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11/05/2022

Turning Vermeule’s Argument for Redefining Originalism on its Head
Chris Green

In his response at the end of a conference at Harvard on common-good constitutionalism, Adrian Vermeule once again (see here) claims that he is not an originalist, despite embracing the claim, long considered by many to be definitive of originalism, that the meaning expressed by constitutional text in its original context is binding.  He explains:

[S]emantic meaning is fixed in a thin sense. To use an example that came up earlier, I do very much hope that the “Republican Form of Government” clause does not mean that Mitch McConnell is to be our sole governor. But this thin sense of fixation turns out to be absolutely common ground across originalist and non-originalist legal systems. European judges who think originalism is absurd may and do assent to it just as well. Hence this thin sense does not at all entail any of the further premises of modern American originalism....

The reasoning here—the argument embedded in the “hence”--seems to be

(1) European judges embrace the bindingness of the meaning expressed by text in its original context,

(2) European judges aren't originalist in the American sense, so

(3) Originalism in the American sense is more than the bindingness of the meaning expressed by the text in its original context.

But the conclusion here, (3), is very implausible. Lots and lots of people have long defined originalism as the bindingness of the meaning expressed by the text in its original context. It seems that we should be much more confident of the denial of the conclusion (3) than we are of premise (2).

Accordingly, it seems a much better argument—one with premises of which we should be more confident—is from the denial of (3) and (1) to the denial of (2).  Originalism is the bindingness of the meaning expressed by the text in its original context; European judges embrace that; so it turns out they are originalists after all. It doesn’t make sense to be more confident about cross-cultural ascriptions of theoretical terms (i.e., whether Europeans are originalists in an American sense) than about originalists’ long-standing definitions of their own theoretical terms. It thus makes most sense to view European judges—and Vermeule himself!—as unwitting originalists.

Further, rather than using natural law to override original meaning, as a means of escaping being “enslaved to the original meaning of the Constitution,” as he did in his book, Vermeule now seems to use natural law only as a means of discerning original meaning when it is unclear. Quoting Helmholz, Vermeule pines for the days when natural law “was used to discover the meaning of existing laws [and] to help supply the answer to a legal question where the import of positive law was uncertain.” Vermeule seems to have retreated, and sensibly so, to the position of John Marshall in United States v. Fisher in 1805: “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.” I hope he stays there!