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Confusing "Is" and "Ought" in Constitutional Law:
When I write a post that discusses existing constitutional law, it's common for a commenter to chime in that I am wrong to want the law to be that way. In other words, the commenter will imagine that my descriptive claim is really a hidden normative claim: That is, when I describe the law, I must really be describing what I personally want the Constitution to mean rather than what legal institutions such as courts actually indicate that the law is.

  Why is that? I suspect the reason is that many people who discuss constitutional law are pretty sloppy in distinguishing "is" and "ought." When asked what the Constitution means, lots of people construct a pastiche of existing law and law that they personally would really like. Libertarians will usually offer a nicely libertarian constitution, kind of a mix of existing law and libertarian thought; liberals will offer a liberal one, mixing their existing law with liberal politics. (In that setting, the purpose of high constitutional theory is coming up with creative arguments for why a particular set of policy views really are the ones embedded in the Constitution: unsurprisingly, people are generally persuaded by theories that embed their own policy views and unpersuaded by theories that embed someone else's.)

  In light of his common practice, I suppose I can understand why many readers would confuse "is" and "ought." The distinction may be so often overlooked that it just gets lost. For what it's worth, though, when I describe the current state of the law, I am being purely descriptive, at least to the best of my ability. That is, I'm trying to describe what the law is in the same way I might describe the law to a client who needs to know the legal consequences of particular conduct.

  Of course, simply describing the law is not rocket science. To be candid, many law professors think such things are beneath them (eww, doctrine — how unsophisticated!). But in my view, an accurate description of the law is often an incredibly important starting point for discussions about potential legal change. You can't assess where you're going if you don't first know where you are, and a blog can be a great way to get us all on the same page about where we are. So while I will sometimes make a normative argument, I will often make a purely descriptive one: and when I make a descriptive claim, please understand that I don't mean to endorse the law just because I have described it. And where it's not clear which type of claim I am making, feel free to ask in the comment thread and I'll very likely respond pretty quickly to clarify.
DiverDan (mail):

I suspect the reason is that many people who discuss constitutional law are pretty sloppy in distinguishing "is" and "ought." When asked what the Constitution means, lots of people construct a pastiche of existing law and law that they personally would really like.


That describes precisely a great many Supreme Court Opinions by the likes of Kennedy, Breyer, Stevens &Souter.
7.17.2008 2:36pm
Katl L (mail):
outside the USA ,"is" it is called dogmatic view of the law. "ought" means Filosophy of Law or as you call it jurisprudence.( Jurisprudence is the name for precedent).I a law teacher ,an many times, since im a classic liberal living in a country with a socialist / welfare state system since at leat sice 1945 , i say this is the law .i dont like it but the law is the law. i didnt make it.When i was still in the the courts, i had a lanlady as client and she had no chance of winning .Of course the law is absurd but is the law .when she cried about the law i had to say her the same " thats the law". you are no more the owner of your house once you lend it.
there is a whole subject on the matter is called theory of the law basically tries to answer what the law is.
7.17.2008 2:43pm
statfan (mail):
"beware of finding a Jesus entirely congenial to you" is a proverb that more interpreters of the constitution should keep in mind.
7.17.2008 2:49pm
krs:

I suspect the reason is that many people who discuss constitutional law are pretty sloppy in distinguishing "is" and "ought."

Part of this may be due to the differences between (1) text and doctrine and (2) settled doctrine and open doctrinal questions.

For example, if you ask someone "whether there's at least a limited right to abortion in the Constitution," you'll get different answers from different people.

