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03/23/2022

Problems With Vermeule, Part 2: Vermeule’s Claim That Originalism is Self-Refuting
Chris Green

(For part 1, see here.)

Vermeule makes six arguments for why originalism is self-refuting because the framers themselves were not originalists. Two of these arguments directly contradict each other, two are utterly devoid of historical support, and two are conceptually confused.

Before we look at Vermeule’s arguments, though, it is important to remember why we would care whether the framers themselves were originalists. We don’t follow the framers’ hairstyles or their views of science; why bother with their constitutional theory? The reason is that we still live under the Constitution that they designed, and unless we get reason to think otherwise, we should presume that the founders understood the nature of that Constitution. But it is our Constitution’s nature, not Madison or Marshall’s views as such, that we care about today.

While drive-by barbs about the founders not being originalists are sprinkled throughout the book, Vermeule gives most of the details in endnotes 4 and 251, at pages 186 and 211.

First, Vermeule relies at page 186 note 4 on H. Jefferson Powell’s historical criticism in 1985 of “original intent.” Powell was, of course, absolutely right that the framers spoke not of original subjective intent, but of intent expressed in the text. Chief Justice Marshall, for instance, summarized many, many other statements on the subject in his opinion in Ogden v. Saunders, which first insisted that “the intention of the instrument must prevail” but immediately explained that “this intention must be collected from its words.” As the Reagan Administration Office of Legal Policy explained in March 1987, “Far from undermining modern interpretivism, Powell's research shows that original meaning jurisprudence based on the text of the Constitution is completely consistent with the founders’ expectations.” The OLP quoted Powell: “The Philadelphia framers’ primary expectation regarding constitutional interpretation was that the Constitution, like any other legal document, would be interpreted in accord with its express language.”

Second, Vermeule claims on page 211 endnote 251 that early statements of what seem like originalism focus on intent, rather than on the meaning expressed in the text: “They tend to speak of the framers’ intentions rather than the original meaning as understood by the ratifiers.” But as explained in detail by Powell, of course, the framers spoke of intent as expressed in a text.  Complaining that the framers were original-intent people rather than original-meaning devotees squarely contradicts his earlier reliance on Powell’s precisely opposite complaint. Marshall’s synthesis in Ogden answers both complaints.

Third, Vermeule claims in the same endnote, citing nothing at all, that the founders gave original meaning “only a weak form of respect” and that original meaning could be outweighed by “other modalities of interpretation.” That’s just not true. Marshall was emphatic that the original intention, collected from its words, must prevail. I am unaware of any founder—Vermeule cites none—who claimed that the meaning expressed by the constitutional text in its original context could be overridden by other interpretive modalities. Vermeule’s characterization here of the founders gets things exactly backward. Madison and Marshall spoke clearly of the interpretive relevance of considerations of consequences, justice, and the general good, but those considerations would not be decisive if the original meaning was clear. Marshall explained in US v. Fisher in 1805, “[T]he consequences are to be considered in expounding laws, where the intent is doubtful.” He went on, “Where rights are infringed, where fundamental principles are overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness to induce a court of justice to suppose a design to effect such objects.” Madison put it during the bank debate of 1791, “Where the meaning is clear, the consequences, whatever they may be, are to be admitted—where doubtful, it is fairly triable by its consequences.” This is the sort of attitude that one might think a fan of the interpretive relevance of traditional morality like Vermeule would applaud. But in his zeal to oppose the Constitution’s original meaning, Vermeule cannot let his readers know about Fisher, lest they see through his claim that it is impossible to simultaneously take moral reality as interpretively relevant but still be bound by the Constitution’s original meaning when it can be known.

Fourth, Vermeule claims categorically at page 90 that evidence like Ogden, or the many other places that founders say that they are bound by original meaning, is taken out of context. “[I]t is possible to take passages out of the larger overall context of the classical law, passages that sound originalist standing alone, and then claim, on that that basis, that our law has always had an originalist strand.” But Marshall’s opinion in Ogden doesn’t just “sound originalist standing alone.” It says the meaning expressed in the text is binding on interpreters. That’s what originalism affirms and what Vermeule denies. And Marshall was right about the nature of the Constitution. Vermeule’s casual, categorical claims that knowing the context fully would make us think otherwise are simply unsupported by anything in the historical record.

Fifth, returning to endnote 251, Vermeule claims, relying on Calvin TerBeek, that the founders lacked a “theory,” but originalists today have one. As long as the framers thought that the Constitution’s original meaning was binding on interpreters, though, which they did, we need not complain about their lack of a “theory.” They had a simple, true belief about the nature of the Constitution they had just constructed: to be contrary to the original meaning of the text was what it was to be unconstitutional. However helpful and entertaining it might have been if the framers had bundled the Constitution with a lengthy treatise on the nature of language, that was unnecessary in order for the original meaning of their language to be binding.

Sixth and finally, returning again to the early endnote at page 186 note 4, Vermeule claims, relying on Jonathan Gienapp, that the founders could not have been originalists because they were not positivists. He makes the same claim in italicized form at page 214 note 290. But this, too, is conceptually confused. The nature of our particular constitution is not determined by the nature of law, any more than the nature of any species is determined by the nature of its broader genus (or perceived broader genus). This last confusion between the nature of law and the nature of the American Constitution shows up in many other places. More on it in part 3.