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.