Liberty as the Baseline of Constitutional Constraint
A conversation with Ilya Somin on the Rasheed Griffith Show
Does government power exist by default or must it always be justified?
Prof. Somin’s answer is consistent and demanding. Liberty is the baseline and the burden is always on the state.
In this episode, Rasheed speaks with Ilya Somin, Professor of Law at George Mason University and the B. Kenneth Simon Chair in Constitutional Studies at the Cato Institute. His research focuses on constitutional law, property law, democratic theory, federalism, and migration rights.
The conversation ranges from Founding-era constitutional structure to modern Supreme Court doctrine, drawing connections between immigration law, zoning and takings, war powers, tariffs, and public-interest litigation. Throughout, Somin defends a consistent liberal constitutional vision: government power must be justified, enumerated, and constrained, not assumed as an inherent attribute of sovereignty.
Full transcript below
Key Arguments
Madison, the Alien Acts, and Enumerated Powers
Discussion of James Madison’s Virginia Report of 1800 and its critique of the Alien and Sedition Acts.
Madison’s warning against allowing government to define its own “necessity.”
The constitutional danger of importing European ideas of inherent sovereign power into a system built on enumeration and limits.
Immigration and the Chinese Exclusion Turn
Analysis of Chae Chan Ping v. United States and the birth of the “inherent sovereign powers” doctrine in U.S. immigration law.
How the Supreme Court wrongly justified federal immigration power without grounding it in Article I.
Why Somin argues this move directly contradicts the Constitution’s original structure and Madison’s warnings.
Zoning, Property Rights, and the Takings Clause
Exclusionary zoning as a major barrier to opportunity and internal migration.
How Village of Euclid v. Ambler Realty constitutionalized zoning under due process but not the Takings Clause.
Somin’s argument that zoning can be lawful under police powers and still constitute a compensable taking.
The incorporation problem: why early zoning cases avoided the Fifth Amendment and how that can be doctrinally revisited.
Tariffs, Emergency Powers, and the Supreme Court
Discussion of current tariff litigation involving the International Emergency Economic Powers Act.
Why the Court may rule on statutory grounds, the major questions doctrine, or non-delegation.
Somin’s view that unchecked executive tariff power is incompatible with constitutional structure.
War Powers, Noriega, and Maduro
Distinguishing military legality from criminal jurisdiction.
Why Noriega’s capture did not strip U.S. courts of jurisdiction—but still raises war-powers questions.
Why Maduro’s capture presents a harder constitutional case absent congressional authorization.
The dangers of normalizing unilateral presidential war-making, even when outcomes seem attractive.
Obergefell, Equality, and Movement Strategy
Why Obergefell v. Hodges reached the right result but with muddled reasoning.
Lessons for migration and property-rights movements:
Emphasizing shared humanity over group exceptionalism.
Rejecting zero-sum framings.
Comparative discussion of Spain’s constitutional path to marriage equality.
Reading Recommendations
Somin - Immigration is Not Invasion
Braver and Somin - The Constitutional Case Against Exclusionary Zoning
Somin - Free to Move: Foot Voting, Migration, and Political Freedom
McGinnis and Somin - Should International Law Be Part of Our Law?
Somin - The Grasping Hand: “Kelo v. City of New London” and the Limits of Eminent Domain
Rasheed Griffith - The Case for an EU Progress Studies Law Movement
Rasheed: Thank you Prof. Somin for joining me on the podcast today.
Ilya Somin: Thank you for having me
Rasheed: I wanna jump right in.
Madison’s Virginia Report and the Exclusion Cases
Rasheed: Was Madison basically correct in his Virginia Report of 1800, where he argued against the Alien Enemies Act of 1798, in that allowing broad interpretations of enumerated terms would let the government create its own necessity, and that would invert the constitutional structure.
Ilya Somin: Yes. So I think the report of 1800 which you’re referring to which attacks the Alien and Sedition Acts of 1798 is correct in most of its points. Today almost everybody would say that he was right to condemn the Sedition Act which restricted speech that would criticize the government in various ways. On the other hand there is even to this day more controversy over the constitutionality of the Aliens Act which had given the President the power to deport and detain virtually any non-citizen he deemed dangerous in some way. But I think overall Madison was right to argue that the Constitution as originally drafted did not give the President or the federal government, in general, any general power over immigration or any general power to deport whatever non-citizens he wanted.
