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A Reply to Sasha on The "Is"/"Ought" Distinction:
A few quick thoughts in reply to Sasha's interesting response. Sasha writes:
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."
  It is true that groups of people can get together and agree on what the Constitution means, and for them that will become what the Constitution "is." For example, a group could decide that the Constitution has 14 branches of government overseen by a Giant Iguana King named Hector. They would be quite distressed that the courts have not yet recognized Hector the Iguana King as the authority ("damn activist judges!"). But to them Hectorism is not a theory of what the law should be but what it truly is.

  But as Sasha suggests, this is just a definitional point about what it means for the law to be something. To borrow from our former President, it depends on what the meaning of "is" is. "What Law Is" has filled libraries, and obviously I can't resolve it here. But I think I can take it to mean what I think most of us commonly think it means; what legal institutions believe it they must do or not do using widely shared practices of interpretation, rather than a person's view about what those legal institutions should believe.

  The contrary view makes the notion of what the law "is" rather useless, I think, which presumably explains why it is not the common use of the term. If the Constitution "is" what a person thinks it is, and no two people agree on what that is, then the Constitution is different to everyone. There isn't much to be gained by talking about what it "is" at that point. So we could define it that way, but the results are silly enough that it's not the common understanding of the term. And besides, Hector insists, and Hector must be obeyed.

  Sasha coninues:
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.
  This is another classic and much-debated question in the law reviews, of course, and again I can't settle it here. But I intentionally tried to sidestep that debate in my post by not referring only to the Supreme Court or "Supreme Court doctrine." Rather, I made a point to refer to "legal institutions such as courts." To elaborate on that, I think Congress is a legal institution. The executive branch is one, as well. Exactly what their role should be in determining constitutional meaning raises a fascinating set of questions, but those questions are distinct from the point I was making in my post.
M (mail):
"a group could decide that the Constitution has 14 branches of government overseen by a Giant Iguana King named Hector"

Dude, no one believes in original intention anymore- it's all original public meaning now!
7.17.2008 5:42pm
Jiffy:

To borrow from our former President, it depends on what the meaning of "is" is.


Hey, I got there first (see comments to Sasha's post).
7.17.2008 5:54pm
MarfaLights (mail):
Is anything more futile than Constiutional "theory?" Lol. I can't believe pepole waste time coming up with "theories" of the Constitution, in the sense of positing that the Constitution has some independent metaphysical meaning to be deduced. The Constitution "means" whatever 9 justices say it means, and what those 9 justices say is purely a function of politics - from both the justices own views and the nomination process. To the extent they show "principled restraint" etc. it is only because hteir political leanings or the forces behind their nomination support that.
7.17.2008 6:00pm
MagicHat:
I am in Orin Kerr. I do not believe in objectivity because that is for plebeians. Because people disagree, and because I can predict what their arguments will likely be, I am not infected by their blindness to the supreme (un)truth.

If I can find a well-sized group of people who argue that Orin Kerr does not actually exist, does that mean that the people who argue that he does exist are merely arguing their "ought" rather than an "is"?
7.17.2008 6:17pm
Dilan Esper (mail) (www):
This is another classic and much-debated question in the law reviews, of course, and again I can't settle it here. But I intentionally tried to sidestep that debate in my post by not referring only to the Supreme Court or "Supreme Court doctrine." Rather, I made a point to refer to "legal institutions such as courts." To elaborate on that, I think Congress is a legal institution. The executive branch is one, as well. Exactly what their role should be in determining constitutional meaning raises a fascinating set of questions, but those questions are distinct from the point I was making in my post.

Well, but according to the settled customs Prof. Kerr aludes to, with respect to issues the courts adjudicate (i.e., not political questions), they are entitled to make pronouncements of what the law is that bind everyone else. So I'd take a harder position on this than Prof. Kerr does. Only with respect to political questions should the decision of the political branches with respect to the meaning of the Constitution control.
7.17.2008 6:20pm
Michael F. Martin (mail) (www):
Orin,

Law is not what lawyers and judges, &c. BELIEVE they should do. It is what the do do.

I just found Scanlon. But I think his work on the difference between blame and blameworthiness is relevant here.
7.17.2008 6:26pm
AF:
But I think I can take ["is"] to mean what I think most of us commonly think it means; what legal institutions believe . . . they must do or not do using widely shared practices of interpretation, rather than a person's view about what those legal institutions should believe.

I basically agree with this definition, but I would offer a slight amendment.

