I think it's about to do the same with crypto because crypto isn't just a right enshrined by the Constitution. It's an extension of the Constitution. Crypto is how we preserve constitutional freedoms in the 21st century, particularly when it comes to the digital world.

• 1:46Ryan Sean Adams?

  I used to say if crypto was around during the 1700s, the founders would have written the right to crypto in the Constitution. After this episode, I've realized they already have. Thanks to the sponsors that made this episode possible, including Kraken, which is the best place to purchase your constitutional right to crypto. Get an account on Kraken today.

• 2:05David Hoffman?

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• 3:33David Hoffman?

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• 4:18David Hoffman?

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• 4:46Ryan Sean Adams?

  Bankless Nation, a few months ago, after reading a white paper entitled, "Our Second Amendment Right to Crypto", I put out a call asking for a guest who could make the case for our constitutional right to crypto. Our guest today stepped up. His name is Richard Jackson, and allow me to introduce him. Richard is the Deputy Attorney General for the State of Oklahoma for Technology and Digital Assets. He's an economist to heart. He's turned legal mind as well, and he's a crypto native. And he is working to make Oklahoma the most crypto-friendly state in the Union. Richard, welcome to Bankless.

• 5:18Speaker 00

  Hey, Ryan, thanks for having me. Glad to join.

• 5:19Ryan Sean Adams?

  Okay, I'm just going to share the tweet that kind of sparked this show and just set it up for people. So there's one weekend, I was like, actually on a flight visiting my parents. I don't normally read legal white papers on the weekend, but this time I did because the title of it sparked my interest. It was called "The Second Amendment and the Struggle Over Cryptography", and this was a Second Amendment case for cryptography. So for people who aren't familiar with the amendments, maybe you're not American, or maybe just kind of like rusty here, the Second Amendment, that's the one about the guns. That's the one about the right to bear arms. And we'll get into that. But it was a fantastic, interesting, like detailed summary of our actual, our Second

• 6:02Ryan Sean Adams?

  Amendment right to encryption and cryptography at the time and cryptocurrencies. So I tweeted this, "The right to bear crypto. If Americans cared as much about encryption as they care about guns, there'd be a much different conversation right now in DC, and they should. We need a podcast on this." And so I was kind of seeing if there's any other legal minds who would step up to the plate and talk about our Second Amendment right to crypto in the way that the white papers author did. And we actually got more than that. So you stepped up, Richard, and you DM me privately and you were like, hey, more than the Second Amendment case for crypto, I want to give you the constitutional case for crypto. It's not just one amendment that applies here. It's like the first 10 in the Bill of Rights.

• 6:47Ryan Sean Adams?

  So first, I just want to say thank you for doing that. And I want to set the scene for bankless listeners. The topic today is Richard is going to defend the US citizen's right to crypto. And so I know we're going to peel back this onion in multiple layers across multiple sections. We're actually going to go amendment by amendment and actually cover this. But let's start with kind of the preamble here, right? Can you, in like, you know, a minute or two, just set the stage here? Do Americans have the right, a constitutional right, to crypto?

• 7:22Speaker 00

  So in 60 seconds, I would say yes. And when we start to dive into some of the details, I think you will see the thing that is crypto expressed in the various different ways that we talk about it. Code is speech, now the Second Amendment as an arm, things to be free from intrusion from the government, is that it crypto has a very neat, elegant way of preserving those rights and also be the thing that we enjoy, the freedom itself.

• 7:47Ryan Sean Adams?

  Okay, well, fantastic. So that's the case. So let's take this in a few sections. The first is, I just want to set some background because I think it's for a lot of folks, it's been a while since their civics classes, about the Constitution and the amendments and the Bill of Rights and that document. Then I think we'll talk about this thing that I just said, the right to crypto and what exactly that means. So like, what rights are, you know, we actually looking for and what can we find in the Constitution? And then I think I want to go amendment by amendment, if you're willing.

• 8:18Speaker 00

  Let's do it.

• 8:19Ryan Sean Adams?

  Richard, and like, do you do a case for each? And then finally, we'll just conclude all of this, which is like, okay, so what if it says this in the amendments? How do we actually prove that? How do we get societal consensus? So those four sections, let's start here. Can you tell me a little bit about the Constitution, okay? Like, explain it like I'm five, you know, do the civics 101. Bill of Rights, the freedoms our founders enshrined in this document. What was the purpose of the Constitution, specifically the Bill of Rights?

• 8:49Speaker 00

  Right, so let's set the scene. We're going to go back to the 1700s when our founders were drafting the Constitution. And this is part of history called the Enlightenment era. And so it's coming off of the end of, or it's at the end of the Renaissance. And so there's a political movement and intellectual movement about humanity, and very specifically about the nature of authority and where power comes from. So to tie it into our crypto audience, we were starting to talk about ideas for new social protocols that we call government. And so our founders, the Enlightenment was a look at classical study. So they were going back to ancient Greece and all of the things that happened during the Renaissance. And our founders were basically putting together historical influences.

• 9:34Speaker 00

  And they said, okay, the Greeks and the Romans had ideas, democritia, the people's power. Then there was res publica, the Roman idea of the thing that is public. Then there was natural law that came out of the Renaissance about the idea that there are absolute truths somewhere. And if we can find them, they express themselves in nature. And then at the end of it, kind of a conclusion, the English tradition of law, where there was a rise of what we were starting to term as fundamental rights, meaning things that just didn't go away depending on how the government felt. And also, most importantly, we were documenting those things. So that's the scene that we're setting. And so our founders were essentially asking the question, what is the nature of government? And as we as individuals, how do we play into that discussion?

• 10:19Speaker 00

  And so the documents, particularly the Constitution, the Bill of Rights, and then also the Declaration of Independence, those were three ways of the founders expressing our concepts of freedom. So there are three kinds of freedom. National freedom, which is the right of a people to be free from external control. So the colonies saying, England, you don't have the right to govern us anymore. There's political freedom, which is our right to say, this is how the government should work. Right to vote, right to hold office, right to serve on a jury. And then finally, there is individual rights, which is the freedom to choose to live how you want to, as long as it doesn't hurt anybody else. So we have three documents in our main history, right? The Declaration of Independence, that was our national freedom charter. Then there is the Constitution, which is the political freedom charter.

• 11:03Speaker 00

  And then what we're going to talk about today, which is the Bill of Rights, which is our individual freedom charter.

• 11:08Ryan Sean Adams?

  I like that. And maybe to put this in crypto-nomenclature a little bit, and forgive me if I'm stretching metaphors a little bit, but it felt kind of like, it feels kind of like the Declaration of Independence is kind of like the White Paper. You know, like, hey, this is the intent, this is like what we stand for, this is kind of the values, this is what we're going to build. And the Constitution, and particularly the Bill of Rights, are more like the code itself, the operating system, you know, the chain, the thing that we deployed, and the thing that goes live on mainnet. And of course, we've added different amendments to the Constitution by way of, I guess, like Hard Fork, let's say, right, of validator consensus, let's say, and the first 10 of which was the Bill of Rights, which set a precedent for individual rights.

• 11:52Ryan Sean Adams?

  I've got a definition here of the Bill of Rights. I'm wondering if this kind of summarizes it okay in your mind. It says this, "The Bill of Rights is the first 10 amendments to the Constitution. It spells out Americans' rights in relation to their government. Here's what it guarantees: civil rights and liberties to the individual." Stuff like freedom of speech, press, religion. "It sets rules for due process of law and reserves all powers not delegated to the federal government, to the people, or to the states. And it specifies that enumeration in the Constitution of certain rights shall not be construed to deny or disparage other rights retained by the people." So this is really a document that spells out individual rights.

• 12:36Ryan Sean Adams?

  I understand in the early phases of the Constitution, there was some debate as to whether we needed this document or not, the Bill of Rights, as to whether this should be included and carved out. And like, do you have any history there? I'm a little foggy on that piece.

• 12:51Speaker 00

  Yeah, so to understand the Bill of Rights is to really understand the constitutional ratification process. So let's rewind, right? 1776, we issue our Declaration of Independence. As you say, it's the White Paper. We, as now the United States, these are the reasons we think we should be separate. We are going to publish a new social protocol chain that we're calling the United States. Well, so we enter into the Revolutionary War. During that period, we issue the first, the beta version of the United States government called the Articles of Confederation. Intentionally very weak, intentionally very decentralized. We Americans thought of ourselves more as a citizen of the state than we did as a citizen of a country.

• 13:34Speaker 00

  So I would be an Oklahoman, somebody from New York would be a New Yorker. We thought that's about as big as we thought. We end the Revolutionary War and we are left in this tension. On the one hand, the Articles of Confederation are terrible. Nothing works. The chain does not function. We, right, we can't run anything, nothing functions.

• 13:53Ryan Sean Adams?

  We can't get blocked through, it blocks through. It's just like not coordinated enough.

• 13:57Speaker 00

  Yeah, there's not enough coordination. That's a perfect way of describing it. We just don't have enough to get this to work. And at the same time, there is an intense distrust of anything that we would call a central government. They do not like, the state is the highest level of government. And so what was, became the Constitutional Convention, we were supposed to, the now people's attending this convention, were supposed to just revise the Articles. And what they said is, look, we've got to start all the way back at zero. It was almost like they, tell me if this resonates, we started a blockchain and we realized it didn't accomplish the things we wanted, and so we rewrote it to issue a new one. And so that was the process. That was the Constitutional Convention in 1787. They distributed the Constitution and what they found was, nobody liked it.

• 14:41Speaker 00

  It was not popular, there was a very, very, again, strong fear of people who had just fought for their freedom to then just give it right back to a, what was considered central government or strong government. So the Bill of Rights was a political concession that they said, like, look, if you will ratify the Constitution, we will amend it to change a few things that will address your distrust. We want to make it so that the federal government, what would become the federal government, wasn't too powerful and also specify some individual rights. So three main functions. Protect individual liberties, limit the power of government, and also alter the nature of government. Where it used to be like, the span of governmental authority was this, and we'll just chip away individual rights. They said, no, no, no, we're going to invert that.

• 15:24Speaker 00

  The government is very limited and we will approve the things that do not restrict freedom inappropriately. So you're as small as we give you and we will only expand the government, as opposed to the government as big as it is, and we will find freedoms from that. That's really where the Bill of Rights kind of comes in.

• 15:40Ryan Sean Adams?

  That makes sense. I think for the bulk of this podcast, we'll be talking about the Bill of Rights. And the Bill of Rights is comprised of 10 amendments that were added to the Constitution. And the Constitution itself, if you kind of like read through this, I don't know if you've had the chance. This is actually a long document. Like, I've read through it at one point or another. And it's really more of an operating system for the government, right? That's where you get like separation of powers, executive branch, judicial branch, legislative branch. You get, you know, kind of terms of presidency and all of these things that that set the context for how the government itself should run. But it really, without the Bill of Rights and the subsequent amendments that were added,

• 16:21Ryan Sean Adams?

  it doesn't really specify too much by way of individual, you know, like civilian, you know, citizen rights. And that's what that's what this compromise in the Bill of Rights was added to basically do. It's just to say, as an American, as a citizen of these United States, here's what what freedoms you have that are enumerated. And by the way, if it's not covered here, default, it goes to you as an individual. I think we'll get back to that point a little bit later. So that is the Bill of Rights. There's your civics 101. But let's get to another definition here. I said in the intro, the question on the menu in today's episode is, do Americans have a constitutional right to crypto? Let's talk about the right to crypto portion of things.

