A debate is raging between Orin Kerr and Sasha Volokh over the distinction of “is” versus “ought” in constitutional law.  The debate itself is one that only a lawprof could love, culminating in such gems as Kantian ethics and Hectorism.  Sexy stuff.  They should make a movie about it.

But it does raise some issues that apply to trench lawyers, constantly called upon by our clients to tell them “what the law is,” which almost invariably precedes our clients telling us “what the law ought to be.”  Orin takes the view that there is an “is” when it comes to the Constitution, while Sasha argues that the “is” only “is”
until it isn’t.

I’ve struggled with this problem for year when counseling clients.  People want a definitive answer as to what they can and can’t do, and what the government can and can’t do.  They say, “you’re the lawyer; you tell me what the law is.”  It’s a fair question, and it makes me feel ashamed of the fact that I have never found a way to express with clarity the line where “known” law meets variable law.  Indeed, this just got a whole lot worse with this terms Supreme Court decisions, where “known” law has increasingly become variable, and in cases like Heller, shockingly variable.

A lawyer’s typical description starts with black letter law, the stuff that is written in stone and we all know to be the case.  But when given facts that seek to finesse the line of black letter law, we stumble because we know, at least if we are being honest with ourselves and our clients, that the law is uncertain and subject to the interpretation of judges.  We can’t trust the law, and we certainly can’t provide any guarantees about what a judge will think.

When it comes to the Constitution, a document that has been parsed more than any other, one would think that lawyers have a firm grasp on what it means.  Of course, ten years ago, there would not be a lawyer in the United States who would have advised a client that the 2d Amendment protected an individual right to keep and bear arms.  We all knew, with absolute certainty, what the 2d Amendment means.  But we were wrong.  Today, we have no idea what it means, and may well have no idea for the next 20 years.  Try explaining this to a client.

This has long been a problem for criminal defense lawyers, particularly with the 4th Amendment warrant clause.  Read it.  It seems clear enough.  Yet explain why there are about 743 exceptions that cover almost any circumstance that’s likely to arise and serves to undermine any reliance on the plain language of the Constitution.  Our efforts are constantly directed toward arguing why a search and seizure doesn’t fall within an exception, though there’s no mention of any exceptions at all in the 4th Amendment.  Explain this.

And it goes further, as Crawford now commands that our right to confront witnesses who make testimonial statements must be honored, whereas before we were swallowed up in a tidal wave of hearsay exceptions.  So can we prepare for trial in reliance on keeping harmful hearsay statements out for lack of a living witness, or will they be called non-testimonial to circumvent the newest variation on an old rule?  This could mean the difference between a winner and loser at trial, but we may well have no clue which way the court will rule on our objection.

So while Orin may argue that there is a “is” when it comes to constitutional law, and that people who confuse “is” with “ought” are just sloppy, wishful thinkers, I find myself struggling with the idea that there really “is” a law and those of us who are paid to give advice should be able to tell it like it “is”.  While we can convince ourselves that we know that the law “is”, and from time to time may find that a proposition is sufficiently well-settled that even the dopiest judge can be counted on to rule correctly, we are almost invariably left to hope that our understanding of what the law allows or prohibits will remain in place long enough to make it through verdict and that we end up with a judge who finds the state of the law sufficiently clear that we can count on an anticipated ruling.

At least that’s how it ought to be.