Rasheed: So given that then in the 1889 case of Chae Chan Ping vs the United States, what exactly was the move the Supreme Court did in interpreting the constitution? Or for example, was it a suspension of constitutionalism altogether in the name of sovereignty or what we in Europe would call Parliamentary supremacy?
Ilya Somin: It is not a suspension. Essentially the text of the US constitution does not include any explicit provision saying The federal government has the power to restrict immigration. It does include a naturalization cause which is a power to set rules for citizenship eligibility but both in the 18th century and 19th century and today people could migrate and travel and work and so forth without necessarily being citizens.
So Madison argued and others argued correctly that the fact that the Constitution did not grant such a power meant that such power did not belong to the federal government. And indeed throughout the first hundred years of American history almost all immigration controls were actually adopted by State governments not by the federal government. But beginning in the mid 19th century and continuing on through the 1860s and seventies there was a large racist outcry particularly against Asian immigration. So in 1882 the federal government enacted the Chinese Exclusion Act which, as the name implies, barred most Chinese immigration to the United States.
This was challenged on constitutional grounds in the courts and the Supreme Court, and in the Chinese exclusion cases that you mentioned a moment ago, in 1889, they ruled that Congress did indeed have this power but they couldn’t tie it to any specific provision of the Constitution! Normally, powers the Congress exercise are supposed to be linked at least in some way to the enumeration of Congressional authority and Art. 1 of the Constitution. Here the court couldn’t really do that because there isn’t actually a specifically enumerated immigration power.
So they said this is an inherent power of sovereignty that all governments must have in some way and therefore we have to assume that the federal government has it. Actually this sort of argument is exactly one of the points that Madison warned against in his report of 1800, that you mentioned. He said we should not assume that the US federal government has all the powers that European governments typically have because the whole point of the US Constitution was to set up a new system of government.
It would be different in many respects. For instance, unlike Britain and some many former British colonies, we do not have a principle of Parliamentary Supremacy. Rather, we have a system at least as a general rule where the powers of governor are derived from enumerations in the Constitution and that there’s not some general inherent power that just automatically goes to the government no matter what. But in the area of immigration and in a few other areas like the power of eminent domain, the Supreme Court has said that the federal government has this authority even though it’s not specifically listed or enumerated. Because they say this is a power that all governments are supposed to have. They say it just goes without saying in some sense that the government has this authority. I think decisions like this are generally wrong and they have been criticized on various grounds but that’s what the Supreme Court did in the area of immigration. In one or two other areas even though in most other places the court has held to the view that if the federal government claims a power it has to be linked in some way to something that’s enumerated in the constitution.
No Justification for Deportation of Criminals
Rasheed: So in that sense, can there be any justification for deportation, barring any kind of particular criminal activity?
Ilya Somin: So I suppose that depends on what is meant by justification. I would argue that any such deportation is unjust. We should not restrict where people are allowed to live and work simply based on who their parents are or where they were born. In other contexts we readily see that such discrimination is highly unjust. We would not say that within the US we can determine where you’re allowed to live or what jobs you’re allowed to have simply because of where your parents are born or having a particular background or you were born in a particular place or something like that.
Even regarding people who have committed crimes, I have written that I think it is unjust to punish immigrants more than natives who have committed these same crimes. If somebody commits a crime and that deserves punishment then sure, punish them with prison or fines or even the death penalty, perhaps in some extreme cases.
But don’t say that we have two people who have each done the same crime but when it’s an immigrant, in addition to whatever ordinary criminal punishment they get, they also get the punishment of deportation. That I think is very clearly unjust because it’s punishing people extra based on their parentage and place of birth.
We readily see this in a context like racial segregation. If we say if a white person commits a crime he gets a particular punishment but if a black person does he gets that punishment plus he also has to live in racial segregation for the rest of his life. That’s pretty obviously unjust and the international version of this kind of segregation is unjust for the same sorts of reasons. In both cases we are punishing and restricting people’s liberty not based on anything they did or on anything under their control but based simply on who their parents are or where they were born.