• 17:06Ryan Sean Adams?

  When we say a right to crypto, what exactly do we mean? And this is not defined in the Constitution. This is just sort of like, I guess, for the purposes of this podcast and crypto in general, what are the rights that we're actually talking about? I'll give you one kind of definition to maybe work from, and then let's play around with it. So it was interesting that the Republican Party, the GOP platform paper came out. And they have this very tiny section about crypto. So this is the Republican Party platform, you know, a couple of weeks ago. And it's under the title Champion Innovation, it says crypto. And it says, Republicans will end Democrats unlawful and un-American crypto crackdown. So very polarized language, of course.

• 17:50Ryan Sean Adams?

  Hey, this is politics, you know, one party versus another. Let's get to the actual rights and oppose the creation of a central bank digital currency. I'm not sure that's what we're talking about here, but we will defend the right to mine Bitcoin and ensure every American has the right to self custody of their digital assets and transact free from government surveillance and control. There's a few things there. I like in the latter part of that definition, the right to mine Bitcoin, so you can like mine if you want, you can validate transactions, and the right for Americans to self custody their own assets. So you don't have to hold crypto in a bank in exchange. You can go bankless, private keys in your hands. You know what we say, not your keys, not your crypto. Okay, that would be part of the right to crypto, I would imagine,

• 18:36Ryan Sean Adams?

  and transact free from government surveillance and control. So respect the blockchain's ability not to inject OFAC sanctioning. There's something like this, I would say, as part of that. Anyway, what do you think is a good, working definition of the right to crypto when we say that?

• 18:54Speaker 00

  Yeah, so I'll start with the rights part and then I'll move to the kind of what is crypto part because they're two separate related questions. So when we talk about rights, we have to understand them in the context of freedoms. So freedom is what you are. The right is how you have that freedom. So if you have the freedom of speech, that means you can express yourself. The right to freedom of speech means the government cannot restrict that freedom. So when we talk about freedom, at least in the context of the Bill of Rights, there's one major element, again, it's individual right oriented, where we say there's two very important things. Freedom of conscience, which means you can think the way that you want and express yourself the way that you would like to. And there's also an element of economic freedom, which means commercial activities. So the right to engage in the businesses that you would like to do,

• 19:39Speaker 00

  the right to retain the fruits of your labor, the right to retain property. So they are expressing kind of the more economically oriented elements of it. But crypto is obviously bigger than that. And so I will define crypto when we talk about it in three ways. There's one, the code that is crypto, whether that's encryption technology or blockchain technology, the actual zeros and Ones that we express ourself. There's also the act of encrypting. So by the virtue of behaving in a certain way, the act of encryption. And then third, there's digital property. So the ideas of crypto, the act of encryption and the things that are digital property. So that's the three ways we can, we can talk about it. So what do we mean when we say the right to crypto?

• 20:22Speaker 00

  In the abstract, in effect, it is the right to and the means to our freedoms. So the tools and the subject of our freedoms, the right to enjoy freedom and the way that you can assert those rights. So we can, you can have crypto, you can express yourself through crypto and you also have the right to use crypto. As they say, to make sure that you are free from what is unlawful or unnecessary government intervention. That's what we mean when we say the right to crypto.

• 20:48Ryan Sean Adams?

  I really like that definition. Okay. So then what we're talking about when we say crypto, just to recap that is the code itself. You know, like that, that's like kind of the noun. Maybe that almost corresponds a little bit. We'll get into this. I don't want to like, you know, just step forward too quickly, but maybe that corresponds to something like speech, right? Code speech. It's just something that's sort of written down and put out there. The act of encrypting. So this is a verb. So you're like individual citizens would, would be able to encrypt. Businesses would be able to encrypt. Like that's part of the preservation and the digital property itself. So the, like, I guess that implies maybe the, like, the crypto assets, the tokens, that sort of thing.

• 21:31Ryan Sean Adams?

  And, and the right to crypto is like even broader than that kind of like GOP, like party definition. You're broadening it. And this is why I appreciate a legal mind thinking about these things and just like not me. It's just all of the tools that allow for crypto freedoms and the right to fully enjoy crypto in, in its various use cases. I think that's a good definition. It does feel broad. Let me ask you though. What would not be included in this type of a right?

• 22:01Speaker 00

  Yeah.

• 22:02Ryan Sean Adams?

  Okay. So like, let's take the inverse of this because this does feel broad. And I can hear some people listening and saying, well, like what, are you crypto bros? Asking for like the right to like, you know, launder money or to evade taxes or to fund terrorist organizations. Are these the rights that you're really looking for in this in this broad definition? So what is not included or implied by this right, would you say?

• 22:26Speaker 00

  Yeah, so that is that. That in summary is all of constitutional law in one question. What is, what is not included, right? So even even the founders understood that while we are describing what they termed as fundamental rights. So the the rights that we as humans enjoy because we exist. Even though we're talking about those things, they do say that those rights aren't absolute, right? They talk about the restriction of rights without due process, without just compensation, unreasonable searches and seizures. So really finding that dividing line is all of what constitutional law is about is what is included and what is not included. So a very easy example is you do not have the right to fund terrorism. That that is something I think is a pretty bright line

• 23:08Speaker 00

  rule that I think we can all agree to. The question is now, do you have the right to use something like tornado cash, which is not in and of itself the funding of of of terrorism, but it gets associated that way. So is publishing the tornado cash code? Is that a right that an American gets to enjoy? Is the use of tornado cash something that an American gets? What purposes do you use it for? These are, these are all very fundamental questions that a court, especially the Supreme Court, would have to answer in the relationship to the question, what is or is not included in your right to crypto?

• 23:42Ryan Sean Adams?

  This is why we have an entire judicial branch, right?

• 23:44Speaker 00

  That is the whole purpose.

• 23:45Ryan Sean Adams?

  And this is, this is why we have a Supreme Court. This is why we have lawyers is because the amendments themselves are very short. Like, we'll read out some of them in today's podcast. There's like not a lot of detail. And so taking your example, and you said, like, what's not included by these rights is the whole of constitutional law. That process gets worked out in the judicial system over years and decades and precedent is set. We have a common law system. So the precedent gets gets cemented, almost like proof of work, and it becomes hardened over time, and it like adds more social legitimacy. That is the entire like. I guess realm of constitutional law and the entire judiciary, and I guess in a nutshell. And like another example that that comes to mind, like just for me, is freedom of speech,

• 24:30Ryan Sean Adams?

  for example, right? So, you know, it says, well, we'll read this out a little bit later, but the actual First Amendment is, you know, Congress shall make no laws respecting establishment of religion, and it goes on, or abridging the freedom of speech. This does not give you, the courts have decided, the right to yell fire in a movie theater. This is precedent that's been worked through the judicial system. So there are some limitations on these rights, and the way we figure out what the limitations are is by working through the court system and ultimately the Supreme Court deciding. And if there's some more ambiguity needed, then I guess the legislative branch, you know, like hops in and creates a new law. And if we all decide we really need to change something fundamental, what do we do? We pop in another amendment. Is this, in a nutshell, how how civics works in the US?

• 25:11Speaker 00

  Yeah, that's a great, a great microcosm for the way that we have addressed this question of what you've described, again, is is very abstract concept. So the Declaration of Independence basically says, you know, we're free. And then the the Constitution says, this is how we're going to be free. And then we get into the reality of it's like, well, are you are you free to, as you say, yell fire in a theater? It's like, well, you don't have the right to threaten or scare somebody. So that's out. And again, we're just sort of like, we are refining the social protocol to more accurately accomplish the objectives of freedom. And so this is in, that is out. Can't yell fire in a theater, but you can go outside of the White House and say, you know, with with approval, that I hold up a sign that says, I disagree with blank policy

• 25:56Speaker 00

  of the government. So we're the whole of, again, it was basically as soon as the Constitution was written and the judicial branch was established, the first cases were, well, what what does this actually mean? So we've been asking this question basically since the document was written.

• 26:08Ryan Sean Adams?

  Well, that's a good question. It's a fantastic question. And the beauty of this, the way this the system works and the reason it's lasted as long as it has is because it has some flexibility with respect to what point on the the freedom versus tyranny spectrum you kind of fall, right? So, you know, the the American hard fork from the British Empire was like a new chain that would Like, you know, be, I guess, a more freedom embracing chain than the monarchy type system. But if you go too far in the spectrum of freedom, you get something that is undesirable, where you can't coordinate a society, and you get anarchy, right? This is a little bit elements of the Articles of Confederation, I suppose. There's a little too much anarchy, right? And so this is a microcosm of, you know, individual rights.

• 26:53Ryan Sean Adams?

  If you have too much freedom, if everyone had the freedom to say, like, own a tank, you know, and blow up their neighbor's house if they want, like, that level of freedom would lead to anarchy. And so we're trying to find the optimal position of between tyranny and max freedom, because if you veer too far in the freedom line, you get anarchy. And so this is the entire project and the process. Let me ask another 101 question to you, Richard, which is this, and this is just a very basic question. We have said, we're trying to make the case, we're about to make the case, that Americans have a constitutional right to crypto, okay? People read the document, the entire Constitution, all the amendments. Crypto is not mentioned once. It's not mentioned once, not at all.

• 27:37Ryan Sean Adams?

  So how is it that we can confidently go into this episode and make the case that Americans have the right to crypto? It's not even mentioned here, Richard.

• 27:46Speaker 00

  Yeah, so that is one of the great things about the document and our English common law tradition is the Constitution doesn't mention a lot of things, right? It doesn't talk about the internet, it doesn't talk about cars, it doesn't talk about any particular implementation of the rights and freedoms we're describing. But the founders collectively as a group were some of the smartest men, you know, if you're talking about like the Manhattan Project and the Constitutional Convention. This constellation of intellectual power coming together to address these questions, these problems, we're talking about people who were philosophers, who are historians. They were business owners, they were inventors. So they understood both their historical context, where we are in the grand scheme of the thing called humanity, and also that things change.

• 28:30Speaker 00

  So they referenced things that are general, like speech or press. They didn't say you have the right to get on a soapbox in the town square and give a lecture, or you don't have the right to pen and ink, right? They talked about your freedom, which is an expression. And they also provided justifications for the reason why. So the Federalist Papers, the kind of the discussion, they took notes during, thankfully, they took notes during the Constitutional Convention, so we can understand that. We pair that with our English common law tradition, which allows us to do a little bit of interpreting, reasoning by analogy, where we don't have to specify every single detail. We can, in effect, say, well, we knew what they meant. And that gets into rules of interpretation and judicial discretion and standards. But we can say, well, there's words on a piece of paper,

• 29:15Speaker 00

  and then there's what the words mean. We're more interested about what they mean than what the actual connection of 26 letters. That's kind of where we live. And then also, there is the constitutional expansion slot that is the Ninth Amendment that we'll get to. And the Ninth Amendment says, look, just because it's in the Constitution or not in the Constitution does not make it any more or less a fundamental right. So just because it's in this document does not mean that it is the only fundamental right. And just because it's not in the document does not mean that it is not a fundamental right.