Up until about a month ago, if you asked whether, under the Supreme Court's precedents, the Eighth Amendment prohibits the death penalty for crimes against individuals that don't result in death, you'd get similarly varied answers.
7.17.2008 2:50pm
Kirk:
You can't assess where you're going if you don't first know where you are
I fear that might actually be a feature, not a bug, for some people: heightening the contradictions, breaking a few eggs, and so on.
7.17.2008 2:59pm
Arkady:

In every system of morality, which I have hitherto met with, I have always remark'd, that the author proceeds for some time in the ordinary ways of reasoning, and establishes the being of a God, or makes observations concerning human affairs; when all of a sudden I am surpriz'd to find, that instead of the usual copulations of propositions, is, and is not, I meet with no proposition that is not connected with an ought, or an ought not. This change is imperceptible; but is however, of the last consequence. For as this ought, or ought not, that expresses some new relation or affirmation, 'tis necessary that it shou'd be observ'd and explain'd; and at the same time that a reason should be given; for what seems altogether inconceivable, how this new relation can be a deduction from others, which are entirely different from it.


David Hume, A Treatise of Human Nature, Book III, Part I, Section I
7.17.2008 3:17pm
AF:
There is no distinction between is and ought if you are trying to answer an unsettled question. Descriptively, you can only say that it's unsettled.
7.17.2008 3:19pm
Ubu Walker (mail):
Part of the problem is the John Yoo-ification of the law. So called conservative academics like Yoo take a fringe theory of executive power and run with it, bringing it into huge gray areas of legality that our forefathers would be horrified...and then claiming that an imperial presidency was the original intent of the framers (Adams perhaps?).
7.17.2008 3:20pm
Constructively Reasonable (www):
The is/ought distinction is lost, particularly in Constitutional Law, because so very few actually try to find what the law is. Everything is based upon normative arguments that are veiled as "the Constitution protects X or prohibits the government from doing Y." Thus, we are conditioned to assume that any professor or judge is giving his opinion on the law when he makes descriptive statements.

Further, in the postmodernist culture which states that everything is opinion and nebulous, why seek out a "true" (i.e. objective) understanding of the law? Without a cultural mandate to be objective, everything degrades into politics-- and thus we count votes on the SCOTUS and the majority is correct only because they had at least 5 members.

Then again, I am a Federalist Society Member... so take my opinion for what you will.
7.17.2008 3:20pm
courtwatcher:
That describes precisely a great many Supreme Court Opinions by the likes of Kennedy, Breyer, Stevens &Souter.


Umm. . . . actually, what you're doing right there is what Professor Kerr is talking about here, DiverDan. As the Professor says, he is "trying to describe what the law is in the same way I might describe the law to a client who needs to know the legal consequences of particular conduct.is talking about is." Like it or not, if the opinions you're talking about are majority opinions of the Court, those opinions are actually the law. Your opinion is what differs from the law in those cases, even if you or others believe you're right. Yours is, as OK points out, a normative stance. An accurate description of the law is that Supreme Court majority opinions describe the law as it is today.
7.17.2008 3:27pm
courtwatcher:
Without a cultural mandate to be objective, everything degrades into politics-- and thus we count votes on the SCOTUS and the majority is correct only because they had at least 5 members.


Not quite, if I understand you correctly. The majority is "correct" in the descriptive sense that OK means because, by definition, Supreme Court majority opinions are the law. This has always been true - it is not a "postmodern" phenomenon. If I am advising a client or a lawyer about what the law "is," I must follow Supreme Court precedent. If you mean "correct" as a normative matter, of course there have been Supreme Court opinions that have been morally repugnant, subsequently found by later Courts to be wrongly decided, etc. But "correct" as a descriptive matter, about what the law requires, has to be with refeerence to current Supreme Court doctrine, not some other idea of what the "correct" interpretation of the Constitution is.
7.17.2008 3:33pm
cjwynes (mail):

"beware of finding a Jesus entirely congenial to you" is a proverb that more interpreters of the constitution should keep in mind.


Nice quote. I'll have to remember that one the next time I bump into a cafeteria christian, or somebody whose christianity seems to fit their preferred politics and lifestyle suspiciously well.

