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Day of the Iguana:

My answer to Orin is that "law" can validly mean many things, depending on the context and what you want to use it for.

For instance, Holmes -- explaining his famous "bad man" view of the law -- says that law is "the prophecies of what the courts will do in fact." (See The Path of the Law, 10 Harv. L. Rev. 457, 461 (1897).) We can expand this a bit beyond courts and say, with Eskridge and Frickey, that "law is a prediction of the rules that interacting government institutions will apply." (See Law as Equilibrium, 108 Harv. L. Rev. 26, 77 (1994).)

Thus, in most of our lives, most of us don't care what the law is in any abstract sense (I sure don't!); we just want to know what we should or shouldn't do if we want to avoid being punished by someone. That, to us, most of the time, is Law. Constitutional law is just a subset of law, so, among other things, we might want to know what we should or shouldn't do if we want to avoid being unconstitutional, which will usually be relevant only if we're some government actor. (But see Amend. 13, which means any private slaveholder is acting unconstitutionally!)

So usually, constitutional law will be current Supreme Court doctrine. It's possible that other branches might be applying their own constitutional rules -- maybe the Executive Branch has a policy of withholding government funds from property development projects it believes are unconstitutional, and maybe it has a different view of the Takings Clause than Kelo -- so then, from your perspective, constitutional law would also consist of the views of those other branches.

But that's not the only view of law! For instance, there are all sorts of unenforced or underenforced constitutional commands. The Suspension Clause says the writ of habeas corpus won't be suspended, unless in case of rebellion or invasion the public safety requires it. If Congress suspends the writ, it's unlikely that the Supreme Court would ever judge whether the public safety really requires it, or whether what's going on is really a "rebellion." There are lots of political questions like that, and other "underenforced constitutional norms." It's not that there's no law to apply -- it's just that whatever law there is is unenforceable.

Does that mean there's no law? From the "bad man" perspective above, that is correct -- there's no law. Congress can suspend habeas even when there's no rebellion or invasion or the public safety doesn't require it. But suppose -- just suppose -- that for whatever reason, you wanted to follow constitutional commands, perhaps because you took an oath to that effect and want to live up to it. In that case, the Constitution becomes an independent source of duties for you, and you have the obligation to figure out what duties it imposes.

Now you could just decide to listen to the Supreme Court all the time, or on certain questions (perhaps whenever there's something enforceable), or whatever; but that will be your choice. There's nothing in the Constitution that says the Supreme Court is always right. If you have a view on how the Constitution should be interpreted, and, after due consideration, you decide that you disagree with the Supreme Court, why not follow your own view? (Especially, as I said in my previous post, if the Supreme Court won't stop you, for instance if you take a more protective view, not as a matter of policy but as a matter of constitutional meaning.)

So suppose you decide that you believe in original public meaning. And you observe that, low and behold (moo!), all these originalist textualists have already created a whole body of work explicating that meaning! No need to read those pesky Supreme Court opinions (except for prudential reasons, to the extent they'd actually frustrate your plan); you've already got a whole set of binding principles that tell you how to act. What are these principles if not law?

Well, you don't have to call them law, but from your perspective, they're as binding on you -- if unenforceable by judicial means -- nay, more binding on you!, than the stuff laid down in Supreme Court opinions. It's what the "bad man with a conscience" has to follow if he doesn't want to be punished by his conscience. No, I don't think that all moral rules that you feel are binding should be called "law" -- if you were elected to office wanting to implement Kantian ethics, that wouldn't be law. But I do think it's fair to call them "law," at a minimum, if they derive from what are commonly recognized as legal principles, for instance, interpretation of a legal document. Once what you're doing purports to derive from a statute or constitution or treaty or suchlike, the rules that you derive that you claim bind you and should bind others are properly called "law."

Yes, this means that Hectorism can be considered "law," and arguments deriving from Hectorism are "legal arguments." It doesn't mean that non-Hectorists should give it any consideration, because, life being short, it's only worthwhile considering theories that (1) are actually applied in the world by at least some people, OR (2) are actually advocated in the world by people you respect, OR (3) are, in your view, meritorious.

