Reason访谈速读：最高法院还刹得住行政权吗

这期 The Reason Interview 讨论的是最高法院还能不能限制行政权。Nick Gillespie 采访 Cato Institute 法律研究高级副总裁 Clark Neily，从出生公民权、独立机构、枪支权利、认罪协商一路聊到国会失能和总统权力扩张。节目发布于 2026 年 7 月 8 日。1

Gillespie 开场问的是具体案件，但整期真正的问题是：美国宪法体系里，谁还在约束政府权力？Neily 的立场偏自由意志主义，他关注的不是某个党派输赢，而是行政国家、检察权、枪支管制和司法审查怎样改变个人自由的边界。

谈到最高法院处理出生公民权争议，Neily 的态度比较谨慎。他认为现在还不能简单说对或错，因为第十四修正案中「subject to the jurisdiction」的含义仍有争论。他个人更同情多数意见对出生公民权的理解，但也承认反方并非完全没有法律论点。

这里的重点不只是移民政策。特朗普用行政令推动争议，最高法院被迫回应，这说明总统越来越常用行政权把宪法问题推到前台。

节目花了不少时间解释 Humphrey's Executor。这是关于总统能否随意免除独立机构负责人的老案子。Neily 认为，如果一个机构属于行政分支，理论上总统应该能对其人员负责；否则就会出现「总统对机构表现负责，却不能控制机构负责人」的矛盾。

但他也承认美联储这类机构不同。货币政策如果完全跟着总统短期政治利益走，会带来很大风险。问题在于，强烈的现实理由不等于宪法一定允许这种隔离。这是整期节目的典型张力：好治理和合宪性经常不是一回事。

Neily 曾参与 District of Columbia v. Heller，这是现代美国第二修正案争议中最关键的案件之一。访谈中他回顾了 Heller 之前的状态：很多法院几乎把第二修正案当作死信，不认为它保护个人持枪权。Heller 之后，最高法院确认个人权利，但很多下级法院仍然继续维持严格限制。

节目还谈到近期围绕大麻使用者持枪、夏威夷携枪许可等案件。Neily 的判断是，最高法院并不是一次性重写制度，而是在较长时间里逐步要求下级法院认真对待这个权利。

相比枪支议题，认罪协商部分更能看出 Neily 对政府权力的担忧。他认为，美国刑事司法系统里，绝大多数案件不是通过公开审判解决，而是通过认罪交易结束。检察官掌握巨大的指控和量刑杠杆，被告即使想抗辩，也可能因风险过高而选择认罪。

这部分把「最高法院能不能保护自由」的问题拉回日常。宪法权利写在纸上是一回事，普通人在检察压力、诉讼成本和风险面前能不能真的用上，是另一回事。

Neily 对特朗普的评价并不温和。他认为特朗普有明显的强人式倾向，也很擅长找到撕裂议题。但他同时指出，行政权扩张不全是特朗普一个人的问题。国会长期失能，无法承担立法和监督职责，空出来的权力自然会被总统和行政机构填上。

这期访谈最后的判断并不乐观，但也不是单纯悲观。Neily 仍然把最高法院看成限制政府越界的重要机构，只是这个机构面对的是一个远大于建国者想象的联邦政府。用他在节目里的比喻说，宪法原本像给乘用车设计的刹车，现在却要控制一辆下山的半挂卡车。