What the law "is" depends on what legal institutions believe they must do according to widely shared practices of interpretation. But we who are not members of legal institutions can never know precisely what legal institutions presently believe. Instead, we try to guess what they believe based on what they have said they believe in the past, or based on our predictions of how they will interpret materials that they have not yet interpreted. The only purely descriptive claims that can be made by non-legal actors are of what the law has been in the past; any claim about what the law actually "is" cannot be purely descriptive.
7.17.2008 6:27pm
Constructively Reasonable (www):
I find this topic fascinating because it gets down the very core of the arguments: the definition of "Law." As Professor Kerr said, "what the law is" fills libraries, but the discussion gets right down to whether or not the Law exists beyond the interpretations of legal actors or whether it exists ex ante any interpretation.

However, I must now flee the country, for I have not paid my taxes to King Hector in quite a while now.
7.17.2008 6:28pm
Jacob T. Levy (mail) (www):
I think that for any position that's not implausibly-hardcore realist, Sasha's got to have this right.

While there's one sense in which one would have said in 1953, "state-enforced segregation of the races is legal in the United States," there's a perfectly plausible second sense in which one could have said, "State-enforced segregation is illegal under the Constitution of the United States, even though the courts have not yet recognized that fact." And the second statement *could* be relatively independent of a normative endorsement of it-- one could think that segregation was good and still, as a faithful legal interpreter, say that one's best reading of the 14th amendment as law mean that current practices were illegal.

Legal actors in the constitutional system use language this way, and it's not silly in the way Orin suggests. By saying "this currently-legally-tolerated practice is illegal," they're not misusing either the word "is" or the word "illegal". And if the courts come around to their way of thinking, then they do so by saying that the practice is *and was* illegal, even prior to their announcing that truth.
7.17.2008 6:49pm
krs:
And besides, Hector insists, and Hector must be obeyed.

Hector is the worst.
7.17.2008 6:49pm
Angus Lander (mail):
As a general rule, sentence S in language L expresses whatever a competent speaker of language L would understand S to express. So, "John is bachelor" in English expresses that John is an unmarried man, because a competent speaker of English understands "John is a bachelor" to express that John is an unmarried man.

Doesn't this rule also determine what a given sentence comprising a law (or a Constitution) means as well? Admittedly, some laws are written using terms of art with which most competent speakers of English are unfamiliar, but these terms of art are, in turn, defined in more familiar terms, so, where terms of art are concerned, the rule just needs to be applied "one level up."

I don't know if Orin's criteria for determining the meaning of a law -- to ascertain "what legal institutions believe they must do or not do [according to] widely shared practices of interpretation" -- is just another way of phrasing the test articulated above, but I doubt it. It seems to me that, on Orin's account, the law might express something that the competent speaker of the language in which it is written would not take it to express (if, say, some bizarre practice of interpretation becomes popular). Why should we accept an account of legal interpretation on which ordinary English terms might acquire a radically different meaning simply in virtue of their comprising a statute?
7.17.2008 6:51pm
Gil Milbauer (mail) (www):
So, how can Orin explain non-unanimous SC decisions?

When Supreme Court Justices disagree, doesn't that mean that some of them are wrong about constitutionality?

If so, why couldn't the majority be wrong like that?

Was there no truth of the matter before the ruling?

If five Justices rule that "The Constitution has 14 branches of government overseen by a Giant Iguana King named Hector." are they correct by definition?

What does it mean when the Court reverses itself? Does the truth of the matter change, or was there just an incorrect prevailing decision?

Maybe Orin is just telling us that when he says something is constitutional, he just means that that's the current state of the law. But if he's disparaging the alternative usage of others, I don't think it makes sense.
7.17.2008 7:16pm
ReaderY:
Are we being Hectored again? $@#$@* iguana droppings...
7.17.2008 9:19pm
Sasha Volokh (mail) (www):
Gil: I don't think Orin's arguing that the Supreme Court determines the truth, just that it determines the law. I'm sure Orin agrees with you that there may be a truth of the matter separate from what the Court or other branches-in-power say, just he disputes that that truth of the matter is usefully called "law."
7.18.2008 12:07am
Gil (mail) (www):
Ok. But, he wrote not only of what the "law" is, but also about what the Constitution means. That may be where the confusion is coming from.

Also, I think Hayek and others distinguished between law and legislation. Orin is free to use the word as he likes, and it's great that he clarifies what that is. But, I think it's wrong to portray others' different usage as confused.
7.18.2008 2:51am