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Joel Alicea (00:00:00):
Thank you for coming. My name is Joel Alicea. I’m an assistant professor of law here at the Catholic University of America’s Columbus School of Law and the co-director of The Project on Constitutional Originalism and the Catholic Intellectual Tradition. We’ll begin this event as we will begin all of our on-campus events, with a prayer. So please join me in a prayer. In the name of the Father and of the Son and of the Holy Spirit. Amen. Hail Mary, full of grace. The Lord is with thee. Blessed art thou amongst women and blessed is the fruit of thy womb Jesus.

Kyle Duncan (00:00:28):
Holy Mary, mother of God, pray for us sinners now and at the hour of our death. Amen.

Joel Alicea (00:00:33):
In the name of the Father and of the Son and of the Holy Spirit. Amen.

(00:00:36):
This event is one of our first events on campus for The Project on Constitutional Originalism and the Catholic Intellectual Tradition which is designed to explore the relationship between the Catholic intellectual tradition and American constitutionalism more broadly, with originalism being one focus of the overall project. We’re delighted today to have with us three outstanding judges who’ve agreed to discuss this relationship between originalism and the Catholic intellectual tradition. I’m going to quickly read the introductions for each judge and then hand it over to Judge Duncan who will moderate our discussion.

(00:01:14):
Judge Amul Thapar is a judge on the United States Court of Appeals for the Sixth Circuit to which he was appointed by President Trump. Before that, he served as a judge on the US District Court for the Eastern District of Kentucky and as the US attorney for the Eastern District of Kentucky. Judge Thapar practiced law at Williams & Connolly and Squire, Sanders & Dempsey and he clerked for Judge Nathaniel Jones on the Sixth Circuit and Arthur Spiegel on the Southern District of Ohio. He received his undergraduate degree from Boston College and his law degree from the University of California at Berkeley.

(00:01:44):
Judge Paul Matey is a judge on the United States Court of Appeals for the Third Circuit to which he was appointed by President Trump. Before his judicial service, Judge Matey was a partner at Lowenstein Sandler in New Jersey. Prior to that, Judge Matey served as the senior vice president, general counsel and secretary for a university hospital in Newark, as the Deputy chief counsel to Governor Chris Christie and as an assistant United States attorney for the District of New Jersey. He also practiced law at Kellogg Hansen and served as a law clerk to Judge Robert Cowan on the Third Circuit and Judge John Lifland on the District of New Jersey. And he earned his bachelor’s degree from the University of Scranton, his law degree from Seton Hall University School of Law.

(00:02:23):
And our moderator, Judge Kyle Duncan, is a judge on the United States Court of Appeals for the Fifth Circuit, also appointed to that position by President Trump. Before that, he practiced law at Schaerr Duncan, where he was a founding partner, and served as appellate chief for Louisiana’s attorney general’s office as general counsel of the Becket Fund for Religious Liberty and is assistant professor of law at the University of Mississippi School of Law. So a fellow academic. Judge Duncan clerked for Judge Malcolm Duhe on the Fifth Circuit. He received his undergraduate degree and JD from Louisiana State University and his LLM from Columbia Law School. I will turn it over now to Judge Duncan. Thank you.

Kyle Duncan (00:02:58):
Thank you, Professor Alicea. It’s wonderful to be with you all to moderate this discussion with two eminent jurors on the Catholic intellectual tradition and originalism. The two judges, who are both to my left, are Catholics and so am I. Now, this topic is a broad one, it can go in many different directions. One might be what is the relationship between a judge’s Catholic faith and his job as a federal judge or her job? Is there any relationship? Should there be a relationship? Another way that occurred to me of putting it as are we up here judges who happen to be Catholics? Or are we Catholic judges? Does it matter whether the Catholic comes before or after judge? And what about originalism? How does being a Catholic or something in the Catholic intellectual tradition speak to that very important methodological topic?

(00:04:00):
And the nub of the question is what does a Catholic intellectual tradition have to say about originalism? I’m not sure it does, but that’s why we’re having a discussion. Is there a Catholic view of interpreting legal texts? I’m not so sure there is. But maybe it’s more helpful to ask is there a Catholic approach to fulfilling one’s duties as a federal judge? And if there is, then what does that imply about a judge’s authority vis a vis, the other branches of government, vis a vis the founders, vis a vis the ratifiers of the Constitution.

(00:04:32):
I look forward to hearing a discussion about some of these topics or all of these topics. I may interject my own views at some point, if there’s an occasion to do so, but I know that our panel wants to have questions from the audience drive our discussion. And so hopefully we will get to that as soon as we hear from the panelists. With that, I will go… I don’t remember who’s going first. Who’s going first?

Amul Thapar (00:04:58):
I think I am.

Kyle Duncan (00:05:00):
Judge Thapar will go first. Thank you.

Amul Thapar (00:05:03):
Well, thank you, Kyle, for turning it over. I think before I start I want to thank Joel, who’s a dear friend, and I came because he asked me to. And I think he’s an amazing professor and will make this place an incredible success. And as I told the dean, I only hope you all can keep him because everywhere I go I sing his praises and I’m sure other schools will be looking to steal him soon.

(00:05:27):
I want to answer the first thing you said and the last thing, if I remember, or something you said in between. First, you asked if there’s a Catholic way to interpret text. And I’m going to give you Justice Scalia’s answer. And Justice Scalia said, “Just as there’s no Catholic way to cook a hamburger, so also there is no Catholic way to interpret a text, analyze a historical tradition or discern the meaning and legitimacy of prior judicial decisions. Except, of course, to do those things honestly and perfectly.” I would’ve wanted to have one of his burgers if he did them perfectly.

