Albert Mohler:
This is Thinking in Public, a program dedicated to intelligent conversation about frontline theological and cultural issues with the people who are shaping them. I’m Albert Mohler, your host and President of the Southern Baptist Theological Seminary in Louisville, Kentucky.
Judge Amul Thapar serves as a judge on the United States Court of Appeals for the Sixth Circuit, where he has served since 2017. A graduate of the University of California School of Law there at Berkeley, Judge Thapar was previously a judge on the United States District Court for the Eastern District of Kentucky. He also served as United States Attorney for Eastern Kentucky. Judge Thapar has written numerous scholarly articles for journals such as the Yale Law Journal, Michigan Law Review, and the Catholic University Law Review. He’s taught courses on originalism, federalism, and constitutional law at law school such as that at Notre Dame University, the University of Virginia, and Vanderbilt University. But it is his book, The People’s Justice: Clarence Thomas and the Constitutional Stories that Define Him, that is the topic of our conversation today.
Honorable Judge Amul Thapar, welcome to Thinking in Public.
Your Honor, it’s a little unusual for a sitting federal judge to write a book about another judge, in this case, Justice Clarence Thomas of the United States Supreme Court. So why did you do this and why now?
Judge Amul Thapar:
Yeah, when Justice Scalia sadly passed too early, he told us, most of judges, lawyers, other thoughtful people, that we have a responsibility to fly the flag of originalism, was what he said, because they weren’t going to do it necessarily in the academies or elsewhere. And so what he always said is he took originalism to lawyers, and when he started doing it, he would walk in and announce he was an originalist and everyone would run out like he was a bear. Well, he changed that. Now when I go talk to lawyers about originalism, it’s thoughtful, it’s engaging, but what I found is that laypeople don’t understand originalism in the same way. And so what I did, the first version of the book, the book I’m most proud of is called Originalism for Laypeople. I wrote about 60 pages of it. I spent over 100 hours working on it. I thought it was the best thing I had ever written, and then I gave it to my wife.
She read about four pages and she said, “Who’s going to read this?” and looked at me like this isn’t going to work. And so I was back to the drawing board. But during that process, I realized what Justice Scalia had said before was true, that there was one true pure originalist on the court. And that was Clarence Thomas. And so if I wanted to show the American people what an originalist America would look like, I had to study his decisions. When I did that, what I found surprised me, so much so that I thought it would be a fascinating book, but not in the way I originally envisioned, rather one that I envision laypeople like my wife and kids and others would like.
Albert Mohler:
Well, I found the book surprising. We’ve had a lot of conversations on this program about constitutionalism, how to read a text. I’m a committed originalist and proud to hold the Edwin Meese Award for Originalism in Law-
Judge Amul Thapar:
That’s amazing.
Albert Mohler:
… and Theology, so I appreciate that. There’s some great definitional issues for us to discuss as we go forward, but I’m an wholehearted agreement that if we’re looking to the court particularly now, and we’re looking for an originalist, Clarence Thomas is the man. But there’s a lot being said and written about Clarence Thomas. You make a rather astounding counter-cultural, even counter expectation claim in this book. And that is that originalism is actually not only the right way to read the Constitution, but it empowers the weak rather than the strong.
Judge Amul Thapar:
Yeah, and I think that comes from the Founders’ original design. If you remember, the anti-Federalists were very worried about a big and encroaching federal government that would not only encroach on our rights, our religion, our conscience. And so, the anti-Federalists insisted on things like the Bill of Rights that were counter majoritarian and meant to protect the weak and those who didn’t have the ability to protect themselves often. And so, it makes sense when you think of how the Constitution was originally designed for a small limited federal government and a more robust protection of our rights that originalism would reflect that. But we do such a poor job of explaining that.
I think that’s what I hope this book accomplishes, is it says to the American people, “Wait a minute, all the criticisms you hear of originalism favoring the rich over the poor, the strong over the weak, the government over the individual, they just aren’t true, and the cases themselves prove it.” I don’t try to prove it through theory, as I did in the original book by the way, but I try to do it through the stories of the cases, which I think is what’s so compelling when people who don’t agree with originalism read the book, let alone people who agree with originalism and find reading the book very surprising.
Albert Mohler:
Well, I found it surprising in how you made the argument, and I think very effective by the way, because I think the kind of liberal response to originalism is, well, that’s great for the powerful but not for the powerless. But you’re making the exact contradictory argument to that, saying that it’s the powerless who really depend upon the actual text, the words, the grammar, even the punctuation of the constitution. You really do make that case very clearly.
Judge Amul Thapar:
I think what’s important is Justice Thomas never forgets, and it’s a good lesson for me and other judges, that there’s real people involved in every case. As you think about the courts, in the trial court we see the real people, so we don’t forget that. But as they go up, even for the public, cases become captions. They lose sight of who the real people are that are impacted. And so what happens is the critics of originalism paint them in a different way. They paint the government as protecting the people. But if you think about how the original design worked, we agreed to a limited federal government. There’s two different views. Do our rights come from government? That’s what the critics of originalism think. And then those that support originalism understand what the Founders understood, that our rights come from God, and there are God-given rights. What we agreed to is have some of our liberty encroached, a very limited amount, in exchange to have an effective federal government.