Doctrinal Correction in US Immigration Law
Rasheed: Is there any route to a doctrinal correction in the US on this topic? Given it is so, so deeply jurisprudentially lodged into essentially everything you think about immigration?
Ilya Somin: I would say a couple things. First, the route to completely getting rid of the Chinese Exclusion cases (mentioned earlier) is a long and difficult one. And it will require the sort of efforts over a period of many years similar to the effort that was done in the early to mid 20th century to deal with racial discrimination under the law. The NAACP and others spent decades on that.
That said, there are roots to gradual improvement. For example even if the federal government has the power to restrict immigration we can at least impose the same constraints on that power that are imposed on other government powers like constraints based on illegal discrimination, freedom of speech, and so on. We can get rid of cases like Trump vs Hawaii which upheld Trump’s Muslim ban in his first term on the grounds that it wasn’t explicitly a Muslim ban but rather used criteria that correlated with being a Muslim and, obviously, even if we can’t fully restore the correct constitutional principles here, there’s obviously lots of room for incremental legislative reform.
So just as the struggle for equal rights within the country based on race, ethnicity and gender and so forth had many stages. There was a lot of incremental improvement before we reached a point where you know racial discrimination by the government was generally presumptively thought to be unjust. Even now we’re fighting over issues like racial profiling so similarly here there can be a lot of incremental improvement. That can happen and that in the short term is more realistic to achieve than what I think is the ultimate goal that we should strive for, which is to replace the current presumption of exclusion with a presumption of freedom of movement under which it will be rarely, if ever, will the government be permitted to restrict where people are allowed to live and work simply based on who their parents are or where they were born.
Cultural Tensions, Assimilation and Political Influence of Migrants
Rasheed: So on this similar topic, your book, Free to Move, about voting with your feet, essentially there is this tension that comes up a lot. For example, here in Spain, recently, the Socialist government declared, via a decree and bypassing Congress, that they’re going to give an amnesty to almost a million illegal migrants that have come to Spain. Now there is this issue, structurally speaking, we would like to have people to have more freedom to come to any country they want. But there is the thing where.
Call it the Houellebecq Risk, which is, if you have people from particular cultures that are materially less liberal from your own, they might try to impose different value systems. And if you, if you’re a liberal, in a liberal country, a more mass migration of people who don’t share this worldview would cause extreme tension. How do you resolve that kind of tension when it comes to just really allowing large numbers of migration from anywhere?
Ilya Somin: So this is something I wrote about at length in Chapter 6 of my book Free to Move and there’s a number of different points that can be made here. I would just note a few highlights in the book I go over into much more detail. First, if we’re worried about threats to liberal values in western nations, history shows that not once, with one notable exception I’ll get to, has liberal democracy been overthrown by migrants. Whereas many times it’s been overthrown by native born nationalist fascists and others or Vladimir Putin and Russia and so on. We’re looking in the wrong place for the threat.
The one exception that I will note is one that sort of proves the rule which is Adolf Hitler’s role in overthrowing the Republic and establishing Nazim. Hitler was an Austrian immigrant to Germany but obviously he could lead the German nationalist movement because he essentially came from the same ethnic and linguistic group as the dominant majority in Germany itself.
So ironically it seems like migrants only genuinely threatened on a large scale potentially liberal democracy if they’re actually people from the same ethnic group as the majority in the country already and therefore can lead a native born nationalist movement.
Second to the extent that some migrants may have bad values, there are what I call keyhole solutions to addressing this. That is, mechanisms for dealing with possible negative side effects of migration that do not involve actually keeping people out. One is there are many incentives for assimilation and change such as that if you learn the language in the culture of the country you enter you get better opportunities. So having open labor markets, which many European countries often don’t have, speeds various kinds of assimilation to the point where in the U.S. when we look at the views of Muslim migrants on most issues they don’t differ enormously from those of natives.
