This week, Roger welcomes Judge Gregory E. Maggs to discuss the role of the U.S. Court of Appeals for the Armed Forces, the concept of originalism in constitutional law and the importance of civic education. Plus, Judge Maggs shares insights on the quality of TFAS Law Fellows and the practical education they receive, as well as his experiences in the JAG Corps.
Judge Gregory E. Maggs was appointed to be a judge on the U.S. Court of Appeals for the Armed Forces in 2018 and prior to that, he taught full-time at The George Washington University Law School and served in the U.S. Army Reserve, Judge Advocate General’s Corps, from 1990-2018, where he retired as Colonel upon his appointment as judge. His experience includes service as a special master for the U.S. Supreme Court, as a consultant to Independent Counsel Kenneth Starr in the Whitewater Investigation and notably clerked for Anthony M. Kennedy and Clarence Thomas.
He currently teaches the Constitutional Originalism course for the TFAS Summer Law Fellowship and remains a professorial lecturer at George Washington University Law School.
The Liberty + Leadership Podcast is hosted by TFAS president Roger Ream and produced by Podville Media. If you have a comment or question for the show, please email us at podcast@TFAS.org. To support TFAS and its mission, please visit TFAS.org/support.
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Speaker 1 (00:02):
Welcome to the Liberty and Leadership Podcast,
a conversation with TFAS alumni,faculty and friends who are
making an impact.
Today I'm your host, roger Ream.
Today, I'm delighted to welcomeJudge Gregory E Maggs.
Judge Maggs was appointed to bea judge on the US Court of
Appeals for the Armed Forces in2018.
(00:25):
Prior to that, he taughtfull-time at the George
Washington University Law School.
His experience includes serviceas a special master for the US
Supreme Court, as a consultantto Independent Counsel Kenneth
Starr in the Whitewaterinvestigation and, most notably,
he clerked for Justices AnthonyM Kennedy and Clarence Thomas.
(00:45):
Judge Meggs served in the USArmy Reserve Judge Advocate
General's Corps from 1990 until2018, where he retired as
colonel upon his appointment asa judge.
He currently teaches theoriginalism course for the TFAS
Summer Law Fellowship andremains a professorial lecturer
(01:05):
at George WashingtonUniversity's Law School.
Judge Meggs, welcome to theshow.
Judge Meggs, thank you verymuch for having me.
I'd like to begin by having youexplain to listeners the role
of the US Court of Appeals forthe Armed Forces.
Speaker 2 (01:20):
Judge Meggs.
Well, the story behind thatreally goes back to World War II
.
In World War II there wereabout 15 million Americans under
arms and, believe it or not,during that time about 2 million
trials by court-martial tookplace, and at that time there
was no civilian court to whichthey could appeal.
And after World War II therewas a thought that perhaps
(01:41):
either the trials weren't fairor they weren't perceived to be
fair, and that a possiblesolution would be to create a
civilian court that wouldoversee the military justice
system.
And so that's where we standnow.
So if a soldier, sailor, marine, coast Guard man commits a
crime and is tried by acourt-martial, they first appeal
to a service court.
So in the Army you'd be triedby an Army court-martial and
(02:03):
then appealed to the Army Courtof Criminal Appeals, and then
you could petition our court forreview.
We are a five-judge civiliancourt that reviews all of the
trials by court-martialthroughout the entire system,
and then we're reviewed by theUS Supreme Court.
Speaker 1 (02:17):
Do you generally use the US Constitution to
adjudicate cases, or do you alsolook to military rules and
procedures?
Speaker 2 (02:26):
Well, all of our cases are criminal cases and I
would say they fall into threecategories Some involve
procedural issues, some involveevidentiary issues and some
involve just questions ofstatutory interpretation as to
what is a crime or what isn't acrime.
And constitutional issues comeup throughout, just as they
would in a US District Court orUS Court of Appeals concerning
(02:47):
federal criminal cases.
First, amendment rights, fourthAmendment rights and so forth.
Speaker 1 (02:51):
Have you had any surprises or challenges since
you've been on the court thatyou kind of didn't expect before
you joined it, or is it prettymuch what you expected?
Speaker 2 (02:59):
It was surprising in some ways.
Now, before I joined it, I hadbeen a reserve JAG officer in
the Army for 28 years and forabout 10 of those years I had
been either a trial judge or anappellate judge on the Army
Court of Criminal Appeals.
So I had done several hundredcases before I ever got here.
It's a big difference.
When you're the trial judge,you just make a decision.
(03:20):
You don't have to get anybodyto agree.
You know the counsel makes amotion, you decide it.
The Army Court of CriminalAppeals well, we're on three
judge panels and we make a lotof decisions, but it's pretty
easy with three people.
When you met five people in themix, it just takes a lot longer
.
So you know, in a three-daysexual assault trial, as a trial
judge, I decide 30 issues, butwe decide about 30 issues a year
(03:48):
here.
Speaker 1 (03:48):
So the level of depth is much greater here and that's
why it takes so much longer.
Shifting a little, you teach acourse on the US Constitution
for our Law Fellows program andspecifically you focus on
originalism.
I've learned that the wordoriginalism has many meanings to
many different people, but canyou kind of explain the concept
of originalism and how youapproach that course?
Speaker 2 (04:08):
Yeah, so the course is called the Debate About
Originalism.
The question is really what isoriginalism, and is it a good
idea or a bad idea?
Is it required or not required?
In simplest terms, originalismis the theory that courts, when
they are deciding constitutionalquestions and must interpret
the Constitution, that theyshould follow the original
(04:28):
meaning of the Constitution, asopposed to some other meaning,
something that was notoriginally believed.
But it's a complex issuebecause you have to define
original meaning.
What do we mean by that?
You have to figure out what thesources of original meaning are
and, of course, you might haveto think about whether there'll
be any exceptions, such asprecedent, that might not be
consistent with the originalmeaning.
Speaker 1 (04:48):
How do students kind of react to that?