英文原文：My guest today is Clark Neely, a constitutional litigator, civil liberties advocate, and senior vice president for legal studies at the Cato Institute.His work over the years has challenged government overreach from both the left and the right.And he was co-counsel in the landmark Supreme Court Second Amendment case district of Columbia v.Heller, which we'll talk about a big, you know, the gun rights case of really of our lifetime,kind of,right? And you also worked for a long time at the Institute for Justice.Clark Neely, thanks for talking to Reason.It's such a pleasure.Thanks for having me.So let's start with yesterday's biggest decision, I guess, or let's go through some SCOTUS cases that have really roiled the water.The birthright citizenship case, was it rightly or wrongly decided? Right.I think we can't say yet.I find myself very sympathetic with the majority, which held that the sort of the most literal reading of the 14th Amendment, which says that anybody born in the United States and subject to the jurisdiction thereof is a citizen of the United States. There were five votes for that proposition. Justice Kavanaugh wrote an interesting concurrence in which he said I agree with that result, but there is also a federal statute to that effect, and what we should have done is held that this executive order violates that statute, and then we could have left for another day the constitutional question.And that's something that judges are sort of, there's a kind of a custom that judges have to not answer constitutional questions If they can avoid it.Why wasn't, if,you know, the plain language of the amendment or,you know,and of the law and everything, why wasn't it 9-0? Yeah, I thought it might be for some time, and then I listened to the argument. I think there are a couple of reasons. One is that this language, what does it mean to be subject to this jurisdiction of the United States? A simple but perhaps not simplistic answer might be,well,look, let's say that you're in this country illegally and you commit a crime.I can assure you that the United States will hold that you are subject to their jurisdiction in terms of being able to be prosecuted. But there's been sort of a, I don't know, wave of new scholarship suggesting that perhaps it means something more than that.And I think the arguments on that side are non-trivial.I don't find them super persuasive.But I have to confess, like, I'm not an expert in this area.And I would not lightly dismiss, for example, the studied conclusion of somebody like Neil Gorsuch.And I suspect you probably wouldn't either after interviewing him. Yeah, I guess so.I think of him as a children's book author.So,you know, he's kind of like Louisa May Alcott, but he has a lifetime position somewhere. Well,you know, maybe we'll get the scratch and sniff version of his.You know, things could be worse.What what do you make,though? I mean, the Trump's executive order.This is what set the stage for it.And, you know, birthright citizenship has been around for,you know, roughly 150 years.Why did it only become this in,you know, just this horrible thing that could not be tolerated a minute longer now? you know,in the past 10 years, really since Trump became a national political figure.Yeah, I agree.And what does that say about its salience? I'm honestly not sure.I mean, I think that Trump is very effective at finding ways to divide people and to polarize and to get people spun up about things.And for whatever reason, it seems that immigration just has tremendous salience with at least some people in his ambit.And so I don't–it's sort of a chicken or the egg thing.I don't know if it's he really, really cares about immigration or–it that he's found that that's a very effective way to sort of divide the country and essentially energize his base? I don't know.Let's talk about Humphrey's executor.Oh,we should.Okay, yeah, explain what the case was and why this matters.Yeah,well, Humphrey Executor is this, I can't remember how old it is, but this case that dates back to the FDR administration.And it involves a question of, can Congress create agencies within the executive branch and then limit the president's ability to terminate somebody who works in that agency? So it's in the executive branch.So in principle, the president is responsible for the performance of.you know it could be any number of agencies they're like 1300 now um and is it you know i suppose one way to look at is is it fair to say that the boss is responsible for the performance um of an agency you know under their purview Over whom they don't have controlled personnel.So you've got somebody there who is like, you know what? I hate free markets,right? Well, how are you supposed to work with that if you're a free market president? So the Humphreys executive–Well, now you're asking us to imagine something that has never really existed.But OK. We're creative people.Yeah.Yeah.the Humphrey's executor case essentially held that that is a permissible, um, exercise of legislative power to essentially create an executive branch agency, but then limit the president's ability, um,to terminate people who serve, you know, as officers of that agency.Um, and,um,just the other day, um,the Supreme court overturned, uh, Humphrey's executor in a case called slaughter involving,uh, the president's termination of one of the democratic members of the federal trade or commissioners in the federal trade commission.And the Supreme court, um...upheld that action and said if it's an executive branch agency then the the leaders of that agency report to the president is entirely up to the president who works for that agency And you're good with that, right? I think so.Or does that make–I mean can you explain why it's a good ruling? And maybe not constitutionally but practically. Is that good? It's probably less bad than the alternative maybe would be the way to put it.So to set the stage, let's not forget that we are dealing with a federal government that is orders of magnitude larger than the founders ever–envisioned and that any plausible reading of the Constitution permits. If you actually bother to read the Constitution, which I encourage, you'll see that in Article 1, Section 8, the powers of Congress–You know, I listen to it.I don't read it.Depends who's reading it, I think.But what you'll see is that they were very careful to very specify the powers that Congress has.And they were rather granular, I should say.So just to take an example. They specify that Congress has the power to create a system of post offices. And then,just in case it wasn't clear, and post roads, so the mail can go from one post office to another.And then people look at this discrete list of powers and says, oh,yeah,but also,obviously, education.Nope.There's nothing in there about it.So anyway, we're dealing with this enormous behemoth of a federal government that was never contemplated.And one analogy might be, if you think about the...brakes and suspension on a passenger car.They don't need to be terribly robust.But imagine trying to control a semi-tractor trailer coming down a mountain road with the same brakes that are on your car.It's not going to work.And so that, I think, is a way of expressing why so many of the systems that are designed to contain and constrain government seem to be working less well than we would like them to, because what they're dealing with is an enormous behemoth of a federal government that no one ever contemplates.How do you feel about Trump's attempts to remove Federal Reserve governors and things like that? Because this is also a live issue.Does that fit into this or is that very different? It certainly does.The Fed is this sort of neither fish nor fowl type of–of entity.No one sort of seems to be clear exactly what its taxonomy is or where it fits in.One thing that I certainly do agree with, even though it's not my area, is this idea that it would be a disaster if the people who are in charge of monetary policy are overly responsive to political inputs,right? Because of course, what president doesn't want to keep inflation low, doesn't want to keep interest rates low, et cetera.And so you can come up with really strong reasons why you would want to insulate this entity, whatever kind of entity it is.But that doesn't necessarily mean that the Constitution either mandates or even permits it. But the Supreme Court managed to sort of find a line where, sort of more ordinary agencies like the Federal Trade Commission, presumably others like maybe even the Securities Exchange Commission, et cetera, the leaders of those organizations are subject to removal by the president for any reason or no reason.But the Fed, the holding of the case is actually a little bit more nuanced, but we don't need to get bogged down in that.It seems pretty clear that the court is going to say the Fed is different. Before we talk about a couple other Supreme Court cases,tell me, how are you feeling at this point of, you know, when Trump first came into office in 2017,the people around him were like, he is going to deconstruct the administrative state.He is going to take back executive branch power and authority over various committees and groups and subcommittees, whatever.Do you feel like that's happening or are we seeing also a continued weakening of Congress as the first branch of government? Yes.I don't know.You know, it could be both.I think Congress is certainly leaving a vacuum.It's become almost entirely dysfunctional, barely able to legislate.And I think into that vacuum, almost any president would likely either whether whether zealously or reluctantly