And indeed a majority Muslims in the U.S actually support same-sex marriage. It’s a pretty strong indication that they’re not somehow trying to impose some kind of authoritarian vision. There are other keyhole mechanisms that can be used. For example, in the U.S it is already the case that even an illegal immigrant cannot become a citizen without having been in the U.S for at least five years and they pass a civics test that most native born Americans would fail if they had to take it without studying for it.
You can make those waiting periods longer or make the test more difficult and so on. Finally it is also worth noting that recent immigrants in both the U.S and in Europe participate in politics at lower rates and have less political influence per capita in many respects than native born citizens. This can be a bad thing if you like having lots of political participation but if you worry about them influencing the political system this reduces the likelihood that they will.
There is also the crucial point that many migrants who leave one country for another with a very different political system and culture it’s not because they want to spread the political system and culture they grew up with but rather because they didn’t like living under that system. And therefore it is unlikely that they’re going to want to try to replicate it in the destination country.
For example my parents and I left the Soviet Union. We didn’t do so because we liked the Communist system and wanted to spread it. Very much the contrary, we wanted to be free of communism. And similarly today, say, Iranian migrants are not leaving Iran because they want to spread radicalism. They’re leaving Iran because they hate the current regime that governs the country and don’t want to live under it. And the same thing is true of a large number of migrants from the Middle East, Africa, and elsewhere. So it is a little bit scaremongering to say that people who have traveled long distances and made difficult adjustments to be free of a particular type of culture and regime nonetheless actually want to try to spread it. In most cases that’s not true.
Rasheed: What do you think accounts for the apparent discrepancy between the attitudes of Muslims in the U.S versus Muslims in the United Kingdom, which seems to indicate stark difference in how they perceive social values?.
Ilya Somin: So I haven’t seen all the data on political views of Muslims in the United Kingdom. I do think if you look at it you will not find that most Muslims in the UK have the values of Saudi Arabia or the government of Iran or whatnot. They may be, at the margin, more socially conservative than native born UK citizens. That’s very different from saying they want to institute some kind of Muslim theocracy or whatnot to the extent that Muslims in the UK are a bit less assimilated in those in the U.S, it may be that in the UK, as in continental European nations, there is there are less liberal labor markets that impedes assimilation to a degree. In the UK they’re somewhat more liberal than they are in many continental European nations but still less so than in the US or in Canada. So what you want to do is have the employment system and the education system be as open as possible and that significantly accelerates assimilation particularly in the second generation.
Exclusionary Zoning and the Takings Clause
Rasheed: Another major part of your work is focused on the Takings Clause, within the Fifth Amendment. Now as I see it, there is a doctrinal tension that I find in this topic. Primarily with Euclid, that is Euclid vs Amber Realty in 1926. Which I believe basically constitutionalized zoning as an exercise of the general police power and under due process.
If I read it correctly, your move is, we can leave Euclid standing and still say exclusionary zoning triggers the Takings Clause. So how is that feasible? How can a zoning ordinance be valid in Euclid, but then yet still be a taking that requires compensation?
Ilya Somin: So here we have to delve a little bit deeply in the US constitutional doctrine.
First let me briefly explain what exclusionary rezoning is. Exclusionary rezoning is a set of rules or a type of rules that exist in many places in the U.S which say that only certain kinds of buildings or certain kinds of housing can be built in this area. The most common is only single family housing and not any other kind. This severely restricts the availability of housing particularly for lower middle class and poor people and makes it very difficult for millions of people to move to opportunity.
Now the takings clause of the Fifth Amendment says when the government takes private property they have to pay compensation. And I have argued in an article called the Constitutional Case Against Exclusionary Zoning, that when the government significantly restricts your right to use property they are in fact taking property. After all, in most cases when we own property the most important reason, the most important right we have, is the right to use the property. Now in 1926, as you mentioned in Euclid vs Amber Realty court case the Supreme Court upheld exclusionary rezoning against constitutional challenges and this has usually been held to say the Court immunizes zoning from challenge or most challenges.