I mean, I assume, for many whatI am told at least, that many
schools don't really focus onoriginalism, the original
meaning of the Constitution.
Constitutional law often justlooks at the precedents and the
key cases in more recent decadesversus debates at the founding.
So how do our students react tothe course you teach?
Speaker 2 (05:12):
Well, you bring up two really good points.
Let me address the second onethat you mentioned, which is in
law school.
There often isn't a lot of timein studying constitutional law
to study debates aboutconstitutional methods.
There's a lot of doctrine tolearn and to some extent you
pick it up as you go through thecases, but it isn't separately
considered as it is in thisparticular course, and that's
(05:34):
really a shame, because there'sno case decided at the Supreme
Court today in which bothparties aren't making
originalist arguments, and evenwhen there's a majority in
dissenting opinion, both sideswill certainly be making
originalist arguments.
So it's a very important topic.
Now you ask how the studentsreact.
My view is students are thereto make up their own minds, and
so what I try to do is presentthe best arguments on both sides
(05:56):
.
So, for example, we havearticles by Justice Scalia
presenting arguments fororiginalism, and Dean
Chemerinsky was a great example,and Professor of Berkeley and
Professor Fallon at Harvard justcounter examples with different
ideas.
You know, one of the problemsabout originalist debates is
they tend to be too abstract,and so I not only talk about
(06:18):
what the different arguments are, but we also use practical
examples.
We learn about the sources andthen we look at actual examples
from the cases and discuss those, and I think the practical
examples make it much easier tounderstand.
Speaker 1 (06:33):
One of my frustrations, judge Maggs, is
that many in the public in ourcountry today think that when a
decision is issued by the courtsit reflects the policy
preferences or personalpreferences of the judges who
issue the decision.
They don't understand that thedecision is based on the
(06:53):
justices' reading of theConstitution and the law.
So in other words, if a casecomes down that's favorable to
one side or another, they assumethe judges, all who voted in
the affirmative, all supportthat policy position, and I
don't think that's the case.
Could you address that?
Speaker 2 (07:11):
Well, I do get that sense.
I think you accurately describedit, and one of the key
arguments not the only argument,but one of the key arguments
for originalism is it's one ofthe only methods of interpreting
the Constitution which isconsistent with democracy and
the principle that we'regoverned by law, which is to say
that the judges, like everybodyelse, is bound by what the law
(07:32):
is and they can't just make itup.
Of course, this also leads toone of the counter-arguments
against originalism, which iswell, if the sources are so
indeterminate that we can'tactually figure out the original
meaning, then maybe the judgesare still making up the results
and they're just screening itwith original citations.
This is one of the topics thatwe discuss in the course.
Is originalism just asmokescreen for conservative
(07:55):
values or is it really the casethat originalists are bound by
the Constitution?
Some good counter examples arewhere you look at cases where
Justice Scalia says that it'sunconstitutional to burn the
American flag and at the sametime, he says I despise burning
the American flag.
You know he says you've got aFirst Amendment right to do it.
I don't like it, but I stillthink you have a First Amendment
(08:15):
right to do it.
Speaker 1 (08:16):
That is a good point of where a judge was able to
very clearly distinguish his ownpersonal preference burning the
American flag versus what hefelt the Constitution allows.
So that is one we should teachAmerican people more generally
about.
And of course you know we'revery troubled at the Fund for
American Studies about thesurveys.
We see that civic education inour country, civic literacy, has
(08:38):
fallen so dramatically andyoung people coming out of
schools today often can't.
The branches of governmentdon't understand the role of the
courts and we're doing our bestto try to educate young people
that come through our programsin high school and college level
on those basic tenets thatevery American should know.
I mean, I like the idea, as insome states where they require
(08:59):
high school graduates to passthe US citizenship exam to
graduate and they find that manyof them can't.
Now let me ask you about ourprogram in terms of the quality
of the students we recruit froma lot of top law schools We've
been able to be more and moreselective every year as we get
more applications to our lawprogram.
For people listening who don'tknow it, it's a summer-long
(09:20):
program that includes courses onlaw and economics and
originalism program thatincludes courses on law and
economics and originalism, alongwith a clerkship, associateship
, internship of some kind in thelaw and lots of guest lectures
and other activities.
We've been fortunate to have alot of federal judges speak to
the students.
What's your impression of thequality of the students in our
program, dr Tim Jackson?
Speaker 2 (09:39):
Well, I found the quality to be excellent.
You know it's a self-selectinggroup.
Anybody who decides they wantto do a summer program studying
law, they're probably to makethe counter arguments, and I
found the students to be justexcellent.
(10:07):
But, as you point out, you knowthere are many things that
would be very important forlawyers to know, but they just
don't get them in law school.
So, as I said, in addition tohaving the theoretical
discussions about originalismversus other non-originalist
theories, I think it's veryimportant to have practical
examples and instructions.
So we have readings about theFederalist Papers, about the
(10:31):
notes that were taken at theConstitutional Convention, about
the records of the stateratifying conventions, about the
evidence that we have fromdictionaries of the founding era
and other sources, and studentsreally eat this up.
They're hungry for thisknowledge, if they can just get
it, so that they can understandwhat it is that they're looking
at in these constitutional cases.
(10:51):
And then one thing that I do tomake it even more practical is
I've taken a series of cases andso we might read about, say,
dictionaries from the foundingera and then look at opinions
which cite those, and so a goodexample would be the NFI BB
Sebelius case.
That was the case that addressedthe Affordable Health Care Act,
and one question was whetherCongress had power, through the
(11:18):
clause in the Constitution whichgives Congress the power to
regulate commerce, to requirepeople to buy insurance.
And can regulate mean buysomething?
Both the majority and thedissenting views cited the word
regulate and I just cut out allthe other parts and I just put
the parts that had on both sidesfrom the dictionaries and you
can really see that it's not soindeterminate as people might
(11:38):
say, that in one case afteranother it seems like one side
has a stronger argument.
