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03/30/2022

Problems With Vermeule, Part 7: Meaning, Application, and Euclid
Chris Green

(For parts 1, 2, 3, 4, 5, and 6, see here and here and here and here and here and here.)

I have noted before, in response to an online essay reprinted with relatively little change in his book at pages 124-28, that Vermeule’s praise of the 1926 case Euclid v. Ambler Realty is flatly inconsistent with the vitriol he directs toward originalism. Vermeule never reconciles his complaint about being “enslaved to the original meaning of the Constitution” (p. 36) with his love of Justice Sutherland, who insisted in Euclid itself that “the meaning of constitutional guaranties never varies,” and who in a later dissent followed Thomas Cooley in insisting that “giving to a written constitution a construction not warranted by the intention of its founders” would be “reckless disregard of official oath and public duty.”

Here is the full context from Euclid:

Regulations, the wisdom, necessity and validity of which, as applied to existing conditions, are so apparent that they are now uniformly sustained, a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive. Such regulations are sustained, under the complex conditions of our day, for reasons analogous to those which justify traffic regulations, which, before the advent of automobiles and rapid transit street railways, would have been condemned as fatally arbitrary and unreasonable. And in this there is no inconsistency, for while 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. 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.

Vermeule quotes all but the last sentence of this discussion on page 125 and adds this comment: “This is, in effect, a non-originalist, developmental justification for the administrative state.” Non-originalist? No. Sutherland says plainly that “the meaning of constitutional guaranties never varies.” He very specifically denies (in the sentence that Vermeule, alas, leaves out) that there is any elasticity at all to the meaning of constitutional principles.

Nine pages before his block quote from Euclid, at page 116, Vermeule casts scorn on the distinction between meaning and application: “[O]riginalism as such lacks the theoretical resources needed to solve the dilemmas we have examined. The epicycle to which originalists often resort—a sharp distinction between ‘meaning,’ which is fixed, and ‘applications,’ which are shifting—is a counsel of despair.” But this very same “counsel of despair” appears in what Vermeule calls at page 124 “a model opinion.” His book offers no reconciliation.

The distinction between meaning and application is not an epicycle invented to explain constitutional theory, but follows from a simple phenomenon in language: the application of general terms sometimes depends on the facts. Sociological terms depend in part on sociological facts; economic terms depend in part on economic facts; moral terms depend in part on moral facts. Philosophers call terms whose applications are not fact-dependent, like names, “rigid designators.” Rigid designators pick out the same thing no matter what the facts are. If Socrates exists, then the term “Socrates” refers to him, whether or not he is philosopher or lives in Athens.  “The privileges or immunities of citizens of the United States,” by contrast, is not a rigid designator. Whether the right to ride a horse on the main roads of a city is a privilege of citizens of the United States, for instance, depends on facts like the number of cars using the same locations.

Vermeule complains at page 16 that originalists can reach “results that almost no one alive at the time of the law’s enactment would conceivably have thought desirable or even defensible.” He adds, “It is a strange originalism that would be unanimously voted down by the enacting generation.” But it is, of course, possible for facts to be misapprehended unanimously. The constitutional convention unanimously decided in the interim rule of Article I section 2 clause 3 to give Maryland more representatives than North Carolina for the first two congresses, even though once the census was conducted, North Carolina had a significantly greater population under the application of the “according to their respective numbers” general formula. That general textually-expressed formula depends on facts that the framers all got wrong. But the mere fact that sometimes the founders could in some cases be unanimously wrong about the facts does not thereby render applications indefinitely elastic. As Sutherland made crystal clear in Euclid, originalist devotion to unchanging meaning allows only “a degree of elasticity” to applications.

Socrates’s rebuke of Euthyphro about the nature of piety is apropos here. In explaining why prosecuting his father was pious, Euthyphro gave this definition of “piety”: “Piety is doing as I am doing; that is to say, prosecuting anyone who is guilty of murder.” Socrates replied,

Remember that I did not ask you to give me two or three examples of piety, but to explain the general idea which makes all pious things to be pious. … Tell me what is the nature of this idea, and then I shall have a standard to which I may look, and by which I may measure actions, whether yours or those of any one else, and then I shall be able to say that such and such an action is pious, such another impious.

Distinguishing binding meaning from changeable application is simply taking Socrates’s side against Euthyphro. What originalists think is binding under the Fourteenth Amendment, for instance, is the “general idea” that makes a privilege of citizens of the United States to be such a privilege. Vermeule, alas, prefers Euthypro’s example-driven hostility to abstract thought. He says on page 116, “Jurisprudence is ultimately a practical art, the art of doing justice according to law in particular cases. To posit, in a blindly fideistic act, an eternal fixed ‘meaning’ floating above any particular application is not only a case of poor legal theology, but has no cash value in reality.” Constitutional meaning can, however, be fixed at the time a constitutional provision is adopted without being fixed eternally. If linguistic conventions change, originalists like Sutherland only insist that we interpret particular pieces of constitutional meaning according to the conventions that their framers actually employed, rather than those of a different time.

Fixed meaning also obviously does have a pragmatic “cash value” in the limits it places on the precise nature of the elasticity of applications. Vermeule charges at page 111 that if we read words generally, constitutional meaning “can encompass whatever strange moral novelties later generations have dreamt up.” Not so. In mathematical terms, a non-constant function from facts to applications (i.e., one that sometimes depends on the facts) need not be surjective (i.e., covering the entire set of possible applications). Rigid designators allow no change at all; “according to their respective numbers” allows change as population changes; “due process of law” allows change (under standard definitions of “due,” see here) as customary judicial procedures evolve because of technology; the equality required by “equal protection of the laws” depends on how much literal protection is given to others in a state. It depends on the text.  Just because a term is general and thus allows some change based on the facts does not require that it allow just any change at all.