Judge Amul Thapar: Originalism, the Constitution and the Rule of Law

On Tour to Australia talking about his book The People’s Justice

The team at the Rule of Law Education Centre interviewed Thapar about originalism as a judicial philosophy and its importance in Constitutional interpretation.

The following article offers a summary of that discourse and includes three videos of the interview:

“It believes in trusting, in our case, the American people, to pass the laws and be responsible for the governments of the country and for judges to defer to that by interpreting the law consistent with the people’s wishes, and that is reflected in the text and that is the only way we can figure that out.”

“James Madison said we are going to be a country governed by law, not by man or woman’s individual wishes; and the idea behind originalism is to honour that. If you govern by your own wishes, you change what is a republic into a dictatorship of judges.”

Constitutional Interpretation

The drafters of the Australian Constitution intended for the Commonwealth government to have limited powers, leaving all other responsibilities to the individual States. However, over time, the powers of the Commonwealth have expanded significantly. This growth is primarily due to how the High Court has interpreted, or ‘construed’, the terms of the Constitution.

There are five main approaches to constitutional interpretation, each with different implications for the distribution of power in Australia’s democracy:

1. Textualism – Adhering strictly to the exact wording.
2. Originalism – Following the intent of the Constitution’s drafters.
3. Purposivism – Interpreting the Constitution according to its broader objectives and purposes.
4. Pragmatism – Applying the Constitution in the context of modern circumstances.
5. Activism – Applying contemporary values and preferences.

The Constitution is often described as a ‘living’ document, evolving like a tree. From this perspective, the High Court’s interpretations have substantially increased the powers of the Commonwealth, moving authority away from the States and, by extension, the people. Advocates of judicial pragmatism and activism argue that these ‘living’ approaches best promote justice because it does not allow the ‘dead hand’ of the past to dictate modern governance.

Critics, on the other hand, argue that these ‘living approaches’ undermine the rule of law because they make the meaning of laws uncertain, remove the impartiality of the courts, and disempower the legislative branch of government, ultimately eroding the separation of powers.

Though similar in many respects, originalism and textualism are distinct judicial philosophies. The term textualism emerged in statutory interpretation as a counter to purposivism, while originalism developed in constitutional interpretation to oppose the concept of ‘living constitutionalism’.

Thapar argues that originalism reflects “the ideals that the country was founded on – which is to be a country of laws that is governed by laws, and not by men.”

How does Originalism benefit the ‘little guy’?

The 12 cases in Thapar’s book highlight how originalism honours the will of the people.

In the interview, Thapar recounts the case of Kelo v City of New London where the house of paramedic Susette Kelo was taken by the government for a ‘public purpose.’  The Fifth Amendment to the United States Constitution provides that private property shall not be “taken for public use, without just compensation.”

Judge Thapar outlined: “When the court was not so originalist, they changed the words of the Fifth Amendment. There was a case called Berman… and in Berman, the city council decided that they wanted to take the most interracial neighbourhood and wipe it out because they said part of it was blighted, and turn it over to private developers who could build nice, beautiful condos and it would increase the tax base and they said it would help make the city safer. And so they took all these peoples’ houses…and the Supreme Court said because they were taking it [the land] for a ‘public purpose’ that was alright.”

“Now notice the change in words. The Fifth Amendment says ‘public use’. What that means is that they will take a sliver of land to widen a road, or they will take a small portion of your land to put in a sidewalk, something the public will use… That was the original meaning of the Fifth Amendment. Well, the Supreme Court said ‘public purpose’ was enough. But ‘Public Purpose’ can be very broad.”

“So Susette’s case gets to the Supreme Court and Justice Scalia [another originialist Justice] asks the city’s lawyer: If its public purpose, can you take from A, who is poor, and give to B, who is rich, because the rich person will pay more taxes, and the lawyer says yes”

“Susette loses. Justice Thomas writes one of the two principled dissents and in his dissent, he advocates for going back to the original meaning of the Constitution. He says…taking people’s property has historically been used to prey on poor and minority neighbourhoods. And he proves it through statistics. He points out that if we went back to the original meaning of the Constitution it would protect those who don’t have the political power to protect themselves. Because most of the poor and minority citizens, do not have political clout, they cannot stop the city from taking their property, the indignity of losing their home.”

“Justice Thomas has a great quote “something has gone seriously awry with the Constitution when though the American people are safe within their houses, the houses themselves are not safe.””