I've done that for theFederalist Papers from the notes
, from the ConstitutionalConventions, from the records of
the state ratifying conventions, because one of the key
arguments against originalism isthat well, it's so hard to
figure this out and yet if youcut away all the chaff and you
just put the originalistarguments on both sides against
(12:00):
each other, in many instancesit's not so indeterminate.
Speaker 1 (12:11):
In NFIB versus Sibelius, if you somehow
rejected originalism.
When you come to that questionof what does regulate mean,
what's the alternative methodfor figuring that out, if it's
not to appeal to the meaning ofthe Constitution?
Speaker 2 (12:19):
in that regard.
Well, you know, I'm really gladyou asked that question,
because that's precisely one ofthe questions I would ask.
The first question I ask.
So there's a disagreementbetween the joint dissent and
also Justice Roberts' view andJustice Ginsburg's separate
opinion.
Justice Ginsburg never sayswe're not going to decide this
in an originalist manner.
On the contrary, she says weare going to decide in an
(12:40):
originalist manner and she saysit is required since the the
beginning of time.
Regulate has always meant thatyou could direct somebody to buy
health insurance.
But her examples are prettyweak.
You know, this is such animportant case with so many eyes
on it that it would probably beinconceivable for somebody like
Justice Ginsburg not to try tomake the argument with an
originalist argument.
And so you know, in this sensewe've moved past the 60s, the
(13:04):
70s and the 80s where theSupreme Court routinely made
non-originalist decisions withnon-originalist arguments.
Now, even in a case like this alot of politics on both sides
it would be inconceivable thateither side would not use
sources of the original meaningto make their decisions.
In the academia there areprofessors who are not convinced
(13:24):
yet, but among judges we're ina new era where all courts use
originalist arguments, whetherin the majority of the dissent,
and so you won't find anon-originalist argument as such
that we should do this becauseit's good as a policy matter.
Rather, it's couched inoriginalist arguments even
though one side seems to bestronger than the other couched
in originalist arguments, eventhough one side seems to be
(13:46):
stronger than the other.
Speaker 1 (13:50):
Well, just like I've forgotten who said in the Nixon
administration era we're allKeynesians now, I guess we're
all originalists now, which isbetter than being all Keynesians
.
Speaker 2 (13:54):
And in fact, justice Kagan said that at her
confirmation hearing.
She said well, we're alloriginalists now, we're all
textualists now and you know Icredit all that to Justice
Scalia.
Justice Scalia was a veryforceful advocate.
You know he was not always themost mild in his speech, but I
think he really tightened thingsup that if there was a flawed
methodology, he made it clearwhat the problems were and the
(14:17):
influence that he had on theSupreme Court.
He's no longer with us, butit's lasted for a long time.
Speaker 1 (14:22):
Is there a difference between a textualist and an
originalist, or is it adifferent word for kind of the
same concept?
Speaker 2 (14:30):
The two are very closely related.
Let me back up a little bitwhen we talk about original
meaning.
For many years, originalistshave debated what the actual
definition of original meaningshould be.
Should it be the originalintent of the framers, those who
are in Philadelphia in thesummer of 1787 drafting the
(14:51):
Constitution?
That was Chief JusticeMarshall's view.
He referred to the originalintent of those who framed the
Constitution.
Another possibility is not theoriginal intent of those who
framed the Constitution, thepeople who wrote it, but instead
the Constitution, the peoplewho wrote it, but instead the
understanding of the people whovoted to ratify the Constitution
(15:12):
.
So after the Constitution wasdrafted, it was presented to
ratifying conventions in all thestates.
Then they had to decide are wegoing to support this or not?
And James Madison famously saidit's really the ratifier's
views that are most important.
They were not part of theoriginal discussions, or at
least many of them were not.
Most of them were not.
But what did they think theywere putting into effect?
Because, as he pointed out, theConstitution that came out of
Philadelphia was just a draft.
(15:33):
It didn't have force until thestates had ratified it.
But in more recent times theview is that the Constitution
should be interpreted accordingto its original public meaning,
which is to say, not accordingto the subjective intent of
those who framed it or thesubjective understanding of
those who voted to ratify it,but just objectively, what did
(15:54):
the text mean?
And that is essentiallytextualism.
It's a textualism based not ontoday's language, but instead on
what did the language mean atthe time of the framing.
And you could still usetextualism today.
You know, if the statute'spassed in 2023, question is,
what would the public think thatthat statute meant?
(16:14):
And it's basically we're notgoing to inject policy, we're
going to read what Congressenacted.
Speaker 1 (16:20):
Yeah, that's very clear and fascinating to have to
look at the ratifyingconversations in the 13 colonies
I it's pretty clear what theythought it meant.
Speaker 2 (16:49):
But there's always the question of whose meaning
controls.
Now, fortunately, often thosemeanings do not differ very much
from each other, as you wouldexpect.
I mean, they wrote what theymeant, they meant what they
wrote, and most peopleunderstood it in the same way,
but there could be theoreticallya difference.
Speaker 1 (16:57):
Now I understand you have one of our law fellows
working as a clerk.
That's really exciting.
Speaker 2 (17:03):
Yes, I do.
I have two law clerks who helpme in everything I do.
We get the briefs in.
They help me prepare for theoral arguments.
After the oral arguments, theyhelp me make up my mind.
We get the opinions.
I draft the opinions, and mylaw clerk from TFAS is actually
currently in there editing away.
I'm kind of shaking, wonderinghow many mistakes I made, but my
(17:24):
clerks help me a great deal.
And I'm kind of shaking,wondering how many mistakes I
made, but my clerks helped me agreat deal, and I think that
again speaks to the quality ofthe students that we had in TFAS
.
I was just really impressedwith her work during the course
and on her final exam, and so Imade her an offer to join me.
She just finished at GeorgeMason Law School Scalia Law
School at the George MasonUniversity and just took the bar
, and she'll be working for mefor a year.
Speaker 1 (17:44):
Oh, wonderful, that's great.
Now you clerked, I think, forJustice Kennedy, anthony Kennedy
and Justice Clarence Thomas.
