Posted by Orin Kerr:
Constitutional "Is" Versus Constitutional "Ought" -- A Brief Reply to Barnett
and Jost:
http://volokh.com/archives/archive_2009_09_20-2009_09_26.shtml#1253389446
Looking over [1]the exchange between Randy Barnett and Timothy Jost on
what it means to say something is "unconstitutional," I wonder if
their disagreement is primarily semantic. We all recognize that there
is often a difference between how the Supreme Court has construed the
Constitution and how a particular person thinks the Constitution
should be construed. The question is, what label to use for those
different approaches?
My sense is that the most common labels distinguish between what the
law "is" and what the law "ought" to be. The former is what the courts
say the law is, and the latter is what a particular person thinks the
law should be. This appears to be the approach Professor Jost follows.
Randy offers a somewhat different approach: He would say that the
Constitution "is" what a proper theory of Constitutional
interpretation indicates it should be -- proper, that is, according to
Randy -- while what the Supreme Court has said it is is merely "the
opinions of justices" which may be right or wrong.
I suppose which understanding is better depends on which community
you're talking to and what your goals are. Among constitutional
theorists, the question of what the Supreme Court has actually said is
boring; whether the Supreme Court was right is the interesting
question. On the other hand, if the audience is the public, my sense
is that claims by experts about what is constitutional or not are
generally understood as a prediction of what the courts should do
under existing law. The expert is normally consulted for expertise on
existing law, not for his or her own individual theory of
constitutional meaning. For example, if a reporter calls me and asks
for my view on whether a particular police investigation violated the
Fourth Amendment, I understand that to be asking me what a court
should do based on existing law, not to apply my personal normative
theory of constitutional interpretation to the facts.
On the other hand, if you are trying to sell a constitutional vision
to the public, with the aim of having your own views become more
widely shared, some will speak of that vision as what the Constitution
"is" on the thinking that the strong statement will have more
persuasive impact. In that context, the claim of what is
constitutional or unconstitutional is less a claim about the
particular legislation or action under consideration and more a
normative claim about how we should interpret the constitution and
what the Constitution is. Such claims can be a little misleading, as
the public generally isn't told of the author's normative goals. On
the other hand, those sorts of claims are common in public discourse
about the Constitution.
References
1. http://volokh.com/posts/chain_1250981450.shtml
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