Albert Mohler:
This is not where I intended to go, but you raised such a good issue there. I want to take a moment and press on that argument. The Founders clearly made reference to natural rights and made very clear that these are indeed endowed by the Creator. Where exactly do modern progressive think that rights come from? Where are rights grounded, and are they even real?
Judge Amul Thapar:
I don’t know. It’s hard for me to say. I think what the critics really think is that they’re negotiated amongst the people and created by government. The critics have a-
Albert Mohler:
Positive law.
Judge Amul Thapar:
Positive law. What I think most people understand, I mean C. S. Lewis talks about this, the moral law and our own understanding of what’s good and bad. You know it from the time you’re five. So if it comes from some kind of positive law, it’s shocking to me. Because my kids when they were young knew taking from their brother or sister wasn’t a good thing, and I didn’t have to tell them that, right?
Albert Mohler:
Right.
Judge Amul Thapar:
There’s something inherent in us. And-
Albert Mohler:
A toddler hides after misbehaving when he hasn’t even been told not to do that.
Judge Amul Thapar:
Right.
Albert Mohler:
It’s a natural knowledge.
Judge Amul Thapar:
Yes. And so I think it’s really interesting to think of it as coming from somewhere else. But the important thing for judges isn’t where it comes from, it’s what the Founders understood and what the document did, and the document reflects that. If you look at the document, the way it’s designed, the way it’s written, the Declaration of Independence that comes before it, and as originalists, it’s important we take account of history and what came before it to understand what’s actually in it.
Albert Mohler:
Well, you say that and it makes perfect sense, but every part of what you just said is opposed by many who would argue that, number one, and this has been very popular or common in legal circles since early 20th century, and that is the Declaration of Independence has no textual relationship to the US Constitution, and then that rights are real, but they’re not real until they are positively stated, put in the form of some kind of constitution or in even a judicial declaration by a court. And so all I’m saying is, look, this is where the left thinks that there is no end to rights. We just haven’t declared in terms of positive law new rights that nonetheless should be declared. And so you take the abortion logic of, say, Roe v. Wade in 1973, you go back to Bostock and all the rest, I mean, the idea of a living constitution is more alive, I think, in many Americans than conservatives would like to think.
Judge Amul Thapar:
Well, I think there’s really originalism and then it’s critics, and one of the groups of critics is living constitutionalism. And yes, it is alive. There’s no doubt it’s alive. The debate is fascinating for many that pay attention to it in that what originalism is in many ways, and the criticism of originalism from both sides that is fair, is it’s restrictive in some ways, right?
Albert Mohler:
Certainly.
Judge Amul Thapar:
We are restricted to the document in itself.
Albert Mohler:
That’s right.
Judge Amul Thapar:
And living constitutionalism nationalism can actually, as they say, adapt to the times. Now, I would argue, to adopt an argument of Justice Scalia’s, he said, “At the end of the day, it’s who do you trust? Do you trust the American people, or do you trust the nine individuals in the court?” He said, “With the pressing issues of today, I’d rather pick nine individuals randomly from the phone book than have the nine individuals in the court play God, in essence.” And-
Albert Mohler:
Channeling their William F. Buckley Jr.
Judge Amul Thapar:
I’m sorry?
Albert Mohler:
He was channeling their William F. Buckley Jr in the New York mayoral race when he made that claim.
Judge Amul Thapar:
Yes. That is exactly what he was doing. I think Justice Scalia captured something there Justice Scalia always had a great sense of humor, but he captured something there about, who do you trust? If you trust the nine people in the building with all of your rights, then by all means you should be a living constitutionalist. If you would better trust yourself and your neighbors and others, then you should be an originalist.
Albert Mohler:
Now, let’s press on definitions there for a moment before we get to the approach you take in your book in terms of looking at specific cases and the stories behind them. You are using the word originalism, and I know what you mean by that, but I want to ask you to define originalism. Just give us a concise definition, and we can move forward.
Judge Amul Thapar:
I describe it in the book. There’s many brands, and we can get into it, but it’s much more theoretical, again, the one my wife said no one would really like. But I and Justice Thomas and others are original public-meaning originalists. What that means is we look at the words in the document, we try to understand through history, through what happened around the time what those words meant when they were ratified by the American people. I always think the originalism, it’s not a perfect analogy, but as a contract, I explained it in fact to my neighbor, when I was nominated to the Sixth Circuit, I was a district judge at the time, and I was nominated to the sixth Circuit, and the media ran articles saying I was an originalist. My neighbor, who’s a good friend of mine, came running down and he said, “I can’t believe you’re one of those,” and I said, “One of what?” He said, “You’re an originalist.”