That's correct.
And what was that experiencelike for you at that time in
your career.
Speaker 2 (17:57):
I finished law school in 1988, and then I clerked for
Judge Joseph Sneed on the NinthCircuit and I was fortunate
enough then to be picked up byJustice Kennedy and I worked for
him in 1989 and 1990.
I then worked for a year forJudge Robert Bork and then
Justice Thomas was put on theSupreme Court and he wanted
somebody who had experienceclerking because it was his
(18:19):
first year, and so he invited meto go back and you know I've
kept in touch with both of thesejustices now for over 30 years.
You know when I first clerkedfor them they were the two
junior justices.
Justice Kennedy was the juniorjustice when I clerked for him
and Justice Thomas was.
And you know there was afeeling like well, I'm not
clerking for the judges, thechief judge or somebody who's
been there a really long time.
(18:40):
But you know, over time whenthey're on there for 30 years,
you've got a connection thatcan't be beat and I'd say the
best thing to do is to clerk fora junior justice.
And it's been a greatrelationship that I've had with
both of them.
Speaker 1 (18:51):
That's wonderful and I mentioned in my introduction
and you mentioned as well yourmany years in the JAG Corps and
I imagine some people listeningmight not know what that
involves.
Could you talk about what theJAG Corps does and your
experience there?
Speaker 2 (19:06):
Well, let me just tell you a little story about
how I got into the JAG Corps.
I was a law clerk, as Imentioned on the US Court of
Appeals for the Ninth Circuit,and we had a case involving
veterans benefits and it turnedout that all three of the judges
on the Ninth Circuit panel thatheard the case had been in the
Army, as had the counsel forboth the government and the
plaintiff, and of course theplaintiff had been in as well,
(19:27):
and I can't remember the exactissue about these benefits.
But the judges were saying nowI got out in 45 and what was my
status?
And I, you know I served inKorea.
What was my status?
And I thought what am I doing?
I haven't served in the armyand everybody else has.
So I went back to my office andback then we had a typewriter
and a piece of paper and I stuckin a piece of paper and I sent
(19:47):
it off to an army recruitingoffice and I joined up and I was
in there for over 28 years.
Afterwards you make a snapdecision and sometimes it pays
off, but essentially, right fromthe very beginning, lawyers
have played a key role ineverything that the army does.
The US Army was created on June14th 1775.
The Continental Congressdecided to create two companies
(20:10):
of riflemen.
This was right after Lexingtonconquered, and on that same day
they selected General Washingtonand John Adams to serve on a
committee to create rules andregulations for the governments
of the army.
It was only a short time later,on June 29th 1775, that the
first JAG officer was selected.
(20:31):
He was selected a verydistinguished Harvard Law School
graduate.
He picked a young man namedJohn Marshall to be the deputy
judge advocate, and I often askmy students why was it so
important to both have amilitary justice system and to
immediately have the very bestpeople, people like John
Marshall, involved?
(20:51):
John Marshall's tentmate wasJames Monroe, and the answer is
that George Washington gave is.
Without good order anddiscipline, you don't have an
army, you just have a rabblethat.
You need a justice system.
Take a look at the Afghan army.
On paper, they had 80,000active duty soldiers.
They folded in two days.
Where were those people?
What were the consequences?
(21:12):
If you just walked away,Somebody probably just stole
your pay.
That was probably all thathappened.
You need a justice system andyou need it to be dependable but
also fair, and so, throughoutthe history, JAG officers, judge
, advocate generals as they,using the historic British name,
have played a role in ensuringthat commanders can try people
accused of crimes, whether it'sdesertion or disrespect to
(21:35):
officers or something moreserious like murder or anything
else.
Speaker 1 (21:38):
One question I was going to kind of close our
discussion with at some pointhere was what advice you'd give
to law students who want topursue careers in the law.
I think one thing you might sayis consider the Judge Advocate
Corps.
Speaker 2 (21:50):
I would definitely say that I've been very involved
in helping persuade lawstudents and also my clerks and
others to join the JAG Corps.
The typical commitment is fouryears and I have counseled lots
and lots of people 10, 15 a yearto go into the JAG Corps.
Some stay in for four years.
Some make it a career and stayin 20 years.
Some say after four years, I'mglad I did it, I'm glad I done,
(22:14):
I want to do something else.
Others say I want to do thisforever.
I've never heard anybody say itwas a mistake.
The experience you get, theidea that you have a bigger
mission, the idea that you'reusing your legal training for a
greater purpose it's a goodcareer starter and I think it's
very well respected in firms andin the government as well.
Speaker 1 (22:32):
Did any of your colleagues on the court for the
armed forces serve in themilitary?
Speaker 2 (22:37):
Yeah, currently four out of five of my colleagues
have served Our chief judge.
Chief Judge Olson joined rightafter graduation and he served
in the Gulf War.
He got out then and had acivilian career, including high
levels in the Justice Department.
Judge John Sparks well, he didthe whole thing.
He enlisted in the Marine Corps.
He then went to the NavalAcademy.
(22:58):
He was then a Marine judgeadvocate for 20 years until he
retired.
Judge Tia Johnson was a judgeadvocate for over 20 years,
retired as a colonel in the Army.
Judge Hardy was not in themilitary but has a great respect
for the military and actuallyhad served one time as a law
clerk on our court.
We are a civilian court.
We're not supposed to be anextension of the military.
(23:19):
I think most of us havemilitary experience just because
we are more interested inmilitary justice than others
would be, and that's why we goton this court.
Speaker 1 (23:29):
Well, I appreciate it very much, you joining me today
.
It's been an interestingconversation.
We're thrilled that you areteaching a course on the
Constitution to our law fellowsin the summer.
They're blessed to have you inthe classroom.
I feel like I need to free youto go check on your clerk who's
editing your opinion and makesure she's doing it.
Speaker 2 (23:50):
I'm a little worried about that.
No, I tell them to hold.
Don't hold back.
