BrianGarst.com

Professor Kerr at Volokh conspiracy observes a common source of confusion in constitutional debates:

[T]here 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.

He goes on to demonstrate, correctly I think, how these two approaches can lead people to talk past one another.

I have an issue with his overall characterization, however. He seems to have characterized any discussions about the Constitution as one that must necessarily be about constitutional law. That is, one is either describing what Constitutional law should be or what it is. This is not surprising given that he is a legal professional, but I think it’s myopic when lawyers often assume that constitutional law is the only relevant avenue by which we understand the Constitution. It is not.

In addition to the two questions he describes, there are two more. 1) What does the Constitution say, and 2) what should it say? Sometimes these questions overlap with his own, but not always.The Constitution is a thing. It has a meaning, and that meaning is independent of what any other thing, person, group or ruling says it is. It is, therefore, semantically important to distinguish between the independent meaning of the Constitution and the attempts, such as through constitutional law, to understand and apply that meaning. One can not only speak about constitutional law in both a descriptive and normative manner, but one can also speak about the Constitution itself that way.  And each of these four approaches is describing a different concept.

Making a normative case regarding to the Constitution would entail amending it, whereas normative arguments over constitutional law call merely for different judicial rulings. Meanwhile, what the Constitution is and what we say it is via constitutional law are not necessarily synonymous. Even if we assume the best of motives in all cases, human error and the variability of judicial temperaments over time necessarily means that we must acknowledge differences between constitutional law and the meaning of the Constitution itself regardless of our individual views over what the Constitution says.

Kerr’s mistake, as I see it, is an easy one to make because the vast majority of us make normative arguments for constitutional law with an effort to align it with our descriptive views of the Constitution. However, it’s important to maintain these separate concepts for two reasons. 1) The judiciary is not the only agent charged with interpreting the Constitution, much to liberal chagrin.  All branches of government carry that responsibility. But perhaps more importantly, 2) although most of us want constitutional law to reflect the meaning of what the Constitution is, not everyone does.

Most normative disagreements over constitutional law, to be sure, are the result of honest differences of opinion over what the Constitution says. For those debates, there is little need to distinguish between normative arguments over constitutional law and descriptive arguments over the Constitution. In practice they are the same. Unfortunately, however, it is not always the case that each party merely seeks to enforce the Constitution as they believe it exists. There are some that deliberately seek to impose something other than the meaning of the Constitution through constitutional law.

There are ideologies that think the Constitution got it wrong, and not all of those who subscribe to these ideologies consider the amendment process the only legitimate means to change the Constitution. An example of this type of ideology is the Progressive Movement of the early 20th Century. Their desire to manage the economy directly conflicted not only with constitutional law of the era, but also with what they knew was the meaning of the Constitution. Although they were willing to use the amendment process for other reforms which held broad public support, America was not yet prepared to support full blown, top-down control of the economy. So rather than try hopelessly to amend the Constitution on economic matters, they chose to attack the meaning of the Constitution through the courts. FDR eventually succeeded in this effort by threatening to pack the Supreme Court with Progressives.

Their success is largely responsible for the punctuated difference between what the Constitution is, and what today’s constitutional law says it is. When debating with people who hold a desire to change constitutional law without regard to the meaning of the Constitution itself, the differences between descriptive arguments over the Constitution and normative arguments over constitutional law are salient. So long as much of the public still believes we are a nation that should follow the rule of law, there is substantial political value in highlighting those differences in public debate. Before we can hope to do so, however, we must remember in the first place that there is in fact such a difference between the Constitution and constitutional law.

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