And, as a final note: These arguments don't need to be OUGHT arguments at all. I'm perfectly capable of arguing that "the original public meaning of the Second Amendment implies position X," even if I don't believe that original public meaning has any normative value at all. It's just fun to talk about it! Larry Solum's recent article on Semantic Originalism, if I understand it correctly, makes the point that the meaning of the Constitution is original public meaning, but separates that from the question of whether one should actually follow the meaning of the Constitution.

So a non-originalist can make arguments from original public meaning that are contrary to Supreme Court doctrine; those can definitely be IS arguments about the meaning of the Constitution without being OUGHT arguments. And of course one can make OUGHT arguments without making any legal IS arguments about anything. For instance, "We should adopt position X because it's required by Kantian ethics" is an OUGHT argument, and is also an IS argument about Kantian ethics, but is not a legal IS argument.

OrinKerr:
Sasha,

I generally agree with what you say in this post. I'm curious, though, what does it have to do with my initial post? It sounds like you believe that you are disagreeing with me, and that your post is a sort of response to my views, but I'm not sure why you think that.

Just to be extra, extra clear, when I talk about the common meaning of what the law is, I mean, what blog readers expect I mean by law. In my experience, if someone asks me what the law is, that is understood to mean what legal institutions say (possibly different if institutions say one ting and do another, but that's something I would have to take into account). So sure, the meaning of law changes in different circumstances, and I'm just adopting the usual meaning used on this blog.

I realize that there are many people who have the views that you are taking on, but I just want to point out that I am not really one of them -- or at least that I am not taking a position on such issues.
7.17.2008 6:57pm
Dilan Esper (mail) (www):
Sasha is going out of his way to defend his right to be vague and to equate personal beliefs with legal doctrine.

Isn't it clear, when we get down to brass tacks, that it is more accurate to say "I think the Due Process Clause should be interpreted to not restrict states' powers to regulate abortion" rather than saying "the Due Process Clause does not restrict states' powers to regulate abortion", when under current Supreme Court doctrine, which is binding under any reasonable definition, holds that it does?

And the reason why people don't want to concede that they are giving their own opinion is because they want to delegitimize court decisions that they disagree with and undermine the well-established role of the courts since Marbury?

In other words, underneath an airy debate about what law is lies a substantive debate about whether people will admit the power of the courts to interpret the Constitution and make decisions that they disagree with.
7.17.2008 7:05pm
Sasha Volokh (mail) (www):
As I said in my original post, everything you say is just fine, as long as one understands that by "law" you just mean "Supreme Court doctrine" (or perhaps some broader definition that's still limited to actual views held by some set of actors with power).

I was just trying to say that this definition of "law" doesn't exhaust the possibilities for "law," and that therefore some of the things that you call "ought" arguments can actually be considered "is" arguments about the law. You probably disagree with this, but it's not a critique of the core of your original post.
7.17.2008 7:07pm
Sasha Volokh (mail) (www):
Dilan: I think the proper way of phrasing that view about abortion, under this framework, would be: "I think the Due Process Clause should be interpreted to not restrict states' powers to regulate abortion because the Due Process Clause does not restrict states' powers to regulate abortion."

There's no necessary vagueness here -- people who take this view believe that the Due Process Clause has a meaning that's separate from the courts' interpretation. The courts can interpret the clause wrong, but that doesn't change the meaning of the clause.

It's true that there can end up being vagueness because "law" is used in different ways. But that's just because there are many sources of law. The Supreme Court's pronouncements are a de facto source of law, but as long as many people believe that there's some other true meaning out there, that's also a source of law. Those are both law and they can conflict.
7.17.2008 7:11pm
OrinKerr:
Sasha,

My position was that by law I meant the doctrine of legal institutions -- courts, legislature, and executive, in whatever mixture. Is there any thing you say that is inconsistent with that? Sounds like you are emphasizing the it's not just the courts, but as I stressed in my last post, I didn't argue to the contrary.
7.17.2008 7:17pm
AF:
Sasha, under your broader definition of "law," is there any meaningful distinction between saying the law "ought" to be interpreted as X and the law "is" X?
7.17.2008 7:18pm
OrinKerr:
Sasha,

Rereading your post, it seems like your view is that you agree with my initial post, but you think that the other uses of the law just need to be kept in mind. That is, depending on how you define law, which itself depends on the context, the is/ought distinction can get tricky. If I'm right about that, my response is this: Sure, absolutely, as I was talking about the context of blog posts.
7.17.2008 7:20pm
Sarcastro (www):
I think the Due Process Clause should be interpreted to not restrict states' powers to regulate abortion because the Due Process Clause does not restrict states' powers to regulate abortion.