(00:06:09):
I think the other thing I want to address, which is the broader notion, and I think it’s the first thing you brought up, is faith in judging. And what Paul and I talked about is we both are converts to the Catholic faith, so we thought we would spend a little bit of time talking about our conversion. And then I’m going to focus a little bit on the broader topic of faith in judging at the district court where I spent many years. And Paul will then focus on the appellate court. And then I hope to weigh in on another one of your questions, which is the Catholic intellectual tradition and originalism. But I’m going to do that during the Q&A, hint. So I’ll get started with that.

(00:06:52):
The way I think of Catholicism, it’s interesting in the legal profession, because I think of my own journey is what I call from clerking to Catholicism. And when I started clerking for Nathaniel Jones on the Sixth Circuit, I had this amazing judicial assistant, and her name was Marsha Carter, or she was the judge’s judicial assistant. I wish she was mine. And she is a dear friend and somewhat of a mentor to me and remains a mentor. And at the time I was a Hindu, not a practicing Hindu, but she talked to me a lot about Christianity. She said she was going to save my soul just like the judge was going to save my legal mind. He didn’t accomplish that, he was appointed by Jimmy Carter. But I think she accomplished her goal, I hope.

(00:07:41):
And she gave me something that remains on my desk today and it was a little plaque and it’s Jeremiah 17:7 in it, “But blessed are those who trust in the Lord and have made the Lord their hope and confidence.” And that plaque had so much meaning to me when I left the clerkship because of how much time she spent with me talking about the importance of Jesus Christ in the Bible and other such things. Another one of my co-clerks turned me on to an Indian preacher of all people, names Ravi Zacharias and I started listening to him. And through that journey, I came to Christianity and I became a non-denominational Christian. During this time I also met my wife and she was Catholic. And so we got married, I refused to convert to get married because I was still struggling with Catholicism.

(00:08:45):
So what happened then? Well,, we had our first child and she got pregnant with her second and she informed me that on Sundays her and the kids would go to Catholic church, they would take Catholic communion. And I could either be a part of this family or I could explain to the kids why I don’t want to be a part of the family. So I went through RCIA, as you can imagine, someone that didn’t believe in many of the tenets of the Catholic faith, challenged everything in RCIA, drove everyone in my class crazy and hopefully we all became better Catholics as a result of it. But that was my journey to Catholicism. It’s really that I got there because of my wife. And of course my faith in judging starts with my wife as well.

(00:09:37):
And so I became a district judge down the road many years later or a few years later. And as a district judge, I would sentence people on Mondays and Tuesdays. And one day every weekend I’d stew over the pre-sentence reports and my wife said, “Every weekend you’re reviewing those things. Every weekend you’re a miserable husband and a miserable father because you’re stewing over sentences and you’re paying no attention to anything else.” So she suggested I sentence towards the end of the week. And I thought that was fine, but as a young judge I really still struggled. So now I was miserable all week and I struggled with the dilemma I was having of judging a person. I couldn’t see how I was capable or authorized to do that.

(00:10:35):
And ironically, across from the courthouse where my offices are is the Catholic church that my wife and I got married in. Yes, they let us get married even though I wasn’t Catholic at the time. And I go into that church often and the priest will let me in by myself and I’ll go in there and I’ll pray and it’s this beautiful church with this beautiful stained glass. And one day, I still remember it vividly, I was really struggling with a sentence. I did not know whether I should put this woman in jail or leave her out.

(00:11:12):
And so for me, the easy decisions were whether to sentence someone to a lot of time, ironically, that never gave me pause because after you study their pre-sentence report, you’re like, “If I leave them out, they’re just going to continue to commit crime and harm society.” The hard decisions were the low- level criminals, whether you put them in jail at all. Because you’re converting them to a life of crime in some sense when you make that decision. But if you leave them out, they could harm themselves or someone else. And so you really struggle with that. But I struggled with just making a determination of… I felt like I was making a determination of whether they were good people.

(00:11:49):
I was in church that day struggling, probably there for an hour. And it finally dawned on me and I think it was God’s own message to me, I don’t judge the person, I judge their conduct. And I should understand with everyone I judge, but for the grace of God, there go I. And so I should approach it in that way. I can tell you, after that day I never again had a problem. And so to the extent someone asked, “Has your faith impacted your judging?” Absolutely. It gave me the freedom to understand that when I was putting people in jail, I wasn’t doing it because they were bad people, I was doing it because they committed bad acts and those acts had consequences by our law. And so that’s my story on faith and judging, especially on the district court level.

Kyle Duncan (00:12:47):
Thank you. Excellent. And we got to learn something about your marriage too, even better.

Amul Thapar (00:12:52):
My wife’s the boss.

Kyle Duncan (00:12:53):
That’s right. That’s right. That is a Catholic approach to marriage, your wife is the boss. Good. Judge Matey?

Paul Matey (00:13:02):
Thank you. Thank you, Judge. And I want to echo Judge Thapar’s comments, I want to thank you, Dean. I want to thank you, Professor Alicea. What you are building here is nothing short of extraordinary. It is a privilege to be here and join you in the mission and we are excited to see where you take the center next and the kinds of contributions that it’ll make. I’m delighted to join this panel. I’m slightly upset that Judge Thapar’s wife is not here because it sounds like it would make for a more interesting discussion, but we’ll muddle on anyway.

Amul Thapar (00:13:29):
There’s no doubt about that.

Paul Matey (00:13:32):
I’ll focus on two themes to start our conversation. And first, as Justice Scalia used to say all the time, “It’s no fun teaching with the class, it’s good to teach against the class.” And so since both judges here have said, and the Justice himself has said that there’s no Catholic way to interpret the law, I will start by arguing that there is a Catholic way to interpret the law. And I’ll make that point by starting with the theory of originalism. I think we can now be certain that originalism demands a wider consideration of historical sources. The Supreme Court’s recent decision in Bruen confirms that the period of thin historical analysis is over. And so we should embrace that direction and we should embrace that direction by turning back to the thick, historical and intellectual tradition that predates and forms and surrounds the American founding. Along the way, I think we’ll begin to discover that there really is no distinction between traditional faith grounded in moral realism and the common law that was commonly known to generations of Americans from the founding forward.

