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.
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 сonstitution 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.
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.
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.
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.