And anyone who thinks otherwise is evil and/or stupid.

It's the declarative statements that make legal arguments work!
7.17.2008 7:45pm
Dilan Esper (mail) (www):
There's no necessary vagueness here -- people who take this view believe that the Due Process Clause has a meaning that's separate from the courts' interpretation. The courts can interpret the clause wrong, but that doesn't change the meaning of the clause.

My problem is that the Court's meaning is binding and Sasha Volokh's opinion is not. And that's where the vagueness comes in.

You want the courts' opinions not to count any more than your own, but they do. Putting in explanatory language that something is your opinion and not an authoritative interpretation of the Constitution thus pays proper respect to the courts whose interpretations are authoritative, and this whole debate is simply a matter of you not wanting to pay the courts the respect they are entitled to.
7.17.2008 8:14pm
Mike& (mail):
My problem is that the Court's meaning is binding and Sasha Volokh's opinion is not. And that's where the vagueness comes in.

As a matter of power, sure, the Supreme Court gets to say what the law is. But that's simply because of the current power structure. The day executive officials stop enforcing Supreme Court's edicts is the say the Supreme Court no longer says what the law is.

But, again, it's all about power. It's a funny thing to realize we're back to childhood. But dad could say, "Skim milk is unhealthy," even when it was not, because he controlled the groceries that came into the house. But that didn't make him right!

As a matter of truth, the Supreme Court is not the last word on what the law is. As a matter of power, of course they are.
7.17.2008 8:29pm
trad and anon:
Thus, in most of our lives, most of us don't care what the law is in any abstract sense (I sure don't!); we just want to know what we should or shouldn't do if we want to avoid being punished by someone. That, to us, most of the time, is Law.
That's completely backwards. Lots of people (probably the vast majority) regard law has having its own normative force at least fairly frequently. Lots of people believe, for example, that cheating on your taxes is wrong because it's illegal, even though the chance of being caught is very low. And "but that's illegal" is usually a statement that it's wrong to do something, not just that it's imprudent.

I agree that there are several ways of using "the law," but the one you're proposing is just you being Humpty Dumpty. "The correct interpretation of the law, as determined by me" doesn't correspond to any commonly accepted use of the word "law."
7.17.2008 8:32pm
jim47:
Orin said:

Just to be extra, extra clear, when I talk about the common meaning of what the law is, I mean, what blog readers expect I mean by law. In my experience, if someone asks me what the law is, that is understood to mean what legal institutions say


The explanation for your initial observation is not that people are confused about is-ought, the explanation is that what you mean by law is not what all blog readers expect you mean by law. Law is not understood by these readers to mean what legal institutions say, but is understood to mean the meaning of the relevant legal texts as interpreted through the correct methodology.

People who understand law this way would not discredit what legal institutions say, but see them instead as persuasive authorities. When you cite such legal institutions, it may give the impression that you are endorsing their views and relying on them for persuasive authority.
7.17.2008 8:35pm
Sasha Volokh (mail) (www):
Dilan: I don't deny that the Court's views are binding in fact. That's because they're part of the government and I'm not. Some people mean "law" to refer only to what's binding in fact. I'm just trying to point out that "law" can mean many other things -- the "true" meaning of the Constitution (if you think it exists), natural law (if you think it exists), rule of law values, etc. (You yourself are being vague in saying "authoritative" -- there's authority-in-fact that derives from being part of the government, and there are other kinds of authority, like being right, being morally binding, or whatever.)

Orin: I mean slightly more than that we should expand from courts to other governmental actors. I also mean to include people's personal beliefs about the meaning of the Constitution (for example, the body of work by originalist textualists) as part of this second meaning of "law." What this means is that there are some views that you'd characterize as mere OUGHT that can also be considered IS statements about the law, where "law" is understood as "the true meaning of the Constitution and therefore the only thing that's binding" (if you believe in that sort of thing).

