Clark Neily

Disclaimer: This transcript has been lightly edited for clarity and readability. Filler words were removed, sentence structure was improved, and the conversation was formatted for easier reading while preserving the original meaning and tone. Henry Harrison: Today we’re very fortunate to have on the show my good friend Clark Neily. I’m reading his bio because it’s extensive: he’s Vice President of Legal Studies at the Cato Institute. His interests include constitutional law, overcriminalization, coercive plea bargaining, police accountability, and gun rights. He’s been at Cato since 2017. Before that, he had a long history with the Institute for Justice, private practice, and more. He’s also been an associate professor at different points in his career. Clark, welcome to Entrepreneurs, Business, and Finance. Clark Neily: Hi, Henry. Good to be with you. Henry Harrison: For people who aren’t as familiar, give us an idea of what the Cato Institute is, what a think tank does, and how that works inside the Beltway. Clark Neily: The Cato Institute is a libertarian think tank based in Washington, D.C. We were founded in 1977. Our goal is to develop policy proposals that promote limited government, freedom, personal autonomy, and peaceful interaction—at home and abroad. The general idea is that individuals make better decisions about their lives than collective groups of people, including governments. The Constitution was designed to maximize the sphere of individual decision-making and minimize the government footprint. At Cato, we think the country has drifted away from that vision. So we analyze policies and propose reforms to bring us back toward a framework where individual liberty is preeminent and government power takes a backseat. Henry Harrison: I remember we went to lunch and I got to have lunch with you and Peter Goettler, the president of Cato. In layman’s terms, he said something like, “People don’t handle power very well.” I think about it like this: we need a government for basic rules—like speed limits—but where does it stop? Giving the government power can lead to abuses. You have many stories and experiences through your writing and through IJ where government did terrible things to people, even though we have a strong system compared to much of the world. You explain it more eloquently than I do. What led you from the Institute for Justice to Cato, and how did you become a senior scholar there? Clark Neily: The Institute for Justice is another libertarian organization, but it’s structured differently. Cato is a think tank—we generate proposals and ideas. IJ is a public interest law firm. It challenges government policies in court when they violate the Constitution or other laws. I spent 17 years there as a constitutional litigator, working on a number of issues. I focused a lot on occupational freedom—challenging laws that make it unreasonably difficult for people to work in the occupation of their choice. I also worked on property rights and free expression. Over time, especially after working on civil forfeiture cases, I became deeply concerned about the criminal justice system. Civil forfeiture allows the government to take your property—your car, your house, your bank account—by claiming the property was involved in a crime, without actually proving it. What shocked me was how sloppy and cavalier police and prosecutors could be when exercising that power. I started asking: if they’re like this when taking people’s property, are they more careful when prosecuting people and locking them up? The more I studied the system, the more I concluded the answer was no. I came to believe that the criminal justice system is the number one purveyor of injustice in America. That led me to Cato, where I took over the project on criminal justice reform. For my first four years at Cato, I focused on that full-time. Then I was promoted into a role overseeing all of legal studies, including constitutional law, administrative law, surveillance, and more. Now I manage a great team working across these issues to shrink the footprint of government and better enforce constitutional limits. Henry Harrison: For people who don’t know, Cato is a nonprofit—so a business of sorts. It survives through donors who believe it contributes to better policy and better law. One example: after 2020, Cato contributed ideas to improve the clarity of the transition of power when a president is elected. That’s one of many examples, and you were involved. Clark Neily: The 2020 election exposed gaps and shortcomings in our electoral process. My colleagues and I contributed to efforts to reform laws and minimize opportunities for mischief or bad-faith challenges. It’s incredibly important to ensure a smooth and peaceful transition of power after elections, unless there’s a genuinely serious problem with the election itself. In a country of over 300 million people, there will always be some issues. We’re not looking for perfection. We’re looking to prevent systematic efforts to undermine accurate vote counting and reporting. We were able to contribute insights about reforming federal election laws. We had a smoother process this time. That helped, and it also helped that there was a decisive victory with no serious dispute about who won. Whether someone liked or disliked the outcome, avoiding weeks or months of ongoing conflict about the election result is better for the country. Henry Harrison: Another highlight of your career: not many lawyers have something as consequential as the Heller case. Give a quick summary. Clark Neily: When I was in law school, I didn’t have a clear plan. I