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06/21/2018

Gorsuch and the Sense-Reference Distinction
Chris Green

Justice Gorsuch's opinion for the Court today in Wisconsin Central Ltd. v. United States has a nice little passage at the end distinguishing between meaning and application:

This hardly leaves us, as the dissent worries, “trapped in a monetary time warp, forever limited to those forms of money commonly used in the 1930’s.” ... While every statute’s meaning is fixed at the time of enactment, new applications may arise in light of changes in the world. So “money,” as used in this statute, must always mean a “medium of exchange.” But what qualifies as a “medium of exchange” may depend on the facts of the day. Take electronic transfers of paychecks. Maybe they weren’t common in 1937, but we do not doubt they would qualify today as “money remuneration” under the statute’s original public meaning. The problem with the government’s and the dissent’s position today is not that stock and stock options weren’t common in 1937, but that they were not then—and are not now—recognized as mediums of exchange. 

While the Court does not cite the case, this passage is strikingly similar, even down to the italicization of "meaning" and "application," to Euclid v. Ambler Realty from 1926 (analyzed, e.g., here at 574-76):

[W]hile the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world, it is impossible that it should be otherwise.... [A] degree of elasticity is thus imparted not to the meaning, but to the application of constitutional principles...