• 29:47Ryan Sean Adams?

  So this is, I guess, a living, breathing document in some sense. And so when a new thing happens, a new event that is unprecedented, or, you know, common law is based on precedent. But sometimes there's new things. I mean, there's never been crypto before. Before, you know, 2009, crypto didn't exist. So there's a new thing. And there was a new thing called the Internet. So then the Constitution needs to be interpreted. And the ideas and the themes and the rights in that Constitution need to be interpreted for the new thing, the new event that has, the new case that's popped up, the new technology. And that's essentially what we are doing in today's episode. So let's get to it.

• 30:24Speaker 00

  Okay.

• 30:24Ryan Sean Adams?

  Let's start to make the constitutional case for crypto using the Bill of Rights, which is the first 10 amendments. And let's start with number one, a personal favorite, the First Amendment here. You know what? I'm just going to read it. I'm feeling patriotic today. "Congress shall make no law respecting establishment of religion or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or of the right of the people to peacefully assemble, and to petition the government for a redress of grievances." That's what it says. That's the plain text. Man, just an awful lot packed into one single paragraph. Okay, so what is this right? And why do you think this is linked to crypto in any way? What's your case here?

• 31:02Speaker 00

  Sure. So let's summarize what the- First Amendment does. The founders were very, very interested in making sure that there was the freedom to discuss governmental affairs. So as a citizen's relationship to the government, you have the right to think as you will and to speak as you think. So freedom of thought and freedom of conscience. We, the government, do not get to tell you what to think. We have the freedom to tell the government what is wrong. We have the freedom to discuss ideas about how it works. So how do we tie that into the right to crypto? I think you'll, I think you, again, something else that'll resonate. Early justices have said that order, which is, you know, good lawful existence, not anarchy, order cannot be secured merely through the fear of

• 31:44Speaker 00

  punishment for its infractions. So regulation by enforcement gets us nowhere, is effectively what they said. We need to have the ability to talk about what the government does. And so the freedom that is embodied in the First Amendment is the freedom to discover and spread truth as it relates to the government. It's the ability to prevent bad ideas, referencing the Republican, the platform, right? We don't want CBDCs. We're allowed to talk about that. We citizens, we the government, get to talk about CBDCs and whether we want to have them. And then it also embodies, like, we want to have a freedom to make sure that people are active in preserving their own rights. And so where does crypto tie into it? Well, we have the right to self-governance, right? That's back to the Declaration of Independence and then into

• 32:27Speaker 00

  the Constitution. So we say, well, we should be allowed to discuss candidates. We should be able to influence government policies. So again, breaking out the idea of crypto, or the active encryption, or the property, we can tell the government, we'd like to have these things. We ought to be able to do this. So even in just the pure abstract, we should, we are able to, through the First Amendment, make crypto something that we can talk about. So we can use it as a tool. So if I don't particularly feel a fear of reprisal, or fear of discussing unpopular ideas, I can encrypt my communications. I'm allowed not to be spied on. I'm not doing anything illegal. We can talk about ideas that may not be popular. In this marketplace of ideas, I am allowed to express myself. And I can do it also, there's a constitutional right to

• 33:10Speaker 00

  express yourself anonymously. So I can use tools of crypto to Communicate with one another. So you talk about encrypting your communications. I can use crypto to make myself anonymous. We can talk about the idea of crypto even just in and of itself. And so you get into the freedom of of speech. I have the right to code. That was the original, the original crypto wars in the 70s and 80s. Phil Zimmerman with Pretty Good Protocol, MIT publishing a book. They say, look, we have the right to talk about these things simply because we have the right to discuss things. You, the government, do not have the right to impinge on on that freedom to just discuss. The idea of crypto is something that we're allowed to talk about. So you can't shut that down. We also have there, again, the right to speak anonymously. So there's your

• 33:52Speaker 00

  encryption technologies to secure your communications. So not just against the government, but other unlawful actors. We're talking right now over the internet. We don't want someone injecting themselves into our communications. We've preserved and secured that with cryptography. And there's also the conduct as speech. So the things that we do as an expression to the government, saying, I am doing this thing to communicate to you, the government, my feelings about what you do. So wearing T-shirts, waving flags, tying back in, buying crypto, holding crypto, spending crypto, talking about crypto as a political expression or as a commentary on government conduct is, without exaggeration, I'm very confident in saying this, something that the founders would have considered to be quintessentially

• 34:36Speaker 00

  American, saying, I'm buying crypto because I, as a citizen of this country, do not like what we are doing with respect to blank. Any number of, any number of government policies, you could talk about monetary fiscal policy, you could talk about freedom of expression, you could talk about the subjugation of rights, like just, just having crypto as a platform, as a technology, that's within the right. And so I think First Amendment is one of the easier ones. It's already been adjudicated, not at the Supreme Court level and lower courts, but we've already touched on it again in the, in the original crypto wars, that this one, this one is where the right's probably the strongest case to make because we are so protective of the freedom of speech with relationship to communicating with and to the government.

• 35:16Ryan Sean Adams?

  So in particular, one summary of this, and let's focus on the speech because there's also the right to assemble, the right to petition, these other things that may have a crypto kind of like a component to it, but the right to speech, even code as speech, how ironclad is that right? So again, of course, framers, the founders did not, there was not the concept of code, there's not the concept of software, that didn't exist, but the courts have interpreted the First Amendment to allow for encryption? Do citizens have the right to encryption? I think maybe we're recalling some history of what you've just called the first crypto

• 35:58Ryan Sean Adams?

  wars and Zimmerman and some of the things that were fought for, but like, what does the precedent say about the question of is code speech and are citizen rights to encryption?

• 36:09Speaker 00

  Well, so let's go back to our founders. Our founders encrypted their communications during the Revolutionary War. So they would have been intimately familiar with the idea that there are things that we are talking about that we don't want the quote unquote "government" to read or find out about. So they have known about that since quite literally the founding of the country. And so we say, do we have a right to these things? Do we not have a right to these things? Again, the Constitution and the Bill of Rights is primarily oriented with the citizen's relationship to the government. And in the context of, well, do we have or do we not have? The freedom of speech and what's embodied in the First Amendment, the Supreme Court has very, very early on and very, very strongly said that we will interpret this to the utmost degree.

• 36:50Speaker 00

  This is the most fundamental right as it relates to a citizen and its government. So we want to make sure that the freedom of speech, whether it be to communicate anonymously or things like, this is one of the most important, because dialogue between citizens about the government is what keeps this thing we call America going. That's the whole fundamental point.

• 37:09Ryan Sean Adams?

  How far can you stretch the First Amendment is kind of my question.

• 37:12Speaker 00

  Yeah.

• 37:13Ryan Sean Adams?

  When I say stretch, I don't know if it's stretching or not. Maybe you could argue this is not stretching at all. So there's like, when I think about kind of the internet or when I think about code, I think about sort of two categories of communication. One is what we traditionally call communication, you know, TCP/IP, right? This is text message, this is email, this is like a website, any form of like a written communication. And I think we have precedent, you've talked about it a little bit, that we have the ability to encrypt that, we have the right to encrypt that. That's the correct interpretation of the First Amendment, okay? But there's another category of communication that hasn't yet been tested in the First Amendment.

• 37:55Ryan Sean Adams?

  And I would still argue, or one could make the argument, that this is another different form of communication. That is the transmission of value. Value is just another communication protocol? I mean, one could make the argument that that's the case. It's certainly in the blockchain crypto context. It's certainly code, you know, the same code that allows me to kind of like encrypt a message inside of a Bitcoin or Ethereum block. I can encrypt some value and send it to you. And like, what makes a valuable social consensus? We could go into that. But like, value over internet protocol is another communication. But can we say that the First Amendment, does it just apply to the first type of communication? Or can we also say it applies to value?

• 38:37Ryan Sean Adams?

  Or is this something that really needs to be tested and argued in the court system to establish that precedent?

• 38:45Speaker 00

  So we can reason by a somewhat looser analogy in that the court has already asked the question, is the idea of spending money, is that itself speech? So if we're talking about

• 38:56Ryan Sean Adams?

  Yeah.

• 38:56Speaker 00

  If we're talking about the transmission of value, which is, you know, me giving money or you giving money for any particular purpose, is that in and of itself a speech? The act of speech? Or is it the conduct of speech? And so that really ties into what the court has addressed around campaign financing. And they have, they have said yes, that the expenditure of money on campaigns is the expression of your value, so personal values monetarily towards a candidate who's expressing that value. And so you say, well, let's get a little kind of tongue in cheek. They say, well, do you have the right to write a check to them? Do you have the right to to sign a notary?

• 39:36Ryan Sean Adams?

  To sign a transaction.

• 39:36Speaker 00

  To sign a transaction, right? It's so we can say, well, if I if I send an electronic, if I pay with my credit card on a website to a political candidate, I am using one form of electronic technology to communicate value and as an expression of my support for the, we're talking for relationship to government, for my expression of my support for the things that that candidate stands for. The founders, the court, you and I would understand it's not about the credit card. It's not about writing the check. It's about the fundamental abstract concept of communicating value or approval, that that's where we tie in. So I would say that, yes, we already have precedent for saying the transmission of a thing of value is already, and so we're just now looking at a new way of doing it,

• 40:19Speaker 00

  where the communication itself is the value being transmitted, just in the same way that all of crypto is the preservation of private keys. Well, the thing and the idea and the code are kind of one in the same. It's a very neat, elegant system that's crypto. It's why I'm so involved with it. It's so fascinating. But yes, to answer the question, transmission of value, communication of value, it's all wrapped up. And they would say, hmm, you're communicating to your government, something that you feel or express. And so, again, economic freedom is one of the things that we have as a personal right. So they'd say, yeah, the right, the right to spend money or the right to have a certain type of money, as long as it's legal, is is within the boundaries of what we've described.

• 40:56Ryan Sean Adams?

  This argument may have way more teeth on it than I thought. And the First Amendment is a fantastic case for crypto. Just just one quick side quest, though. So like, what is the what is the constitutionality of something like the Bank Secrecy Act, where like banks can kind of like freeze your money?

• 41:10Speaker 00

  Yeah, so so here, and this is where we're getting into the courts having to ask the the questions that are in the gray, that we we say, well, we have a right to these things in the abstract, how do we implement those? So we have the freedoms described, what do the rights look like? And so we're we are now into, as we say, uncharted territory, where the citizen has the ability to protect a freedom or a right in the way that they've never had before. So the constitutionality of something like the Bank Secrecy Act, what right does either a bank or the government to? I don't want to use the word, they would say intrude, right? The right to intrude on our transactions, to filter and to screen. And that's a question that we're going to have to answer. We're going to have to go back and we're going to have to have discussions like this to say,

• 41:53Speaker 00

  well, what do we really mean when we say to have the rights to something? What is it they're trying to accomplish? And then the course will take all of those arguments and all the things that's being done. Right? So Coinbase has been sued. They've issued a brief. People who have supported Coinbase have issued briefs saying, we interpret all of these rules and these laws and freedoms to mean these things. Here's the reason why I support it. Now we're just going to have to go through the unfortunate legwork that is the protocol of the judicial branch and say, okay, well, let's start having those questions about where do fundamental rights lie? In the context of this new thing called crypto, in the world that we live in with crypto.