Does the concept of a living and active Constitution undermine the Rule of Law?

A key principle of the rule of law is that laws must be clear, known, and accessible to everyone and that they should be created in an open and transparent manner by the representatives of the people. In the interview, Judge Thapar discusses how the idea of a ‘living and active’ Constitution – one that evolves over time based on judges’ preferences – can undermine this principle. He argues that if judges interpret the Constitution based on their understanding of “evolving standards of decency”, it becomes impossible for people to predict how a judge might rule in a given case.

Judge Thapar points out that if courts claim that these ‘evolving standards’ necessitate expanding government power while reducing individual rights, this deviates from the original agreement made by the people when they consented to the Constitution. He emphasises the importance of adhering to the text of the law as it was originally written, stating that doing so ensures fairness and predictability for everyone under the law. By maintaining the original meaning of the Constitution, individuals are given a fair chance to understand and anticipate how laws will be applied and preserves the law-making function of the elected parliament, safeguarding people against a “dictatorship” of judges.

Thapar outlines the most significant error of a living constitutional philosophy is its incompatibility with the rule of law. It cultivates a complete dependency on the subjective ideological preferences of nine (or seven in the case of Australia’s High Court) unelected judges. A living Constitution with the ability to evolve into whatever the Court wants it to mean at any given time is the rule of man, not the rule of law.

Chris Merritt Interviews Judge Thapar
Is Originalism a revolutionary approach to the judicial method?

“In many ways, it is counter-revolutionary. It was the initial method by which the founders of the American Constitution assumed that the Constitution would be interpreted.”

What is the Goal of Originalism?

“The people who don’t like originalism don’t trust living majorities. Originalism lets living majorities rule. It involves the people in their government and lets them have control of any rights they want to add. Whether through laws in their local area or laws nationally.”

“It lets the American people decide what rights they want to add and what rights they feel like are not important. The backdrop against that is the Court will protect minorities and those who are weak from the majority and the predatory ones through the Bill of Rights. And those Bill of Rights are so important to the American people.

“It does not give conservative results or liberal results, as that is not the job of a judge. It gives legal results. Those results often protect and favour the little guy and the reason they do is because that is the way the Constitution was designed, to protect the minority from the overzealous majority.”

Does this alienate Judges?

“This allows judges to be the public servants they were supposed to be. Rather than the kings and queens they could be. It becomes more of a dictatorship if judges get to make things up and apply it to the American people… It is closer to the ideals that the country was founded on, to be a country of laws, that are governed by laws and not by man. It allows judges to enforce a plain meaning of the laws, nothing more and nothing less.”

What judicial philosophies are there in America?

“There are three types of judicial philosophies in America. Originalism, which is the predominate. There is the attack from the left, which is ‘living Constitutionalism.’ You also have the attack from the right which is ‘Common good Constitutionalism.”

“I think it is effective because it is the only system I know. Our founders had a great debate about this… The founding fathers that everyone is familiar with, Alexander Hamilton, James Madison and John Jay (but less so) did not want a Bill of Rights. The reason they did not want a Bill of Rights is that they felt by listing certain rights, you assume the American people will have no other rights other than those listed. And that is always the danger of the Bill of Rights. And Justice Thomas, if you read McDonald [v City of Chicago, Chapter 9] about Blacks and gun rights…he talks about how blacks were disenfranchised by taking away their guns. He talks about the privileges’ of the immunities clause and that clause incorporates some of the God-given rights we always had.”

“Be careful what you wish for sometimes. Yes, it can be a great thing… I wouldn’t want a country that did not have a Bill of Rights. At the same time, that is not what protects the American people.”

“Justice Scalia always said this, North Korea and Russia have a longer, and many would argue a better Bill of Rights than most, but they are not governed by the Rule of Law. They are governed by dictatorial men and what we have is the separation of powers, and that is what makes America unique. It is what makes Australia unique. It is these countries that really value the separation of powers. Because the checks and balances in many ways protect the ordinary citizen. So it is a really hard question, there is not a perfect answer because I know our history and we never tested that out as we immediately passed a Bill of Rights.”

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Further Resources

• Chris Merritt’s Article: US Judge a Potential Supreme Court Trump Card
• The Peoples Justice: Clarence Thomas and the Constitutional Stories that Define him, By Amul Thapar
• Originalism in Australia, Lael K Weis
• Justice Scalia and the Rule of Law: Originalism vs. the Living Constitution, Richard F Duncan