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Is the "is"/"ought" distinction so clear in constitutional law?

In general, I endorse the is/ought distinction, in law as in other places. When Orin tells you what Supreme Court doctrine says, it doesn't mean he endorses it as the correct doctrine, the correct understanding of the Constitution, or whatever.

However, I think the line may be a wee bit fuzzier than Orin lets on. As an initial matter, consider that, under many constitutional theories — which many people subscribe to — the Constitution "means" something independently of whether courts have recognized it. People holding such theories can differ on what that meaning is, and on what interpretive theory you should use to figure out what that is — for instance original public meaning or something else — but these people would each agree that there exists some meaning of the Constitution. (Incidentally, I'm taking no position here on whether that view of a True Meaning is correct. This is an "is" point, not an "ought" point! In any event, I could phrase my argument without recourse to such views; but it's simpler this way.)

So, when we ask whether the Commerce Clause allows regulation of intrastate marijuana, one can give an "is" description of what the Commerce Clause means under one's preferred theory (e.g., "no it doesn't because the original meaning of 'interstate commerce' didn't cover that"), but that description would at the same time often be an "ought" description because usually such arguments would be accompanied with an argument that the theory is the normatively correct one. So such a description would be both "is" and "ought" at the same time, and more importantly, it could differ radically from what the Supreme Court says the Constitution means.

O.K., Orin might say — if I might put words into his mouth — but, he might continue, when I'm describing doctrine, it's clear what I'm doing — look, I'm citing Supreme Court cases! So (says the hypothetical Orin) let me translate my point into your rhetoric: Don't confuse "an argument about what current Supreme Court doctrine is" with "an argument about what the Constitution really means in your view, which really comes down to what you think Supreme Court doctrine ought to be."

Fair enough. But it may be misleading to claim that "Supreme Court doctrine" is the same thing as "constitutional law." For instance, it's also a view held by many that everyone who takes the constitutional oath — say all public officials — also have an independent duty to follow the Constitution. And there's no necessary reason why the Supreme Court's pronouncements on what the Constitution means should be authoritative. They're just one interpreter (well, nine) among many possible ones.

Now you'll probably want to avoid doing what the Supreme Court says is unconstitutional, in a context where they're just going to reverse you, just like you want to avoid walking down a dark street in a dangerous part of town — it's probably prudent, but it doesn't mean you accept it as the way things should be. (But not even everyone agrees with that — some argue that there's a duty to follow your own view of the Constitution, even if it means reversal, because that's just your duty as a defender of the Constitution.)

But there's no reason why you can't take a stricter view of the Constitution than the Court. For instance, as a legislator, you might say: "The Supreme Court says this law is constitutional, but I disagree, so I'll vote against it on constitutional grounds." Or the President could use the same argument for vetoing a law, or for enforcing a law in a particular way. (Some have also written about the President's duty to veto, and the President's duty not to enforce unconstitutional laws.) Or regular folks could use their own view of the Constitution in making arguments to these officials.

This stuff rarely gets litigated. For example, regular people don't need to account to anyone for the arguments they make; elected officials don't need to give reasons for why they vote against or veto something; and so on. But these are still arguments about the meaning of the Constitution, or, if you want to put it differently, about the substance of constitutional commands.

Now, is this constitutional law? Because, some might say, arguing about —Āonstitution meaning isn't the same as arguing about constitutional law. For instance, in the view of some, "law" is just what comes out of the courts. (Perhaps constitutional law, in this view, should be influenced by constitutional meaning, but it might diverge from constitutional meaning sometimes, either for good or for bad reasons; but the two are different things.) I disagree, and so does a substantial literature on "popular constitutionalism." I won't try to give a complete definition of "law" here, but I'll say that at the very least, legal principles include any principles that purport to bind government actors in a way that purports to be independent of mere policy preferences.

For instance, this is a legal argument: "You, Senator X, have the duty to vote against this law regardless of how good an idea you think it would be as a matter of policy, because it's contrary to the true meaning of the Constitution, by which I mean the original public meaning."

And if Senator X himself claims, "I think this is an excellent idea, but sadly I feel bound to vote against it because it's contrary to the Constitution, even though the Supreme Court would uphold it," he's enunciating a principle of constitutional law, though not a principle of a judicial variety, and not one that could actually be enforced in any court.

An implication of all this is that if Senator X votes against a law because he (correctly, in your view) thinks it's unconstitutional, and the law gets enacted anyway, and then the Supreme Court (incorrectly, in your view) upholds it, then it's perfectly valid to say that Senator X understands constitutional law better than the Supreme Court does.