• 42:29Ryan Sean Adams?

  Second Amendment here. This is the right to bear arms. Second Amendment is a well-regulated militia being necessary to the security of a free state. The right of people to keep and bear arms shall not be infringed. At the time, that probably meant muskets, various weaponry in war. This is interesting. I kind of opened the podcast describing sort of a white paper I read on this and how it's associated with crypto. I think on first hearing, people will say, the right to bear arms? Second Amendment? How in the world is that related to blockchain and cryptocurrency? Give us the case here.

• 43:01Speaker 00

  Yeah, so this is again where we're going to have to kind of flow between our abstractions and the realities. And so when we talk about the Second Amendment, ultimately, the Second Amendment is about the self-defense or the defense of the populace from unlawful acts. And so it's primarily oriented in this context as unlawful government actions, but it's also the tyranny of the unlawful. So think, tell me if this resonates, right? The right to self-defense is most associated in the minds of the early decision makers with the idea of the frontier, right? So it is on the frontier where the right to self-defense is most applicable. It's where the government can't help me, I have the right to defend myself. I have not lost my fundamental right to life just because the government is or capable or not capable of doing something.

• 43:45Speaker 00

  And also I have the right to be free from tyranny. So unlawful government actions. The Second Amendment right is effectively saying, these are the tools that you are allowed to have in defense of those two freedoms.

• 43:57Ryan Sean Adams?

  I think it's really fascinating that you're talking about this right, the right to bear arms, as a defensive technology rather than, or a defensive freedom rather than an offensive freedom. Because I think a lot of people think about the right to bear arms, they think about guns and they think about offense. They think about, well, it's in the same same sentence as a militia. They think about, and it certainly is that, right? A militia to kind of like, I suppose, have the power to revolt against the government. That's that's part of it. But I really want to focus on this defensive characteristic of the right to bear arms, because that's what crypto is. That's what encryption is. It's a defensive technology. And I remember one of the the analogies in the the white paper that that

• 44:42Ryan Sean Adams?

  sparked my interest and set off something that I had not thought about before, is thinking about an arm as, what about a Kevlar vest? Right? Do you have the ability to like, wear a Kevlar vest in your home? Should the government restrict that and say, hey, no Kevlar vest, no defensive technology? Of course not. It's a defensive technology. And what is cryptography, if not a defensive technology? It's a way for you to encrypt communication such that any third-party actor cannot take it from you, cannot steal it from you. It's a way for you to vault your assets in such a way that a third-party can't take away your private property. It's defensive. It's not an offensive offensive technology. And so that is a distinction

• 45:23Ryan Sean Adams?

  here that I don't think is clear when people first, you know, read it and think about guns only.

• 45:29Speaker 00

  Yeah. And so that's, that's again where we get into this idea of judicial interpretation and the role that the legislature plays, is that when we use the R, you know, the word arm, the first thing a judge is going to go to is effectively, quite literally, the dictionary and go, well, what does that word mean? And so when you look it up, it's an arm is, as we've described, a weapon of offense, but also armor of defense. That's literally the definition of it. And so there's also

• 45:53Ryan Sean Adams?

  Armor.

• 45:54Speaker 00

  It's armor. It's quite literally that. And so also defined as ready for defensive action. And so the the word arm, and I think that's probably the reason why they used it, you have the right to the offensive tools of of Liberty, but also the defensive tools. You said Kevlar vest, let's go even like the digital house. You can put locks on the digital house. We are allowed to, we are allowed to exclude the, the lock on my door is a defensive technology from looters, from people doing illegal, right? It's, it is a, it is a weapon of defense. It's an armor. I feel safe at night because I've locked my doors. Nobody's just going to be able to walk into my house. And in the same way, we can describe crypto as effectively the, the digital version of an arm.

• 46:36Speaker 00

  It is a defensive technology and it's totally within the bounds of the idea or the concept of an arm to say that crypto as a defensive technology is among that tool. And that gets into even the, the history of it, right? So the, the crypto war was about this idea that we should be able to have a discussion of ideas that at the time, the United States government classified as munitions. They were, they were restricted from export because they were determined, deemed to be weapons. So the, right, this is where we get into, well, what does it mean? What is it, what is it, you know, defined as? We've, we've been having these discussions since, since the beginning and it also I think is open to interpretation. We just happen to choose to interpret it the way that we have.

• 47:15Ryan Sean Adams?

  So you're saying if, if the government ever put some mandate together and it banned the custody of your own private keys, for instance, imagine that happening. So you can only hold your Bitcoin inside of a, you know, a license and regulated exchange. No more, you know, private keys, no more kind of like going bankless. You could walk into a court, like if they, if they allowed you, it's a Supreme Court, let's say, and make a case that no, this is like locks on your house. This is a defensive technology. This is like a Kevlar vest and we have this right embedded in the second amendment. It's in the right, right to bear arms, the right to armor, the right to some defensive technology. And so you can't take it away. It's unconstitutional.

• 47:57Speaker 00

  And a lawyer could make that argument. Again, it's our common law tradition allows you to reason by analogy or to reason by inference and to extend the metaphors of government. And so to your point, well, are you allowed to have this versus that? Well, we've already discussed that at the Supreme Court level. They say, well, you're allowed to have something like a shotgun in your house, but you can't have a handgun in your house. And the Supreme Court has said, no, no, no, it's about what you're using it for. It's not necessarily the particular implementation. And so a, I hope, competent lawyer standing in front of the Supreme Court would say, your honors, speaking to the judges, your honors, the reason that crypto is allowed under the Second Amendment, in addition to what we've already described in the First Amendment, is that this is nothing

• 48:41Speaker 00

  more than a defensive technology used for the preservation of life and liberty in the digital world. And so we talk about things like, well, is it in common use? They'd ask those questions like, well, how novel is it? Well, we've had it since the founding of the country. It's online banking. That uses cryptography. So they would begin, you'd begin to have to give them examples and analogies about why this is, in the one sense, novel that we've never discussed this in the very particular instantiation of the very particular way of asking this question, do we have a right to crypto? But you say, well, your honor, would we have a right to secure bank transactions? Would we have the right to secure video calls? Would we have the right? And they'd say, hmm, okay, interesting. And then it would be incumbent on the court and the other lawyers to kind of hash out who wins that argument.

• 49:25Ryan Sean Adams?

  How about the right to buy a vault to secure my precious jewelry that I own and store it in my house? Do I have that right?

• 49:35Speaker 00

  And so, and that's, and that's one of these great things about crypto, I find, again, the fractal expressing itself once again, is that crypto is, it flows back and forth. It is speech in that it is code and expressed. It's an arm in the Second Amendment. And what we're describing now is kind of some of the later amendments. They say, well, how am I allowed to exclude people? How am I allowed to preserve my rights as to not interference, my rights to be secure in my property? And this is just the next iteration of how that works. And so it's a digital lock. It's a digital vault. It is the same technology that we use in bank transactions. That's the argument, that's the thing that you'd have to articulate to a court and say, it may not be a musket, but neither was the internet to the freedom of the press.

• 50:20Speaker 00

  And you'd start to extend the analogy, and then it would be up to the judges to interpret the law and the facts in the particular case as they would deem appropriate.

• 50:29Ryan Sean Adams?

  Well, we are racking up some amendments, so I'm gonna skip the third. We're gonna hop to the fourth, we'll come back to the third in a second. This is the one on search and arrest. So this is the Fourth Amendment, the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated and no warrants shall issue, but upon probable cause, oh, the probable cause thing, that's here, supported by oath or affirmation particularly describing the place to be searched and the persons or things to be seized. I have to imagine the framers were thinking about like, you know, governments invading people's private property and going through their stuff. This is almost like, this is surveillance, certainly. This is, you can imagine soldiers like invading someone's personal effects

• 51:14Ryan Sean Adams?

  and reading their letters and correspondence and all of these things. Anyway, give us kind of the rights preserved here and why this is also a case for crypto.

• 51:23Speaker 00

  Right, so not only would the founders have been thinking about it, they would have experienced it. So some of the things we articulated in the Declaration of Independence, the reason why we wanted to start a new government is we said that the powers that the British government had were being abused. They were sending soldiers into our businesses and going through business records. They were going through our inventories. They were going into our houses and they were searching our papers and effects. The Fourth Amendment is effectively saying, if the First Amendment is all the rights that we have and the Second Amendment is how we can preserve it, the Fourth Amendment is how we can exclude unlawful interference into those spaces. So the right to be secure is effectively where the right to privacy comes in. And what they mean is the right to be left alone, the limitations of access. Can I put a door up? Can I put a lock on my door?

• 52:08Speaker 00

  It's the right to secrecy of information. I don't have to give to the government everything that I do. A little bit of a preservation of dignity, right? I don't need all of my private. Affairs out in public. And so that's the tying into crypto is we're reestablishing what the court would call the reasonable expectation of privacy in the digital world. Why would I say you have a right to crypto as relates to the Fourth Amendment? Is that crypto is the way that you can secure your right against unreasonable searches, unreasonable seizures, that you have to have a warrant for the place to be inspected. All of those things described in the amendment, crypto allows you to exclude the government when they are not within their legal purview to do the things that they're trying to do. So that's, that's really where the Fourth Amendment right to crypto comes in.

• 52:52Ryan Sean Adams?

  Does this imply that we have the right to privacy on crypto as well? So right now, on a open network like Bitcoin or Ethereum, of course, the transactions are pseudo anonymous, but they're not private. That means if you know that I am associated with a given address, a Bitcoin address or an Ethereum address, you can kind of link it together and know who I am. There's, there's entire data surveillance companies that basically do this for the government. They provide this service to the government. Now, there are technologies that can be deployed, of course, one of which, many of which have been deployed. C cash, you know, train of cash, of which we've already talked about, that make it such that it's not just pseudo anonymous, it's anonymous, it's completely private.

• 53:36Ryan Sean Adams?

  So these transactions cannot be traced. Is the, does the Fourth Amendment further stretch in not just to our right to like own crypto and our constitution, but like also to have a private value flow transactions? Would you take it that far?

• 53:51Speaker 00

  Well, so this, again, this is where we get into where the, the right and the freedom bump up against our, our reasonable restrictions. And so we have a reasonable expectation of privacy. What the, the court will kind of go back and forth on is, is something in plain view? Or would you have an expectation that it's private? Well, we can say by the, again, the act of encrypting, that's kind of me saying, I have the expectation that the data or the value that I have encrypted should be free from unreasonable or unlawful searches or investigations. The, the right to communicate pseudo anonymously or anonymously by encrypting my communications or encrypting my address. Or my, you know, where, where a message may have come from. I'm saying like, I don't need, I don't need to justify to you, government, that I have this right. We have it.

• 54:35Speaker 00

  The government has to say that they are, are the ones who are right to, to be able to invade into that. And so I think what crypto does, it's a, it is a reset for the digital age where warrantless spying, where it's so easy to collect data, where there's just a, right? If you went to the post office and you wanted to read everybody's mail, you'd have to open all the letters, you have to do all those, you know, it'd be a lot of work. In the electronic world, the collection of emails, it's, it's as fast as, right? The speed of light, it's as fast as processing functions. And so we've kind of gotten into a little bit, in my opinion, an imbalance with relationship to our digital rights, our digital property, our digital effects and papers, as it relates to the ability to, to, to, to search those things, to collect those things.