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英文原文：would have to sort of.provide some leadership. I mean,we've got,as I said, whatever it is,1,300,1,500 federal agencies.We have a federal government that spends five or six trillion dollars. You're like, somebody has got to decide these challenging decisions that come up.And if Congress isn't gonna do it,well, it's gonna be the president.What's different about Trump,I think, is that he's just sort of so unabashedly autocratic.I mean, he thinks that the world would, in fact, be better if he just got to make all of the decisions And I think that's not healthy.And yet we have no funnel cakes at the Great American National State Fair.It is a national travesty. Yeah,it's disturbing.Okay, let's,talking about SCOTUS, let's talk about the case where you can now own a gun and smoke weed legally. Explain what was going on there and why is that,why is that a win for liberty? I think most people were getting away with that.It's just because it wasn't a particularly high enforcement priority. So there's basically a federal gun control law that lists a number of things that disqualify you for gun ownership.Some of them more laudable than others.There was a case a couple years ago.If you have a domestic violence restraining order against you, you cannot own a gun, and they upheld that.But this one is a provision that says that no user of an unlawful substance can own a gun. And that law was written at a time when the Second Amendment really didn't mean anything.And so then the question becomes, okay, if you've got somebody who drinks a real lot of alcohol or smokes a real lot of pot, which one would you be more comfortable having a gun? And the guy who smokes marijuana is probably just going to sell it to get more pizza or something.So the Supreme Court took this case with this really unsympathetic defendant.I can't remember his first name, but his last name is Himani.He seems to be a big supporter of the more radical elements in Iran, including the Revolutionary Guard, seems to have at least some contacts with those elements.He was arrested for being in possession of a firearm and admitting that he, I think he said he smoked marijuana every other day, so I guess that's probably every two hours.Yeah, he was clearly lying.struck down that law unanimously.Unanimously, we haven't seen that in a Second Amendment case before.But the court essentially held that there's just no historical analog to the complete disarmament of people simply because of what substances they choose to put in their body.Now, if you put too much of it in and you become essentially incapable of controlling yourself, then that would be different.But that's a sort of variation of a civil commitment type of approach that goes back centuries. So it was,I think, a pretty extraordinary ruling.Well, let's talk about gun rights a little bit.As I mentioned in the intro, you were involved in the Heller case. Summarize what was at stake there and how it turned out.So before the Heller case went to the Supreme Court in 2008, the Second Amendment was treated as essentially a dead letter.It has that sort of funny prefatory clause about the militia.And so you had, I think, eight or nine of the federal courts of appeals essentially had held like, we're not really sure what this means, but it doesn't mean anything tangible. Right.so,and so it really, it did not provide any guidance or limits on what,uh,you know, various sub jurisdictions of government could decide on.You can have this gun, but not this gun in this circumstance, but not that one.And then what happened in 2001 is that the Fifth Circuit Court of Appeals, which perhaps not coincidentally covers my home state of Texas,Louisiana, Mississippi, became the first court of appeals to say,you know,actually, taking a more careful look at this, we do think it protects an individual right.So now you have a disagreement among the federal courts of appeals, and that's the fastest way to get to the Supreme Court.So a colleague of mine,an IJ named Steve Simpson, he and I basically said, okay,well, somebody should put together a public interest case so that this question doesn't get to the Supreme Court on behalf of a criminal.Like some guy who held up a liquor store and said, okay,that's on me, but I had a right to the gun.Or an Iranian pot smoking IRGC stand.Yeah.Yeah.and then my former, some of you may know Bob Levy, prominent libertarian, he and I had clerked together for a judge, and he and I spent six months in 2002 just basically finding sympathetic plaintiffs and gathered them all up and filed a suit in D.C.D.C.was one of the small handful of jurisdictions that had essentially a complete ban on functional firearms. How long did that go back? That law went back to 1976, I believe, yeah.And that's a pretty ugly history. There was sort of a wave of very aggressive gun control laws around that time, and it's pretty clear that in some of the jurisdictions, that was explicitly about disarming Black Panthers who had an unsettling habit of showing up at city council meetings,heavily armed, things like that.So that, I think, I'm not saying that that's necessarily the origin of the DC law that came during that sort of era.And it was kind of capping an era not only of rising crime, but also political kind of violence or shows of assassinations and things. Yeah, and so we basically just litigated this purpose-built test case.And the ball took a lot of weird bounces, as it often does.I mean, you sort of need some combination of commitment and luck, frankly.And we managed to get the case to the Supreme Court.And so, as you know, the court ruled five to four that the Second Amendment does protect an individual right, but essentially left like every other question.And there were lots, just, you know.let it sort of come up from the lower courts.They didn't tell us very much other than the Second Amendment does protect an individual.What's been going on with gun rights? In the 90s during the Clinton presidency, and I guess it was when Democrats had a majority in Congress, there was an assault weapons ban.Crime was rising and gun control regulations and restrictions seemed to be rising. Then there was a moment in the mid-90s when crime started falling and also across a wide variety of settings, gun laws were liberalized and more people were able to own more types of weapons, carry them in more context and things like that.And then you get to this point where the Supreme Court maybe is not blazing the path, but they're kind of certifying something that has been happening for a decade or a generation or something.What happened that,you know,suddenly America, you know,American legislatures around, you know,all over the place were like, oh,you know what, maybe it's a good idea to let people have more guns.Yeah,I mean, who knows exactly, but I think if I were to draw a graph, the most important graph you can sort of visualize is that as gun ownership has gone like this, and there's now something like 400 million guns in private ownership.Almost as many as birthright citizens.Oh, yeah, exactly.Because they get one if you're, you know, I understand if you're an anchor baby, you get an AR-15.Absolutely.When you're born, yeah.Comes with a little pink bow on it, blue if it's a boy.And it's very confusing for conservatives.Very confusing.Because they're like,I like guns, but not...Illegal babies, right? There seem to be a lot of things that are confusing to modern conservatives. But anyway, so as not just the amount of guns in private ownership, but also the ease with which you can carry them outside the home.About half the states now have no laws on the books about,you know, they don't require a permit.You just want to carry a gun outside the house. That's your business.Does that worry you at all? Well,I mean,it worries me.No, it doesn't.But I'm packing heat, so don't come to happen.So it's been interesting audience questions.Anybody know what state there's only one state in the whole country that has never had any real gun laws on the books in this particular state? You can go into a bar strapped and then go to the bank if you need to get more money to go back to the bar.And it is the bloody hellscape of Vermont.Yeah. Right.Yeah.this is Bernie Sanders and Howard Dean.Howard Dean, when he was running for president, said, I'm the candidate of gays and guns.That's like from a different planet, like a different timeline altogether. So you get this increase in gun ownership and the ease of carrying guns at the same time that gun deaths are plummeting. And they really have been.You got a spike,of course,during COVID, but gun deaths have plummeted.And so there's just no correlation.And I think that's the most important point.You think it's uncorrelated and it's not causative.It's just.We're not–because some people will say an armed society is a pleasant society,right? Or a pleasant–I don't think there's –I mean look.Take some of the countries with the strictest gun laws in the world. Mexico,Brazil, Russia.You know what they have in common? Highest rates of gun violence, right? And then you have other countries where –like Switzerland where everybody has got a gun and very low–so the problems I think lie elsewhere in terms of explaining why would you have high rates of gun violence,right? I think what we're seeing now is that it really doesn't make much difference in terms of there's really no correlation between how strict a state's gun laws are and the kinds of outcomes that you get.And one of the ways I sort of try to make this point when I'm having a discussion with somebody who's really anti-gun is I'll sometimes look at them. I'll say,OK, half the states have no laws on the books about who can carry a gun.Give me name one.And oftentimes they can't. I'm like,OK, so that's how much you care about this issue.If you thought it was a big deal, you'd be making an effort to avoid those states and you're not.Why? Because you're a rational person.It doesn't make any difference.There are all kinds of other factors you would look at.You would not go and drink heavily with Alaskans if you wanted to avoid getting shot.There's a high rates of gun violence there.Oh, that's not really a state, right? It's 59.It's you know, it's mostly Russia,

