Your Constitutional Right to Crypto | Richard Jackson

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 have a regulatory uh environment where Builders can come and they understand the rules and we we know what were being what's expected and people can enjoy both their rights and also the technology in new ways welcome to bankless where today we explore the frontier of your 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 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 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 Bastion 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 at heart he's turned legal mind as well and he's a crypto native and he is working to make Oklahoma the most crypto crypto-friendly state in the Union Richard welcome to bankless hey Ryan thanks for having me glad to join okay

I'm just going to share the tweet that kind of sparked this the show and I just set it up for for people so there's one weekend I was like actually on a on a flight visiting my parents I don't normally read legal white papers on the weekend but this time I did because the the title of it sparked my interest it was called the Second Amendment and the struggle over cryptography this was uh a second amendment case for cryptography so for people who aren't familiar with the Amendments Maybe 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 the right to bear arms and we'll get into that but um it was a fantastic interesting um like detailed summary of our actual our Second Amendment right to encryption and cryp cryptography at the time and uh cryptocurrencies so so I tweeted this the right to bear crypto uh if Americans cared as much about encryption as they care about guns there'd be a much different conversation right now 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 the white paper author uh did and um we actually got more than that so you stepped up Richard and you dm' me privately and you're 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 so first I just want to say thank you for doing that and I want to set the scene for for Bank

list listeners the topic today is Richard is going to defend the US citizens right to crypto and so uh 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 let's start with kind of the Preamble here right um 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

so in 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 you code is speech now the Second Amendment as an arm things to be free from intrusion from the government is that at crypto has a very neat elegant way of of preserving those rights and also be the thing that we enjoy the Freedom itself okay well fantastic so so that's the case like so let's take this in a few sections the first is I I just want to

set some B uh background because I think it's for for a lot of folks it's been a while since their Civics classes uh about the Constitution and the Amendments and the Bill of Rights in that document then then I think we'll talk about this 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 if you're willing Richard and like do 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 let's start here um can you tell me a little bit about the Constitution okay like explain it like I'm five you know uh do the Civics 101 the Bill of Rights the freedoms are founders enshrined in in in this document what what was the purpose of the Constitution and specifically the Bill of Rights right so let's let's set the scene we're going to go back to the 1700s when our Founders were were drafting the Constitution and this is

part of History called the enlightenment era and so it's coming off of the the end of or it's at the end of the uh Renaissance and so there's a 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 it would we we starting to talk about ideas for new social protocols that we call government and so our Founders the enlightenment was a a look at classical study so they were going

back to ancient Greece and uh you know all of the things that happened during the Renaissance and our Founders were basically putting together historical influences and they said okay the Greeks and the Romans had ideas democracia the people's power then there was Rua the Roman idea of the thing that is public then there was natural law 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 that's the the scene that we're we're setting and so our Founders were essentially asking the question you know what is the nature of government and as we as individuals how do we play play into that uh that discussion and so the documents particular the the Constitution the Bill of Rights and then also the Declaration of Independence those are 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 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 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 and then what we're going to talk about today which is the Bill of Rights which is our individual Freedom Charter I like that and maybe to put this in in crypto nomenclature a little bit and forgive me if I'm stretching metaphors a little bit but it it felt kind of it feels kind of like 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 particularly the the the Bill of Rights are more like the uh the code itself the uh 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 uh to the Constitution by way of uh I guess you like hard Fork let's say right of you know validator consensus let's say and the first 10 of which was the Bill of Rights which set a precedent for individual rights i' I've got a uh definition here of the Bill of Rights I'm wondering if this kind of summarizes it uh okay in in your mind 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 other rights retained by the people so this is really a document

that spells out uh individual rights I understand in you like in the early phases of of the Constitution there was some debate as to whether we needed this document or not the the Bill of Rights as to whether this should be included and carved out and like do you have any history there I'm I'm a little foggy on that piece yeah so so to understand the Bill of Rights is to really understand the Constitutional ratification process so let 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 we enter into the Revolutionary War during that period we issue the first the the beta version of the United States uh government called The Articles of of Confederation intentionally very weak intentionally very decentralized we we we Americans thought of ourselves more as a citizen of the state than we did as a citizen of a country so I would be an Oklahoman somebody from New York would

be a New Yorker we thought that's about as as um big as we thought we in 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 uh right it it POS we can't run anything nothing functions we can't get Block through blocks through it's just like not coordinated enough yeah there's not enough coord that's perfect 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 we the state is the highest level of government and so it the what was became the Constitutional Convention we were supposed to the the the now peoples 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 uh tell me if this resonates we started a blockchain and we realized it didn't accomplish the things we wanted and so we re we rewrote it to an 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 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 the Bill of Rights was a political concession that they said that 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 specifies some individual rights so three 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 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 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 that makes sense I

think for the bulk of this this uh podcast we'll be talking about uh the Bill of Rights and the Bill of Rights is comprised of of 10 Amendments that were added uh to the Constitution uh and the Constitution itself if you kind of like uh read through this I don't know if you you've had the chance it's not actually a long document like I've I've read through it uh 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 and all of

these things that that set the context for how the government itself should run but it really without the the Bill of Rights and the subsequent amendments that were added it doesn't really specify too much by way of individual uh you 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 uh here's what what freedoms you have that are enumerated and by the way if it's not covered here

it default it goes to you as an individual I think get back to that point a little bit later so that is the the Bill of Rights there's your your Civics uh 101 let's get to another definition here what I 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 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 of this podcast in crypto in general um what what what are the rights that we're actually talking about I I'll give you one kind of uh definition to to maybe work from and then let's uh play around with it so it was interesting that uh the Republican Party The GOP uh platform paper came came out they have this very tiny section about about crypto so this is the Republican party uh platform you know a couple weeks ago and it's under the title of champion Innovation it says uh crypto and it says uh Republicans

will and Democrats unlawful and unamerican crypto Crackdown it's so very polarized language of course 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 I like in the latter part of that definition the right to mine Bitcoin so you can you like mine if 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 an 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 and transact free from government surveillance and control so respect the the blockchain's ability not to inject ofac sanctioning uh something like this