I said, “Mike, you’re a businessman,” and I said, “you sign contracts all the time, right? When you sign those contracts, you and the person you sign the contract with have a meeting of the minds. Do you want me to interpret, try to figure out if you guys have a disagreement what the meeting of the minds was as reflected in the words of the document? Or do you want me to tell you what I think is best for you?” He said, “Oh, of course, you shouldn’t do the latter, you should do the former. You should interpret it as we understood it at the time.” I said, “Mike, you too are an originalist now.” And he went running back up to his house like I was a bear, and I understood Justice Scalia’s complaint at the time. But it’s really trying to capture the meaning of the words at the time the document was ratified.
Albert Mohler:
So you’re going to speak of originalism, and you’re going to include what Justice Scalia would call textualism and what in law schools before was described as strict constructionism. That’s all within your umbrella of original, and in terms especially of the original public understanding of the words as written.
Judge Amul Thapar:
Yes. Yes. That’s exactly right.
Albert Mohler:
Because in one sense, and I think as you narrated this yourself, in one sense, Justice Scalia looked to Justice Thomas as the most consistent originalist.
Judge Amul Thapar:
Yeah. He used to jokingly refer to Justice Thomas as one of the most consistent, and would say, “I’m not Clarence, he’s crazy. He’ll go back to the original meaning for everything.” Whereas, Justice Scalia had a different view of that. But to be fair to Justice Scalia, I think that’s an unfair criticism of himself in many ways.
Albert Mohler:
Yeah. And very different personalities because Justice Scalia was so active in the oral argument phase of the court process and Justice Thomas less so. I think a lot of citizens who pay attention to the court, if you listen to the oral argument, you actually know a whole lot more about what Justice Scalia thinks about these issues or the questions he would ask than Justice Thomas.
Judge Amul Thapar:
I think that’s right. I think Justice Thomas’s writings are very powerful, which is why a book involved with his writings as well as the stories of the cases turned out to be so powerful. But I think the reality is Justice Scalia, both on the bench and in the academies, was often the perfect evangelist for originalism.
Albert Mohler:
Right. Well, he certainly has many disciples, and I say that with great appreciation. Recently had one of these conversations about the thought and legacy of Justice Scalia. By the way, I think your wife was onto something, something Ronald Reagan would understand when he made very clear that the effective way to convey many of the deepest and most convictional issues is by means of a story. That’s what you do, you tell the real life story of individuals who found themselves before the United States Supreme Court and the issues that were at stake. You really do make your argument, I think, very effectively that particularly with these cases in mind, originalism is the friend of the American citizen. So tell me, how did you decide on these particular cases?
Judge Amul Thapar:
The one thing I recognized as a judge, and especially a Court of Appeals judge, is your only true views come through in your own writing. So I can’t pick a majority that Justice Thomas wrote because there’s give and take. When you write a majority, especially for five or six or seven justices or even nine, you have to reach consensus. That means on every word, on every concept, on everything. But when Justice Thomas wrote for himself, and then others may join from time to time, but often they were alone, you knew it reflected his true views. What I was trying to show to the reader is what does an originalist America look like. I think what I found when I studied his individual writings is not only a path through history and understanding and some of the greatest accomplishments throughout our history as he talks about them and goes through them, but just a real picture of what an originalist America would look like. I think as the publisher says in the sleeve, even the critics, if they gave it an honest read, would be surprised.
Albert Mohler:
What surprised you as you’re writing the book? Because you already had the basic understanding, and not only of the constitutional and textual issues, the history of interpretation, and for that matter, the life and legacy of Clarence Thomas, you had an in-depth knowledge of a lot of these cases. But looking at them in this light, what surprised you?
Judge Amul Thapar:
He’s been on the bench, I think it’s 32 years now. The remarkable consistency from year one to year 32. I mean, that’s hard even for me. I look back at some of my opinions 10 years ago and recognize, “Boy, I would’ve written that differently. I would’ve thought about it differently.” But his level of consistency is outstanding. I was candidly very, very shocked at that.
The other thing that surprised me is, and I mentioned this before, he never forgot there were real people involved in these cases. He never forgot it’s an actual case or controversy. While everyone else in the media and those of us in law schools and even the judges are looking at the legal concepts, every one of these cases, Justice Thomas never forgot the genuinely real person that was in front of him.
Albert Mohler:
I was reading an account of modern physics the other day. It pointed out that you can look at physics as a disjunctive discipline and say, “Well, it was in this laboratory and that laboratory and another laboratory that this particular advance was made or this theory was originated, perpetuated. But it can be looked at another way, and that is that this is an ongoing conversation and the conversation’s pushed here and pulled there. It seems to me that that’s applicable to this situation. It leads me to want ask the question, in your view, where did Clarence Thomas get the influence of originalism? Where did he become an originalist and why?
Judge Amul Thapar:
I think it was as he went through life he saw… So to pick up on what you said, Ronald Reagan earlier, Ronald Reagan once said something to the effect of, “The worst thing you can ever hear is, ‘We’re from the government, and we’re here to help.'”
Albert Mohler:
Exactly.