• 55:17Speaker 00

  Crypto is reestablishing kind of the balance of power in the digital world, in my opinion. And so you say, yes, I have the right to reasonably exclude you from my communications. I have the right to prevent you from knowing my transaction or happening. They would talk about like the plain view of, of stuff. You say, well, I don't have the right to not, you not know what the email address is, but, so the container, but the thing in the container is, is preserved. Well, crypto is the container, it is also the message. We get to flow back and forth. And so we're at one of those junctions where a new technology has radically defined, or radically redefined our understanding of fundamental rights and tech with respect to technology. So we're going to have to ask those questions. How far does it go? How can we reason by analogy? Are we able to exclude in the entirety and the back and forth?

• 56:02Speaker 00

  And so that's, that's kind of where we sit with, with kind of respect to what you just asked.

• 56:06Ryan Sean Adams?

  This is a broader question, but I'm going to ask it here because it feels just so relevant, maybe to the, to the Fourth Amendment, but it's just overall relevant to the entire discussion today, which is like Fourth Amendment, this implication for a citizen privacy. The reality in our digital world is that we don't have any privacy like whatsoever, like none of it. The government has already infringed upon this through, through lots of third party providers. We did an episode on financial, or on just like citizen surveillance not too long ago. Governments, Edward Snowden, government has Has massive data sets, not only about like non-Americans and foreign citizens, but domestic, like knows so much about me and knows so much about you right now,

• 56:50Ryan Sean Adams?

  Richard, and the Fourth Amendment hasn't protected against that. So maybe there's some future court case that will curtail the surveillance, communication surveillance of the government, but so far we haven't seen it. And so I want to ask the broader question because it just like feels this way, particularly on the Fourth Amendment, when we talk about privacy. Is the document, the Constitution, are we just starry eyed dreamers here a little bit? And is, are the rights that we are talking about, you know, these hundreds of years later, is it kind of, has it gotten toothless? Have they been eroded away? Do you know, I don't want to inject some cynicism at this point in the conversation, but just privacy, man, Fourth Amendment stuff.

• 57:30Ryan Sean Adams?

  I don't know that they care what the document actually says and what the rights actually are. They've just been co-opted and corrupted and our rights have been taken away so gradually, particularly in the digital realm, that like, does this even matter?

• 57:47Speaker 00

  Well, and so this is again where the, I think we've gotten to a place where the tools of surveillance have been, have gotten so powerful that they've made this question to your point, the kind of the fundamental nature of, you know, what do our rights do? And now with the, with crypto technology, encryption, cryptography, we've effectively established a new tool for the preservation of right. And we're back to this kind of tension between rights and government activity, where we can now reassert that expectation of privacy, where we can encrypt, and we're effectively making the government reassert its action. And when we use the word they, right, it's more like the inappropriate actions of government. It's more, they're lawful, right, lawful activities that they do.

• 58:30Speaker 00

  But how do we as citizens of this nation express our or preserve our personal sovereignty and personal freedoms in the digital space? Well, we didn't up until 2008, 2009, we really didn't, we didn't really have a good way of doing that in some respects. Encryption has existed on the internet. For a lot longer than that, but now we're finally coming to the place where we as citizens are sophisticated in our understanding to say, hmm, actually, you know what? There, there is a Fourth Amendment implication into this. So it takes some time to kind of get to that place. And so now, because you say, well, that, that, that rubs me the wrong way. There's, there's, I bristle against this is we wouldn't have been having this conversation 20 years ago. Because we just didn't have the, the concepts. And so now we're catching up, right?

• 59:13Speaker 00

  The, the ideas and popular discussion, the reason that the First Amendment is so important is we're, we're catching up to the reality that the digital right of privacy, the digital right to be free or to be secure in our property, places and effects, hasn't really been respected in the way that we think it should. Encryption as, as the code, encryption as the act of encryption is again, a communication back to the government to say, I disagree with what you're doing. I would like to have a discussion about my Fourth Amendment rights. Let's do that in the court of law because you are asserting your ability to do something. I'm asserting my right to be free from that action. And this is where the Fourth Amendment comes in.

• 59:49Ryan Sean Adams?

  Well said. That's why we're doing this podcast and that's why cryptography and crypto gives me such hope.

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• 1:02:20Ryan Sean Adams?

  All right, let's bounce to the Fifth Amendment, which is a pretty strong case as well. This is a longer one, so I'm not going to read it verbatim, but this is about the rights in criminal cases. So is this the double jeopardy one and some other things? Describe what the Fifth Amendment is and how it applies to crypto.

• 1:02:38Speaker 00

  So we'll very rapidly or very quickly speed run the Fifth Amendment, right? It's the right not to be, right not to double jeopardy, so it can't be tried for the same thing twice. It's the right to have a grand jury, which means someone has to, other than the government, have to say, actually, you know what? I think there's been wrongdoing done. There's also against probably the most closely related to crypto is that you are not required to, you're not compelled to make a case against yourself in the court of law. So where the First Amendment is the right to speak, the right to communicate, the Fifth Amendment is kind of the logical inversion. It's the right not to communicate.

• 1:03:15Ryan Sean Adams?

  I plead the Fifth.

• 1:03:16Speaker 00

  I plead the Fifth, and that's what they're meaning. You're saying, "I am asserting my right, as it relates to the government, not to reveal the contents of my mind. I have the freedom of conscience. The First Amendment allows me to express that. The Fifth Amendment says, 'You can't put me in a court and tell me, "You have to tell us." Because, right, there's the implication that compulsion in a courtroom becomes compulsion in a dungeon. And we don't want the government to be tempted by torture, to, you know, the Inquisition. It does us no good as a people. Again, the purpose of government, as the founders would have said it, is to preserve rights, to ensure that we live under the law. They mean live under the law, as opposed to live in anarchy or live under tyranny.

• 1:04:00Speaker 00

  We have our rights respected. And so the Fifth Amendment is basically saying, "Sometimes, people will do things in the name of the government that we don't think are right. One of them is compelling you to testify against yourself, because there is such a temptation to use that just to get the conviction, just to put somebody in jail, just to be right." And we say, "You know what? There's a bright line rule. You do not have to communicate those kinds of things in the context of a criminal case."

• 1:04:26Ryan Sean Adams?

  Okay, so how does that directly apply to crypto? And there's this line about private property cannot be taken for public use. So I guess that would imply they can't take my crypto and, I don't know, use it for a government treasury or something like this. And then there's also this line, "Not be deprived of life, liberty, or property without due process." So does this imply that the government can't come and just confiscate my crypto assets without, you know, some sort of due process in the court system? And there are cases, I believe, where this has actually happened? Has government seizure of crypto assets? Like, I'm just kind of like bringing to mind

• 1:05:11Ryan Sean Adams?

  some of the tornado cash cases. Like, at least the developer in the Netherlands, this is, you know, not in the US, but most of his assets were confiscated, I believe, before due process. And in the US, would this be allowed? Anyway, how does this amendment apply to crypto?

• 1:05:28Speaker 00

  Yeah, so let's first talk about the right not to speak. So that includes the, or as it be translated, and we've already had cases on this. That would be the right not to decrypt. So let's say you have a great example, one that the court has seen. Your phone, if you have a password on that, if you've encrypted the data, you have the right not to be forced to decrypt it.

• 1:05:48Ryan Sean Adams?

  So the government can't wrench attack me in their torture chamber and like steal it?

• 1:05:52Speaker 00

  Yeah.

• 1:05:53Ryan Sean Adams?

  And to like force me to decrypt it, basically, or give you my seed phrase or whatever.

• 1:05:56Speaker 00

  Absolutely. So they would not have the right to decrypt communications. You would have the right, or not to enter into a device. You'd have the right not to decrypt your communications. You've described network analysis where they say, well, there's been communications back and forth between these two nodes. We know they talk about. They can't sit you down and say, okay, what did you talk about? You can say, I have a Fifth Amendment right not to tell you that. So the government has the right to search, right, says unlawful search or seizure? They have the right to search, but it doesn't mean they have the right to an effective search. We don't have to make it, the court has said, you don't have to make it as easy as possible. And the Fifth Amendment is one way where say, well, we don't have to decrypt our data. We don't have to decrypt our devices. We don't have to do the digital unlock without the process being respected.

• 1:06:39Speaker 00

  Or if it's testament, like if it's a testament, if you're giving testimony, I don't have, I can say Fifth Amendment right. I don't have to give you that communication because it's saying something about me. It's an assertion of fact or belief that I'm not going to give in the court of law. So that's one element. It would also, I think, be the right not to escrow private keys. As you say, look, I have the right, I have the right to the, again, I have the right to the code and I have the right to my activity and I have the right to the property. You, I would articulate, if it were me, I would say, well, that's an unlawful search. Because just giving, right, it's like giving you the keys to my house.

• 1:07:13Ryan Sean Adams?

  Right.

• 1:07:13Speaker 00

  I don't have to tell you what I'm doing in my house to know that I have the right to exclude you without a warrant, without a, without kind of all those things. So that's the speech element. And then when you talk about the unlawful deprivation of property, it's like the court or the government can't come in and say, you're guilty, there's summary judgment against you. We don't have to give you a trial. We know you're guilty. We're just going to take away your property. Well, if I have it stored in a private wallet or personally secured, I can say, well, not exactly. I'm preventing unlawful deprivation of property. And then the last piece you talked about, they're called takings. It's not a criminal act, but this is unlawful where they make it lawful and then take it anyway. So think of like rights of way on a highway.

• 1:07:55Speaker 00

  We want to build a highway, so we're going to take, we're going to pay you for it, but we're going to take your farm to build this highway through what is now your property. Well, now we're moving that into the digital world and we're saying, we, the people, we the citizen have the right to ensure that there's no unlawful taking without just compensation. They say, well, your Ethereum is actually worth a dollar. That's what we're going to pay you for it, right? We saw the Mt. Gox liquidations. They are selling Bitcoin for X price. That's what we're going to give you. And you say, well, hold on, fair price should be this. And you have basically, again, this tension of preserving the right. And so, and even things-

• 1:08:32Ryan Sean Adams?

  Didn't they do this, by the way, in the 1930s FDR executive order with gold? Was that unlawful constitutionally? Did that get to the Supreme Court at all?

• 1:08:41Speaker 00

  Well, so now we're talking about the rights in peacetime and the rights in wartime. And so there's, there's online. So again, but now we're now in a unique period where the tools and technologies and abilities of a citizen can't be surmounted by the government just by fiat, right? They can tell you, you have to turn in your crypto. But can they show up to the physical place that is your wallet and take it from you? Can they knock down the digital vault and steal the digital, take the digital gold? Well, we're in a new era where the right and the ability of the citizen to preserve their rights is equal to the government's ability to invade that space or to take or to do any unlawful act of tyranny.

• 1:09:25Speaker 00

  And so we're going to have to hash that out. Where does this right extend to? What is the proper rule of government? What kind of things can a government do in the context of the digital property or the digital ability to preserve your rights? And how do we navigate unlawful takings?