(00:14:41):
We must though avoid the dangers of elevating any theory, particularly new legal theories like originalism to the status of doctrine. They are, in my mind, very different things. Doctrines are beliefs regarding things for which there are no verifiable objective evidence, theories. Well, there are conclusions based on considerable body of accumulated evidence. They’re the answers to questions that cannot be proven verifiably false. Originalism is not a belief, it is a theory, or at least it should be treated as one. And that I think is why the historical record of the wider intellectual tradition that was embraced by the framers, that was accepted by the ratifiers is so significant. It is those things that are the doctrines that inform the legal theory of originalism. And I don’t think we can rightly understand the theory of original public meaning if we’re not versed in the doctrinal language of that error. That doctrinal language of course was the accepted natural law known from at least Rome all the way through the foundation of our federated states.

(00:15:55):
The second point I want to make is that all of this is not a task for us. It is a task for third parties. It is a task for the advocates to research and present. It falls to the scholars who are trained as professional theorists to elevate these concepts. Ours is just to decide cases or controversies. And I fear that we risk messing things up when we get too far out of that lane.

(00:16:25):
I want to remark first though, on picking up on Judge Thapar’s tremendous story, of my own personal experience to the church. And I’m so delighted we are having these conversations. We talk about wanting to have more judicial humility, more judicial restraint, more honesty. Well, that starts by being human and sharing these kinds of moments. It’s not always easy to be honest about who we are and where we’ve come from. Perhaps you’ve noticed, but the practice of law can sometimes be a little bit obsessed with status, maybe a little bit focused on pedigree, a little bit too worried about what anyone will think about us. I understand, I mean, I’m sitting up here with these guys, they’re scary, terrifyingly qualified, so I get it. But if we just take the first step together of admitting who we are as people, I think it’ll make us better lawyers, better servants to the law.

(00:17:20):
So the truth is, growing up I didn’t know God. And I don’t mean I didn’t have a close relationship. I mean I had nothing. My parents weren’t religious, they didn’t belong to a church, I wasn’t even baptized. So what happened? How did I get here? Well, He did. And what did He do? Well, He started working on my life in ways that I didn’t see at the time. The public schools in my town were a mess. So my family sent me to the only private school they could afford, which happened to be Catholic, happened to be named for, wait for it, St. Thomas Aquinas. And the folks who were there pushed me to continue in Catholic education. That led to a Jesuit school where I first started thinking, reading, asking questions like maybe could I possibly become a lawyer?

(00:18:09):
And so when I decided to give it a shot, I wound up going to Seton Hall. Why? Well, because they gave me a bunch of money to go there and so why not? But it turns out He was working His influence on my life. Aquinas High, a Jesuit College, now Catholic law school. Turns out Paul was a good name for me after all. While I was breathing out murderous threats against the Lord’s disciples, He was showing me the light and leading me to the city.

(00:18:37):
And it was at Seton Hall that I met one of the most important influences in my life, the law school chaplain, Father Nicholas Gengaro. I started going to the chapel in the mornings, just to get away from the hectic craziness of 1L classes, spending some time in thought. And eventually that led to my attending mass. Well, priests being observant folks, he noticed that I was there a lot. And one day he came up to me and said, “Would you like to do one of the readings?” And I said, “Oh, I’m sorry father I’m not Catholic.” He recoiled back and said, “Well, that’s okay.” And that was that and thus was born a quarter a century of a friendship that I was able to honor at my investiture when I had him speak, not about me, but about Christ, but about the Lord’s work in the law. Not a bad thing to see in the pages of F4.

(00:19:35):
I was confirmed and baptized in 2002. I went, like Judge Thapar, through the RCIA program. For those of you who haven’t been through the Rite of Christian Initiation for Adults or haven’t heard about it, it’s a wonderful experience. It’s so amazing that I think it should be part of the faith formation mandatory for all adults. And as Judge Thapar said, you get to question everything. It’s not like our children who go through these things by memorization and rote familiarization. We get to argue about everything. It was like being in law school.

(00:20:08):
And so it was the first time that I began to see a connection between the inquiry into faith and the legal function. One of the things we talked about often in RCIA was the close scrutiny of the written word. Understanding what the gospels were teaching us, what the parables were meant to say. I remember one of the examples was the famous story of the prodigal son. I had heard it a million times before, you’ve heard it a million times after, kid wants his inheritance, he leaves, things don’t work out well. He’s like, “Ah, I got to go back home.” He gets home, wonders how dad’s going to react. Dad, gospel tells us, he’s so happy he comes running out to meet him. Great little heartwarming story about family and the importance of togetherness and forgiveness.

(00:20:52):
Except the importance of that story I learned was the translation of the word ran. That dad ran out to meet him. Why is that important? Well, think of the garb of the days. They weren’t pants suits, they weren’t wearing shorts, they were wearing robes. I’ve worn that robe and I can tell you, not only can’t you run in it, you can barely walk in it without falling down. So what did dad have to do? He had to hike that thing up so that he could run out to meet his son. Well, that’s a scandal. It’s like me coming out in my pajamas onto the driveway, right? But dad didn’t care. He was happy to defy the social conventions and norms of the day because so impacted was he by his son’s return. And that’s what God teaches us. But we wouldn’t know that if we weren’t familiar with the language that was commonly understood at the time.

(00:21:40):
Isn’t that exactly what we are trained to do as lawyers? Isn’t that exactly what the originalist challenge is to us to understand words as Blackstone teaches us in their ordinary and most known signification. That is the power of the connection I think between faith and judging. But understand that Blackstone went further than that. He taught that lesson of textual interpretation, not isolated from context, not isolated from purpose, but as something dependent to a higher lawyer. He writes that man as a creature must necessarily be subject to the laws of his creator for he’s an entirely dependent being. Dependent on what he naturally asked? Well, the will of his maker called the law of nature. And we are given free will, regulated and restrained by reason, in order to discover the purpose of those laws. And he comes armed with an army of footnotes to back up that claim. Cicero, Justinian, Grotius, Hufendorf, all who spoke not of theory but of doctrine, of answers based in faith. They all saw doctrine as animating the text of the law.