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英文原文：right? You're not going to get me to disparage the fine state of Alaska.Nick, I'm sorry.Can you maybe using the Heller case as an example, like what happens when the Supreme Court suddenly discovers a right? You know,it's like we were looking around, we move this cabinet.Oh, and there was a right for an individual to own a weapon.I mean, the First Amendment is something like that,too,because prior to, you know,maybe the 50s or 60s, it didn't protect free speech very well. You know,what goes into that? That's a great question.I don't know that there's a sort of a uniform answer. I mean, the Supreme Court tends to move very cautiously.So even when they held for the first time that the First Amendment does protect actual speech, it's not as if they sort of got up on their horses and turned it into a crusade to protect free speech.It was just little by little.They tend to move very incrementally. So in the gun rights space, you know, for a good 13 or 14 years after Heller was decided in 2008, most lower courts acted as if it had never been decided.They just kept rubber stamping even the most outrageously restrictive gun laws.And it really wasn't until a 2022 case called Bruin from here in New York City.Yeah.that challenged New York's what's called a discretionary permitting system where you have to go in front of some,you know, government official and convince them that no, I really need a gun.And it's funny because I mean if you were merely being stalked by a violent boyfriend, that wasn't going to be enough.But if your name's Trump,then you would, he actually did have a concealed carry permit here in New York.But so in the Bruin case,the Supreme Court-Well, to be fair, he probably had a lot of people stalking him as well.Well,okay.I mean, but like,so did half of the band, Aerosmith, they had concealed carry permits.I don't know.Anyway,so,um, the Supreme Court finally put it, why weren't they in the case, uh,you know, and they use a lot of substances.I think it was a huge oversight by whoever was, whoever put that case together and they could have gotten half the band journey too.That's right.Yeah.So anyway, um,So, the Supreme Court finally put its foot down in this Bruin case and said, no, we're really serious about this.And even then,you know, I was kind of skeptical.I was like, well, define serious.And then we get to this most recent term where they actually struck down two laws.We talked about the one,Himani,which was the, you know, if you prefer cannabis or it's not just cannabis, but any controlled substance.Right. court did leave the door open, by the way.Let's say that you prefer meth.That's not certain that you're covered by this opinion.But there was another decision out of Hawaii that in some ways was maybe even more significant because what a number of states have done is adopt these very clever mechanisms for essentially trying to render the Supreme Court decision about carrying guns kind of irrelevant.By having all kinds of places, like here in New York, all kinds of places you cannot bring a gun even if you have a permit.And what they did in Hawaii was kind of, I think,cynically clever, which is that they said that you may not bring,even if you have a carry permit, cannot bring a gun onto any property where you haven't been given affirmative permission to do so, like with a sign or you asked in advance or whatever.And the idea, of course,was to ensure that if somebody, and I forget who wrote the opinion, it might have been Alito, you know, sort of walks through the day of somebody who might want to carry a gun in Hawaii. And what you're going to find out is there's basically nowhere you can take it.Right.Right.And that was exactly the point of that.And that law was struck down as well.Do you feel like, I mean, it's interesting that gun rights would be,you know, one of the places where this gets tested, but do you, because we seem to be much more groping towards a kind of mother may I society where you need,you know, preclearance to do anything, to say anything,to write anything, to publish anything.I mean, that's an overstatement, but isn't that, it's just bizarre that gun rights would be like,okay,yeah,you,you know, we don't even know if you're carrying and that's fine.Yeah,no, I think that's right.Our friend Tim Sanifer wrote a book called The Permission Society, which articulates the exact thesis that you just suggested.And I think two things are true.First of all, I don't know how many gun owners there might be in the audience.Don't feel like you have to identify yourself. But it is a complete myth that there are no restrictions on guns.They are among the most regulated consumer items. They're up there with opioids.So it's not the case that they're completely unregulated, but you are exactly right that it has gotten easier and easier for people to,you know,not just own a gun, but to carry it around.And to me, I guess I look at that and I say to myself,it just sort of,I think, underscores that the stakes here, and I don't mean the stakes about gun violence.The stakes there are, of course,very high, but the government's ability to...enforce laws related to who can have a gun, the stakes are pretty low there because basically anybody who feels like they need to carry a gun or want to carry a gun, they just ignore the law.And think about what it makes for somebody to carry a gun illegally,right? Presumably there's some other thing they're even more afraid of.There was a wonderful brief that was submitted here,excuse me, in the Bruin case.That was the one from 2022.And it was written, it had the strangest title.It was a friend of the court brief, and it was like black public interest lawyers and public defenders.And the brief was basically a series of anecdotes or vignettes about people who had been prosecuted here in New York City for unlawfully carrying a gun who had compelling reasons.You know, like the guy who had to go across, you know,to get to work, he had to cross through gang territory where he'd already been beat down once. And he has no choice but to go through there,right? So I thought that was a really effective example.But,you know, I think I don't think this is the center of gravity of the culture wars right now.Yeah.But well,you know, how would you sum up this Supreme Court season? You know,and broadly is, you know, is the Supreme Court really kind of like a good bulwark for liberty or for individual autonomy in a world where it seems like government is continuing to grow and grow and grow at all levels? Or is it much more of a mixed bag? That's a really challenging question, I think.I guess I would probably say a mixed bag.Unfortunately—What's the worst decision that came out this term? Oh, that's a good question.I'm going to have to think about that one for a minute. I think the worst in the last few years was probably the case that granted Trump immunity from criminal prosecution. Why was that bad? Well,first of all, it's not in the Constitution.There are immunities in the Constitution, so we know that that was something that they were capable of writing into the Constitution.And I think that there should be at least some concern that if you misbehave badly enough while you're in office, there could be repercussions beyond simply being impeached and prevented from holding office again.And so I don't want to become one of these countries like South Korea.Like basically, if you're president, you're probably going to jail later on down the road.But yeah, I don't know.I think we have to look at your first question against the backdrop of the court kind of giving away the store on things like.limited federal government,right? So in the New Deal era, the basically FDR and his, you know, group of economic advisors decided the way out of the Great Depression was to have,you know, some federal control of the entire economy, which is a terrible idea and unconstitutional. But after some initial resistance, the Supreme Court finally went along with it.So if we have to take that as a given, that the court kind of gave away the store, and we ask within the context of, okay,given that that happened, how are they doing? I think the answer is actually pretty well, but I'm still a little salty about the fact they gave away the store.Right. Does it make sense to talk about a Roberts court? Or,you know, the Supreme Court justice, you know,is it,you know, was there a war in court? Or is that a bad simplification? And if not, what is the Roberts course kind of ethos? It's probably a simplification, but it's more accurate with some justices or some chief justices than others. I mean,you know, I think you can...Basically, the Warren Court conveys useful information, I would say,among other things, a liberalization of criminal procedure, more protective of other rights as well. I don't know if the Roberts Court conveys much useful information.For a while, people were talking about the Kennedy Court because he was the swing justice in a lot of important cases.Um, but at this point, I personally don't look at a court and think,oh yeah, clearly Chief Justice Roberts is, um,you know, not only the administrative head of the court,which he is, but he's also in some sense sort of the intellectual leader and we can attribute a lot of the court's output to his, uh,you know,influence.I don't, I don't see that.Your Twitter handle or ex handle is con law warrior, constitutional law warrior.Who is your favorite Supreme Court justice of all time and who is your current favorite? So I think the current favorite has to be Neil Gorsuch.It's a fairly low bar as to who the favorite is.But I think that–What do you like about him? Well, one of the things about him is that he's always joining up with Justice Jackson,Ketanji Brown Jackson, not always, but frequently on criminal justice issues. don't I'm not saying that just because you're a criminal defendant who's managed to get your case to the Supreme Court, you should win.But there are.tremendous pathologies within our criminal justice system.And,you know, he is a voice of, I think,you know, real clarity for some things that the court needs to go back and look at. And when you were mentioning Earl Warren, I mean,like one of the things is like, oh,he was soft on crime.You know, we needed Dirty Harry to, you know, take the streets back.You don't see it that way,do you? No.Yeah.So can you talk a little bit about how the,you know, literal police power under, you know,the,over the past several decades,