Judge Amul Thapar:
Justice Thomas learned many of those lessons early on. Many of your listeners and viewers may know, he had a single mom. She was making $10 a week. She couldn’t make enough to afford to raise him and his brother, so she gave them to his grandfather who had a third grade education. But he understood a few fundamental things, one, first and foremost, that education means emancipation, to quote Frederick Douglas who both Clarence Thomas’ grandfather and Clarence Thomas himself are huge fans of and understood that and saved every penny he had. Someone with a third grade education that would memorize Bible verses because he couldn’t really read and saved every penny he had to send a young Clarence and his brother to a Catholic school where Clarence Thomas believes that the foundation was laid, his kindergarten through eighth grade education.
And so what he saw as he grew up and as he moved north is that the elites, as he perceived, as he calls them the cognoscenti, were only ultimately interested in protecting the elites, and many of them populated government and not the real people. He saw something different in the documents that were written, that the Constitution was meant to protect the American people. And so I think in that vein, as he studied more and saw what was going on, he understood pretty quickly that he had an obligation to interpret the document consistent with the original meaning. I haven’t talked to him about this, but I believe he believes the oath itself to this Constitution compels him to interpret the document consistent with the meaning and not to his liking and dreams and what he thinks is best for America.
Albert Mohler:
Yeah. The classical Marxists, they certainly weren’t always wrong in their diagnoses. And so you take the classical Marxists, including Marx and Engles, they clearly made the argument that the elites will take care of themselves. That’s the way elites work, they will take care of themselves. I think that’s one of the reasons why the cognoscenti, as you say, the elites, it’s not that they don’t like Clarence Thomas, it’s that they despise him because he won’t play that game.
Judge Amul Thapar:
Yeah, I think that’s right. You see that not only in the book but in the critiques of Clarence Thomas. You look from the beginning, as I point out in the introduction, Justice Thomas from his earliest days on the court called an Uncle Tom, the cruelest justice. I mean, the book proves the opposite is true. It proves he’s not an Uncle Tom but rather someone in the Black nationalism mold of a Malcolm X or Thomas Sowell or Frederick Douglas, people he admires, especially the latter two, Frederick Douglas and Thomas Sowell. But it shows that he is someone who’s caring and compassionate not only in real life, but his opinions themselves. They show Americans, I think, most importantly, that originalism does not favor the cognoscenti. In fact, the cognoscenti despises originalism, and thus they despise Clarence Thomas as the messenger for originalism.
Albert Mohler:
You came up with a way of introducing originalism to a wider audience and also making a larger, let’s just say, point of analysis just in terms of how to understand Justice Thomas, and for that matter, by understanding Justice Thomas, understand the Supreme Court and the issues that are at stake. You do have 30 years of jurisprudence here. You had to choose just a few cases, so why these cases?
Judge Amul Thapar:
Because I think they best painted Justice Thomas’s jurisprudence across a broad cross-section of the jurisprudence itself. So there’s plenty of cases I didn’t choose that I could have chosen that were also fantastic, but the publisher, luckily for me, put a word limit or had a word idea of what they wanted. I could have written two or three volumes, and what you see is the first and probably the final volume, if my wife has any say of it, but I think it really accomplished what I wanted to, which is to show a cross-section of his jurisprudence.
Albert Mohler:
So walk us through a couple of these that are favorites to you, that make the point you’re trying to make about how originalism actually functions in the jurisprudence of Justice Thomas.
Judge Amul Thapar:
Sure. What I’ll do is I’ll walk through the first chapter, it’s first for a reason, and then maybe we can do the second and third together and I can explain without getting into as much detail. I think the readers then or the listeners can read the book and see the rest. But let me start with the first chapter.
Albert Mohler:
I want to say that your book is amazingly well-narrated. I want to encourage listeners, you will want to read these chapters because it is not obtuse legal theory. It’s the narration of important issues and the collision of ideas. So forgive my interruption, but I just want to say you’ve been more effective in this book than I would’ve thought possible in accomplishing that. But jump into the first chapter.
Judge Amul Thapar:
The book’s called The People’s Justice, and I think you’ll see why for a reason. Before I get to the first chapter, I’m going to prove my thesis that he not only in life but in his cases cares about people. I’m going to give a story, if I may, and I’m sorry to take this aside-
Albert Mohler:
No, that’s why we want to have this conversation. Go right ahead.
Judge Amul Thapar:
So the book includes many stories and it includes a couple about him individually interacting with people. I’m going to leave that for the listeners to read about. I think they’ll enjoy the church story, the RV stories, and the others. But I think what I want to tell is I was at Yale Law School with him. Believe it or not, Yale was celebrating 25 years on the bench for Clarence Thomas. There I was, they had panel after panel, I was moderating a panel. Afterwards they had a reception. We all went to the reception. There were many students. Many professors who often criticized Clarence Thomas were there just hoping to get a moment with him.