I said you know, I don't careif I look like an idiot in
chambers, we just have to makeit look right before it goes out
the door.
Yeah, Thank you very much forhaving me.
It's been a pleasure.
Speaker 1 (24:02):
Thank you.
Thank you for listening to theLiberty and Leadership Podcast.
If Thank you for listening tothe Liberty and Leadership
podcast, if you have a commentor question, please drop us an
email at podcast at tfasorg, andbe sure to subscribe to the
show on your favorite podcastapp and leave a five-star review
(24:24):
.
Liberty and Leadership isproduced at Podville Media.
I'm your host, roger Ream, anduntil next time, show courage in
things, large and small.
Welcome to the Liberty and Leadership Podcast,
a conversation with TFAS alumni,faculty and friends who are
making an impact.
Today I'm your host, roger Ream.
Today, I'm delighted to welcomeJudge Gregory E Maggs.
Judge Maggs was appointed to bea judge on the US Court of
Appeals for the Armed Forces in2018.
(00:25):
Prior to that, he taughtfull-time at the George
Washington University Law School.
His experience includes serviceas a special master for the US
Supreme Court, as a consultantto Independent Counsel Kenneth
Starr in the Whitewaterinvestigation and, most notably,
he clerked for Justices AnthonyM Kennedy and Clarence Thomas.
(00:45):
Judge Meggs served in the USArmy Reserve Judge Advocate
General's Corps from 1990 until2018, where he retired as
colonel upon his appointment asa judge.
He currently teaches theoriginalism course for the TFAS
Summer Law Fellowship andremains a professorial lecturer
(01:05):
at George WashingtonUniversity's Law School.
Judge Meggs, welcome to theshow.
Judge Meggs, thank you verymuch for having me.
I'd like to begin by having youexplain to listeners the role
of the US Court of Appeals forthe Armed Forces.
Speaker 2 (01:20):
Judge Meggs.
Well, the story behind thatreally goes back to World War II
.
In World War II there wereabout 15 million Americans under
arms and, believe it or not,during that time about 2 million
trials by court-martial tookplace, and at that time there
was no civilian court to whichthey could appeal.
And after World War II therewas a thought that perhaps
(01:41):
either the trials weren't fairor they weren't perceived to be
fair, and that a possiblesolution would be to create a
civilian court that wouldoversee the military justice
system.
And so that's where we standnow.
So if a soldier, sailor, marine, coast Guard man commits a
crime and is tried by acourt-martial, they first appeal
to a service court.
So in the Army you'd be triedby an Army court-martial and
(02:03):
then appealed to the Army Courtof Criminal Appeals, and then
you could petition our court forreview.
We are a five-judge civiliancourt that reviews all of the
trials by court-martialthroughout the entire system,
and then we're reviewed by theUS Supreme Court.
Speaker 1 (02:17):
Do you generally use the US Constitution to
adjudicate cases, or do you alsolook to military rules and
procedures?
Speaker 2 (02:26):
Well, all of our cases are criminal cases and I
would say they fall into threecategories Some involve
procedural issues, some involveevidentiary issues and some
involve just questions ofstatutory interpretation as to
what is a crime or what isn't acrime.
And constitutional issues comeup throughout, just as they
would in a US District Court orUS Court of Appeals concerning
(02:47):
federal criminal cases.
First, amendment rights, fourthAmendment rights and so forth.
Speaker 1 (02:51):
Have you had any surprises or challenges since
you've been on the court thatyou kind of didn't expect before
you joined it, or is it prettymuch what you expected?
Speaker 2 (02:59):
It was surprising in some ways.
Now, before I joined it, I hadbeen a reserve JAG officer in
the Army for 28 years and forabout 10 of those years I had
been either a trial judge or anappellate judge on the Army
Court of Criminal Appeals.
So I had done several hundredcases before I ever got here.
It's a big difference.
When you're the trial judge,you just make a decision.
(03:20):
You don't have to get anybodyto agree.
You know the counsel makes amotion, you decide it.
The Army Court of CriminalAppeals well, we're on three
judge panels and we make a lotof decisions, but it's pretty
easy with three people.
When you met five people in themix, it just takes a lot longer
.
So you know, in a three-daysexual assault trial, as a trial
judge, I decide 30 issues, butwe decide about 30 issues a year
(03:48):
here.
Speaker 1 (03:48):
So the level of depth is much greater here and that's
why it takes so much longer.
Shifting a little, you teach acourse on the US Constitution
for our Law Fellows program andspecifically you focus on
originalism.
I've learned that the wordoriginalism has many meanings to
many different people, but canyou kind of explain the concept
of originalism and how youapproach that course?
Speaker 2 (04:08):
Yeah, so the course is called the Debate About
Originalism.
The question is really what isoriginalism, and is it a good
idea or a bad idea?
Is it required or not required?
In simplest terms, originalismis the theory that courts, when
they are deciding constitutionalquestions and must interpret
the Constitution, that theyshould follow the original
(04:28):
meaning of the Constitution, asopposed to some other meaning,
something that was notoriginally believed.
But it's a complex issuebecause you have to define
original meaning.
What do we mean by that?
You have to figure out what thesources of original meaning are
and, of course, you might haveto think about whether there'll
be any exceptions, such asprecedent, that might not be
consistent with the originalmeaning.
Speaker 1 (04:48):
How do students kind of react to that?
I mean, I assume, for many whatI am told at least, that many
schools don't really focus onoriginalism, the original
meaning of the Constitution.
Constitutional law often justlooks at the precedents and the
key cases in more recent decadesversus debates at the founding.
So how do our students react tothe course you teach?
Speaker 2 (05:12):
Well, you bring up two really good points.
Let me address the second onethat you mentioned, which is in
law school.
There often isn't a lot of timein studying constitutional law
to study debates aboutconstitutional methods.
There's a lot of doctrine tolearn and to some extent you
pick it up as you go through thecases, but it isn't separately
considered as it is in thisparticular course, and that's
(05:34):
really a shame, because there'sno case decided at the Supreme
Court today in which bothparties aren't making
originalist arguments, and evenwhen there's a majority in
dissenting opinion, both sideswill certainly be making
originalist arguments.