But as we mentioned in the article, the case does not actually mention the takings clause. Not even once. That case was litigated primarily under the due process clause of the 14th Amendment. You might ask why did the Supreme Court focus on that rather than on the takings clause. Well, if you read the lower court decision in that case it is based on the takings clause and that’s part of the reason why they struck down the exclusionary rezoning in that case. But I think the reason why the Supreme Court did not address it is that when the Bill of Rights, including the takings clause at a Fifth Amendment, were first ratified in 1791 the understanding was that they constrained only the federal government not state and local governments. And it is state and local governments that do almost all zoning and most land use regulation generally.
In 1868 the 14th Amendment was enacted and one of its purposes was to incorporate the Bill of Rights against state and local governments as well as the federal government. But for many years the Supreme Court refused to recognize that incorporation had occurred. So the 1920s incorporation was beginning to occur but the court had not at that point ruled the takings clause applies to the state and local governments. Indeed even to this day the court doesn’t have an explicit case saying that it applies. Rather, what the Court has done is it has pretended that it always applied and it pretended the previous decisions that didn’t really did.
But the upshot for us with respect to Euclid is that if you want to get rid of Euclid, or essentially neuter it, all the Supreme Court has to say is that Euclid does not apply to the takings clause. It only applies to the due process clause. The Supreme Court has to some degree already said that in the 2005 Kelo case. Now that still leaves us with some other doctrinal obstacles to dealing with the exclusionary zoning under the takings clause. My co-author Josh Braver and I get into this in our article which I already mentioned, for now I’d merely say that you don’t even necessarily have to overturn any other cases to apply to the takings clause to exclusion rezoning but you would have to limit the scope of some earlier takings clause cases. You would have to reinterpret them in various ways and we describe how that can be done in our article.
Originalist Interpretation of the Constitution
Rasheed: A question on a method. So given that the US constitution was ratified in 1788, then the Fifth amendment in 1791, and later the 14th Amendment was ratified in 1868, when you’re talking about originalist interpretation, anything, is there actual distinction between those periods?
Ilya Somin: So most originalists would say that any given constitutional provision should be interpreted in accordance with its original meaning at the time that it was ratified. So the original meaning of the original constitution that was ratified in 1788 and 1789, should be understood the way that it was understood then. But obviously the original meaning of the 14th amendment should be understood as of 1868 and the original meaning of other amendments at the time that those were enacted. And to the extent that a later amendment supersedes or modifies things that were in the Constitution earlier it would be the original meaning of that later amendment that controls.
Now obviously what exactly counts as the original meaning at a given time is itself in dispute among originalists. We could have a whole separate podcast about that probably. And there’s also a dispute about whether originalism is really the correct constitutional theory in the first place. But if you are an originalist I think most originalists, almost all, would agree that the original meaning that matters for a given provision is the understanding at the time that it was enacted. And in the 1860s obviously there were motivations and understandings that in some respects were different from those of 1789. Most obviously on questions of racial and ethnic equality. Part of the whole purpose of the reconstruction amendments after the Civil War was in fact to get rid of most, if not all, of the racial discrimination and ethnic discrimination that was permitted under the original constitution of 1788 and 1789.
Supreme Court and Trump’s Tariffs
Rasheed: Okay. So I have a pre-question to my question actually. Why do you think SCOTUS granted a cert petition to Learning Resources Inc v. Trump, even though it was actually concluded in the lower court.
Ilya Somin: Ha. I can’t know for sure why they did what they did. And full disclosure I’m one of the lawyers representing the plaintiffs, not in that case but in the Trump v. V.O.S Selections case which is combined with that one. But I think first, the lower court decisions in the cases they had addressed the major legal issues of whether Trump’s massive Liberation Day tariffs were legal or not. There are some other more procedural issues in the case that could have been addressed more but I suspect the Supreme Court thought that between our case and the Learning Resources Inc. case and also the case brought by 12 state governments, the major issues at stake had been fairly significantly canvased.
They also wanted to resolve this big issue perhaps sooner rather than later. But obviously they don’t tell us what, in most cases at least, why they decide to hear a given case instead of another one. Usually they just say they grant writ of certiorari (or commonly called a cert petition) in this case which, in plain English means, we want to hear the case but rarely do they tell us why they want to hear it. But I suspect it’s a combination of the importance of the issue plus the fact that we did already have several lower court decisions which went into some detail about the legal issues in the case which have to do with whether Trump had the authority to start the biggest trade war since the Great Depression by imposing massive tariffs on imports from almost every country in the world.