BTW, what prompted this clarification that his descriptions of the law are not necessarily normative judgments?
7.17.2008 3:34pm
droopy:
Orin, I think you're entirely right. But in any poltiical or legal tussle, if my opposition is willing to read their policy preferences into the mandates of the constitution, then I come into the argument under-armed if I'm not willing to make the argument that it is my belief, not theirs, which is currently enshrined in the constitution.

Very likely the constitution is silent on the issue, but if one side is doing it, then the other side does, too. Classic game theory problem..
7.17.2008 3:43pm
jackson:
"We are not final because we are infallible, but we are infallible only because we are final."

The same "is" and "ought" confusion characterizes much of the factual analysis brought to legal arguments, as the Heller and Crawford amicus briefs abundantly illlustrate.
7.17.2008 3:49pm
arbitraryaardvark (mail) (www):
When you describe the law, what do you mean by "the law" in this context? Is it the text, what judges say, what Justices say, what judges do, what juries do, what cops do?
Before Heller, there was a conflict between the text and what judges said and did. EV wrote a series of articles about the 2d A. It can be meaningfully stated that he was writing about what the law is, not just what it should be, and Heller largely adopted his perspective. But I would also understand you if you said he was writing about what the law should be, rather than what it was.
The area I focus on is anonymous political speech, where there's a conflict between what the Supreme Court says the law is, and what government officials including at the FEC say the law is. The standard myth is that that what the Supreme Court says controls, and the government must follow, but in practice it doesn't work that way.
So please explain what it is you mean that the law is, when you are being descriptive. For extra credit, feel free to say what you think the law should be, when you are being descriptive.
7.17.2008 3:54pm
OrinKerr:

There is no distinction between is and ought if you are trying to answer an unsettled question. Descriptively, you can only say that it's unsettled.



Then that's what you should say: it is unsettled. There's still a distinction: "it's unclear" versus "the right answer is B."

Orin, I think you're entirely right. But in any poltiical or legal tussle, if my opposition is willing to read their policy preferences into the mandates of the constitution, then I come into the argument under-armed if I'm not willing to make the argument that it is my belief, not theirs, which is currently enshrined in the constitution.

Very likely the constitution is silent on the issue, but if one side is doing it, then the other side does, too. Classic game theory problem..
Sadly, I think this explains a lot of it. We saw it in the fascintaing comment yesterday to the effect that "if the liberals get their rights, we get our right of self defense." It's tit for tat.

But if that's what's going on, shouldn't we at least be candid about it? Why hide it?
7.17.2008 4:00pm
courtwatcher:
The area I focus on is anonymous political speech, where there's a conflict between what the Supreme Court says the law is, and what government officials including at the FEC say the law is. The standard myth is that that what the Supreme Court says controls, and the government must follow, but in practice it doesn't work that way.


If there's truly a conflict rather than an ambiguity, the FEC isn't following the law. That is not a "myth," even if the law hasn't been enforced properly. No matter how much some people don't like it, the federal courts still have the power to decide what the constitutional limits of the other branches' power are.
7.17.2008 4:01pm
Kent G. Budge (www):
I've heard "law" defined as "prophecies about what a Court will decide." I find that too cynical, but from a philosophical perspective only. From a practical perspective, that's exactly how it is.


... copulations of propositions ...


What a delightfully, uh, pregnant phrase. I'll have to remember that one.
7.17.2008 4:08pm
cjwynes (mail):
David Hume posted, posthumously and vicariously:

For as this ought, or ought not, that expresses some new relation or affirmation, 'tis necessary that it shou'd be observ'd and explain'd; and at the same time that a reason should be given; for what seems altogether inconceivable, how this new relation can be a deduction from others, which are entirely different from it.


However, I can't agree with this suggestion by Hume that "ought" is entirely different than "is". A normative statement is merely an assessment of a thing's value. "You ought to do X" means "Given the facts I believe to be true, X would be a beneficial action." If I describe the rules of chess and the position of the pieces at this moment, I can describe the value of a proposed move, thereby deriving an "ought" from an "is". Similarly, if I describe the universe including extensive details about the environment in which a human life exists, it is not that difficult to ascertain what sorts of abilities, traits and behaviours are valuable to that life, and to what degree.