• 1:09:44Speaker 00

  Unlawful deprivations, the right to a fair trial, right? It says fair trial, not the right to no trial. It's a fair trial. So again, this is why it's endlessly fascinating, this intersection of crypto and fundamental rights.

• 1:09:56Ryan Sean Adams?

  Yeah, for sure. I guess maybe a few observations. One, I suppose during kind of like wartime or like, you know, like whatever someone says is emergency, right? And it's kind of like, all bets are off, rights get eroded during those times. And this is why I kind of like authoritarians are those that are seeking power. It's always wartime, you know? There's always a crisis. And that is something that the civilian population has to be very wary of with respect to leadership and political leaders. I guess another comment, as I'm picturing like a government trying to take away an individual citizen's private keys, just like the, how important these amendments really are and

• 1:10:41Ryan Sean Adams?

  how glad I am that we have the Bill of Rights. Because we just think about it with all of the military professionals and surveillance and like, you know, like armies and weapons and drones and the vast amount of like government resources, the asymmetry versus one individual citizen in that relationship, like it couldn't be more stark, right? And so what these rights do is they try to equalize, rebalance a little bit of that asymmetry. And they say, no, you can't, you can't do this. There are barriers to what you are able to do. And this is another reason I am an enjoyer of crypto, is because this also restores,

• 1:11:26Ryan Sean Adams?

  when you have the right to encryption and for example, you have the right to, you know, private non-disclosure of your crypto assets to the government, they come looking for it in an unlawful way that breaches the Fifth Amendment. Well, like, we have some resistance technology. And we have the ability to decentralize it. And we have the ability for that kind of regime to pass and to live to see another day. So, you know, fascinating when we dive into this. Let's talk about the Third Amendment here. So I think the amendments that we've talked about so far, the first, the second, the fourth, or the fifth, these are like, this is, these are the big ones when it comes to defending crypto. But the third has something to say, too.

• 1:12:09Ryan Sean Adams?

  And maybe this is almost an implied right to crypto. What is the Third Amendment and how does it relate?

• 1:12:14Speaker 00

  Well, so the Third Amendment says, in effect, that the government cannot put soldiers into your home during a time of peace. And in a time of war, it's, there, there has to be rules around it. And the rule is not so much concerned about who's sleeping on your couch or who's, you know, in your kitchen. It's more about the ability of centralized power to impose itself through some type of activity. Can they invade this space? So there aren't any Supreme Courts about the Third Amendment. It's one of the kind of, one of those, like, it was probably written in a place and time for a very specific purpose that doesn't translate so well. But I think what's great about crypto is it allows us to revisit the discussion that they were having back then in the new digital world.

• 1:12:54Speaker 00

  So crypto can read, as the right says, in quoting now, you have the right to peace and quarter in your, any house. Well, now we're redefining, crypto helps us redefine the word house. It redefines the word owner, redefines soldier and quartering. So are we talking about, when we say house, do we mean any form of property that you can go into? So things like my network, a node, a wallet into the blockchain itself, is that, or how are we redefining it? So again, this is, this is less about establishing kind of what the government isn't allowed to do. It's about kind of reestablishing our concepts of things that were described elsewhere. So we've, we've never had, to extend the analogy, we've never had locks on the digital house.

• 1:13:37Speaker 00

  So it's very easy to get into my emails, very easy to do all these things. Crypto, by blocking the digital house, now reestablishes that delineation, right? We talked about in the Fourth Amendment about your Right to be free from intrusion. Well, we have to define where. And so the Third Amendment basically says, this is what this is what we mean when we say the there in the digital space. It's your your home. It is the house. That's where kind of the Third Amendment and crypto kind of will come back into stuff is that crypto is a segue into the community, into the conversation that just really haven't been necessary up until now.

• 1:14:12Ryan Sean Adams?

  Yes, such an interesting amendment. Quartering of soldiers is just, yeah, it's like one that I don't have a lot of context for. No soldier shall in time of peace be quartered in any house without the consent of the owner nor in time of war, but in a manner to be prescribed by law. And that's the third one. Must have been a real problem back then. It sounds like.

• 1:14:30Speaker 00

  So it really was. I mean, you talk about the when the states were still colonies, the the federal government of England was stationing soldiers and they were quite literally going into people's houses. They were going into businesses. They were they were invading the privacy that the founders understood to be fundamental, that the government doesn't, like anybody else, doesn't just have the right to be in these places. And so this is one, this is the embodiment or the the giving kind of definition to what they meant by those things. It's like, oh.

• 1:15:00Ryan Sean Adams?

  You can't just take your private property, do what they want with it for military purposes. That's what it's saying.

• 1:15:06Speaker 00

  In effect, and you're absolutely right. So again, it's a definite, it's a finding. What does it, we're going to have to ask, what does it mean without consent of the owner? Well, if I don't consent at all, then you know, you can't get into my email, time of war, time of anything. So there's so much to unpack with kind of where fundamental rights and crypto kind of intersect. But it's good that we're having the conversation. And I think to your point earlier, so imbalanced, it's necessary that we start to have those conversations.

• 1:15:32Ryan Sean Adams?

  Okay, so that's five. We got the five and those are all compelling cases for crypto. Let's talk about the ninth and the 10th. These feel like system defaults almost for for rights and individual freedoms. And I think they they augment the first five amendments that we talked about in a way that bolsters the case. It's like an amplifier. Effect. Well, let's get into them. So Ninth Amendment and Tenth Amendment. What are these?

• 1:16:04Speaker 00

  So the Ninth Amendment, basically, again, we've said kind of earlier on, is that just because something is written into the Constitution, or just because it's not in the Constitution, doesn't mean that it's either necessary or excluded. So quoting it, right? "The enumeration of certain rights shall not be construed to deny or disparage the rights retained by the people." Just because it's in the document doesn't mean there aren't other things. It is effectively the expansion slot in the code that is the government. And you say, "Look, we've documented enough of the way the government functions. Here's how the way that we want you to interpret where the tie happens." So when you're not sure, the default is that, well, there should be more included.

• 1:16:46Speaker 00

  And so they talk about things, the Supreme Court likes to use analogies. They talk about per numbers and emanations, basically the shadows of rights. So our right, right, the right to exclude is up to a line. But there's also like this kind of hazy element. We're going to extend it a little further than the bright line because we have preserved a fundamental right. And the freedoms that we have, those are a little brighter than just the bright. So they extend a little further than just what's written. And so it's effectively the tie goes to the citizen, and we can add things in because we're not excluding them.

• 1:17:17Ryan Sean Adams?

  Okay, okay. So this is basically the miscellaneous category. Basically, the founders were saying, hey, if it's not here, if it's a right that's not talked about explicitly here, the default goes to the citizens. And the citizens get that right and preserve that freedom. Like, isn't this the only amendment we need, Richard, to argue for crypto? It's basically like, hey, they didn't mention crypto or encryption in the Constitution. So by default, we get it. See you later. Like, that's the case. Fully wrapped. We don't even need the first five.

• 1:17:47Speaker 00

  Yeah, and it would be nice if it worked out that way. And obviously, we're being a little tongue in cheek and saying, well, you know, ha ha, we've got the cheat code. And so this gets into, right again, where the founders even then understood that there were some limitations on fundamental rights. So this is kind of like saying, well, there are limitations, but there's not exclusions. So let's make sure that when we, again, We had already articulated, we had fundamental rights. Why are we writing them down in the Bill of Rights? It's like, we want to be extra certain that you know that when you interpret the right to be free, you know, it means this. And the Ninth Amendment says, well, just because we didn't write it down, doesn't mean it's also not included. So the right to crypto, Ninth Amendment unlock to the First Amendment. It's the Ninth Amendment unlock to the Second Amendment,

• 1:18:31Speaker 00

  to the Fourth Amendment, to the Fifth Amendment. And even in and of itself, right? We talked about very early on, the government is limited and we're finding ways that they're allowed to not infringe on freedoms. This is basically articulating that and saying, look, there are things that we haven't discussed that will change into the future. You government have to be mindful that there are more rights than we have articulated.

• 1:18:51Ryan Sean Adams?

  Cool, okay. And the Tenth is sort of closely linked, I guess, to the Ninth. It's almost like a copy and paste only for states. And it says, "The power is not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." So, "or to the people." It's not just states, "or to the people." Okay, so what is this adding?

• 1:19:11Speaker 00

  So this is, again, when we talked very early in the podcast about, we used to think about government being big and then chipping away to make freedoms. This is kind of documenting the other way around, that it is small and we're adding to the things that don't take away from the freedom. So it is also where we get the concept of dual sovereignty, right? We, the founders, when they were ratifying the Constitution, were very, very concerned about the federal government not respecting the government that they liked the best, which was their states. And so they were saying, if you want us to agree to the federal government in the form of the Constitution, you have to agree that we are going to fundamentally alter the nature and the relationship between the federal government and the states.

• 1:19:55Speaker 00

  And this is where that comes in. This is where dual sovereignty, federalism, where the laboratory of democracy lives. It basically says, the states are their own sovereigns in their special spaces. The federal government is sovereign in its own spaces. And where there is confusion or an ambiguity, the ties should go to us, the states, or more broadly, to us, the people.

• 1:20:16Ryan Sean Adams?

  Maybe this is a broader question, but like, what happens if the federal government puts in place, Congress puts in place, like a ban on encryption or a ban on custody of your own crypto assets? You can't have your own private keys. And the state of, let's just name a state. How about Oklahoma? Does that sound good, Richard?

• 1:20:33Speaker 00

  That sounds like a good one.

• 1:20:34Ryan Sean Adams?

  The state of Oklahoma says... No, we are preserving that right for Oklahoma citizens. You have the right to custody and crypto. Who wins there?

• 1:20:43Speaker 00

  Yeah, so there's, I'll give two kind of bright line, kind of the big ideas that inform that. So there's one, there's federal preemption that the federal government gets to say where we have the right, the ability to do something, the states have to kind of fall in line with that. And at the same time, judicial precedent has said the federal government cannot force state actors to enforce federal regulation. So they could not say, there's a ban on encryption and you, the state police of Oklahoma, have to enforce this on our behalf. The federal government would say, no, you can't do that. You could send the FBI, you could send federal resources, but you can't tell the state authorities that they have to enforce it.

• 1:21:24Speaker 00

  There's also that they cannot take state resources themselves to pay for regulatory programs. So say, you know, we're going to have a, we're going to ban self custody. We're going to, you have to, you have to take it with a custodian and you, the states have to pay for the custodial services in your state. So the federal government or the Supreme Court would say, no, you can't commandeer state resources to do that. So that's where the tension, again, this dual sovereignty, is that the states can push back against the federal government and say, well, you've issued a law that we disagree with. We are not going to enforce it. So if you want to, if you want to take private keys, if you want to force, we'll just stick with that. If you want to take private keys, come and take them. You're going to have to be the ones that do it.