So it's a very important topic.
Now you ask how the studentsreact.
My view is students are thereto make up their own minds, and
so what I try to do is presentthe best arguments on both sides
(05:56):
.
So, for example, we havearticles by Justice Scalia
presenting arguments fororiginalism, and Dean
Chemerinsky was a great example,and Professor of Berkeley and
Professor Fallon at Harvard justcounter examples with different
ideas.
You know, one of the problemsabout originalist debates is
they tend to be too abstract,and so I not only talk about
(06:18):
what the different arguments are, but we also use practical
examples.
We learn about the sources andthen we look at actual examples
from the cases and discuss those, and I think the practical
examples make it much easier tounderstand.
Speaker 1 (06:33):
One of my frustrations, judge Maggs, is
that many in the public in ourcountry today think that when a
decision is issued by the courtsit reflects the policy
preferences or personalpreferences of the judges who
issue the decision.
They don't understand that thedecision is based on the
(06:53):
justices' reading of theConstitution and the law.
So in other words, if a casecomes down that's favorable to
one side or another, they assumethe judges, all who voted in
the affirmative, all supportthat policy position, and I
don't think that's the case.
Could you address that?
Speaker 2 (07:11):
Well, I do get that sense.
I think you accurately describedit, and one of the key
arguments not the only argument,but one of the key arguments
for originalism is it's one ofthe only methods of interpreting
the Constitution which isconsistent with democracy and
the principle that we'regoverned by law, which is to say
that the judges, like everybodyelse, is bound by what the law
(07:32):
is and they can't just make itup.
Of course, this also leads toone of the counter-arguments
against originalism, which iswell, if the sources are so
indeterminate that we can'tactually figure out the original
meaning, then maybe the judgesare still making up the results
and they're just screening itwith original citations.
This is one of the topics thatwe discuss in the course.
Is originalism just asmokescreen for conservative
(07:55):
values or is it really the casethat originalists are bound by
the Constitution?
Some good counter examples arewhere you look at cases where
Justice Scalia says that it'sunconstitutional to burn the
American flag and at the sametime, he says I despise burning
the American flag.
You know he says you've got aFirst Amendment right to do it.
I don't like it, but I stillthink you have a First Amendment
(08:15):
right to do it.
Speaker 1 (08:16):
That is a good point of where a judge was able to
very clearly distinguish his ownpersonal preference burning the
American flag versus what hefelt the Constitution allows.
So that is one we should teachAmerican people more generally
about.
And of course you know we'revery troubled at the Fund for
American Studies about thesurveys.
We see that civic education inour country, civic literacy, has
(08:38):
fallen so dramatically andyoung people coming out of
schools today often can't.
The branches of governmentdon't understand the role of the
courts and we're doing our bestto try to educate young people
that come through our programsin high school and college level
on those basic tenets thatevery American should know.
I mean, I like the idea, as insome states where they require
(08:59):
high school graduates to passthe US citizenship exam to
graduate and they find that manyof them can't.
Now let me ask you about ourprogram in terms of the quality
of the students we recruit froma lot of top law schools We've
been able to be more and moreselective every year as we get
more applications to our lawprogram.
For people listening who don'tknow it, it's a summer-long
(09:20):
program that includes courses onlaw and economics and
originalism program thatincludes courses on law and
economics and originalism, alongwith a clerkship, associateship
, internship of some kind in thelaw and lots of guest lectures
and other activities.
We've been fortunate to have alot of federal judges speak to
the students.
What's your impression of thequality of the students in our
program, dr Tim Jackson?
Speaker 2 (09:39):
Well, I found the quality to be excellent.
You know it's a self-selectinggroup.
Anybody who decides they wantto do a summer program studying
law, they're probably to makethe counter arguments, and I
found the students to be justexcellent.
(10:07):
But, as you point out, you knowthere are many things that
would be very important forlawyers to know, but they just
don't get them in law school.
So, as I said, in addition tohaving the theoretical
discussions about originalismversus other non-originalist
theories, I think it's veryimportant to have practical
examples and instructions.
So we have readings about theFederalist Papers, about the
(10:31):
notes that were taken at theConstitutional Convention, about
the records of the stateratifying conventions, about the
evidence that we have fromdictionaries of the founding era
and other sources, and studentsreally eat this up.
They're hungry for thisknowledge, if they can just get
it, so that they can understandwhat it is that they're looking
at in these constitutional cases.
(10:51):
And then one thing that I do tomake it even more practical is
I've taken a series of cases andso we might read about, say,
dictionaries from the foundingera and then look at opinions
which cite those, and so a goodexample would be the NFI BB
Sebelius case.
That was the case that addressedthe Affordable Health Care Act,
and one question was whetherCongress had power, through the
(11:18):
clause in the Constitution whichgives Congress the power to
regulate commerce, to requirepeople to buy insurance.
And can regulate mean buysomething?
Both the majority and thedissenting views cited the word
regulate and I just cut out allthe other parts and I just put
the parts that had on both sidesfrom the dictionaries and you
can really see that it's not soindeterminate as people might
(11:38):
say, that in one case afteranother it seems like one side
has a stronger argument.
I've done that for theFederalist Papers from the notes
, from the ConstitutionalConventions, from the records of
the state ratifying conventions, because one of the key
arguments against originalism isthat well, it's so hard to
figure this out and yet if youcut away all the chaff and you
just put the originalistarguments on both sides against
(12:00):
each other, in many instancesit's not so indeterminate.
Speaker 1 (12:11):
In NFIB versus Sibelius, if you somehow
rejected originalism.
When you come to that questionof what does regulate mean,
what's the alternative methodfor figuring that out, if it's
not to appeal to the meaning ofthe Constitution?
Speaker 2 (12:19):
in that regard.
Well, you know, I'm really gladyou asked that question,
because that's precisely one ofthe questions I would ask.