(00:23:01):
Blackstone makes one other point in that section. He says that, “Beyond the text, we must always consider the reason or spirit of it, the cause which moved the legislator to an act.” Uh-oh we think as originalists. That’s not what we’re supposed to do. We don’t hear anything about that in positivist circles.

(00:23:19):
Here’s my final point. I think we should. I think we must. Maybe we have falsely accepted the argument that an intent based inquiry robs us of independent judging, starts to steal the powers of the coordinate branches. Maybe it doesn’t. Maybe what Blackstone meant, what Justinian meant, what Grotius meant was that the intent is not a standardless subjective thing. It is, because as he writes, “God is a being of infinite wisdom.” He’s laid down only such laws as were founded in relations to justice that existed in the nature of things antecedent to any positive precept. And he’s enabled human reason to discover as far as necessary the conduct of human actions.

(00:24:13):
Count me in. God has enabled us to raise and to discover the doctrine necessary for the conduct of human actions expressed in the posited law. That’s not a road without a map. That’s a path that begins with the text as ordinarily understood by the people when adopted, of people who reached for and relied on the intellectual tradition known at and before the founding. We simply cannot practice originalism without history. And we can’t honestly inquire into legal history without engaging the natural law foundations against which Blackstone argued, depend all human laws. My faith, it is not inconsistent with that age-old process. And originalism, I think properly focused deeper into the past was going to well serve judges today.

Kyle Duncan (00:25:07):
Thank you, Judge. Excellent. Let me just interject a couple of thoughts and then we’ll open it up for questions. I am not a convert, I am a revert to the faith. And what that means is I was a really bad Catholic for many years.

Joel Alicea (00:25:26):
Do you now consider yourself a good one?

Kyle Duncan (00:25:29):
I wouldn’t go that far, but you can ask me questions if you’d like. We’ll talk privately.

(00:25:38):
After many years outside the church, I came back in. I did go through RCIA with my dear sainted wife, who did convert. I had First Communion when I was about 10. I wasn’t confirmed until I was 31, 32 years old. And I was a law professor at the time at University of Mississippi, which is where we came into the church or back into the church. It was one week before Pope St. John Paul II died. And I chose as my patron saint, St. Thomas More. And I would say, although what Paul says is very interesting and I look forward to discussion about the ideas of the Catholic intellectual tradition and forming judging, forming a view of originalism, what has meant more to me as a judge is the example of the saints. So people over ideas.

(00:26:36):
And in particular, St. Thomas More has meant a great deal to me. I have returned often to his writings, Dialogue of Comfort Against Tribulation is one of my favorites. One of his most popular biographers is Peter Ackroyd. And I’ve returned again and again to what More wrote and what More said about his life in the law and in politics, and as a judge, More was a kind of judge as well. And I’ll just touch on one thing that more has been a great deal to me. Actually, I’ve given this talk at a Red Mass in two different times about how More helped me through the nomination process, which was no fun. But More was a great example of how to deal with people who are attacking you and people who are trying to twist your words. I didn’t facing execution but I was facing a kind of public humiliation and More was a great help in that.

(00:27:41):
Judge Matey mentioned something about humility and More has always been an example to me of humility in judging. And judges, Article Three, federal judges, high status, a lot of power. What would More have said about the power that federal judges wield? Well, when Pope Pius the 11th canonized More in 1935, he said, “More knew how to despise resolutely the flattery of human respect.” When St. John Paul II proclaimed More the Patron of Statesman and Politicians in 2000, he said, “More witnessed, even at the price of his life, to the primacy of truth over power.”

(00:28:31):
More’s biographer writes that More was the Lord Chancellor of England. I guess it’s like the Attorney General and White House Counsel and Chief Justice United States all rolled into one, very, very powerful. But he writes, “Under the gold chain and velvet doublet…” You’ve all seen the famous Holbein portrait of More, “… under the gold chain and velvet doublet, More wore a hair shirt which chaffed and broke his skin.” More, when he was in the tower awaiting execution, he wrote in the margins of his prayer book a psalm of detachment. And it begins like this, “Give me thy grace, good Lord, to set the world at, naught, to set my mind fast upon thee, and not to hang upon the blast of men’s mouths.”

(00:29:19):
It’s interesting being a judge, you have all this power, people salute you in the marketplace and offer you the best seat at the table, like the pharisees. And it is up to us to resist that absolutely and More helps me try to do that. I don’t wear a hair shirt, but maybe, there’s always time. I’m not sure where to get one. I know Amul teaches about the anti-Federalists and I’ve sat on something about the anti-Federalists. When the anti-Federalists were protesting the Constitution, Brutus wrote about these people, these federal judges and what were they given, “What? Life tenure? Unreviewable.” And he said, “Men placed in this situation will generally soon feel themselves independent of heaven itself.” So I remember More, who knew the difference between God and men, who knew the difference between divine law and human law. And that’s been, even above and beyond any intellectual ideas, of which the Catholic tradition is rich, More’s example has been a lesson to me. I can’t say that I hope I end up where More did. Well, I hope I end up a saint.

(00:30:48):
I guess, what did Flannery O’Connor say? “I’m not sure I can be a saint, but I could be a martyr if they killed me quick.” But More is wonderful and I commend to all of you his writings and books about him. And I love the play. I don’t know how historically accurate the play is, A Man for All Seasons, but it sure is a great play. Having said that, shall we open it up for questions?

Amul Thapar (00:31:11):
Can I say one thing about Brutus since you brought him up?