• 1:22:08Speaker 00

  And while you're trying, we are going to file a lawsuit. And that's where, again, the judicial branch separation of powers comes in, is that the states, the people and the federal government will go to court and articulate why they think they have, why we, the people, have a fundamental right to what we have, why the government is conducting itself inappropriately or unlawfully. And then the states kind of get to, kind of get to jockey themselves in whether they want to preserve that. So Oklahoma, glad you brought it up. Oklahoma has written into law that you have the right to own and possess crypto. Well, if there's a federal law that said you don't.

• 1:22:37Ryan Sean Adams?

  Really?

• 1:22:38Speaker 00

  We have that right. Yep, it was passed in the most recent session. We've said you have the right to own crypto. You have the right to self custody. You have the right to mine. You have the right. To transact and you have the right to be free from discriminatory regulations. So noise ordinances, for example, if you're going to run a Bitcoin miner, you can't be regulated differently than a data center. Noise ordinances are noise ordinances. It's not about who's making the noise. So we, and so now you're seeing that kind of flow up into the Republican, the Republican kind of their platform. It's just saying, hey, wait a minute. We're again, right, we're starting to have these conversations. We're more and more familiar with the ideas and the abstract and their implementations. And so now you're seeing that filter into government is slow necessarily. Because we obviously, we don't want to be in all over the place.

• 1:23:21Speaker 00

  But, but we're starting to see the articulation of these fundamental rights and say, you know what? Digital property is property like anywhere else. Wyoming said that back in 2019. And now we're just starting to filter up in through the government, getting familiar with the idea. Again, why the first amendment is so important? The ability to call your representatives to say, look, there's a new technology, a new idea, a new property. This is why I think I have the right to it. This is the way that I use it and how it impacts my relationship with you, the government. We should preserve that. You should not pass laws, right? The CBDC, you should not pass laws that infringe on my rights. That's where all of this comes in, where all of this ties together. And again, crypto is so elegant in navigating the abstract ideas of fundamental rights and the actual implementations of the tools of preserving those ideas and those rights.

• 1:24:06Ryan Sean Adams?

  This is really cool too. I think it was a Supreme Court justice, I forget, he called the United States. One of my favorite properties of the United States is he called the states like 50 different experiments in freedom. Right. And it's very cool to see states like Oklahoma, states like Wyoming, basically crypto friendly jurisdictions, setting state law in the United States. And I would say there's probably like five to 10 of them that are really like pushing this forward. And they are setting the precedent for the rest of the United States. And if the, if kind of the feds, you know, take, take a more dim view on our crypto rights, the states are going to have something to say about it. In fact, they already are, and they're already starting to enshrine these rights. So that's effectively what the 10th amendment gives us.

• 1:24:50Ryan Sean Adams?

  I remember when we were talking about this episode, Richard, jumping back to the ninth amendment for a minute. You said that basically, your case, if you were fighting this in courts, and part of the legal defense for our constitutional right to crypto would be, you'd use the first five amendments, right? You'd say Amendment 1 plus 9, because 9 means we get rights retained by the people. And by default, factory settings, US citizens have a right to crypto. Or it'd be, you'd make the argument about the right to bear arms, the Second Amendment plus 9, or the Fourth Amendment plus 9, or the Fifth Amendment plus 9, because 9 is really the amplifier for all of these amendments, right? It's kind of like the extra bonus that we receive,

• 1:25:35Ryan Sean Adams?

  and I guess the cherry on top of the case for the other five. Is there anything you would add to that?

• 1:25:40Speaker 00

  Yeah, so I would say that the Ninth, again, the Ninth and Tenth Amendments were written specifically for two purposes. 1 through 9 was a preservation of rights, and the Tenth Amendment was the fundamental alteration of the nature of a central federal government. And so 9 and 10, as you described, Ninth says, just because it's written, doesn't mean it doesn't exist. And the Tenth says, and where you're not sure, we still retain that. We retain those rights. So you're right, when you say First Amendment, we'll have the right to freedom of speech. Well, someone says, well, crypto isn't speech. We say, well, actually, Ninth Amendment says, just because it's not written down, doesn't mean it doesn't include it. And Tenth Amendment says, if there's a tie, it should go to me. So let's argue, let's respectfully, right? Let's argue about what the First Amendment includes,

• 1:26:24Speaker 00

  knowing that these system defaults, these boosts to my argument, are that the Ninth and Tenth Amendments say that in very real terms, that the tie goes to me, and you should assume, we're proving innocent until proven guilty, right? It is incumbent on the government to prove that there isn't a right. It is not my responsibility to prove that I do have one. And that's really what the Ninth and Tenth Amendment, as you say, in combination with 1, 2, 3, 4, 5, on through all, it allows us to make that argument and kind of springboard. It's the boost to the arguments that we have, is that we have the ace in the pocket, as it were.

• 1:27:00Ryan Sean Adams?

  This is a pretty cool document, I gotta say. Pretty cool freedom protocol. Well thought through, these 10 amendments. But we skipped three of them. So number six, number seven, number eight. This is all about, kind of, these amendments are all about trial law. So maybe not as relevant to crypto, but like, we should just talk about them briefly, maybe to finish this out.

• 1:27:18Speaker 00

  Yeah, so six, seven, and eight are more about the process. So if the First Amendment is your right, Second Amendment is how you can preserve it. Third through fifth is how you, like, how the government can interact. Six, seven, and eight is basically saying, well, once you're in the process of a due process, this is what those rules are. This is kind of the high level of due process.

• 1:27:38Ryan Sean Adams?

  For courts, common law, that kind of thing?

• 1:27:41Speaker 00

  And so this basically says, right, the Sixth Amendment, you have the right to a speedy trial. You have the right to confront your witnesses. You have, it's basically, this is your right to fair trial. So the government can't just, like, throw you in jail for 25 years and then say, at the end of 25 years, all right, now we're gonna give you a trial. You say, no, no, no, I have the right, if you're gonna say that I've done something wrong, let's, and it unfortunately feels very, very slow, but we have the right to a speedy trial. You have to present the evidence that you've, that you've said proves that I've done this. You don't get to just walk into court and say, hey, I'm the government, I believe what I'm gonna tell you. The courts will say, no, you have to prove that. That's kind of the Sixth Amendment.

• 1:28:21Speaker 00

  The Seventh Amendment, this is about, you know, the venue. So it says, it says if there's certain value, like dollar value, at stake, you get a jury trial. Well, crypto may not, may or may not play into it, but you say, it's a, the industry is, again, a forcing function for revisiting these rights. So SEC versus Jarkesi, that was basically, the Supreme Court said, in administrative law cases, if you're gonna impose a civil fine above the threshold, you have to take that to a trial by jury. The administrative state doesn't, the administrative state does not get to be law writer, prosecutor, and judge in certain things. And also, right, and so it's like, hey, this is a check on your ability to just do things as you please.

• 1:29:06Speaker 00

  It's gotta go before a jury for certain values above that amount. So that's what the Seventh Amendment is. Amendment is really about is the right to a tribe by jury. And then the Eighth Amendment, this is, this is again, kind of the punishments that can be given. And so you no excessive bail, so they can't, they can't financially imprison you because you can't afford bail. There's no excessive fines, no cruel or unusual punishments.

• 1:29:27Ryan Sean Adams?

  Another defense against rent attack by the right of state, I guess.

• 1:29:30Speaker 00

  Right. And so, and so this really, again, this gets into the idea of crypto as a new form of digital property is going to require us to refresh on our understanding of these constitutional concepts. Well, what does it mean to have an excessive fine? What does it mean to have cruel, unusual? If you require me to surrender my private key for, I've basically given you everything. Is that unusual? Is that unfair? So we're going to have to revisit all of these things within the context of crypto because again, the implementation of a freedom or an expression of a right is different now with regard to crypto than it was before. And so we're going to have to go back through, revise, the soft fork of the social protocol of government is going to have to take an update based on the new technology that we're introducing into it.

• 1:30:12Ryan Sean Adams?

  Love it. And that's how the system works. That's how it's intended to work. I think you've given a fantastic case for why the Bill of Rights really support our constitutional right to bear crypto, to have crypto, to hold crypto and all the freedoms that that implies. Let's talk about kind of the last piece of this as we wrap up this episode, which is it's not enough for you to believe this and for you to make the case and for me to believe this and for me to like respond to the case and say, yep, that that makes complete sense. Or for bankless listeners or for the widest wider crypto audience. We have to somehow bake this into this social consensus mechanism

• 1:30:55Ryan Sean Adams?

  that we call government and realize that's composed of of multiple parts. I can, I can think of at least a few. One is the courts and the law and the interpretation of that law. It's basically everything we've, we've been talking about. So it basically requires you or someone like you, some lawyer, some legal mind to take cases through case precedent to the various court systems, all with Supreme Court as necessary. And to get this enshrined as This is the correct interpretation of how the Constitution applies to crypto. So we got the courts, then there's also legislators. So there might be some gaps. There might be some like courts who say, I don't know, like you're like, we don't have a law about this. Right. And so what's a security? What's a commodity? Congress, go figure that out.

• 1:31:37Ryan Sean Adams?

  So we got legislators to kind of convince about some of these things, those in government. And then the executive branch as well. And so that's all of our regulators. That's the administrative state. That's, that's kind of the president and they factor into this as well as, as we've seen recently. There's, there's one other, a kind of a fourth that I wanted to mention. That is individual citizens, hearts and minds. Right now, there's this take, I think, about crypto. If you, if you talk about crypto to the American, to the, the person on the street, let's say, they are not going to immediately recall property rights and like freedom of speech and code is law. They're not going to think about that. They're going to think about NFTs and SBF and scams and frauds. And isn't that a big casino?

• 1:32:23Ryan Sean Adams?

  And doesn't North Korea do things with crypto assets? A lot of the bad things, right? Like not bad, well, some of those are clearly bad, but some of them are just like orthogonal to the digital property rights that we've been talking about today. And so we have to somehow convince the, the person on the street, the average citizen, win over the hearts and minds to this cause too. Why? Because hearts and minds are, are voters. They elect legislators and the executive branch. They also become the court system, don't they? They, they become the jurors. They become like Supreme Court justices as well. And so there's a whole societal consensus, hearts and minds machine. Anyway, that just sounds like a lot of work to do.

• 1:33:04Ryan Sean Adams?

  And I guess my question to you, Richard, is like, we're starting in a, in a small way with, with this podcast and you know, like talking about this and that kind of thing. But how do we actually win to embed these freedoms?

• 1:33:20Ryan Sean Adams?

  Into the operating system of the United States of America because we're not there yet. We haven't done it. I don't feel safe and secure with like my crypto rights right now. I feel like we have a claim on those rights and a constitutional claim, but I don't know that everyone else, all of the other validators in the network have not necessarily legitimized that and verified those blocks and those claims.