What this all comes down to is that when Orin makes an argument about the state of current Supreme Court doctrine, you should listen to him and not confuse it with an argument about what Supreme Court doctrine ought to be. But you also shouldn't think that Supreme Court doctrine exhausts the whole of constitutional law. And in particular, if your argument about what Supreme Court doctrine should be is grounded in some theory of constitutional interpretation, your "ought" argument can also be an "is" argument about constitutional law, though not about the Supreme-Court-doctrine branch of it.

FantasiaWHT:

Fair enough. But it may be misleading to claim that "Supreme Court doctrine" is the same thing as "constitutional law." For instance, it's also a view held by many that everyone who takes the constitutional oath -- say all public officials -- also have an independent duty to follow the Constitution. And there's no necessary reason why the Supreme Court's pronouncements on what the Constitution means should be authoritative. They're just one interpreter (well, nine) among many possible ones.

Ed Meese gave a lecture on this topic at Marquette Law School last year. It's a very good point that the constitution doesn't say that the Supreme Court gets to decide what the constitution means. To put it another way, Supreme Court opinions are evidence of the constitution, not the constitution itself.


7.17.2008 4:28pm
a (mail):
In the penultimate paragraph, you probably mean the Senator thinks it's UNconstitutional.

[SV note: Thanks, I've fixed it.]
7.17.2008 4:32pm
Gregory Conen (mail):
Sasha! It's been too long. You know we miss your insightful commentary.
7.17.2008 4:41pm
AF:
Sasha, excellent post.

However, I don't think an "ought" argument becomes an "is" argument, even in a non-judicial sense, just because it might convince some non-judicial actors. An "is" argument about non-judicial constitutional law should be based on what non-judicial actors have actually done, not what they ought to do.

[SV note: Why? Can't you have a con law argument on an issue of first impression? Cf., e.g., the almost-blank-slate originalist arguments on the Second Amendment in Heller.]
7.17.2008 4:46pm
darelf:
Reynolds' newest article has this fantastic quote:

"Unfortunately, as many lawyers can attest, the Supreme Court often formulates principles that are not clear, and sometimes it fails to establish principles at all."

When this is the case, is it even possible even in a litigated case to say what current law even is? If we say that we are talking about what the law is today, ( rather than what it ought to be ) aren't we really just fooling ourselves? How many shockingly decided cases have there been just this year? Law that no one predicted.

And, as you say, that's if we limit it just to case law. What about when the branches clash, and the court loses? Isn't that just as much law, even constitutional law, as the other?
7.17.2008 4:50pm
Pendulum (mail):
Riveting post.

To add yet another layer of complexity, consider how the Supreme Court treats stare decisis. I was particularly horrified as a 1L when I encountered Flood v. Kuhn, where every member of the court believed a precedent to be, in some sense, "unconstitutional", but upheld the precedent anyway on stare decisis grounds.

So, here you have the Supreme Court acknowledging that the outcome of its case is contrary to "what the Constitution says," and is not in accord with "what the Constitution means," but nonetheless we must treat that as a representation of "what constitutional law is"?
7.17.2008 4:54pm
Pendulum (mail):
To clarify a factual point, every member of the Court believed the precedent was unconstitutional, but a majority of 5 voted to nonetheless uphold it.

To not clarify a substantive point, I recognize the muddledness of my contribution above, but hopefully you can extract what I mean.
7.17.2008 4:58pm
AF:
Why? Can't you have a con law argument on an issue of first impression? Cf., e.g., the almost-blank-slate originalist arguments on the Second Amendment in Heller.

Yes you can. But if you're saying what you think the law "is" with respect to an unsettled question, for all practical purposes you're making a normative ("ought") argument about what the law ought to be. This is equally true of judicial and non-judicial constitutional law.

You may be conflating the is/ought distinction and the legal/non-legal distinction. You can make a normative or descriptive legal argument and a legal or non-legal descriptive argument.
7.17.2008 5:02pm
jim47:
I wish I had seen this post before writing a response to Orin in the comment thread of his post. I could have just written, "what Sasha said"
7.17.2008 5:13pm
Sasha Volokh (mail) (www):
When you're making an argument about an issue of first impression, if that argument is founded in constitutional meaning (according to your theory of interpretation), then you're saying "This IS the meaning of the Constitution." It's an IS argument as to constitutional meaning. You might also be arguing that a court should adopt that meaning, in which case you're making an OUGHT argument as to Supreme Court doctrine. (Not necessarily -- there may be good reasons why a court could validly not follow the meaning of the Constitution, for instance stare decisis.) Or, say, the Executive Branch could adopt, through the Office of Legal Counsel, a more pro-gun interpretation of the Second Amendment than Heller (e.g., ex-felon bars also unconstitutional), and then it would say "We're acting this way because of the true meaning of the Constitution," that is, just making an IS statement about the law. These are all legal claims, though not all judicial.
7.17.2008 5:16pm
Tucker (mail):
I am thrilled to have spawned a debate on the Volokh Conspiracy. ;)