Not only can normative propositions be derived from propositions about reality, but there's no other source from which to derive them, and their existence cannot reasonably be denied. Other than the MySpace page of an angry teenaged misfit who recently looked up the word nihilism in the dictionary, I doubt you'll find anyone willing to deny that normative judgments are possible.
7.17.2008 4:10pm
Crackmonkeyjr (www):
Here's a proposal:

Trial Court judges are picked by lottery, anyone who can practice law in the state is entitled to enter the lottery. You get to stay a trial court judge until you are reversed on appeal a certain number of times. The governor can appoint any lower court judge who has been on the bench and not been kicked off for being reversed to a higher court. Higher court justices serve for life. In a state like New York, where there is an intermediate appellate court, these judges will also serve until their opinion has been reversed a certain number of times.

This takes almost all of the politics out of picking trial court judges. It further gives trial court judges an incentive to do what they are supposed to do - apply the law. It further ensures that higher court justices are picked from people who at least have a strong understanding of how the law should be applied.
7.17.2008 4:18pm
Crackmonkeyjr (www):
Please disregard the above comment, I made it in the wrong post.
7.17.2008 4:21pm
AF:
Then that's what you should say: it is unsettled. There's still a distinction: "it's unclear" versus "the right answer is B."

I agree. However, not very many interesting questions are truly settled. So if you want to say anything interesting, you are usually going to start blurring the line between is and ought; non-obvious descriptive analysis usually has normative implications.
7.17.2008 4:36pm
jim47:

That is, when I describe the law, I must really be describing what I personally want the Constitution to mean rather than what legal institutions such as courts actually indicate that the law is.


If you want to take a realist view of the law, perhaps all the law that truly "exists" as law is that which has been previously elucidated by recognized legal authorities and is likely to be applied by a recognized sovereign, and thus the is/ought distinction is entirely clear and appropriate — the law is (and only is) what the recognized legal authorities have declared it to be, pure and simple, without regard to whether those authorities interpreted accurately or in good faith. In other words, judicial acts are realistically no different in character than legislative acts.

But that is not the way law tends to be practiced. In many instances, lawyers do not ask judges to add a new rule into the law, they ask judges to find that the law already has this rule, even if it has never been explicated. When a precedent is issued, we call it an interpretation of the law, not an addition to it.

Similarly, when we evaluate constitutional interpretation we tend to think that the law, being the actual import of the text, has a fixed meaning apart from the current pronouncements of the SCOTUS; we don't say that the first amendment meant students could be required to say the pledge of allegiance in 1940, but that in 1943 the first amendment meant the opposite, we say that the meaning stayed the same and the court got it wrong one of those times.

To use a patently ridiculous example, if tomorrow the Supreme Court ruled that the 2nd amendment had nothing to do with guns, but in fact guaranteed a right to drink chocolate milk on Wednesdays, and the day after you stated "the law provides a right to drink chocolate milk on Wednesdays" your statement would be an accurate statement of the law in one sense of the word, but an inaccurate statement of the law in another sense of the word.

I suspect that the tendency of commenters to take the meaning of the word law in its objective sense (what it really is) rather than its subjective sense (what they say it is) has to do with the sort of people a blog like this attracts. A general interest legal blog is naturally going to attract people interested in legal theory and political philosophy, while it may be of more limited use to people interested in the more concrete and specific practical application of law.
7.17.2008 4:40pm
Kazinski:
Of course you have your Law Professor hat on now, if you had your Advocate hat on, you better not go into a dispute where the law is unclear without having a pretty clear idea of what you think the law should be. And you probably won't be too clear on the distinction between "is" and "ought" in any briefs, in fact I would bet most of the ought's would read as is's to the casual reader.