• 1:33:43Speaker 00

  Yeah. And so I'm glad you brought up both of the three branches of the government and then also the people itself. And so, you know, what can we do? What can we enshrine it? Well, it begins with exercising the rights that we've described, right? You talk about legislators communicating, make it easy for them. So talk with your legislators, talk with your representatives about the things that are important to you, why they're important, how they translate into these fundamental rights. It's about expressing your political view as it relates to crypto, saying, you know, the Stand With Crypto group, right? Putting your name down as saying, I am a person who aligns with these beliefs, right? That is a political act, communicating to the government that this is important to me. And so whether that's legislators, whether that's the executive branch, right? That's communicating. So it's

• 1:34:26Speaker 00

  in one part, it's a communication. When you talk about the judicial branch, right? Court cases are expensive. They, there's a risk of loss of freedom and liberty and things like, and so, but you have to be willing to fight that. So when, when companies like Coinbase say, you know what? We're not going to just pay the fine. We're going to go to court on this. When, when Kraken gets sued and they say, you know what? We're going to go to court on this. That's again, right? The, the donation of money to a legal fund. That's a political act. You're saying like, I'm supporting, I'm supporting this discussion in the judicial realm. So, so participating where you can appropriately in the judicial process by either defending your rights, by helping someone else defend their right, or even contributing. Like this is where kind of where more lawyers and maybe people who are more familiar with the process can say, you know, I'm going to write a brief

• 1:35:10Speaker 00

  on behalf of this articulating why I think that we have a right to crypto or why the government's behaving inappropriately. And then to the, the fourth group, you know, the people on the street. It's kind of a, again, it's just a reflection on all the others. It's can you meet people where they are and talk to them about the problems that they are having in a way that translates? And so here in the United States, you know, we are very fortunate that the rule of law, it's hard to describe, right? It's the cleanest shirt and the dirty laundry. It's, you know, it's terrible, except for all the others. Well, it's very easy for someone who's just come from a country where the political freedoms or the individual freedoms are not respected. And so you can say, and just in the same way, right? Cross-border payments. Well, should I be able to send money to my family in another country?

• 1:35:56Speaker 00

  Someone who does that would be very, very understand, could very, very easily understand, like, what happens when the government says no? Or let's go to historical examples, right? What happened in Cyprus? You wake up one day and your pension is gone or your bank accounts are gone. Like, those people very, very acutely understand what the right to be secure in your person's places and effects would mean, because they've had it taken away. So it's having the continued conversation. It's about articulating reasoning by analogies, about engaging in the discussion. It's about continuing to the builders out there. Keep making it easier, you know, the UI UX experience. Let's, let's, everyone has a role to play if they want to promote this.

• 1:36:36Speaker 00

  But it is, again, the cost of freedom or the, it's a heavy, it's a heavy freedom to carry. And so we got to carry it. You just got to put it, it's the proof of work. You got to put it in. And so, but it's, I think, important to continue to have those conversations. And we have them every day in this, you know, whether it's a podcast or a conversation or asking the coffee shop that you like to go to. Do you guys take crypto? It's just, it's theirs. And when they say no, what is that? Helping them walk through, set up a wallet. And so it's, it's again, meeting people where they are, helping them into it. And then eventually we're all, you know, no one has to explain the internet to you or me or to my mom, but we all use it and we all understand it. Eventually, eventually we'll get there if we continue to have the conversations.

• 1:37:18Ryan Sean Adams?

  Yeah, absolutely. Well said. I'm really hopeful we kind of awaken a new generation, kind of a crypto generation to care about these things. I mean, I got to say, Richard, this is, this is the first time I've gone through the Bill of Rights so exhaustively. And it's, it's, you know, it used to be to me, just kind of like a boring document that I took for granted. I think a number of Americans probably feel this way. When you sort of reinterpret it through the lens of the crypto as an asset and a new form of private property, it's so much more exciting and so much more interesting. And particularly in the backdrop of, I think, where we find ourselves in the 21st century of this creeping digital authoritarianism.

• 1:38:00Ryan Sean Adams?

  Where I don't care where you live, if you live in the United States, or you live in Europe, or you live somewhere in Asia, it's there, right? You see it creep into your everyday life. And I'm hopeful that we, as the crypto community, can kind of take back some of this, the classical liberal values, let's say, kind of the rights and freedoms and the fighting by the people for the people that this movement's all about. Because a lot of times, you know, the speculation and the SBFs and the price number go up, gets all the attention. But the true root, the reason why we're here and the reason why I can say confidently, not just that I'm excited about investing crypto, I obviously am. And like, it's a fantastic asset class, but I think it is a good asset class.

• 1:38:44Ryan Sean Adams?

  I think it is net beneficial for the world. You know, the reason I could say that is everything we've articulated today. I want to leave you with kind of one last question here. I've sort of long thought that, you know, there are those who look at kind of the United States particularly, its unfair treatment, let's say, in the administrative state of crypto over the last few years. And they're like, forget this country, I'm moving, right? I'll go somewhere else. I've long thought that that is not the best approach, right? I've long thought that if we should fight, and this might be kind of an American exceptionalist view, which I can get away with because I was actually born in Canada, so I could say these things maybe. But I've long thought that the US is like one of the best places on earth, if not the best place on earth, to actually fight for these freedoms.

• 1:39:29Ryan Sean Adams?

  And the reason is because we have this document that we've gone through in 90 minutes that goes all the way back to the founding story. It's literally written in the operating system code of how this nation is supposed to work. And to the extent this nation has strayed away from these core principles, right? It is off charter, off course. And there have been many different awakenings in the United States history that is just like, recall the Constitution, you know, the ending of slavery, recall the Constitution. Let's get back to the rights that were actually written down that were just left unfulfilled. And so this is another one of those rights that are actually written down here, the right to own crypto, that is not fully fulfilled yet and that we need to to fight for.

• 1:40:12Ryan Sean Adams?

  But the reason I think the US is a great place to do it is because we have this document. We can have this discussion. We have hundreds of years of precedent where we've talked about it. We've got legal minds. We have a rule of law here and we have a social layer. We call this on Bankless, the layer zero, you know, because like, you know, mainnet is kind of like a layer one, which is code, but this social layer that respects what we just talked about today. And the hearts and minds battle is easier to win when you can say, hey, this is what was intended for for the nation. This is why we are a free society. And if we want to preserve that, we have to preserve this, these freedoms in this new frontier of technology.

• 1:40:57Ryan Sean Adams?

  So I've long thought that the United States is actually the perfect place to fight and win. And if we can't win here, I don't know. I don't know other countries so well, but it's it's difficult, I think, in another jurisdiction to do it. So let's fight here. What do you say to that? Or what does that spark in you?

• 1:41:15Speaker 00

  Yeah, so I think you I would accuse you of stealing my my notes on this because in in in researching, right, the I did the the history of the Constitution and did the kind of the legal research, but also kind of the the classical reevaluation of the concept of freedom, the history of freedom. How do we arrive from, again, ideas that stretched all the way back to antiquity in in Greece and Rome? How have they flowed in through history to the point where, right, the founders sat down and inscribed them into a document? And I would agree with you almost almost entirely a wholeheartedly is that if we talk about the unique balances of freedom, then the ideas of national freedom, so being free from other from outside influence, political freedom and individual freedom.

• 1:42:00Speaker 00

  That the traditions that the United States embodies, that the precedents that exist in the United States, our history and our understanding, the idea and the concept of freedom is no more or is not preserved anywhere else better than it is here. And so I would add to a counter to a guest, I think you had on a show or two ago. It's like, well, if you can't find it, if you don't like the jurisdiction, just go find a new one. That's when things, right? That assumes things are going right. The best place to be when things are going wrong is in the United States for the reasons that you've articulated, because we have a history of freedom. We have a precedent of freedom. We have traditions of all of these things where we can confidently say on a podcast like this, we have strayed away from what the proper relationship

• 1:42:44Speaker 00

  between a government and its people is and ought to be. I have the right to discuss that. I have the right to propose solutions and I have the right to protect the freedoms as I understand them. Nowhere else in the world has the unique balance of those three freedoms as there is in the United States. And I would agree with you. If I'm going to take this fight to any jurisdiction, I want to be the one where I have the best chances of winning. And in the United States, the concept of freedom, the history of freedom is nowhere more embodied than, again, in our Declaration of Independence, in the Constitution, in our Bill of Rights and in all of the law and history that we've experienced to get to the place that we are.

• 1:43:16Ryan Sean Adams?

  Well, if there's enough of us thinking this way and saying these things and willing to fight for it, we basically cannot lose this right to crypto. So I think this conversation has really galvanized me and made me excited to continue the fight in the United States. And I hope we're successful. As we close this out, I introduce you in your role for the state of Oklahoma. You're part of the deputy AG and you lead technology and digital assets. It's a very unique role. So you're actually in the state of Oklahoma government. How did you land this? Like, what is this gig all about? And like, what do you do? What's Oklahoma doing? How are you able to put kind of like the energy into topics like this?

• 1:44:01Speaker 00

  Yeah, and so it is a, I think, kind of where we would, looking more kind of on the technical side of crypto, is that we're at one of those unique periods in history where there's going to be fundamentally transformative changes that are technology-driven. And so the, you know, how did this job came about, come about, is that when I was, I was actually originally approached to do just cybersecurity, and I articulated a, an expansion. You said, let's, let's talk about the Second Amendment. I said, you know what, there's actually probably a constitutional case. In the same way, when I was approached about this job, they said, well, you know, we'd like you to do cybersecurity, so, so consumer protection, basically. I said, well, you know, there, there's something about advanced and emerging technologies that I think we're gonna want to be smart about. And so, so can, can we expand the scope of

• 1:44:43Speaker 00

  this? Because this is, this is 20, November, October, November of 2022, not the best time to be, to be promoting crypto as it relates to the government, especially law enforcement. Sure. But, right, so, but our, you know, then, then Attorney General-elect, Geter Drummond, you know, you sat down, you made the case, just in the same way that we've described today, that we have fundamental rights to these things. I said, the government or the Attorney General's office is gonna want to be smart about these things. They agreed, and they said, you know what, the future of the United States, the future of the state, flows through novel and emerging technologies, at least in some respect. Let's start the process of getting intelligent, getting smart, so that we can preserve fundamental rights of crypto, so that we can have a, have a regulatory environment where builders can

• 1:45:25Speaker 00

  come and they understand the rules, and we, we know what we're being, was expected, and people can enjoy both their rights and also the technology in new ways. And so, the, the state of Oklahoma is catching up, and I think more broadly, right, that the United States is waking up to the reality of what's being described. And as you say, maybe a, a straying from the, kind of the fundamental understanding of, of what it really should mean for the United States government, with its relationship with its citizens in the digital world.

• 1:45:52Ryan Sean Adams?

  That's great. Investment by Oklahoma and some foresight there because now we're, you know, 2024, we are blessed, I think, to have crypto be a national conversation at this point. It's definitely an election issue and a campaign issue. And so I think there will be many folks tuning into this episode to hear the constitutional case for crypto. And you've made it quite adeptly, Richard. So thank you so much for your time today and the work you went into, you're putting in to set up this episode.

• 1:46:18Speaker 00

  Thank you again for having me. And I would echo it back. Thank you and David and the whole Bankless team for continuing to express yourselves and to continue the conversation in this form about this very important idea that is crypto and encryption technology and all the things that you guys talk about.

• 1:46:33Ryan Sean Adams?

  What else would we be doing? It's the most interesting thing on the planet, I think.

• 1:46:36Speaker 00

  It really is.

• 1:46:37Ryan Sean Adams?

  Let's end with this, of course. You guys know our typical disclaimers. You know that crypto is risky. You could lose what you put in, but we are headed west. This is certainly the frontier. It's not for everyone, but we're glad you're with us on the Bankless journey. Thanks a lot.