It's a high point in my internet commenting.
7.17.2008 5:22pm
darelf:
Slightly off-topic, but no one has posted on it yet. What the hell is this about:
No Gun For You

What I mean by that is, this strikes me as having HUGE balls on the part of DC police. Wouldn't the last person you want to deny registration for a perfectly ordinary handgun to be Dick Heller?
7.17.2008 5:23pm
Jiffy:
It depends on what the meaning of the word "is" is. Or maybe on what the meaning of the word "ought" is. It seems to me there are three categories here, not two. First, there is existing Constitutional doctrine or interpretation as described by some authority, such as the Supreme Court. Second, there is a notion of the "correct" constitutional interpretation based on some interpretive theory--it's actual "meaning" for those who believe there is such a thing. Third, there is a normative judgment about what the legal rules should be. Any two or three of these could be the same, or they could all be different. The first one is pretty clearly an "is" proposition, and the last is pretty clearly an "ought" proposition, but the second could be described either way: E.g.: "X what the Constitution means," or "the Supreme Court ought to rule X because that is the most accurate interpretation of the Constitution's meaning."
7.17.2008 5:28pm
Alan Gunn (mail):
A tax lawyer I know once described the law as "a nice balance between following orders and getting it right." He was speaking of the tax law, but I think it applies across the board. I used to view teaching in the first year, especially, as consisting in large part of attacking the is/ought distinction. Here, as elsewhere, Holmes' description of the law as a prediction of what judges will do has done a lot of mischief.
7.17.2008 5:31pm
Anon21:
Pendulum, I think you mischaracterize Flood and its construction of Federal Baseball Club v. National League. All of the Justice agreed that the result in Federal Baseball was not compelled by the Constitution, and that the Court's decision otherwise was erroneous. None of the Justices expressed the view that you are attributing to them, namely that Federal Baseball was "unconstitutional." The result reached was perfectly constitutional, it just wasn't constitutionally required. Therefore, under the circumstances, the decision as to whether to continue baseball's antitrust exemption ought to have been left to Congress, which could certainly have done so consistent with constitutional requirements.

Otherwise, I would tend to agree that the application of state decisis in Flood was unreasonable; the original legal rationale that supported Federal Baseball had been so far undermined that it ought to have been overruled. I disagree, however, that this in and of itself constitutes a compelling argument against judicial supremacy in constitutional interpretation, because I do not judge that unreasonable adherence to past practices in the face of changed understandings is uniquely a fault of the judiciary.
7.17.2008 5:33pm
AF:
When you're making an argument about an issue of first impression, if that argument is founded in constitutional meaning (according to your theory of interpretation), then you're saying "This IS the meaning of the Constitution." It's an IS argument as to constitutional meaning. You might also be arguing that a court should adopt that meaning, in which case you're making an OUGHT argument as to Supreme Court doctrine. (Not necessarily -- there may be good reasons why a court could validly not follow the meaning of the Constitution, for instance stare decisis.) Or, say, the Executive Branch could adopt, through the Office of Legal Counsel, a more pro-gun interpretation of the Second Amendment than Heller (e.g., ex-felon bars also unconstitutional), and then it would say "We're acting this way because of the true meaning of the Constitution," that is, just making an IS statement about the law. These are all legal claims, though not all judicial.

I agree that they are legal claims. I disagree that they are "is" as opposed to "ought" claims about the law. Lawyers conventionally assert that the view of the law they are advocating is what the law "is." If any claim that the law "is" X according to the speaker's interpretive theory is an "is" claim, it is hard to see what the is/ought distinction means.

In my view, the most useful distinction between descriptive ("is") and normative ("ought") legal claims is that a descriptive claim states what relevant actors have deemed the law to be in the past, while a normative claim urges the reader to adopt a particular view of what the law is.

On this view, the is/ought exist even outside the judicial context. If the OLC adopts a more pro-gun interpretation of the Second Amendment than the Supreme Court, it will be is a pefectly good descriptive claim to say that the Second Amendment "is" more protective of the gun rights than the Supreme Court thinks with respect to the Executive branch. But an argument that has not been adopted by any relevant governmental entity is not a descriptive argument in any useful sense.
7.17.2008 5:35pm
MarkField (mail):

And there's no necessary reason why the Supreme Court's pronouncements on what the Constitution means should be authoritative. They're just one interpreter (well, nine) among many possible ones.