We had about an hour at the reception. I’d say he spent 30 minutes talking to the support staff, meaning the people who were serving the food and others. And then I had the job, which I did very poorly by the way, of escorting him to dinner. Dinner was set time. Yale was having a private dinner for him, and it was my job to take him to the dinner. We were 30 minutes late and everyone was looking at me like, “You had one job and you couldn’t get this done, get him to the dinner on time.” The reason we were 30 minutes late is he insisted on sticking around after everyone left, shaking every person’s hand who served the meal, talking to the people who cooked the meal, offering to take individual pictures with all of those people, each of whom took him up on that. And so he got individual pictures with all of these people, none of whom were the people that were there to see him, but rather the people that served the people that came to see him.
That’s the type of man he is, and it reflects in this jurisprudence. Let me start with the first chapter.
Albert Mohler:
Please.
Judge Amul Thapar:
Susette Kelo was down on her luck. She had raised five kids. She was a paramedic, and she needed a house. She always dreamed of having a house with a view, a view of the water. She found one in New London, Connecticut in the Fort Trumbull neighborhood. It was perfect. It was in a beautiful blue collar neighborhood, the neighborhood with houses and churches and stores. It was ideal. She thought, “This is the perfect house with the perfect view of the water.” It was really run down, but it was the only house she could afford because she was on a paramedic salary. So she bought it, and the real estate agent was embarrassed to sell it to her, didn’t want to sell it to her, thought she should get a nicer house. She was like, “Nope, this is perfect. It has a view of the water.”
She put a ton of blood, sweat, and tears into that house and took correspondence courses at night so she could become a nurse so she could afford to rehab the house. If you look, the book has pictures of it, but she did such a good job and she loved it so much. It was perfect when she was done. She painted it her favorite color, Odessa Pink. And so it was perfect. She got home from one long day of being on her feet, being a nurse, and she’d go out back and sit on the deck and look out over the water with a glass of wine and think, “This is heaven.”
At the same time she did that, trouble was brewing in her town. The city of New London was looking for an occupant of an old mill site down the road from Susette’s neighborhood, and they found what they thought was the perfect partner in Pfizer. Pfizer wanted to come in and they were willing to come in and rehab the old mill site and develop what they thought was their wonder drug, Viagra, in that site. But they had a deal for the city, if they were going to come in and rehab the old mill site and move into it with labs and executives and everything else, the city had to put in a park, an upscale condo building, restaurants, shops, the Lululemons of the world. They wanted all of that. The city agreed to do it. The way they were going to do it is Pfizer wanted it by where the mill site was. Well, that happened to be this beautiful 100-year-old blue collar neighborhood where Susette lived. Not only Susette, but her neighbors, the Darys, had been there 100 years. They loved the neighborhood so much, their family had been there, that long that every time one of their kids got married, they put a down payment on a house in the neighborhood. By the way, a brilliant concept if you want to bring your kids home.
And so they did that, and these people loved it. Well, the real estate agent showed up and they offered Susette slightly more than she paid for it after all that blood, sweat, and tears. The other thing was this house was perfect. She wasn’t going to find a house like this that she could afford anywhere else, and so she wasn’t selling. Susette actually put a not-for-sale sign, not a for-sale sign, a not-for-sale sign on her house. Well, the city decided to take the property by eminent domain. An eminent domain, as you know, the Constitution provides in the Fifth Amendment that government can take your property for public use with just compensation.
Well, public use originally meant a sliver of your land to widen the street, another sliver of your land to put in a sidewalk, or something like that. Or in the most drastic of circumstances, your land to put in a railroad, but something the public would use. So what Scott Bullock for the Institute for Justice argued to the city first was this wasn’t a public use, you were taking it for a private purpose. Well, the city wasn’t having any of it, and on the night before Thanksgiving they posted notices on the people’s doors that the houses were now theirs and they had to evacuate within 30 days. By the way, in the interim, even if they were paying a mortgage, because the city had taken it by eminent domain, the city was demanding that they pay rent for their own houses.
And so Scott asked that they not start knocking it down until he could get into court. The city said no. The court hearing was set the day after the 30 days was to expire when they could begin knocking it down. So Scott and his team of people slept in houses that were being rehabbed where the city would know people weren’t living because they were afraid they would knock those down. And so they slept them in them. Some of them had no insulation, so they were sleeping in sleeping bags. They got to court and they fought it all the way up. They lost in part at every turn. It got to the Supreme Court, and the Supreme Court took the case, and Scott was hopeful. The case goes up, and at argument, Scott had run into a problem. He knew it was a problem. It was a case out of the 1950s called Berman, where the city of council of the District of Columbia had taken a nice neighborhood. I have a picture of it in a PowerPoint I’ve created where I do this presentation. This neighborhood, the most integrated neighborhood in D. C., and the city wanted to take it and turn it over to a private developer to develop apartments and upscale restaurants and things like that near Capitol Hill.