I doubt there are very many effective lawyers out there that stick to arguing what they think the law actually is.
7.17.2008 5:04pm
Jack Diederich (mail) (www):
I just checked RFC2119 and it is silent on IS/OUGHT but does describe MUST/SHOULD/MAY.

[what, no engineers on Volokh?]
7.17.2008 5:11pm
Kazinski:
I think Ginsburg is the most prominent example of an "Oughter" on the Supreme Court today. Here is an example, another one here.

Steven's on the other hand is does make the distinction in this dissenting concurrance.
7.17.2008 5:19pm
Dilan Esper (mail) (www):
I think the attempts to apply this to Supreme Court justices miss Prof. Kerr's point.

Here's "is" and "ought" in action:

Is: "Under current caselaw, the Due Process Clause of the Fourteenth Amendment protects a right of a woman to have an abortion before fetal viability, subject to state or federal regulations that do not impose an undue burden on that right."

Ought: "The Due Process Clause of the Fourteenth Amendment was never intended to impose any restrictions on state regulation of abortion."

Notice how, in both of these cases, I make it clear that I am talking about "is" and "ought". But I think where people go wrong is in not making themselves clear. So we get statements like "abortion laws don't violate the Constitution", which are vague, because, on the one hand, that could be a true statement as the author's opinion that abortion laws should not be held to violate the Constitution, but it also be a false statement that under current constitutional doctrine, such laws are always constitutional.

The best way to avoid this is for people to make clear whether they are speaking about their personal interpretation of the Constitution or prevailing and binding legal doctrine. Of course, in this talking points infested world, that's never going to happen, as it sounds more authoritative to couch one's personal opinions as if they are simply the last word on the meaning of the Constitution.
7.17.2008 6:04pm
Sarcastro (www):
Reasonable people can never differ on "ought" questions because there's only one way: mine.

And My Way is not only reasonable, but also the only virtuous Way as well.

Thus, what the doctrine "is" really doesn't matter, because all I wanna do is yell about those Tyrants in Black Robes not doing what they ought to do.
7.17.2008 6:14pm
Steve P. (mail):
[what, no engineers on Volokh?]

There are many, and precisely because our work requires a level of logical thinking separated from our personal preferences, which is exactly what Prof. Kerr was trying to explain in this and the previous thread.

There are always a few threads a year where Prof Kerr tries to either predict or deconstruct a ruling, and commenters invariably overexplain how the law should be, not how it is.
7.17.2008 6:18pm
Sarcastro (www):
Well, everyone knows Prof. Kerr is totally Volokh Conpiracy's liberal, what with the always saying "I don't think what I want is what the law says" or "Bush might not be analyzing the law correctly" or "I don't think we should go out and beat up liberal Justices."
7.17.2008 6:36pm
OrinKerr:
Reasonable people can never differ on "ought" questions because there's only one way: mine.


LOL. Sarcastro, you're always good, but that was particularly punchy.


[what, no engineers on Volokh?]

Do engineering school graduates count? Five years of engineering education should count for something, I say. . . .
7.17.2008 6:48pm
courtwatcher:
Steve P. said:
[what, no engineers on Volokh?]

There are many, and precisely because our work requires a level of logical thinking separated from our personal preferences, which is exactly what Prof. Kerr was trying to explain in this and the previous thread.


And the work of lawyers, done properly, requires this too.
7.17.2008 7:01pm
C. Norris (mail):
"But in my view, an accurate description of the law is often an incredibly important starting point for discussions about potential legal change. You can't assess where you're going if you don't first know where you are,..."
Well said. This means to me that I have come to the right place to learn.
7.17.2008 9:22pm
LM (mail):
OrinKerr:

[what, no engineers on Volokh?]

Do engineering school graduates count? Five years of engineering education should count for something, I say. . . .

You might have better luck with that on the "should" = "does" thread.
7.18.2008 4:06am