The first question I ask.
So there's a disagreementbetween the joint dissent and
also Justice Roberts' view andJustice Ginsburg's separate
opinion.
Justice Ginsburg never sayswe're not going to decide this
in an originalist manner.
On the contrary, she says weare going to decide in an
(12:40):
originalist manner and she saysit is required since the the
beginning of time.
Regulate has always meant thatyou could direct somebody to buy
health insurance.
But her examples are prettyweak.
You know, this is such animportant case with so many eyes
on it that it would probably beinconceivable for somebody like
Justice Ginsburg not to try tomake the argument with an
originalist argument.
And so you know, in this sensewe've moved past the 60s, the
(13:04):
70s and the 80s where theSupreme Court routinely made
non-originalist decisions withnon-originalist arguments.
Now, even in a case like this alot of politics on both sides
it would be inconceivable thateither side would not use
sources of the original meaningto make their decisions.
In the academia there areprofessors who are not convinced
(13:24):
yet, but among judges we're ina new era where all courts use
originalist arguments, whetherin the majority of the dissent,
and so you won't find anon-originalist argument as such
that we should do this becauseit's good as a policy matter.
Rather, it's couched inoriginalist arguments even
though one side seems to bestronger than the other couched
in originalist arguments, eventhough one side seems to be
(13:46):
stronger than the other.
Speaker 1 (13:50):
Well, just like I've forgotten who said in the Nixon
administration era we're allKeynesians now, I guess we're
all originalists now, which isbetter than being all Keynesians
.
Speaker 2 (13:54):
And in fact, justice Kagan said that at her
confirmation hearing.
She said well, we're alloriginalists now, we're all
textualists now and you know Icredit all that to Justice
Scalia.
Justice Scalia was a veryforceful advocate.
You know he was not always themost mild in his speech, but I
think he really tightened thingsup that if there was a flawed
methodology, he made it clearwhat the problems were and the
(14:17):
influence that he had on theSupreme Court.
He's no longer with us, butit's lasted for a long time.
Speaker 1 (14:22):
Is there a difference between a textualist and an
originalist, or is it adifferent word for kind of the
same concept?
Speaker 2 (14:30):
The two are very closely related.
Let me back up a little bitwhen we talk about original
meaning.
For many years, originalistshave debated what the actual
definition of original meaningshould be.
Should it be the originalintent of the framers, those who
are in Philadelphia in thesummer of 1787 drafting the
(14:51):
Constitution?
That was Chief JusticeMarshall's view.
He referred to the originalintent of those who framed the
Constitution.
Another possibility is not theoriginal intent of those who
framed the Constitution, thepeople who wrote it, but instead
the Constitution, the peoplewho wrote it, but instead the
understanding of the people whovoted to ratify the Constitution
(15:12):
.
So after the Constitution wasdrafted, it was presented to
ratifying conventions in all thestates.
Then they had to decide are wegoing to support this or not?
And James Madison famously saidit's really the ratifier's
views that are most important.
They were not part of theoriginal discussions, or at
least many of them were not.
Most of them were not.
But what did they think theywere putting into effect?
Because, as he pointed out, theConstitution that came out of
Philadelphia was just a draft.
(15:33):
It didn't have force until thestates had ratified it.
But in more recent times theview is that the Constitution
should be interpreted accordingto its original public meaning,
which is to say, not accordingto the subjective intent of
those who framed it or thesubjective understanding of
those who voted to ratify it,but just objectively, what did
(15:54):
the text mean?
And that is essentiallytextualism.
It's a textualism based not ontoday's language, but instead on
what did the language mean atthe time of the framing.
And you could still usetextualism today.
You know, if the statute'spassed in 2023, question is,
what would the public think thatthat statute meant?
(16:14):
And it's basically we're notgoing to inject policy, we're
going to read what Congressenacted.
Speaker 1 (16:20):
Yeah, that's very clear and fascinating to have to
look at the ratifyingconversations in the 13 colonies
I it's pretty clear what theythought it meant.
Speaker 2 (16:49):
But there's always the question of whose meaning
controls.
Now, fortunately, often thosemeanings do not differ very much
from each other, as you wouldexpect.
I mean, they wrote what theymeant, they meant what they
wrote, and most peopleunderstood it in the same way,
but there could be theoreticallya difference.
Speaker 1 (16:57):
Now I understand you have one of our law fellows
working as a clerk.
That's really exciting.
Speaker 2 (17:03):
Yes, I do.
I have two law clerks who helpme in everything I do.
We get the briefs in.
They help me prepare for theoral arguments.
After the oral arguments, theyhelp me make up my mind.
We get the opinions.
I draft the opinions, and mylaw clerk from TFAS is actually
currently in there editing away.
I'm kind of shaking, wonderinghow many mistakes I made, but my
(17:24):
clerks help me a great deal.
And I'm kind of shaking,wondering how many mistakes I
made, but my clerks helped me agreat deal, and I think that
again speaks to the quality ofthe students that we had in TFAS
.
I was just really impressedwith her work during the course
and on her final exam, and so Imade her an offer to join me.
She just finished at GeorgeMason Law School Scalia Law
School at the George MasonUniversity and just took the bar
, and she'll be working for mefor a year.
Speaker 1 (17:44):
Oh, wonderful, that's great.
Now you clerked, I think, forJustice Kennedy, anthony Kennedy
and Justice Clarence Thomas.
That's correct.
And what was that experiencelike for you at that time in
your career.
Speaker 2 (17:57):
I finished law school in 1988, and then I clerked for
Judge Joseph Sneed on the NinthCircuit and I was fortunate
enough then to be picked up byJustice Kennedy and I worked for
him in 1989 and 1990.
I then worked for a year forJudge Robert Bork and then
Justice Thomas was put on theSupreme Court and he wanted
somebody who had experienceclerking because it was his
(18:19):
first year, and so he invited meto go back and you know I've
kept in touch with both of thesejustices now for over 30 years.