Kyle Duncan (00:31:13):
Sure.

Amul Thapar (00:31:14):
Since I love Brutus.

Kyle Duncan (00:31:15):
I like Brutus too.

Amul Thapar (00:31:16):
So Brutus, what led up to the quote, the great quote that Judge Duncan just gave, is Brutus talking about how if judges don’t adhere to the text and meaning of the Constitution, they will soon rule consistent with the spirit of the Constitution. And once they’re ruling with the spirit in mind, they will soon find themselves below no power, not even having itself. And in response, Hamilton promised in the Federalist Papers that no, judges would rule consistent with the meaning of the Constitution. And so for those that say that originalism is a new creature of the seventies, I push back because if you go read Brutus and Hamilton together, as you should, just like judges don’t read one side of the briefs, you shouldn’t just read the Federalist Papers. No matter what your professors or others tell you, you need to read the anti-federalists. You will understand the debate and what they understood, how judges could get unmoored and out of their lane. And we’ll come back to that in some of the conversations.

(00:32:24):
On humility, I just got to add two things for judges. One is when I got my first bad grade in law school, I went to see my professor. I was devastated. My professor said, and I want all of you to take this to heart, “Amul, don’t worry. A students become professors,” like these gentlemen. “B students become judges and C students become millionaires.” So I got to B, here I am.

(00:32:55):
The second thing is, back to my wife, because you will see that many things revolve around her in our house, when I was a federal judge, I was a very young federal judge, so I had young children. And I became a federal judge at 37, 38. And I came home one day and my five year old, who’s now 18, I thought, “Boy, his room is a disaster, it’s a mess. He needs to clean it up.” So I said, “Nick,” and he walked in, I said, “You need to clean up your room.” And he said, “You’re not the boss of me, Mom is.” And so I think kids keep it in perspective and other people keep it in perspective. But to those people who think judges got some kind of exalted status that they’ve earned, that’s not true. We’re just normal people. That’s why we give our stories about our faith. We’re no different than anyone here. And when we all get upstairs, God will view us the same as long as we do the things we should.

Kyle Duncan (00:33:55):
Amen. All right. Shall we have questions? How are we going to do this? Volunteers please. And ask us anything. But even better if it’s about the topic.

Paul Matey (00:34:10):
Unless it’s baseball.

Amul Thapar (00:34:12):
Yeah.

Paul Matey (00:34:13):
Or baseball. We’re happy to talk about that.

Amul Thapar (00:34:15):
Not the Bengals though. Oh man.

Joel Alicea (00:34:19):
I’ll get us started while we wait for others to [inaudible 00:34:22].

Amul Thapar (00:34:22):
Really, students.

Paul Matey (00:34:23):
Yeah, I thought we were done with law school.

Kyle Duncan (00:34:25):
Professor.

Joel Alicea (00:34:27):
All three of you discussed the role of faith in your vocation as a judge. I wondered to what extent your faith plays a role in how you view your oath in particular? This is a major theme of recent originalist scholarship, the role of the oath in perhaps justifying originalism. If you want to discuss oath theory and originalism, I’d love to hear what you have to say about that, but my question is specifically about the extent to which your faith plays some role in how you understand your oath?

Kyle Duncan (00:35:04):
Who would like to take that?

Amul Thapar (00:35:05):
I could start. Yes, very much so. There are very few oaths you take in life that are more important. Obviously your oath in marriage, your oath to the Lord. And then for me, the next one’s this oath. And it seems to me one of the presumptions of originalism is twofold. Well, there’s two presumptions. One is that the Constitution itself is a document to which you can take an oath. Because we take an oath to this constitution. This constitution to me means the written concepts. We have a written constitution that has to mean something. So I have to be comfortable when I take this job, that in order to give that oath to the document itself, to the words, concepts, structure underlying that document, that I can do it, that the document is inherently good.

(00:36:08):
And I do believe that. And I believe it for a lot of the reasons your professor has, I’m going to butcher his great article, but in the sense that the document, meaning the Constitution was, in essence a compromise. And it was a compromise of separating the powers. The most important part of the document is the separation of powers. As Justice Scalia said, North Korea has this amazing constitution and all these rights, but they mean nothing without the separation of powers.

(00:36:41):
And so they divided these responsibilities. And as part of that faith in the system, as part of taking that oath, I understood there were different lanes for different actors. And that we were going to trust if we had to adhere to the law and reach what we viewed as an unjust result, we would leave it to the other actors to fix it. The whole reason we have government and we have a constitution is because the founders believed rightfully so, that men aren’t angels. And they also believe that if you blur the powers, it’s tyranny. And so to me, I had to think through all of that before I could take an oath to adhere and stay in my lane even when I thought something was unjust.

Kyle Duncan (00:37:35):
Thank you. Matey, anything to add?

Paul Matey (00:37:37):
Yeah, absolutely. I mean, I think the importance of the oath is in its public pronouncement. It is no different in that sense than a written document. It is an announcing to the world that you will honor or abide by certain restraints on your otherwise unbridled conduct. So whether you take that to God or to a spouse or to the people, what you’re doing is publicly announcing what your future intent is to do. I mean that’s why the written word, the publication of thoughts is so significant. It’s the reason why the people way back when got very upset in the Roman Republic that they didn’t know what the law was and they demanded that it put on some tables and then those 12 tables came out and people said, “That’s what the standard is? We had no idea what was going on here.” And things started to change rapidly after that.

(00:38:32):
So too, as Judge Thapar says, the enormous benefit of a written constitution, with its clear separation of authority, is that it creates a predictable and public standard by which we are all bound. It removes the license we would otherwise have in a free arranging civil system where the authority of interpretation was not grounded in anything positive. And so that to me is the significance of the oath, that we are sharing it publicly, it is not some sort of private promise to do our best. It’s a hand raised before heaven that says, “I’m going to follow these rules.” And it’s not something you should enter into lightly because it’s going to determine how it is that you make determinations.