The citizens weren’t having any of it. They were fighting it, and the shop owners filed suit in a case called Berman. It went all the way to the Supreme Court. I wanted you to notice what is the difference here between living constitutionalism and originalism, is in the Berman case, in the fifties, the Supreme Court said, “Well, the city is taking it for a public purpose, and because the city’s telling us this serves the public’s purpose, we’re going to allow them to take it.” They changed the words. The Constitution says public use. They changed it to public purpose, which is much broader.
Well, Scott’s argument with Pfizer is he didn’t ask him to return to the original meaning because he never thought he could get five justices. He argued that Pfizer’s purpose was not a public purpose. Justice Scalia asked an interesting question of the city’s lawyer. As you pointed out, Justice Scalia was an effective question, and he asked the city’s lawyer, “If you take from A and give to B because B pays more taxes, would that be a public purpose, to get more taxes for the city?” The city’s lawyer says, “Yes.” Then Justice Scalia is shocked, he says, “You can take from the poor and give to the rich because the rich pay more taxes?” And again, the city’s lawyer says, “Yes.” This case gets decided by the Supreme Court. The majority, five justices, writes and says that the city can take Susette and her neighbor’s houses because it is for a public purpose. They say, “The government knows best what’s a public purpose, so we’re going to defer to them.”
The principal dissent is written by Justice O’Connor for four, O’Connor, Scalia, Rehnquist, and Thomas, and basically abides the Institute for Justice’s argument, Scott Bullock’s the lawyer for Susette and her neighbors and says, “No, Pfizer’s purpose is not a public purpose.” Only Justice Thomas argues that the court should return to the original meaning. He points out what we just talked about, about sidewalks and roads and points out the horrible history of eminent domain and how it had been used to prey on poor and minority communities. He points out that in the Berman case in the 1950s, 97% of the people that were displaced are Black. He accepts the only organization I could find that advocated to return to the original meaning was the NAACP. I encourage your listeners to go Google NAACP, Clarence Thomas, champion of minorities and poor. They won’t find a single article written about that.
And then he says a couple of things, and I’ll stop in a minute, but I just want to say what he says, he says a couple of things. “With the Constitutional rights at stakes,” he points out, “courts should be vigilant.” They don’t defer to the government’s determination taking aim at the majority… I’m sorry, he says, “We don’t defer to the government’s determination of whether a search of a home is reasonable or whether a suspected murderer needs to be shackled.” Then I’m quoting him, “Something has gone seriously awry with this court’s interpretation of the Constitution.” He warned, “When those citizens are safe from the government in their homes, the homes themselves are not safe.” And then he talks about, as I point out, if the majority didn’t care about the alteration of the Constitution that the court had undertaken, he would at least make them aware of the painful consequences of their decision.
In Justice Thomas’s words, allowing the government to take private property not just for a public use, but for a public purpose, including economic benefits, and now I’m quoting, “guarantees that these losses will fall disproportionately on poor communities such as the people of Fort Trumbull or Washington D. C. And because these communities are the least politically powerful, they will not be able to stop the indignity of being kicked out of their homes for the sake of vague economic benefit to their city.” I went to New London, Connecticut last year. I took a picture of Susette Kelo’s neighborhood. I put it in the book. Pfizer left New London eight years after they came, when their wonder drug did not take off as expected. Today, Susette Kelo’s neighborhood, that beautiful blue collar neighborhood is a field, home to cats and rubble.
Albert Mohler:
Your Honor, as you tell that story, I think that the question that would come on the part of many would be why would it make sense to a majority of the court to empower a local government that way? It seems the antithesis of the constitutional logic of America’s founding. Can you help us to know, because you’ve done a couple of things in telling the story of that case? For one thing, you underline Justice Thomas’s understanding, and very sympathetically I’m in total agreement, but on what basis would it make sense, going all the way from the redefinition of public purpose to the present, what would then be an unconstitutional irrigation of power by municipality? In other words, if it can take the house, what else could it take?
Judge Amul Thapar:
Yeah, and that’s the question courts ironically today are struggling with. It’s really interesting you bring that up because now we’re going through that, what can the government do? How far does this power go? The reality is, again, it goes back to Justice Scalia, who decides who should make these decisions? It seems to me the Founders made certain decisions that we as judges, at least I believe and Justice Thomas believes, have an obligation to respect. Again to go back to what we talked about earlier, now that we’ve got the flavor of one of the stories in the book, it’s ironic that the critique is that originalism doesn’t protect the little guy, right? That’s the big critique of originalism.
Yet, what you often find and you find throughout this book is they’ll often defer to government. Interestingly, and I’m not going to talk about chapter eight, but chapter eight you’ll remember is about gangs and the rights of gang members. There they didn’t defer to government when, again, poor and minority communities were being trampled by gangs. And so I don’t know where that comes from other than living constitutionalism, it’s hard at times to pin down. When you’re changing the words of the Constitution, it’s not originals. It’s got to be something else. It seems to me it’s living constitutionalism. We’re adapting to the times. We want our cities to be nice. We’re going to kick out those we don’t like or move them to communities we don’t want them in.