You know when I first clerkedfor them they were the two
junior justices.
Justice Kennedy was the juniorjustice when I clerked for him
and Justice Thomas was.
And you know there was afeeling like well, I'm not
clerking for the judges, thechief judge or somebody who's
been there a really long time.
(18:40):
But you know, over time whenthey're on there for 30 years,
you've got a connection thatcan't be beat and I'd say the
best thing to do is to clerk fora junior justice.
And it's been a greatrelationship that I've had with
both of them.
Speaker 1 (18:51):
That's wonderful and I mentioned in my introduction
and you mentioned as well yourmany years in the JAG Corps and
I imagine some people listeningmight not know what that
involves.
Could you talk about what theJAG Corps does and your
experience there?
Speaker 2 (19:06):
Well, let me just tell you a little story about
how I got into the JAG Corps.
I was a law clerk, as Imentioned on the US Court of
Appeals for the Ninth Circuit,and we had a case involving
veterans benefits and it turnedout that all three of the judges
on the Ninth Circuit panel thatheard the case had been in the
Army, as had the counsel forboth the government and the
plaintiff, and of course theplaintiff had been in as well,
(19:27):
and I can't remember the exactissue about these benefits.
But the judges were saying nowI got out in 45 and what was my
status?
And I, you know I served inKorea.
What was my status?
And I thought what am I doing?
I haven't served in the armyand everybody else has.
So I went back to my office andback then we had a typewriter
and a piece of paper and I stuckin a piece of paper and I sent
(19:47):
it off to an army recruitingoffice and I joined up and I was
in there for over 28 years.
Afterwards you make a snapdecision and sometimes it pays
off, but essentially, right fromthe very beginning, lawyers
have played a key role ineverything that the army does.
The US Army was created on June14th 1775.
The Continental Congressdecided to create two companies
(20:10):
of riflemen.
This was right after Lexingtonconquered, and on that same day
they selected General Washingtonand John Adams to serve on a
committee to create rules andregulations for the governments
of the army.
It was only a short time later,on June 29th 1775, that the
first JAG officer was selected.
(20:31):
He was selected a verydistinguished Harvard Law School
graduate.
He picked a young man namedJohn Marshall to be the deputy
judge advocate, and I often askmy students why was it so
important to both have amilitary justice system and to
immediately have the very bestpeople, people like John
Marshall, involved?
(20:51):
John Marshall's tentmate wasJames Monroe, and the answer is
that George Washington gave is.
Without good order anddiscipline, you don't have an
army, you just have a rabblethat.
You need a justice system.
Take a look at the Afghan army.
On paper, they had 80,000active duty soldiers.
They folded in two days.
Where were those people?
What were the consequences?
(21:12):
If you just walked away,Somebody probably just stole
your pay.
That was probably all thathappened.
You need a justice system andyou need it to be dependable but
also fair, and so, throughoutthe history, JAG officers, judge
, advocate generals as they,using the historic British name,
have played a role in ensuringthat commanders can try people
accused of crimes, whether it'sdesertion or disrespect to
(21:35):
officers or something moreserious like murder or anything
else.
Speaker 1 (21:38):
One question I was going to kind of close our
discussion with at some pointhere was what advice you'd give
to law students who want topursue careers in the law.
I think one thing you might sayis consider the Judge Advocate
Corps.
Speaker 2 (21:50):
I would definitely say that I've been very involved
in helping persuade lawstudents and also my clerks and
others to join the JAG Corps.
The typical commitment is fouryears and I have counseled lots
and lots of people 10, 15 a yearto go into the JAG Corps.
Some stay in for four years.
Some make it a career and stayin 20 years.
Some say after four years, I'mglad I did it, I'm glad I done,
(22:14):
I want to do something else.
Others say I want to do thisforever.
I've never heard anybody say itwas a mistake.
The experience you get, theidea that you have a bigger
mission, the idea that you'reusing your legal training for a
greater purpose it's a goodcareer starter and I think it's
very well respected in firms andin the government as well.
Speaker 1 (22:32):
Did any of your colleagues on the court for the
armed forces serve in themilitary?
Speaker 2 (22:37):
Yeah, currently four out of five of my colleagues
have served Our chief judge.
Chief Judge Olson joined rightafter graduation and he served
in the Gulf War.
He got out then and had acivilian career, including high
levels in the Justice Department.
Judge John Sparks well, he didthe whole thing.
He enlisted in the Marine Corps.
He then went to the NavalAcademy.
(22:58):
He was then a Marine judgeadvocate for 20 years until he
retired.
Judge Tia Johnson was a judgeadvocate for over 20 years,
retired as a colonel in the Army.
Judge Hardy was not in themilitary but has a great respect
for the military and actuallyhad served one time as a law
clerk on our court.
We are a civilian court.
We're not supposed to be anextension of the military.
(23:19):
I think most of us havemilitary experience just because
we are more interested inmilitary justice than others
would be, and that's why we goton this court.
Speaker 1 (23:29):
Well, I appreciate it very much, you joining me today
.
It's been an interestingconversation.
We're thrilled that you areteaching a course on the
Constitution to our law fellowsin the summer.
They're blessed to have you inthe classroom.
I feel like I need to free youto go check on your clerk who's
editing your opinion and makesure she's doing it.
Speaker 2 (23:50):
I'm a little worried about that.
No, I tell them to hold.
Don't hold back.
I said you know, I don't careif I look like an idiot in
chambers, we just have to makeit look right before it goes out
the door.
Yeah, Thank you very much forhaving me.
It's been a pleasure.
Speaker 1 (24:02):
Thank you.
Thank you for listening to theLiberty and Leadership Podcast.
If Thank you for listening tothe Liberty and Leadership
podcast, if you have a commentor question, please drop us an
email at podcast at tfasorg, andbe sure to subscribe to the
show on your favorite podcastapp and leave a five-star review
(24:24):
.
Liberty and Leadership isproduced at Podville Media.
I'm your host, roger Ream, anduntil next time, show courage in
things, large and small.
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