Kyle Duncan (00:39:19):
Well, I agree with all of that. And we didn’t work this out ahead of time, just to be clear, but the third point that I typically make when I talk about More in my Red Mass talk is that his care with words. And I see that most clearly in his treatment of the oath of affirmation, which of course, as you know, it’s out of the oath of supremacy or the oath of affirmation, the one that he refused to take that resulted in him getting imprisoned and executed. And in the play at least, and I think More said something like this, More is given the oath presented to him and his first reaction is to say, “What is the wording?” And his son-in-law and his daughter react as if he is straining at irrelevant details. “What does it matter what it says? We know what it means.” And More says, “No, no, it will mean what the words say because an oath is made of words.” And then he says this beautiful thing, and I hope More said this in reality, but it’s so beautiful in the play, he says, “When a man takes an oath, Meg,” his daughter, “he’s holding his own self and his hands like water. And if he opens his fingers, then he needn’t hope to find himself again.”

(00:40:41):
Now, are our oaths as federal judges of that magnitude? In a sense they are. I mean, our society today doesn’t think much of promises, be they promises that are made to business partners or promises that are made to spouses. And there are not many occasions in life when we stand up in front of people and say, “I swear.” We give testimony, not many of us give testimony. We had to give testimony at a confirmation hearing and we had to swear before God that we would tell the truth. That made a difference as to how I weighed my words. And when we swore an oath to this Constitution, to uphold this Constitution, not some other constitution, but this Constitution, the Constitution that was drafted and promulgated and ratified by specific people at a specific time, who had a specific understanding. Sometimes it’s difficult to get back to what that specific understanding was, but it’s this Constitution, not some other constitution that we might hope. Not the German constitution, not the Italian constitution, but this Constitution.

(00:42:02):
Now I know in your good article you say that the oath argument for originalism doesn’t quite go deep enough, and I tend to agree with you on that, but it goes a good way for me. And I also have to interject that I was really amused that you said, I was just reading your article yesterday, as I said, that you think Madison was wrong when he said, “If men were angels they would not need government because angels would need government too.” Interesting. But Madison’s point still holds, men are not angels and so they need government and they need separation of powers. And that’s why Justice Scalia was right about that.

Paul Matey (00:42:39):
Can I just pick up on that point because I’m curious what your thoughts are on, you mentioned the oath argument is a justification for originalism? I do either of you believe we need a doctrinal basis for originalism? Or could it simply be a superior methodology with which to resolve the question of determinacy in distant texts? There’s all sorts of rules in the law, mailboxes, perpetuities, I know everybody’s a student, it’s like, “Ah, not those again.” Right? But I’ve never stopped to think about whether the mailbox rule has some deep and lasting doctrinal reason. I just know that it helps for me to figure out whether or not the contract was accepted. Do we need, in your view, this theoretical foundation or is it good enough to say it works really well and creates predictable outcomes?

Kyle Duncan (00:43:30):
Good question. What do you think, Amul?

Amul Thapar (00:43:33):
I mean, I think both that it works really well and produces outcomes that the founders intended, I’ll let others judge whether those are good or bad. I do think it produces good outcomes from my perspective. The originalist doctrine, I believe is justified in numerous ways, including the way I’ve always envisioned it, and I would be more than happy to discuss this, is that I have the popular sovereignty view of originalism and I believe that that is the right way to think about it. But I’m more than willing to discuss and hear why that’s wrong. I think Joel, in some ways in his article, talks about the moral justification for the popular sovereignty view of originalism. I think the critiques of originalism that have come lately, people shouldn’t brush aside, but rather should embrace and try and figure out, just like Justice Scalia did when people critiqued original intent and he moved us to original meaning.

(00:44:38):
And I think Joel and others for the first time have really put a moral foundation underneath originalism that I think is valuable for us originalist for us to think about. Because I do think it’s important. I think the critique that at lacked a moral foundation was valid until we sat and thought about it. And I think those critiques are important and the responses to me are even more important, as I’ve myself struggled through it. To be honest with you, every time there’s a critique of originalism, I try to read it and I try to understand A, do I believe the oath mandates it? I’m not saying everyone has to believe that. I’m saying do I believe, as Kyle just said, this Constitution, my oath to this Constitution, what does this Constitution mean to me? And it means the document that was ratified. The meaning of the words’ concepts within the Constitution as ratified and understood by the people who voted on it.

(00:45:44):
But, like Justice Thomas, in what I would call new originalists, and I described this in an article, I’m willing to look, and Paul brought this up in part, I’m willing to look at everything that was available at the time to help me figure out the meaning of the Constitution. And the reason I’m willing to look at everything is because it’s a difficult enterprise, as Kyle mentioned, to figure this out. So I start with A, yes, I do believe the oath to me compels originalism. B, I believe for the reasons Joel and Professor Pogenmakowski and Walsh and Sherif Girgis and others have given that there is a morally good justification for originalism. And so I believe following that methodology is proper. Longwinded. You can put it [inaudible 00:46:45].

Kyle Duncan (00:46:44):
No, I am a two minds about your question, Paul. Because although I think we profit greatly from a theoretical exploration of originalism… I wish that word didn’t exist, originalism, it makes it sound like this newfangled theory of interpretation. It’s a theory that deserves exploration. I find very interesting the debates where we talk about, are we talking about original intent, original public meaning, original methods, all these different… they’re very interesting, very worthwhile to have. So I think that’s all good. I have to tell you though, when I came at this in law school, I was apolitical in law school. I didn’t go to a political law school. I didn’t have a political bone in my body. I didn’t come to law school because I wanted to be in the Federalist Society. I didn’t know what the Federalist Society was. I wanted to do well in law school because I couldn’t get a job as an English literature major.

Amul Thapar (00:47:54):
You were a B student too.