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英文原文：it's just really gotten out of, or in your estimation, it's gotten out of control and why that's happened.Well,I mean,first of all, we, we have so many criminal laws in the books that,you know, even at the federal level, it's impossible to count them.I mean, people have tried before and all they can do is estimate there's like 5,000 federal criminal laws.And that's just the ones that Congress has enacted. And then you've got hundreds of thousands of.you know, regulatory crimes that agencies...Isn't AI going to solve this? AI will solve it.We'll finally know how many laws we're breaking.Maybe. I think we're going to need a new mode of Claude before we get to that capability. But,you know,I mean,look, if you...If you have a system in which it is plausible to suggest that more than 50%of adults have committed a felony, and there are a number of scholars who have asserted that.I think Harvey Silverglade's three felonies a day was probably overstated, but a felony used to be a really big deal.And now it's like, have I committed one? Have I not? I don't know.So that's point one, is if the government decides that they sort of want to point the finger of suspicion at a given person, it probably won't take all that much to figure out something.I mean, look at the way the Trump administration has been fishing through people's mortgage applications to find examples of mortgage fraud.And maybe some of the people really did commit mortgage fraud.Or another example would be the mishandling of classified information documents.know how many people that are had a clearance or know anybody who's been a senior person.My best friend was a lawyer for the CIA for 25 years with him accepted. I will tell you, you cannot be a senior person with access to classified information without mishandling it.It can't be done.And so then to go back,you know,and say,you know, that thing that you were doing that all of us were doing, we're going to prosecute you for that. Yeah.So that's point one is that there's just lots of opportunities for the government to essentially–that old saying about show me the man, I'll show you the crime, right? Right.The thing that concerns me the most or the two things that concern me the most are first that–It has become so easy for the government to induce people to waive their right to a trial, to coerce you into pleading guilty, that even if the charges against you are baseless, I know several people who have been coerced into pleading guilty to serious federal crimes that I'm certain they did not commit.And that's because the charges get stacked? Explain that process.How does that work? I mean,honestly, you just think of a prosecutor as having a toolbox with a tremendous array of levers that can be applied to get you to ultimately plead guilty.And they don't operate independently.They operate synergistically.So there's a multiplication as they apply more levers.Everything from just locking you up pretrial.It's exhausting to be locked up while you're still trying to prepare your defense. It's hard to get in touch with your own lawyers.It's hard to get in touch with your family.How do you–it may be something as simple as–Especially when they're the ones locking you up.Yes. Well, that can be a problem.So I won't try to enumerate all of the–but the other –The other two that really bear mentioning are first just what's called the trial penalty, which is the differential between what they can offer you if you agree to plead guilty and what they can threaten you with.And just to take one tangible example, some of you may be familiar with the Varsity Blues prosecution of all these Hollywood celebrities that, you know,Yeah, I'm really pissed that the mother from what was it? Full house was paying,you know, was ripping off USC with fake accomplishments by her daughters.Right.Well, maybe I don't even understand how why that's a federal prosecution.It's like it's insane.Well, okay,so you had like, you know, four dozen people who were prosecuted. And,you know, the median plea offer in those cases was something like two months.That's how much most people did if they pled guilty.And they were specifically being threatened that if they didn't plead guilty, they would be–the prosecutor would go back and get a new indictment in which they would allege a conspiracy to commit fraud for which the maximum punishment was 20 years.Now, you're not going to do 20 years, but you'll do five or six.And, you know, you and I are both parents.I will tell you,I mean, if the federal government falsely accused me of something for which I could go to prison for five or ten years and then said,but if you plead guilty, we can clean it up in two months, I'd have to really seriously think about that.Because there's a lot of stuff that's going to happen to my kids during that five or ten years that I don't want to miss.Did this,I mean, was this,you know, are there like two or three supervillains in this shift or is it? a kind of leaderless movement towards this kind of situation.No, it's the latter.I mean, it's just the gravitational pull of efficiency,right? I mean, America has always been incredibly good at industrializing complex processes, right? That's how we won World War II.or helped win World War II.And so the process of adjudicating criminal charges is a complex one.It was designed to be. It's a heavy lift.And basically, we just discovered this incredibly cheap, efficient, and