Isn't this itself a normative claim rather than a descriptive one?
7.17.2008 5:46pm
zippypinhead:
The whole "is" versus "ought" debate reminds me of the gulf that sometimes exists between legal theorists and practitioners. From the standpoint of the practitioner who has to stand in the well of a trial court or render legal advice to clients on a regular basis, "is" matters a whole lot more than "ought," at least when you're not dealing with relatively rare matters of first impression. Unlike an academic attempting to articulate a theoretically-optimal doctrine, a practitioner first must ask what the law "is" (as informed by the relevant statutes and caselaw). Then he asks how his client's fact pattern fits the "is." If the facts and the "is" law are in your favor, the inquiry is over. If they're clearly not in your favor, it's usually time to start plea negotiations (or in a civil context, settlement discussions). Only if there is an ambiguity or if the stakes are sufficiently high to warrant pushing a very heavy and expensive boulder up the hill to an appellate court of last resort, will the practitioner advise his client that they shuld make an "ought" argument.

Of course, this isn't to say that academic searches for the correct theoretical "ought" don't matter. Looking at current events, the standard model of the Second Amendment was advocated in law reviews long before any contemporary court decision (Emerson and then Parker/Heller) accepted it as an "is." But in the meantime, a lot of legal advice was rendered based on an "is" that needed the right test case to be corrected by the standard model's "ought."
7.17.2008 6:01pm
MarkField (mail):
Just to follow up on my own post, let me re-phrase Sasha's example a bit. Suppose a President (call him "Andrew Jackson") believes that a particular policy (call it "Bank of the United States") is unconstitutional even though the SCOTUS has said it is. By vetoing the Bank charter, our hypothetical President Jackson can actually influence political development and Constitutional law nearly as much as the Court itself. But it happens in a negative way (in a sense), by foreclosing certain paths which might otherwise be followed. That's not the same as "Senator X", which I think runs afoul of the normative/descriptive problem.
7.17.2008 6:07pm
frankcross (mail):
Sasha, I think this obscures the issue. The "is/ought" distinction doesn't turn on reliance on precedent, it would apply equally well to a thoroughgoing originalist. Indeed, it seems to apply to Heller, where the originalism on which the right was based was ignored in the list of constitutional restrictions on the right.

Now, there is a fair debate about what the "law" "ought" to be. But I don't think that was Orin's point. His point was that this should not be based upon what your preferred policy is.
7.17.2008 6:11pm
Dilan Esper (mail) (www):
Part of the problem is that I don't think people are clear as to what they are advocating.

If you are saying the Constitution should be interpreted a certain way, then say that. But saying that "is" the true meaning is both overselling one's own authority and is vague.

With respect to government officials interpreting the Constitution, a distinction should be drawn between political questions (those that are left for the other branches) and judicial questions. For instance, a government official's decision that the First Amendment requires something that the Supreme Court says it doesn't require is not the law. But Congress' construction of what the standard of proof is in an impeachment trial is essentially the law, because the courts abstain from deciding such things.

Finally, with respect to Fantasia's post at the top of the thread, what an appropriate username. Because it has long been a right wing fantasy to reverse or at least call into question Marbury. But as circular as it may seem, the Court's pronouncement that "it is emphatically the province of the judiciary to say what the law is" is binding, and therefore, when the courts determine the meaning of a constitutional provision, we are not at liberty to ignore them, and certainly not in favor of the views of a hack like Ed Meese.
7.17.2008 6:17pm
Michael F. Martin (mail) (www):
Sasha,

Have you read any T.M. Scanlon?
7.17.2008 6:29pm
Sasha Volokh (mail) (www):
Michael F. Martin: No.
7.17.2008 6:51pm
Michael F. Martin (mail) (www):
I'm seeing a similarity between your line of reasoning about is/ought and his work on blame/blameworthiness. Maybe it's there, maybe it isn't. But I thought you might be interested in his work. Here's a link to an interview of him:

http://www.philosophersnet.com/magazine/article.php?id=1059
7.17.2008 7:03pm
Displaced Midwesterner:
Overall, a very interesting post that I can mostly agree with. Except for the way you define constitutional law. Really, it seems better to use the label "constitutional law" for Supreme Court doctrine. The very phrase implies that it is a body of law based on a particular source, the Constitution. It is law about the Constitution. But it is not necessarily the same thing as the Constitution. It seems that if you disagree with a Supreme Court opinion's interpretation and think they should have ruled differently, you are arguing that the Court ought to have ruled differently because the Constitution is saying something different. But what the Supreme Court ruled is what will be enforceable. And I think that is a more common understanding of what "the law" is. By contrast the meaning of the Constitution is a more abstract notion. It makes more sense to talk about this as simply what the Constitution says or means, and to talk about Supreme Court case law as con law, rather than using the word con law to stand for a person's understanding of what the Constitution actually means.
7.17.2008 7:30pm
George Weiss (mail) (www):
great post sasha
7.17.2008 9:13pm