Kyle Duncan (00:47:56):
I was. We can talk about that later. But to be fair, I had very good constitutional law professors. Jay Bybee taught me con law two, John Baker taught me con law one, they’re both originalists, they are both stalwarts of the Federalist Society. Jay Bybee is now a senior judge on the Ninth Circuit who I admire very much. When they started telling me how we are interpreting the constitution here, I thought, “Yeah. And? What’s the other option?” “Oh, we’re going to interpret it according to the public understanding of what these words meant when they were ratified.” I said, “Yeah, and? What’s the alternative?” And I still don’t really know the answer to that, what is the alternative to an original public meaning? I mean sure, keep to one side. Well, public, maybe intent, maybe it’s methods. I get that. Those are nuances within a larger… What’s the alternative?

(00:49:06):
As far as I can tell? The alternative is whatever I think. And I didn’t take an oath to uphold whatever I think, right? I took an oath to something else. What I think may be brilliant, it might be idiotic. But the idea of imposing that on somebody else because I think it, that doesn’t seem like a good option to me. So to a certain extent I come to originalism in a sense by default and in another sense because it’s just so darn obvious. But that’s just me.

(00:49:41):
Questions? Next question? Good question. Have some back there. Yep, there. That’s good.

Speaker 5 (00:49:52):
How you doing? Thanks very much for being here. I really appreciate you coming and speaking with us. I hope to keep this brief and concise. I’ll do my best. One of the things that I certainly, and it seems as you all do as well, respect about originalism is that it’s process driven. And Professor Alicea has certainly made a compelling argument for a moral foundation of a process driven method of interpretation. Common Good Constitutionalism, which is making its rounds, interesting, but it seems to be very outcome driven. I know one of Common Good Constitution’s arguments is that it’s founded on natural law. And I think that natural law and the Catholic intellectual tradition are often equivocated. I think there’s a relationship there, but not necessarily dependent upon one another.

(00:50:40):
I’m wondering if you think that a common good constitutionalist would make the argument that, as a matter of faith, particularly as a matter of Catholic faith, some of the outcomes that common constitutionalism would seek are really more appropriate for a person of faith, particularly a person of Catholic faith? And whether you think that the Catholic intellectual tradition lends itself more naturally towards a process driven method of constitutional interpretation over an outcome driven method of interpretation? Thank you.

Kyle Duncan (00:51:12):
Well, now we’ve gone to common good constitutionalism.

Amul Thapar (00:51:14):
And here we are. Here we are.

Paul Matey (00:51:16):
Well, two thoughts. One, I want to remind myself of what I started with, I think these are the kinds of questions that are best developed by scholars. I’m not sure that it fits comfortably within the judicial function. That’s not a cop out and it’s not certainly cowardice. I just know what our job is and what it isn’t. And so when we look at the progression of originalist theory from works, early utterance in the Indiana Law Journal to last week’s theories about methods and public meaning, that 40 plus years, it was driven by scholars, it was driven by the academy. And so we do well to let that debate play out. Take what we can from it in deciding cases, but be mindful that is not our primary responsibility.

(00:52:05):
The second point I would note that most of this operates very much at the margins. It is not as if in the daily work of a federal judge, questions of original public meaning come up hourly. They come up rarely because disputes arising under the laws of the United States are not the majority of our docket. And the ones that are arising under the Constitution in particular are fairly rare. So when we start talking about where are there going to be differences in how you interpret these cases based on methodology, I mean, you’re talking about a very narrow, narrow subset.

(00:52:41):
But all of that said, with all those qualifiers, I will say I am not yet persuaded that there is a meaningful difference in the Catholic intellectual tradition and the natural law and a properly grounded original public meaning of the Constitution in terms of what’s going to happen. I think in the mass majority of that small minority of cases that are subjected to that theory, I wonder if we’re going to see different outcomes.

(00:53:09):
In other words, I appreciate the robust public debate about policy and I leave that to others, but when it comes down to me saying, “Well what do these words in the Constitution mean as originally understood by a community of reasonably informed speakers, who were versed in the literature of the day, which built upon the founding era writers, who drew upon, among other things, extensively, the natural law theorists that were operating back to Rome.” I’m not sure that I’m going to get a different answer than someone who says, “Well I am just a pure, unnatural, secularist, positivist originalist.” My sense is that person’s going to wind up reaching for the same books that I did. So I’m not sure that when the scholars are done debating, we will not wind up with a more synthesized and unified approach that will get us to the same results.

Kyle Duncan (00:54:00):
Thank you. Do you have anything to add?

Amul Thapar (00:54:02):
No, I mean, I think that answer was excellent. I think one of the fun things for us sitting up here is we get to get out of what Judge Matey described, our chambers, where we really do decide cases or controversies. 97% don’t ever involve thinking about this stuff. So our time to think about this as our free time. But the professors and the students, I wouldn’t leave you all out. The professors and the students can really bat these things around and then put out… The articles I find most helpful are the ones like Professor Alicea’s about the moral authority of originalism. And then historical articles that can help me solve the problems when I get them.

(00:54:48):
But what we’re really trying to do is resolve cases or controversies that come before us. And Judge Matey’s point is no one’s ever shown us. Meaning I don’t think you can get many judges who could say, “You’ve shown us where these debates are going to make a meaningful difference when we resolve a case or controversy.” And that’s what’s interesting is until we see that, I think it’s a lot less important to us which way you get to the result, as long as you do the hard work to get there. And the beauty of originalism from my perspective is we have to show our work. And once we show our work, it’s not like Judge Duncan said, “Whatever I want.” It’s here’s historical sources I’ve relied upon. Here’s how I got to this answer. Now tell me why I’m wrong.