Rasheed: So now my core question is this. In your case before the Court, the Court could either a) read IEEPA very narrowly and declare tariffs are not a competent power of the President, or b), read it broadly and then confront the Major Questions Doctrine and the Nondelegation doctrine. Which outcome do you want to happen?
Ilya Somin: I would be happy to win under any of the possible options that we have put forward the International Emergency Economic Powers Act of 1977 (IEEPA) which is the act under which Trump claims the authority to declare these tariffs. It doesn’t even mention tariffs or have a synonym such as Duties. So one possible simple resolution is the court could just say this law doesn’t authorize tariffs at all. Even if it does authorize tariffs it is only in the event of an unusual and extraordinary threat to the economy.
The court could rule correctly that the trade deficits and other rationales for these tariffs don’t qualify as such. If there is uncertainty about what the law means the Major Questions doctrine applies. I think because the major questions doctrine says that when the executive claims some broad power over the economy or over American society, and here it pretty obviously is a broad power, then that claim has to be backed by a clear statement in the law. Here at the very least it is not clearly stated that the president has virtually unlimited power to impose tariffs.
Then also there is the Non-delegation doctrine which says that there are limits to how much Legislative power Congress can delegate to the executive. What exactly those limits are is not very clear from previous Supreme Court precedent. But if there are any limits at all it’s gotta be the case that it’s unconstitutional for Congress to delegate virtually unlimited authority to impose tariffs to the president for any reason he wants against any nation he wants for as long as he wants.
That’s essentially the power that Trump is claiming here. We have some additional arguments as well. I would be happy to win under any of those. I would merely note that the Major Questions and Non-delegation argument would have broader implications that go beyond the specific case of the IEEPA statute because that would influence potentially the interpretation of other tariff laws as well and might make it harder for this President or other future Presidents to use broad interpretations of other laws to claim a sweeping executive tariff power.
But in terms of this case it would be desirable for us and our clients to win on any of those bases. And I think all of them are valid but which, if any of them, we will win under, if we do win, we’ll have to wait and see for the Supreme Court’s decision.
Maduro Capture and U.S Military Intervention
Rasheed: You wrote a blog about the Maduro capture. You may have written more, but I at least read that one. In it you referenced the Noriega episode and U.S intervention in Panama as a comparator of War Powers where you contrast with Venezuela. You say that unlike with Noriega, there was no triggering of War Powers to justify U.S intervention to capture Maduro.
On that doctrine, it seems like to me the core doctrinal interpretation of the Noriega case, this is Noriega vs United States 1990 in Southern District Court of Florida was not about the War Power aspect, but on the Ker-Frisbie procedural doctrine, which is that even if Maduro was illegally captured, this illegality does not divest the U.S of jurisdiction from actually doing the adjudication in the U.S. If that’s the case, then why does it matter too much about illegality relative to War Powers?
Ilya Somin: Now with both Noriega and Maduro I think it’s important to separate out two issues. One, is the legality of the U.S military intervention. The other is the legality of trying this foreign ruler once he’s captured.
In the Noriega case that you referenced, the court was considering the second issue. That is, Noriega was in U.S custody. He was being charged with various crimes and the court said that even if the US intervention in Panama was illegal, and went beyond the powers of the executive under the US constitution, that’s not relevant to the question of whether Noriega could be tried for various crimes he was accused of once he was in U.S custody. I expect that when Maduro raises objections to his prosecution, courts will rule the same way.
But that still leaves open the issue of whether the two military interventions were constitutional. I think in the case of Noriega the answer is that probably it was legal. Because Noriega, about four or five days before the U.S intervened he had actually declared a State of War between Panama and the U.S. So therefore when the other country’s government essentially starts a war the President of the U.S does not need Congressional authorization to fight it.
On the other hand there was no State of War between Venezuela and the U.S before the U.S launched the intervention to capture Maduro and therefore I would contend that sending forces into the other country and capturing the ruler is a large enough act of war that it requires congressional authorization.
