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11/03/2020

Vermeule and the Sense-Reference Distinction
Chris Green

Last week, long-time non-originalist Adrian Vermeule entered again (see, e.g., here and here) into the constitutional-theory fray with A Euclid for Civil Liberties. Vermeule quotes the beginning of Justice Sutherland's classic 1926 distinction of meaning from application in Euclid v. Ambler Realty: "[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." Vermeule leaves off, however, Sutherland's next sentence: "But although a degree of elasticity is thus imparted not to the meaning, but to the application of constitutional principles, statutes and ordinances which, after giving due weight to the new conditions, are found clearly not to conform to the Constitution of course must fall." 

"[T]he meaning of constitutional guaranties never varies" is, of course, the key commitment of originalism. Yet Vermeule characterizes this passage from Sutherland as non-originalist: "This is, in effect, a nonoriginalist, developmental justification for the administrative state put in the framework of common-good constitutionalism and grounded in the due process clause." If we distinguish meaning from application, though--or analytic from synthetic judgments, or Fregean sense from reference, or Carnapian intension from extension, or Millian connotation from denotation--then the sort of development that Sutherland and the rest of the Court had in mind in 1926 was very different from the sort of development that non-originalists like Vermeule usually have in mind today. Just a few months after Euclid, for instance, the Taft Court decided Myers v. United States, which Justice Scalia used as his exemplar of originalism in his Taft lecture, Originalism: The Lesser Evil. In Wisconsin Central v. United States, Justice Gorsuch distinguished meaning from application for the Court in a very Euclidean way, and he was certainly not embracing contemporary nonoriginalism when he did so. 

In ignoring Justice Sutherland's commitment to unchanging constitutional meaning, perhaps Vermeule has imbibed W.V.O. Quine's criticisms of the Fregean/Carnapian/Millian tradition lingering in the waters of the Charles River. But perhaps Vermeule has instead decided to reframe his own non-originalism in terms merely of changing applications. Like Eric Segall, who once responded to my explanation of the sense-reference distinction by conceding, "I agree that judges should not change the Constitution’s 'criterion' as Green is using that term," perhaps Vermeule's new comments represent a surrender to the idea of binding and unchanging constitutional meaning, as long as that idea's limited consequences are laid bare as they are in Euclid. If so, welcome to originalism, Professor Vermeule!