(00:55:45):
Justice Scalia said it differently than Judge Duncan, he said, “No one’s outrun the bear yet.” Right? When a philosophy outruns the bear, then we can talk about it. And at the end of the day, this is what most, I don’t want to say most judges, but this is what a lot of judges do, is we get the text, we interpret the text. Most of our cases, as Judge Matey said, are statutory cases, we’re looking at the text. It’s consistent, interestingly, with which Judge Duncan said about what he learned in law school, of course we look at the text. You know what? 30 years ago that wasn’t true.

Kyle Duncan (00:56:21):
Yeah, that’s true.

Amul Thapar (00:56:22):
But now everyone thinks, “Well duh, the Supreme Court says we start with the text.” Well, there’s a lot of old cases where they don’t start with the text. So it’s really interesting today how far we’ve come. But what’s fun for us is these types of questions and these types of debates where we get to test our own thoughts. But I don’t know at the end of the day right now that it’s making a difference. Now maybe one of us is going to be lucky enough to get an originalism brief on one side and a common good brief on the other and they’re going to go back and forth and we’ll see if the outcome is actually different. But I haven’t seen that either.

Paul Matey (00:57:03):
Let me just plea for you young legal minds, as many times as I hear the Supreme Court tell us that we start with the text, is as many times as I say briefs that do not start with the text, right? Virtually every brief I get in a statutory case says, “This case involves at 18 USC section, section, section. The Sixth Circuit has held this, The Fifth Circuit has held this, the First Circuit is that, You should join-

Amul Thapar (00:57:27):
[inaudible 00:57:28].

Paul Matey (00:57:28):
… Right, exactly. “You should join with the first circuit because…” And you say, “Is the statute in here anywhere?” And the answer is no. The answer is no. So it is incredibly frustrating, and more importantly for you, it is an incredible disservice to your clients to not do that work. We’ll go do it anyway because that’s what we like doing. But you can do more for your clients by making sure that those arguments are the beginning and end of your advocacy.

Kyle Duncan (00:57:55):
Do we have time for one more? Do we? One brief question please. Your hand up there.

Speaker 6 (00:58:01):
Thank you. When considering cases that involve new technology that couldn’t have been fathom by the founders when they created the relevant constitutional amendment, how do you grapple with that seeming lack of direction while also looking at the case from an originalist perspective? Do you look for the closest parallel that existed at the time? And what do you do if there isn’t one?

Amul Thapar (00:58:26):
I’ll start. I wrote a case called Morgan and it’s about the Fourth Amendment. And as you know, technology in the Fourth Amendment, cell phones weren’t around or the imaging technology. And so I parted ways a little bit from one of my mentors in Justice Scalia in that I think, and I said this so I’m just repeating what I said, I’m not criticizing the court just for all doers respect, but I’m about to criticize… That’s like when you say something like that and then the criticism spills out. Reasonable expectation of privacy and the Katz test that all of you are familiar with seems a little made up to me because now judges have to figure out what’s reasonable expectation of privacy. What I said in Morgan is if we go back to the original meaning of the term search, it makes everything easier. What I found in studying the history is a search is a purposeful investigative act.

(00:59:18):
Okay. So now if they’re going through your cell phone, they’re engaged in a purposeful investigative act. And then the other question that’s interesting is is unreasonable? And that was thought at founding is against the common law. What I didn’t answer is a really hard question that I’d love to see law reviews on, and I think it’s Professor Sklansky at Stanford did one, there’s a professor at Georgetown, I’m blanking on her name, she wrote a great article on the original meaning of the Fourth Amendment, but is what against the common law mean? Does it mean against state common law, the federal common law, the common law at the founding, the common law now? But what we know is we know the original meaning of the term search. We can apply that to anything. So the imaging technology that saw what was inside the house, what do they call that? The hydro… What was it called? It was that Supreme Court case.

Kyle Duncan (01:00:09):
Kyllo?

Amul Thapar (01:00:10):
Yeah.

Kyle Duncan (01:00:10):
Is it Kyllo?

Amul Thapar (01:00:10):
Yeah, what is that?

Kyle Duncan (01:00:10):
I don’t remember.

Amul Thapar (01:00:10):
Thermal imaging or something?

Kyle Duncan (01:00:10):
Thermal imaging. It was that they were growing weed in the house.

Amul Thapar (01:00:16):
Yeah. But they’re searching when they’re doing that. Right? When they are using that technology to look in your house, does anyone not think it’s a purposeful investigative act?

Kyle Duncan (01:00:27):
I don’t know. Were they? I thought they were just reading the heat off the roof. Were they seeing inside the house? I don’t know. I’m not sure he got that one right, with all due respect.

Amul Thapar (01:00:33):
That’s right. See, this is the discussion you can have. But the point being is I don’t think it’s as hard as people envision once you engage and figure out what the terms mean. What a lot of people talk about is original applications, which is, was it applied this way? And that’s where it’s this critique that’s used that I think is a straw man. Because when you give the original meaning of the terms, their meaning, you can apply it to any situation.

Paul Matey (01:01:01):
If you had a commercial dispute, which involved a contract that says that the seller shall be liable for anything that is shipped in a purposefully unsafe package, and the meaning of that phrase came up, you would not tell your client, “Oh, we’re doomed. This isn’t determinant. I have no idea what any of this means.” You would go and look at what that language is understood in the relevant community. Well, so too what Judge Thapar is saying, I mean, there is more meaning in language than we often recognize when it comes to constitutional issues, but which we absolutely can see it in every other aspect of the law. So one thing that always puzzles me, much as it puzzled Judge Duncan, I think is just, well, what else would we be doing? Of course, we have to look to the language as is ordinarily understood. Anything else is not how we have ever understood the positive precepts of written law to operate.

Kyle Duncan (01:01:55):
There’s a pretty sophisticated discussion in Bruen about, it has something to do with new technology, but it also has to do with analogs of restrictions on firearm use in the founding era or in the reconstruction era and laws today. I mean, it’s not easy, right? It’s not some mathematical process. It requires a lot of care. All right. Thank you all.

Paul Matey (01:02:25):
Thank you.

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