In a recent comment thread, commenter Leo Marvin asked an interesting question on why it is so common to blend together interpretations of what constitutional law “is” with what constitutional law “should be.” That is, why is it so common for people to infuse their readings of the current state of constitutional law with their preferences for what they want that state to be? He writes:
It’s no mystery why anyone might want to blur the difference . . . . . What I can’t figure out is why so many smart people really do seem to have trouble telling them apart.
That’s a good question. I think there are two reasons. The first is confirmation bias. If you’re not checking yourself, it’s human nature to see what you want to see. So libertarians are going to look at the Constitution and tend to see it as a libertarian Constitution; liberals are going to look at the Constitution and tend to see it as a a liberal Constitution, etc. You can largely (but not entirely) avoid that if you constantly monitor yourself for confirmation bias and you make it a priority to do so. But that’s hard work, and most people don’t care enough about it to bother. So if you let your confirmation bias run amok, after awhile your descriptive sense of how the law works will have a heavy normative component. The two can blend together.
Second, the claims can be blended together because there are two semantic alternatives, and those alternatives can be used to generate a lot of confusion. We can all agree that there are two different questions: (1) How courts actually have interpreted a provision of the Constitution (and thus how a good lower-court judge would apply it) and (2) How courts should have interpreted that provision based on whatever theory of constitutional interpretation a person adopts. My sense is that the most common way to refer to these two different kinds of claims in our legal culture is that (1) describes what the Constitution presently is or means, and that (2) is what the Constitution should be or should mean. That is, what courts have done is descriptive, and what courts should have done is normative. I’m not saying that is objectively correct: I’m just saying that it is the most common choice of wording. At the same time, you can make a different semantic choice by saying that “the Constitution” means what the courts should have said. If you take this semantic option, (1) is what the courts have said the Constitution is, and (2) is what the Constitution is. Now both are descriptive claims: What the courts have done is descriptive of the courts, and what the courts should have done is descriptive of the Constitution.
You can see how the semantic disagreement leads to all sorts of debates that sound like they are debates on constitutional theory when they are really just alternative definitions of words. Imagine this exchange between a person who takes the more common semantic choice (let’s call him “lawyer”) with someone who takes the less common choice (let’s call him “theorist”). The exchange goes like this:
Lawyer: I think Law X is constitutional.
Theorist: You are wrong. Law X is unconstitutional.
Lawyer: But the Supreme Court’s cases are clear here, and they establish that the law is constitutional.
Theorist: Those Supreme Court cases are wrong. When the Constitution is applied properly, Law X is unconstitutional.
Lawyer: I realize you don’t like the Supreme Court’s cases. But you’re just saying that you think Law X should be unconstitutional based on your personal theory of how the Constitution should be read. You’re making a normative claim and presenting it as a descriptive claim.
Theorist: No, I am not making a normative claim about what I want the Constitution to be. I am merely following the Constitution. The Constitution clearly indicates that Law X is unconstitutional. Setting aside all the cases, what do you think the Constitution is on this issue?
Lawyer: If you’re asking me to interpret the Constitution without any cases, you seem to want me to be a constitutional theorist. But I am not a constitutional theorist, so I don’t know how the Constitution should be read if we imagined there were no cases.
Theorist: I am amazed that you think you know what is constitutional, and yet you have no inkling what the Constitution is. All you know is what judges have said about it.
You’ve seen this kind of exchange hundreds of times, at this blog and elsewhere. It sounds at first like a profound theoretical debate. But it’s not: It’s really just a semantic disagreement over what labels we should attach to positions (1) and (2). And it leads to lots of confusion in debates about the difference between normative and descriptive claims about constitutional law.