certain way to do it.You just, you know,if you can convince yourself, right, that all that procedure in the Bill of Rights is merely one way to do it. But then the other way to do it is you just decide who you think committed the crime.And then you ask them, did you commit the crime? And then,of course, criminals being criminals, they'll be like,oh,you got me, right? I just think that is so wildly implausible that to design an entire criminal justice system around that premise I think is actually insane.And just one more fact, 98.3%of all federal criminal convictions in 2022 came from guilty pleas, not constitutionally prescribed jury trials.I think that is a terrifying statistic.Yeah, and that's not because they really carefully selected who they were going to prosecute. It's because they've got anvils, sacks of anvils to drop off.Yeah, and of the 2%of cases that went to trial in federal court, 17%resulted in acquittals.I mean, you might think that's not a very big number,but I mean, these are like cherry-picked cases that the government brings in top prosecutors. Yeah.had a judge that came to speak at Cato that estimated the cost of a white-collar defense at about$20 million. So that's the kind of resources that –I mean if you were to defend yourself with your own retained counsel.So to have a 17%chance of an acquittal is a pretty big deal, and that may be one of the reasons why prosecutors have become so effective at getting people to waive their right to a trial because a guilty plea is certain.And of course they're playing with monopoly money too, right? Because what do they care if you go to prison for 20 years or two months for getting your kid into USC? They don't care.So do you have a favorite or least favorite Supreme Court justice? Yes.The least favorite has to be Oliver Wendell Holmes, who is the author of the most, I think, ignominious thing that's ever been said in a Supreme Court decision.This is the 1927 Buck v.Bell case, where the question was whether you have a constitutional right not to have your reproductive organs ripped out by state eugenicists, which is what was happening to Kerry Buck in Virginia.Yeah.he wrote this kind of three and a half page opinion that I think had one citation to case law and the rest of which was just pure vibes.And it has that famous line, three generations of imbeciles are enough. And he obviously–the Kennedy family had not quite yet hit the scene, right? So he was shortchanging it.Um, but didn't, isn't Oliver Wendell Holmes often talked about as like he had a great turnaround on things like free speech and whatnot? He did.Yeah.Um,I won't deny that, but I don't,to me, that doesn't redeem the fact that, um, and there's another quote that was not in a Supreme court opinion.I think it was in a letter to a friend where he essentially said, if people want to go to hell, it's my job to help them.Right.You know, I'm like,well, that maybe that's not awesome for judicial service.Um,by the way,uh, Carrie Buck.did have a child, right? Because as the court was, or as the case was being adjudicated, she actually gave birth to a normal, you know, a normal IQ functioning baby.So.Yeah. So she was 19 when they came for her, which makes it interesting.I used to get this thrown in my face all the time as a constitutional editor, like,oh, that's an excellent argument that you should make to a legislature, right? They always tell you if they're not going to, they're not going to go to bat for your right to own a home or,you know, earn a living, you should take that up with the legislature. Well, the voting age in Virginia at that time is 21.So.Carrie Buck wasn't going to be able to take this up with the legislature, but she had actually been raped by basically a friend of the family and impregnated. And that was one of the reasons why they were going to sterilize her, is that she had a child out of wedlock, but no one apparently cared, like,how did that happen? Right.And so...And some of those mandatory sterilization laws stayed on the books into,I think, like the 60s or 70s.They did.Yeah, we were sterilizing people right up into the mid-70s.And at one point, more than half of the states in the U.S.had sterilization laws.And when the Nazis decided to get into that business, they got their model law from us.So we were–it was–I would say that it's up there with slavery and the eradication of Native Americans as like one of the ugliest episodes in our country's history. Well–So let's talk about, I mean, you write a lot about kind of the president or governmental overreach, particularly the executive branch.If you had a Mount Rushmore of terrible presidents,who would you put on that? And you can't use the same person twice. Oh,really? Yeah,yeah.Because he would.Yeah, yeah.Front,back.Yeah.So, yes, Donald Trump would be up there for me. Woodrow Wilson and Andrew Jackson.Okay. So there's one slot open to keep people, future presidents on the up and up. What is it about Trump that bothers you so much? Um,I just, I think that he is an unabashed authoritarian. I think that he really, as I alluded to earlier, I really do.I think it's like not a bit that he really admires, um,Vladimir Putin and Xi Jinping.And, you know,he's,he's, he just thinks it would be really great if Donald Trump could make all the decisions. Um,and,um,and I,you know, I think he just, he kind of has this fundamental disregard for laws and norms and,and, um,And I guess my perception, which let me just own it.It's mine and