And I say that even though I shed no tears for Maduro who is a brutal socialist dictator and I think if he ends up spending the rest of his wife in prison I will shed no tears over that.
Also though I think it’s problematic to charge him with U.S drug crimes and it would be better if he does spend that time in prison it would be better if he spent it for his many horrific crimes against the Venezuela people. Whereas on the other hand I don’t think it’s right or just or even legal for the U.S to somehow extend its war on drugs to people in Venezuela where we have no jurisdiction even setting aside the fact that the war on drugs is in general unjust, there is some irony here. That justice, as with Al Capone, famously went to prison not for killing people but for evading taxes. So similarly you could say that if Maduro ends up being in prison and spending the rest of his life there not for his genuinely horrible crimes but for these supposed drug crimes that will be a kind of rough justice even though the legality of it is problematic.
Rasheed: But what about Article 2 powers, specifically the enumerated foreign Policy power. The intervention in Venezuela was fairly small. Is there an actual consequential view where you have to have a particular amount of activity, militarily speaking, to justify the argument that you can’t “start a war” without congressional authorization? It was a very surgical operation.
Ilya Somin: Yeah. So my answer is that first there’s a legal answer which is that the Constitution gives Congress the power to declare war and that includes the power to authorize the initiation of war and that’s for the good reason. That we don’t want any one person like the president to be able to take the nation to war. You could say sometimes the president can just get away with things and the results are good. Whether the broader results here will actually be good is questionable given that the Socialist dictatorship in Venezuela still remains in power and Trump seems perfectly happy to allow that to continue so long as they give him some oil concessions and the like.
But even if occasionally you can achieve good results by circumventing Congress I think in the long run it is a bad thing if one person can take the nation to war and modern technology actually makes it easier to get swift Congressional authorization than was the case in the 18th century when congress was in session only about half the year and gathering them took a long time cause obviously people had to use sailing ships and wagons to get from their home districts to Washington DC. Now Congress is in session almost all the time and even if it’s out of session given plane flights you can get people together pretty quickly, so if you’re going to start a military conflict that’s like a war there’s good reason to get congressional authorization.
Obergefell and Equal Rights Movements
Rasheed: Is Obergefell a model that can be replicated, say, in property rights, housing, or migration or do you think its success depended on features that don’t travel well across constitutional domains?
Ilya Somin: So Obergefell is the decision where the Supreme Court struck down the ban on same-sex marriage. I won’t go too deeply into doctrinal issues in the case because the court’s decision was very much a muddle. I say that even though I favored the result but the way it was reasoned by Justice Kennedy who wrote the Majority Opinion is in many ways very unclear. But I think advocates of immigrants rights or transgender people and other such causes can learn from the experience of Obergefell and also from the experience of previous movements for equal rights like the Civil Rights Movement, the Women’s Rights Movement and others.
In each case it took quite some time and also in each case they triumphed in large part by emphasizing how the group in question was actually similar, or at least more similar than different. Martin Luther King famously said People should be judged by the content of their character not by the color of their skin emphasizing that skin color is ultimately superficial and what really matters is fundamental humanity which is similar across people of different races.
Similarly to the women’s rights movement they emphasize how ultimately women are fundamentally similar to men in terms of their capacities for functioning in society, their ability to think rationally and so forth. And the gay rights movement prevailed on same-sex marriage in part by emphasizing how same sex relationships are fundamentally similar to opposite sex ones. In same-sex relationships people love each other. They raise children. They have economic needs that can be met by marriage and so forth. I think over time people saw that the differences of race and ethnicity and sexual orientation and gender in most spheres of human action were actually Fundamentally superficial.
And what really matters is the things that we have in common. And that there’s no good argument for giving white people liberty that doesn’t also apply to black people. There’s not ultimately a good argument for letting opposite sex couples married if it doesn’t apply to same-sex couples and so on. And similarly with respect to migration rights for instance we can emphasize the point that there are fundamental human rights that apply to all people and also that it is wrong and unjust to restrict people’s liberty based on who their parents are or where they were born.