Albert Mohler:
One perpetual temptation on the left is social engineering. We’ve seen that particularly in the horrors of the 20th century, which of course in the Soviet Union planned agriculture led to famine, as well as in China and the cultural revolution. But on the 50th anniversary of Roe v Wade, there were several books that went back and traced the jurisprudence of the court’s majority in particular. What we now have access to are the numerous drafts that were undertaken by Justice Blackman writing the majority opinion. And so I went through every single word, and the Constitution doesn’t even enter into the conversation until fairly late. It is clear that the goal of the justice was to try, like Solon, the Greek figure, to do what was wise. How in the world did the court get so derailed from the text of the Constitution that the justice, actually Justice Wyman clearly decided, “Okay, here’s the policy that makes sense. Now, how do we present this in a constitutional frame?” It seems to me that’s exactly backwards.
Judge Amul Thapar:
Yeah, and that’s not the way an originalist would do it. I pointed that out in Memphis Center. Interestingly, there’s a case called Memphis Center where, I don’t know if you’ve read my concurrence, but it was a precursor to Dobbs, where I pointed out why I thought Roe was wrong. I recognized I was bound by it at the time because Dobbs wasn’t in place, but I laid out the history, the very history you’re talking about, about the means memo and other things and how they got to where they were and how it was all built on a house of cards, for lack of a better way of saying it, and not the Constitution itself.
The problem with getting away from the Constitution is, again, then we are playing God. What you don’t want is courts playing God. You want courts playing judges and judging according to the terms and being bound by it, because otherwise things like what happened to Susette Kelo and her neighbors happened. And interestingly, as you pointed out, and as I point out, and I would encourage your listeners to read the chapter, not just my description of it because it’s much richer and more descriptive than I can do justice now in a short time, but one of the things that I point out in the chapters and Justice Thomas pointed out is these people who they displace can’t buy a new home. Why? If you think about today’s economy, our houses go up in value. If they’re going to give us what they say is just compensation, that’s hardly more than the house is worth and often a lot less than you could sell it for in the open market. So now you’re going out and you’re stuck. If you’re poor, you don’t have a remarkable savings, you live paycheck to paycheck, and these are the people the government is displacing, right?
Albert Mohler:
Right.
Judge Amul Thapar:
Why are we deferring to government? I think courts what they said in Berman and what the majority says here is, “Look, they are elected officials, they know best. We don’t want to get involved, and they know best in what’s involved in their cities.” I would say to courts, “Well, the Founders set certain boundaries. That’s why the document itself was written, is to prevent certain things from happening.”
Albert Mohler:
As you look at the entire question of originalism, I think of the comment made by Richard Nixon about 1970 when he said, “We’re all Keynesians now,” referring to Keynesian economics, which is of course largely built upon the idea of government funding and control of the economy. But he was just saying, “Look, there’s no point in making an argument contrary to Keynesian economics. Now we’re all Keynesian.” So Ruth Bader Ginsburg, the late justice, made some comment like, “We’re all originalists now.” I don’t know exactly what she meant by it, but it is interesting that even people who aren’t originalists, they at least have to take originalists’ arguments pretty seriously in framing arguments before the court.
Judge Amul Thapar:
Yeah, I think that’s right. I’ve made the argument in many recent talks that’s irritated a lot of law schools that if they’re not teaching originalism in law schools, even to people that disagree with it, they are allowing their graduates to commit malpractice. Because there are enough originalists on the court now that it is important that lawyers understand how to make originalist arguments. While I don’t think all judges are originalists, I think everyone has to tangle with the arguments now that the courts are, and this is a tribute to Ed Meese and Robert Bork and Justice Scalia and others, but are now populated… and Justice Thomas now populated by originalists. You’re most likely in the courts to get an originalist on the panel, and they’re going to be pressing their arguments. I’ll tell you, it’s hard to respond to originalist arguments and just say, “No, we’re making it up,” because I don’t think the public’s going to buy that.
Albert Mohler:
Well, what about the law school faculties? I don’t get to ask this question so directly in most cases, so let me ask you as directly as I can. So if you take the direction of America’s law schools, are there many originalist professors on the faculty?
Judge Amul Thapar:
If you go to a school like Notre Dame where I’d say it’s got one of the best faculties in America, in fact I’d make the case Notre Dame, George Mason, some of those schools, but Notre Dame in particular I’m fond of because I teach there, their faculty is remarkable. Intellectually there’s not a better faculty in America. Intellectual diversity, not better in America. A lot of good originalist professors. Now schools, not all of them, and not as Justice Thomas says, the cognoscenti, but I think a lot of schools are recognizing that they have to hire… Judges are putting pressure on them, I meet with deans regularly and ask them to make good hires of originalist professors. I think they are starting to do that, but I think Notre Dame, George Mason, some others have really started to go that route. Alabama’s got a good new dean who’s, I’m confident, going to pay attention to intellectual diversity.