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英文原文：doesn't mean it has to be anybody else's. But I see in Donald Trump a person who kind of has this mindset that life is about getting the most points.However, though, whatever those whether it's money or however you keep score, but it's about getting the most points and anything that constrains other people, whether it's a law, whether it's morality, whether it's some kind of a norm.That's just a chump who's taking themselves out of the game or,you know, is hamstringing themselves because, again, the points get all the points.Does it mean anything that Trump, you know, definitely has authoritarian impulses or wants more and he wants to control more? But it seems every time that the Supreme Court or in the rare case of Congress where they say,no, you can't do that, he backs off.Yeah,so far.I mean, that's a pretty big norm.I think I don't have a sort of a grand theory of the matter, but I do think that is one of the greatest risks that we face.If the court were to say flatly no to something he cared enough about, is it conceivable that he would openly disobey? So that brings us to Andrew Jackson. Is that why Jackson is on your Well, I mean,you know, he was a brute.I think he was just, I suppose that's not disqualifying, but,you know, my sense is that he was, you know, not somebody who was particularly patriotic or not somebody that you would want to model your kid's behavior after. Right.But yes, there was also that.King Andrew, right? He was called by his detractors in the time.Was he the first...Kind of imperial president in a recognizable form? I mean, I think so.Yeah.If not a proto imperialist of some kind.But,you know, and he was just sort of unabashedly ruthless.And I think that we have a lot of guardrails in our system that are designed to protect against people with that disposition.But it's better if we don't have to test them very often. And is it true? I'm going to mangle the exact quote, but it was in the case against the Cherokee Nation.He said,you know, John Marshall has made his decision. Let's see him enforce it.I understand that that might actually be apocryphal and it didn't actually push, didn't actually come to shove in that case.So it's I don't count that as an example of a president actually openly defying the Supreme Court.And Jackson is a kind of weird figure, too,because in certain ways, he centralized power,obviously, and then in other ways,you know, he's like destroying the Bank of the U.S.So kind of a mixed thing.What about Woodrow Wilson? Awful.Yeah.Okay.What about him? of that learned class of people to enact policy is therefore bad.Yeah.That's do you,I mean, how do you feel about somebody like Wilson in particular,you know, kind of got scrubbed.He obviously famously associated with Princeton and you know, you know,how do you, how do you feel like, how do you deal with retroactively good evaluations like are plausible evaluations people in the past? How do we deal with that? I don't know.I,you know, fortunately as a constitutional lawyer, I don't have to worry about that too much.I'm usually dealing with bad case law,but,um,I,you know, I guess what we have to do is, is hope that,um, we will get principled historians who will not participate in a whitewash. Um,and that when you dig, you'll find,uh, something close enough to the truth that,that you can,you know, bring that back and show and say like, we should have a different attitude towards this person.So you've been smoking marijuana before this interview, I take it.You know, it's funny.One of the few libertarians I know.I've tried an edible once.I was like,no, that's not for me.Tell us your origin story.How did Clark Neely become a small L libertarian or an advocate of smaller government and greater individual autonomy? Well, it actually started off with being a small-statured boy with a big mouth. I have lots of opinions and not much muscle.And so I discovered that some of the local jocks in my neighborhood felt that just being more physically powerful than somebody was a sufficient basis to censor them.So I've always had a kind of a–antipathy towards bullies. And I think that just any time you see somebody imposing their will on another person without a sufficient basis, I hope for most of us we recoil against that.I think that most of us have a sense of justice and morality and we can see that that's wrong.I found that I was very attracted to sort of nonviolent –the nonviolence of Gandhi and Martin Luther King and I find that in Buddhism as well.And so–but I think I really turned the corner when I–after law school, I clerked for a federal district court judge in Washington, D.C.with Bob Levy as I mentioned before. And for those who don't know Bob, I mean he's a walking sort of graduate seminar on libertarian philosophy.And also incredibly funny.I mean, I went in with a pretty good supply of dirty jokes and at least tripled from working with Bob.But, you know, the other thing that happened during that clerkship is I got to see both the government of the District of Columbia and the federal government in court. And it was a really eye-opening experience because you can see all these times when they've clearly messed up in some way.They've clearly done something they weren't allowed to.And sometimes they've really messed up,you know, somebody's life.But the one thing you will never see a government lawyer do ever.is take responsibility on behalf of the government for anything.It's like somebody gave a three-year-old a law degree.Oh, I don't know anything about any cookie jar.That wasn't me.If it was me, I had permission.If I didn't have permission, I did it.It's astonishing.So anyway, I came away from that experience sort of thinking like,well, whatever is the most opposite of that is what I am.And then that turned out to be anarchy, and that's nuts.So I pulled up short at Libertarians.When we think about, you know, the current moment we're in and everything, you know, nothing just comes out of the blue. It's always,you know,there's, you know,Obama overstepped, you know,Biden overstepped, Bush overstepped, going all the way back to, you know, George Washington or Trump.whoever was the first president under the Articles of Confederation and things like that. Where do you think we're going to end up? Are we on a pendulum swing where it's like,okay, things have gone this far where we have a very imperial presidency or somebody who's grabbing more and more power. So it's going to eventually swing back. Or is it like,no, maybe somebody cut the chain and it's just going to keep flying off in that direction? Yeah.mean,honestly, I don't think any of us can know.I am deeply concerned.I think probably it depends on, we're going to have to decide at a certain point, are we more interested in saving some semblance of America, including all of the things that I think, you know, it was not in any way sort of preordained that we would become the most prosperous country in the history of the world. And that we would be a place where people from all over the world wanted to come if they had the ability to do that. I think that's incredibly moving that even to this day,you know, some of you probably have seen in social media that people have come from other countries to,you know, to watch the World Cup.And they've been enchanted in some ways with America. And so I think that's real, but we shouldn't sort of imagine that it's inevitable.And do you think that kind of overall prosperity and, you know,the shining city on a hill, et cetera,I mean, is that basically a function of a kind of classical liberal system of governance and the culture that kind of comes out of that? Yeah,absolutely.I mean,you know, we have a system of government that is less protective of property rights than you and I would like, but still much more so than most other countries.That encourages the kind of entrepreneurial risk taking that unlocks, you know, that kind of and unleashes that kind of productivity and prosperity.So, no, it's not it's not coincidence.whatsoever.It's a legacy.But I think we have grown sort of complacent about that legacy.And we are,as a country, increasingly giving into this kind of tribalism,this partisanship, where I think the impulse to hate those who are perceived to be in the other camp is for some people becoming even stronger than their love for what is the essence of this country.Yeah.a terrifying dynamic.And can we pull back from that brink? I don't know.I don't know.I'm, I'm,I'm deeply concerned.I mean, you know,as I said,I have two kids, um,and,and I,you know, I do in fact lie awake at night, some nights thinking about the world that they're going to inherit.I don't think that there's anything that is set in stone and I don't know which one of your visual metaphors, which are great,um,is, is the more likely outcome, but I don't know that we've ever been in short of the,you know, maybe the eve of, and the actual duration of the Civil War.I don't know if we've ever been in a more precarious place than we are now.So,you know,we are speaking, this will come out after, but,you know,this, we're on the eve of the 250th anniversary of the Declaration of Independence. You're not, you're not feeling super optimistic, right? Uh,I'm not,I,I,so I'm, are you old enough to remember the original or the original bicentennial?

