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Problems With Vermeule, Part 8: Vermeule’s Neglect of Intermediate Positions
Chris Green

(For parts 1, 2, 3, 4, 5, 6, and 7, see here and here and here and here and here and here and here.)

Vermeule claims categorically at page 2 that “all attempts to combine originalism with the classical view of law are ultimately incoherent, an attempt to mix oil and water.” But the book never makes good on this claim. He neglects two simple ways to incorporate traditional notions of justice and morality with binding original meaning.

One way to reconcile binding original meaning with the interpretive relevance of normative considerations is United States v. Fisher, mentioned in part 2 of this series but worth more extended consideration on this score. Normative considerations of natural law might serve as defeasible guides to original meaning itself. Chief Justice Marshall explained in 1805,

The mischiefs to result from the construction on which the United States insists have been stated as strong motives for overruling that construction. That the consequences are to be considered in expounding laws where the intent is doubtful is a principle not to be controverted, but it is also true that it is a principle which must be applied with caution, and which has a degree of influence dependent on the nature of the case to which it is applied. 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. But where only a political regulation is made, which is inconvenient, if the intention of the legislature be expressed in terms which are sufficiently intelligible to leave no doubt in the mind when the words are taken in their ordinary sense, it would be going a great way to say that a constrained interpretation must be put upon them to avoid an inconvenience which ought to have been contemplated in the legislature when the act was passed and which, in their opinion, was probably overbalanced by the particular advantages it was calculated to produce.

To apply this sort of approach to interpretation, judges obviously need to be skilled at the philosophical assessment of the “rights” and “fundamental principles” of natural law and moral reality, not just the historical assessment of historical meaning.

At one point Vermeule comes close to acknowledging Marshall’s approach, but he does not follow it up. He notes at page 59 that “the natural law was used … to interpret texts, reading them where fairly possible to square with traditional background principles and the objective order of justice.” But what exactly governs the “fairly possible” constraints? Marshall’s approach to interpretation in Fisher and Ogden v. Saunders gives an answer in terms of the “irresistible clearness” of original meaning. But Vermeule leaves the nature of these constraints unspecified. Obviously they don’t come from natural law itself, because they tell us when we may use natural law as a guide to interpretation. Original meaning is the answer for Marshall, and it should be for us as well.

A second way that normative considerations are relevant to interpretation would be in the case of morally-laden terminology whose application turns on normative considerations. One example is “citizen,” which has a long history, and particularly history in the context of the American Constitution, associated with equal civil rights for all similarly-situated citizens. Article IV provided this with respect to inequalities between different states, and the Fourteenth Amendment does so for inequalities between the civil rights of any similarly-situated citizens of the United States. Similar-situatedness is a partly moral notion.

Vermeule’s neglect of the original meaning of the equal privileges of American citizenship under the Fourteenth Amendment is thus particularly ironic because the historic foundation stone for Field’s laissez-faire reading of the Amendment—Justice Washington’s opinion in Corfield—itself notes that occupational liberty under Article IV is “subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole.” This is the language that the Slaughterhouse dissenters and later the Court would use to assess the extent of the police power under the Fourteenth Amendment. Attention to historical detail and to current Fourteenth Amendment scholarship is thus vital to the best understanding of the contingent ways in which our American Constitution incorporates moral reality, both natural rights and natural law. The neglect of such details is a major problem with Vermeule’s book.