AF: Good question -- and one that I didn't get to in my post, for space considerations. For clarity, let's get some names for the two senses of law I'm talking about. First, the law that's binding-in-fact because the Supreme Court says it. Call that Law1. Second, let's pick some version of what someone might think the Constitution might actually mean, for example original public meaning. Call that Law2.

Usually, to say "Law2 is X" means "Law1 should be X" (or, in other words, the Supreme Court should interpret the law to be X"). In that sense, a lot of apparent OUGHT statements are really just OUGHT-statements about Law1 but are also IS-statements about Law2.

But I could have said "Law2 is X" even though I don't believe the original public meaning has any importance. (For instance, non-originalists might write law review articles where they explore the consequences of originalism. For instance, there are those who show that originalism means Brown v. Board was wrong; to them, this is an argument against originalism.) Or I could believe (like Scalia) that the original public meaning is important but precedent matters too. Then I can say that "Law2 is X" without meaning that "Law1 should be X." (Subtext: Thank God the Supreme Court doesn't consider Law2 to be the authoritative source of law!)

But let's suppose that I do believe that the original public meaning is the true meaning of the Constitution. That still doesn't mean that the Supreme Court's doctrine should necessarily track that. There might be some things that the Supreme Court is incapable of policing. For instance, what if the true meaning of the Constitution said that improperly motivated searches were wrong? The Supreme Court basically says the motivation of the cop is irrelevant as long as the search is objectively reasonable (basically Whren, if I'm remembering correctly). And that's probably the right judicial rule, because courts have no insight into cops' motivations. But what if I'm the chief of police? If I take my constitutional oath seriously, should I tell the cops to do the searches they can get away with, or should I tell them to only do properly motivated searches? One can very well argue that the rule for the chief of police -- the one that he should follow in his soul -- should be stricter than the rule that the Supreme Court establishes.

Similarly, the Court may not want to police whether there's a case of rebellion or invasion when the public safety may require a suspension of habeas corpus. Nonetheless, one can argue that the political branches actually have a duty to consider this. Therefore, this is a case where we can say "The true constitutional rule is to consider whether public safety requires it, but the proper legal rule is to consider this a political question and not inquire into the facts."

So often there will be an overlap between "Law2 is X" and "Law1 ought to be X," but that doesn't always happen.
7.17.2008 8:41pm
jim47:

Sasha, under your broader definition of "law," is there any meaningful distinction between saying the law "ought" to be interpreted as X and the law "is" X?


Sure. I can say, "The meaning of the Due Process clause is undemocratic, and courts reaching undemocratic results is bad, so the Due Process clause ought to be interpreted to be more democratic than it is."

Of course, people don't tend to argue that courts should willfully ignore or misinterpret the constitution, but you do need to take the normative position that the courts should reach opinions on the basis of original meaning before the "is" argument becomes an "ought" argument.
7.17.2008 8:51pm
Michael F. Martin (mail) (www):
Orin,

You say:

In my experience, if someone asks me what the law is, that is understood to mean what legal institutions say (possibly different if institutions say one ting and do another, but that's something I would have to take into account).

If you do take it into account, then you'll find, I believe, that what a person says and what a person does are actually part of a single phenomenon of consciousness. Perception, language, and reality are caught up in a feedback loop. When we talk about law, the reality part of that feedback loop includes other people. Thus, what "is" for one person at a moment in time may be "ought" for another at the same or a different moment.

But what we should call law is not what people say law is, but what it actually is -- i.e., what people do when they say they are practicing law.
7.17.2008 9:40pm
OrinKerr:
Michael F. Martin,

Isn't that just pretty standard legal realism?
7.17.2008 11:36pm
Michael F. Martin (mail) (www):
Almost but not quite. The difference is in how we choose to talk and act toward other people. I'm not sure that all legal realists would accept the proposition that one person can affect both the language and perceptions of other people (including, especially, their preference functions). But I am sure that many legal realists see law as simply the imposition of one dominant group's preferences over another.

Maybe some legal realists have talked about this, but the point is that there is no such thing as a statically stable body of law. This seems to contradict formalist ideals, and to be orthogonal to the static legal realism proposed by Judge Posner in The Problems of Jurisprudence, although his constitutional theory in Law, Pragmatism &Democracy seems at least implicitly consistent with it. Actually, he explicitly recognizes the importance of time in preference formation in his discussion of freedom in The Problems of Jurisprudence (for example, in his discussion of duress), but he doesn't take the idea and apply it to his activity theory of law.