loved constitutional law, but I didn’t know what kind of lawyer I wanted to be. After a few years in a big law firm, I realized I wanted to do public interest work, which led me to the Institute for Justice. While litigating constitutional cases, some colleagues and I watched the Second Amendment space. For most of our history, it wasn’t very active because the Supreme Court avoided providing a definitive interpretation. There was a longstanding debate: does the Second Amendment protect an individual right, or is it tied only to militia-related purposes? By 2001, most federal appellate courts had rejected the idea that it protected an individual right, and many of those opinions offered minimal analysis. Then the Fifth Circuit wrote a serious, detailed opinion engaging text and history, concluding the Second Amendment does protect an individual right. We believed the issue would ultimately reach the Supreme Court, and we thought it mattered how it got there. We wanted it in the context of a carefully designed public interest case—not in the context of a criminal prosecution where the facts would distract from the constitutional principle. We recruited six plaintiffs in Washington, D.C., where the laws were extremely restrictive: handguns were banned, and even lawful long guns couldn’t be kept in a functional state. We challenged those laws in federal court. That case became District of Columbia v. Heller. In 2008, the Supreme Court held, 5–4, that the Second Amendment protects an individual right to possess a firearm for self-defense in the home. Since then, additional cases have developed more detail about the contours of that right. It was a highlight of my career. Ironically, it wasn’t a Cato case or an IJ case—it was a case three of us worked on nights and weekends. For us, the central issue wasn’t “guns” as a topic. It was the idea that no part of the Bill of Rights should be functionally erased by refusing to enforce it. The fact that it was about guns was secondary. The principle was: you can’t read one-tenth of the Bill of Rights out of the Constitution. Henry Harrison: Because I know you fairly well, I know you wake up wanting to make a difference in the country. You’re always thinking about big issues—at Cato, at IJ, and beyond. I met you and Nikki and the kids, and you met my mom. A lot of people in that generation were committed to service. You also have an interesting story about your father, who I think helped instill some of that. Would you share a bit? Clark Neily: My father and I share the same name. I’m Clark N. Neily III—he’s Clark N. Neily Jr. He grew up in Maine and studied physics at the University of Maine. His first job out of college was with NASA, working on the Gemini program and then the Apollo program. He was deeply involved in the effort to put a man on the moon when he was in his mid-twenties. He knew the astronauts and helped write procedures, including the rendezvous process where the lunar lander had to reconnect with the command module orbiting the moon. If that procedure failed, those astronauts weren’t coming home. I have a copy of the procedure signed by all three astronauts. I’ve always found that incredibly inspiring. I’m not great at math—my dad tutored me in calculus in high school, but it never really stuck. I tried to make up for that by doing better in constitutional law. He’s been very supportive. We used to joke about whose career was more impressive, and I always told him: nothing I do compares to helping put a man on the moon. He’s also self-effacing. He jokes that when people say, “It’s not rocket science,” he says, “That’s actually what I do.” Henry Harrison: The son of a rocket scientist who’s a constitutional genius. Clark Neily: I don’t know about that, but I’m definitely the son of a rocket scientist. Henry Harrison: When you chose to teach law school as an adjunct, what was your focus for students—especially for people who might want to make a contribution like you have? Clark Neily: The class was called Public Interest Litigation. I taught strategies and skills for challenging government in court—especially strategic public interest litigation. That could involve civil forfeiture, qualified immunity, or other areas where government power affects individual rights. Over time, I concluded that litigating against the government involves a highly unlevel playing field. Government has special defenses and procedural protections others don’t. Judges often have government backgrounds. That doesn’t mean they can’t be neutral, but it can shape the landscape. The key is understanding the structural advantages government has and anticipating how government lawyers will use them. You can’t neutralize all of it, but there are better and worse ways to litigate these cases. My goal was to help students become effective in a system where the rules are often not evenly applied. Henry Harrison: That’s a great place to wrap up. I always learn something when I talk to you, Clark—whether on a podcast or over a glass of wine. Thank you for coming on. Clark Neily: Thank you, Henry. My pleasure. I’ll leave your audience with one thought. We’re facing real challenges and polarization, and people feel discouraged. But we do have the greatest constitution of any country in the world—over 200 years of constitutionally limited government. The government doesn’t always respect it, but we have a system for pushing back. The Constitution remains a beacon. As Frederick Douglass said, it’s a “glorious liberty document.” We should never forget that. Henry Harrison: Terrific. Thank you very much. Talk to you soon, Clark. Clark Neily: Sounds great.