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英文原文：I mean,from 76.Yeah.Not only, uh,am I old enough? I was, I guess I would have been eight at the time,but I was living in Lincoln, Massachusetts, which is right next to Concord and Lexington. I actually got to see like a reenactment of,you know, dressed up.It was incredibly moving. Um,so I don't want to sound like I'm, um,you know,even though it was, I mean,just to.you know, push your buttons a little bit.America was objectively in much worse circumstances. We were like so poor, relatively speaking, as a country.And,you know, for God's sake, Gerald Ford was in the White House, right? Which is,you know, a Buck v.Bell kind of scenario.You know, I mean,isn't,you know,yes, you're eight and it's cooler.I mean, I was younger in 76 too.It's hard to believe,but,you know,it's like, yeah,you're more optimistic, but aren't we better now as a country, ultimately? I think so,yes.I mean, certainly from a material standpoint, we're far better off.That being said, you know, the government is consuming a steadily larger amount of our gross domestic product.I think that's deeply concerning. I think our lives are in some ways constrained by a lot of soft power that you don't necessarily experience on a day-to-day basis.But if you step too far out of line,you'll feel that soft power turn, you know,real hard, real fast.And so I think both things are true.Yes, I think we are better off.Certainly, you mentioned earlier.You know, the amount of violent crime back in the 70s and continuing into the early to mid 90s was,you know, like two or three times what it is now. So according to lots of different metrics, we are definitely in a better place. But I just feel like there's a certain kind of feeling of unraveling and a loss of shared value.of what's special about America.And I mean, you know, I really believe that the Constitution is like maybe the greatest secular document ever written.They got a hold of these timeless values that no one had figured out to kind of how to build an entire country around the idea of individual autonomy and limited government and make it actually work.And they did. And that's it's extraordinary.It's extraordinary what they managed to,you know, given the opportunity to sort of write in a blank slate, they got it so close to right.Now, we know that they didn't get everything and slavery was a stain that had to be eradicated eventually.But that, again, is our legacy that we've inherited.I'm just concerned that maybe we're taking it too lightly and too much for granted. Right.don't know, I suspect we don't know, whether that's the kind of thing like in the Hemingway,sun also rises, whether that's the kind of thing where you can lose it two ways, slowly and then suddenly and all at once.And maybe we'll find out.All right, well, we're gonna leave it there.Clark Neely, thanks for talking to us.

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