Maybe I'm reading too much into Sasha's formulation here, but I think he's got a similar conception in mind. Law is what we do when we say we're practicing law. There are certain patterns of behavior that may repeat over time, and so there is a sense in which legal formalist is a correct approximation of law, a steady-state approximation as it were. But it is not inconsistent for us to acknowledge that different people who are part of the same social contract have different views of how that contract should be understood and applied at the same point in time. Thus, it is not inconsistent for our sense of justice to evolve over time. A hardcore legal realist might believe that there is no progressive trend to this evolution in law. But I do. I would rather live in the United States than in any other nation that I know of from history.
7.18.2008 2:19am
KenB (mail):
When the occasion arises, I tell my clients that, when I tell them the law is "X," I'm really saying that, in my opinion, a reasonable judge would hold "X." That's the most a lawyer can do.
7.18.2008 11:38am
Michael F. Martin (mail) (www):
I guess I left out something important. If law cannot be stable except dynamically, then that fact itself seems to suggest that law should not be based on static classifications of groups. The social contract has to evolve even though there may be fixed points within its constellation. Otherwise the contract can become a tool for a majority to oppress a minority. I think Jacob T. Levy has written something along these lines recently also.
7.18.2008 12:07pm
AF:
Sasha: Thanks for your response. I am not yet persuaded that "what someone might think the Constitution might actually mean" can usefully be described as an "is" claim about the Constitution.

I don't think your examples prove the point that these are "is" claims as opposed to "ought" claims. Your first example is that someone who doesn't actually hold a particular view of what the Constitution means (eg originalism) can still identify what the Constitution means according to that view. But a non-originalist would never say that originalism "is" the law -- unless it has been adopted by the Supreme Court or another relevant legal institution, which puts it in your "Law1" category.

Your other examples are of a chief of police or Congress deciding that the Constitution means something other than what the Supreme Court say it means. I agree that the chief of police or Congress can affect what constitutional law "is" -- but only by virtue of their status as relevant legal institutions who are governed by constitutional law. If you or I or someone else who is not the chief of police (or a judge, etc.) decides that motivation should matter under the Fourth Amendment, I don't think it's helpful to say that's what the law "is."
7.18.2008 3:09pm
David M. Nieporent (www):
Isn't it clear, when we get down to brass tacks, that it is more accurate to say "I think the Due Process Clause should be interpreted to not restrict states' powers to regulate abortion" rather than saying "the Due Process Clause does not restrict states' powers to regulate abortion", when under current Supreme Court doctrine, which is binding under any reasonable definition, holds that it does?
No. Now, it may be clearer if you use your first formulation rather than your second, since the second may be misinterpreted as implying that the Court agrees with you. But it's not inaccurate.

(And, frankly, I doubt you'd say that if you picked a Supreme Court decision that you thought was completely off base. If the Court tomorrow ruled that actually, Brown vs. Board was wrong and Plessy was right, I don't think you'd start saying that the EP Clause allows legally-mandated segregation. I think you'd say, "The EP Clause bars legally-mandated segregation, but the Supreme Court currently holds otherwise.")
7.18.2008 3:45pm
AF:
No. Now, it may be clearer if you use your first formulation rather than your second, since the second may be misinterpreted as implying that the Court agrees with you. But it's not inaccurate.

It may not be inaccurate, but it destroys the distinction between "is" and "ought" claims about how the Constitution is interpreted.
7.18.2008 4:25pm
David M. Nieporent (www):
It may not be inaccurate, but it destroys the distinction between "is" and "ought" claims about how the Constitution is interpreted.
Only if you yourself destroy the distinction between what the Supreme Court says about the Constitution and what the Constitution itself says.
7.19.2008 2:40am
AF:
Only if you yourself destroy the distinction between what the Supreme Court says about the Constitution and what the Constitution itself says.

That is the very distinction I am making (though I would include other legal institutions along with the Supreme Court). Either type of claim can use the word "is", but only the former type of "is" claim can be usefully distinguished from an "ought" claim about constitutional interpretation.
7.19.2008 11:49am