I I would say as part of that anyway what what do you think is a good working definition of the right to crypto when we say that yeah so so I'll start with the the rights part and then I I'll move to the kind of what is crypto part because they're they're two separate related questions so when we talk about rights uh 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 when we talk

about Freedom uh 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 there's two 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 the right to engage in the businesses that you would like to do the right to retain the fruits of your labor the right to retain property so they are expressing kind of the more economic Ally oriented elements of it uh

but but crypto is is obviously bigger than that and so I will Define crypto when we talk about it in three ways there's one the the code that is crypto whether that's encryption technology or blockchain technology the actual zeros and ones that we express ourselves there's also the act of encrypting so by by the virtue of like behaving in a certain way the act of of encryption and in 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 uh ways we can we

can talk about it so what do we mean when we say the right to crypto in the abstract in effect it is the right to and the means to our freedom 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 I really like that definition okay so then um what

we're talking about when we say crypto just to recap that is the code itself you like that that's like kind of the noun maybe that almost corresponds a little bit we'll get into this I I don't want to um like uh you know step forward to 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 um the act of encrypting so this is a verb so uh you 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 um like the crypto assets the the tokens that sort of thing and and the right to crypto is like even broader than that kind of like GOP um like party definition you you're broadening it and this is why I appreciate a legal mind thinking about these things and just like not me is just all of the tools uh that allow for crypto freedoms and the right to fully enjoy crypto in in its various use cases um I think that's a good definition it

does feel broad let me ask you though um what would not be included in this type of a right okay so like let's take the inverse of this because this does feel Broad and I I can I hear some people listening and saying well like what are are you crypto Bros asking for like the the the right to um like you know launder money or 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 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 were 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 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 that is something I think it's a pretty bright line rule that I think we can all agree to the question is now do you have the right to use something like tornado cache which is not in and of itself the funding of of of uh 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 cach 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 this is why we have an entire judicial branch right the whole this is why we have apreme court this is why we have lawyers because the Amendments themselves are very 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 uh gets cemented almost like proof of work and it becomes hardened over time and it you like adds more social legitimacy that is the entire like I guess realm of constitutional law and the entire Judiciary in I guess in a nutshell and like another example that that comes to mind like just for me is uh freedom of

speech for example right so you know it says we 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 it goes on or Bri Bridging 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 yeah that's 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 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 uh that I hold up a sign that says I disagree with blank uh policy of the government so we're we're the whole of con 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 questions basically since the document was written well that's a good question it's a fantastic question and the beauty of this um the the way this this system works and the reason it's last 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 um you know the the American hard Fork from the British Empire was like a new chain uh that would like you know be a 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 uh Confederation I suppose there a little too much Anarchy right and so this is a microcosm of you know individual rights if you have too much Freedom if everyone had the freedom to say like own a tank you know and um blow up their neighbor house if they want like that level of Freedom uh would lead to Anarchy and so

we're trying to find the optimal position of between between tyranny and Max freedom because if you ve too far in the freedom line you get Anarchy and so this is the entire project in the process let me ask another 101 uh question to you Richard which is this and this is just a very basic question uh 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 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 men Richard yeah so so that is one of the great things about the document and 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 uh cars it doesn't talk about any particular implementation of the rights and freedoms were describing but the founders collectively as a group were some of the smartest men you know if if

you're talking about like the Manhattan Project and the constitution convention this constellation of intellectual power coming together to address these these questions these problems we're talking about people who were philosophers who 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 so they me they reference things that are are General like speech or press they didn't say you have the right to get on a soap box in the in the town

square and and give a lecture or you don't have the right to pin an ink right they talk about your freedom which is an expression and also provided justifications for the reason why so the Federalist Papers the kind of the discussion they took notes during thank 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 and there's what the words mean we're more interested about what they mean than what the the actual connection of 26 letters that's 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 means that it does not mean that it is not a fundamental right so this is a I guess a living breathing document in some sense and so when a new thing happens a new event that is unprecedented common law is based on uh 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 in that Constitution need to be interpreted for the new the new event that has the the new case that's popped up the new technology and uh that's essentially what we are doing in today's episode so let's get to it okay let's start to make the Constitutional case for crypto using the Bill of Rights which is the first 10 amendments let's start with number one ah 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 the Press or of the right of the people to peacefully assemble and uh to petition the government for a redress of grievances that's what it says that's a plain text man just 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 sure so so let's 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 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 so how do we tie that into the right to crypto I I think you'll I think you again something else that'll resonate early justices have said that order which is you know good uh lawful existence not Anarchy order cannot be secured merely through the fear of punishment for its

infraction 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 uh truth as it relates to the government it's the ability to prevent bad ideas referencing the Republican uh 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 also embodies

like we we want to have a a freedom to make sure that people are active in preserving their own rights and so where where does crypto tie into it well we have the right to self-governance right that's that's back to the Declaration of Independence and then into 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 act of encryption or the property we can tell the government we 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 right feel 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 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 when 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 fre fre to just discuss the idea of crypto