I think Florida is starting to pay attention to intellectual diversity, so it’s happening. It’s not anywhere near where it should be. It’s a real problem, as we saw at Stanford, when people don’t have to hear things they don’t disagree with and they just shout it down. That’s not what lawyers do. It’s a real problem when that occurs. I think these law schools are waking up to that because, guess what? When you get to court and you argue in front of a panel of judges, we care about the facts in the law, not how you’re going to feel by our questions or how you’re going to feel by the law being reflected in opinion.
Albert Mohler:
In terms of the direction of the law, I would argue that the originalists had massive impact. And I think someone on the left would agree, it’s massive impact. I celebrate it, they lament it. But there seems to me that currently there’s a new wave of pushback against originalism. Several law professors have written books over the last two years that have been published. So where’s the state of the debate right now among lawyers and law professors?
Judge Amul Thapar:
The state of the debate amongst lawyers and law professors, I’m going to start with, but I don’t want to finish, lawyers and law professors is still very slanted away from originalism. I’m not debating that. The judiciary, however, is different. The judiciary, I would say, has not a majority, but a large number of originalists on its court. And then it’s why I think books like this are so important. What I always say to people is, “Don’t only read it yourself. Give it or buy it for a friend of yours who’s a critic, we’ve all got one, who doesn’t believe in originalism or is a critic of Justice Thomas. Ask them to give it an honest read. I put end notes in here. You can go check my sources. You can check anything about the stories you want, and then sit down with them and say, ‘Okay, tell me why originalism is bad. Tell me why he’s wrong.'”
One of the chapters I was writing, I was with a friend who disagrees with me, grew up with him. I gave him the chapter. By the end, he was shocked. He looked up at me and he said, “I can’t believe it.” He said, “I thought the court would’ve come out the other way.” Like in Kelo, he would’ve thought Clarence Thomas as he’s portrayed would be in favor of taking poor people’s houses, taking the middle class’ houses and the others would be in favor of protecting them. He was shocked how often that happened. He pre-ordered the book, he read it, he gave it to his daughter who’s a critic. We got to change minds and hearts one by one. I’m not convinced to answer your ultimate question. We’re going to do it quickly in lawyers or in faculty, but I am convinced the American people, if they read this book and understand the cases, we’ll start to change their mind.
Albert Mohler:
Ideas have consequences, as Richard Weaver famously said. Sometimes those consequences work their way through a system slower than we might like. But when people get very discouraged by, and I do frankly by the leftism that’s increasingly powerful and frankly out of control ideologically on America’s college campuses, I said, “Well, we just have to remember the right ideas can still win.” If you look at economics in the 1920s and compare it to the Nobel Prize-winning economists of the Chicago School in particular by the 1960s and ’70s, there’s been a fairly conservative revolution in economics. Now, that didn’t end the debate, but it’s still very noteworthy. People who think that the left is always in control and in the driver’s seat and that the battle of ideas doesn’t matter, you got to deal with the economic revolution that took place in the middle of the 20th century, and I would argue the legal revolution that took place in the second half of the 20th century, it gives me hope.
Judge Amul Thapar:
I think the People’s Justice, this book, putting the people’s Justice in front of people, I’ve been trying to do it in not just the book, but the stories in the book by going around and talking about it, talking to lay people every chance I get, doing shows and moving through and trying to make them understand it. I think that’s where the groundswell is going to come from. There’s enough Americans, if you think about it, that what they worry about is putting food on the table, getting their kids through college, going to church on Sunday, and they’re not really involved. I think it’s important they read and understand and know what’s going on because there’s so many people that just don’t. It’s like my neighbor who said he couldn’t believe I was an originalist because of what he assumed, what he had read in a snippet in the newspaper. When he read the book, it completely changed his mind. I think that’s what’s important, is that’s what I’m trying to do with the People’s Justice. I hope more will do it. I know that others are now writing books in this vein, which I’m excited to see. And so I’m hopeful, because as you pointed out so astutely unfortunately, we’ve got to go past just the academies themselves because that’s not doing it. By the time you get to the academies, it’s often lost.
Albert Mohler:
Judge Thapar, I’m very thankful for this conversation. I want to say a word of gratitude for you and your role yourself in the judiciary. Very thankful you’re there on the Sixth Circuit. I am very hesitant to argue with your wife, but I’ll simply say that we need another book. At least let that be a contrary word of encouragement here meant in a friendly way.
Judge Amul Thapar:
Okay, well, I will take that message back to her and hopefully I think she’ll be, after a few years… It was a lot of taking away time from her and the family to write on weekends and then a lot of early mornings before they were up. But by the time they were up, my dog and I were grumpy, I think, from writing all morning.
Albert Mohler:
Well, very thankful for this conversation. Judge Amul Thapar, thank you for joining me today for Thinking in Public.
Judge Amul Thapar:
Well, thank you very much. Have a wonderful day.
Albert Mohler:
Many thanks to my guest, Judge Amul Thapar for thinking with me today.
If you enjoyed today’s episode of Thinking in Public, you’ll find more than 185 of these conversations at albertmohler.com under the tab Thinking in Public.
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Thank you for joining me for Thinking in Public, and until next time, keep thinking.