In each of these cases there is also an issue of the majority being harmed by giving rights to groups and that also can be addressed in various ways. So emphasizing, for instance, the economic benefits of migration the way migration increases innovation disproportionately in the US and also in Europe, migrants have massively contributed to scientific medical and other innovation. Without which it would be vastly worse off and it’s worth stressing that too. But I think that emphasizing common humanity and and how the supposed differences are actually superficial that is how a lot of these earlier movements including the movement for same-sex marriage succeeded. Whereas on the other hand if you want to argue, as I think some on the political left sometimes do, you know that each group is special and deserves its own special status, and we should have quotas for particular groups, and the like that in addition to being problematic policy in itself, it also tends to alienate people. Also it tends to reinforce the idea that there’s a zero-sum game between groups and these groups are fundamentally different from each other rather than similar.
Rasheed: It’s curious, you mentioned the Majority Opinion on Obergerfell was muddled. Curiously here also in Spain, the government changed the civil code in 2005 to allow same-sex marriage by decree. It was challenged in the Constitutional Court from the opposing political party. Now, the Constitution of Spain, in Article 32.1, says that a man and a woman have the right to contract marriage. So one would think, okay, that’s pretty closed off from same-sex marriage. But then the Court decided that, yes, it says that, but it doesn’t say it has to be between each other.
Ilya Somin: Ah Yes! When you mentioned that text I was going to say yes this is the way out because it says both men and women have this right but maybe the right exists not only with other members of the opposite sex but also the same sex so that’s a clever piece of textual legal reasoning.
Rasheed: Exactly. Okay. Moving to my penultimate question. In your support or defense of public-interest litigation, is it mostly grounded mostly in outcomes, like more freedom, or in process - forcing the government to justify coercion? Which one do you think is overweighted or are they equally both weighted?
Ilya Somin: Both. In that I think there are some areas where we just want the categorical rule against certain types of coercion and the U.S Constitution, in some places, does create categorical rules like cruel and unusual punishment is banned regardless of how severe the crime is that the person committed. But also there can be cases where what we want is some kind of strong presumption against some kind of coercion or restriction of liberty. There can be extreme cases we might want to allow it and the courts should in that situation compel the government to prove that sort of extreme situation really does exist. That is that there’s some great evil that can only be countered by using this particular type of coercion.
Public Interest Litigation in the US and Europe
Rasheed: In Europe, there aren’t that many example groups specializing in public interest litigation. And I’m curious if you have a view on why that is, and then if you also have a view on perhaps how that should probably be pushed forward in Europe, similar to the U.S.
Ilya Somin: Public interest litigation groups are groups like the Pacific Legal Foundation, the ACLU, Institute for Justice, and others which litigate not so much for the purpose of helping a particular client win or from making money but for a purpose of shifting legal doctrine a particular direction. I don’t know that much about the state of public interest litigation in Europe to the extent that there is less of it than in the U.S maybe there is a gap that can be filled here because public interest litigation groups often have an advantage over ordinary litigants in pushing through beneficial change, though admittedly also perhaps harmful change as well.
One issue may be that sort of litigation under, say, the European Convention on Human Rights has been somewhat more recent than large scale public interest litigation in the U.S which dates back now well over a hundred years. Another possibility may be that most European countries are on average poorer than the U.S. and it does require considerable resources to do public interest litigation at a large scale.
But maybe also just the right kind of entrepreneur hasn’t yet come along in Europe to show how it can be done and how it can be effective. I would also note of course that things may be different in different countries even though the European Convention on Human Rights applies to every member of the European Union and I think still even in the United Kingdom which still incorporates it, even though that they’re not part of the European Union anymore.
Rasheed: Right. Yes.
Ilya Somin: Also each EU member state has their national legal systems and systems of judicial review function differently in each of those countries and differently in some ways from the U.S.
Rasheed: That’s true. The 1998 Human Rights Act of the United Kingdom incorporates the European Charter. And that is ironic in many ways.
Conclusion
Rasheed: Well, I think that’s all of my questions. Thank you so much for coming on the podcast.
Ilya Somin: Thank you for having me on.