Vermeule and the Sense-Reference Distinction, Yet Again
Chris Green
Adrian Vermeule and a co-author, Conor Casey, have responded quite quickly to Judge William Pryor’s Against Living Common Goodism with an essay forthcoming in the Harvard Journal of Law and Public Policy’s Per Curiam supplement. The essay invents, for the purposes of criticism, a new view that blurs meaning and application: “thick originalism,” or “originalism in a substantive sense,” which would prevent any change in applications over time. There is no reason to think that Judge Pryor has ever subscribed to such a view. Raoul Berger is the only originalist I have ever found who, when confronted clearly with the sense-reference distinction, has consistently claimed (see here at 568 n.36 and 579-82) that his originalism is tied to reference, rather than the sense expressed in the constitutional text. Nevertheless, Casey and Vermeule complain at page 4 that Pryor fails to present an argument for this view: “What Judge Pryor needs is an argument that entails thick originalism, but no such argument is anywhere to be found.” Judge Pryor doesn’t need an argument, of course, for a position he does not hold. Like virtually all contemporary originalists other than Berger, Judge Pryor defines his view in terms of meaning, not application: “Today, most of the Justices of the Supreme Court are originalists—they maintain that the text of the Constitution has a fixed meaning, that the Constitution means now what it originally meant, and that the original meaning is binding on them as judges.”
Does Vermeule disagree with the bindingness of original meaning, as opposed to original application? In his book, he certainly did. He complained (p. 36) about being “enslaved to the original meaning of the Constitution.” But the new essay with Casey contains no such rejection. Indeed, in several places they now seem quite enamored with the master against which Vermeule’s book counseled rebellion. They call the fixity of meaning “thin originalism”: “the bare commitment to the claim that the meaning of a fixed text remains constant over time.” Added to the bindingness of the text, of course, that’s just originalism. Elsewhere, indeed, Casey and Vermeule seem to endorse such bindingness. Page 6: “The classical legal tradition, as we show later, by no means licenses interpreters to ‘displace,’ amend or ignore the meaning of posited law.” A lack of license to amend the meaning of the Constitution is just what originalism is.
Casey and Vermeule suggest that originalism—i.e., the bindingness of original meaning—is prevalent in other countries too. Page 7: “From India to Ireland, judges respect the fixed enactments of legitimate political authority and the fixed meaning of those enactments.” If “respect” means at least “do not violate,” that’s originalism. Nevertheless, they add at page 8, “It goes without saying that none of the legal systems we have mentioned employ originalism in any sense Judge Pryor would favor.” What? The sense in which Judge Pryor favors originalism is the sense in which original meaning is binding, not original applications. None of the sources cited in footnote 31, which follows, suggests that India, Ireland, or Germany (the three countries these sources discuss) treat the meaning expressed by their constitutional texts in their original contexts as anything other than binding. A few sentences later, Csey and Vermeule make clear that they mean only that India, Ireland, and Germany reject “originalism in any substantive sense,” i.e., the meaning-application-blurring form originalism rejected by everyone but Raoul Berger. As long as they “respect [i.e., comply with]… fixed meaning,” though, they certainly employ originalism in the sense that Judge Pryor favors.
Indeed, when they discuss the European Convention on Human Rights, Casey and Vermeule think originalism has even become obvious. Page 9: “Furthermore the meaning of this text is fixed; a word whose semantic meaning had changed entirely over time would obviously be read in the sense given at the time the treaty was concluded.” That’s how an originalist would read such words, of course, but not, one would think, someone who had written a book protesting against being “enslaved to the original meaning of the Constitution.” If Vermeule has changed his view, he should say so explicitly.
In criticizing “thin originalism” as inadequate, Casey and Vermeule repeat an assertion made many times over by Eric Segall (see here and here at 4-6): that a theory allowing changing fact-dependent applications is “a mode of interpretation that is equivalent to or indistinguishable from Brennanism” (p. 4) and “open to any and all changing applications and moral novelties that current generations may dream up” (p. 16). But, of course, the existence of some fact-dependence to our applications—the fact that constitutional meaning determines a function from the facts to applications that is non-constant—does not mean that we can reach just any application we might like—i.e., that that function would be surjective, covering the entire possible range of applications. As Justice Sutherland put it for the Court in Euclid v. Ambler Realty (see here at 10-12), changes in facts only allow a degree of elasticity to applications, and none at all for meaning.
At page 11, Casey and Vermeule complain, “If Balkin, Calabresi, Justices Jackson and Kagan, and the European Court of Human Rights are all employing a jurisprudence that is entirely compatible with Judge Pryor’s premises, then so was Justice Brennan.” Not so. Justice Brennan in 1985, like Vermeule in his book but not in the essay, rejects the bindingness of original meaning: “[T]he ultimate question must be: What do the words of the text mean in our time? For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.” The existence of a degree of elasticity to constitutional applications is entirely different from taking as our constitutional touchstone what words “mean in our time.” In mathematical terms, it is the difference between non-constancy and surjectivity. New constitutional meaning allows an interpreter to reach literally any result in the entire set of possible applications, based on the policy-based obsolescence of the meaning expressed by language in its original context. New constitutional applications based on new facts, by contrast, allow a fact-finder only to reach those in the range of the initial function from facts to applications.