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A declaratory theory

| Tuesday, January 25, 2022

One of the things Notre Dame Law School does a really good job of doing is developing, in its students, an understanding of what actually makes the American constitutional project as novel as it is. Many people, when they think of the Founding and “what makes America great” will jump to something along the lines of freedom of religion, protection against unlawful searches and seizures, or even the right to bear arms, but regardless of one’s view on the importance of any one of these enumerated rights, the fact of the matter is that they were not part and parcel of the American constitutional project to begin with. The whole reason the Bill of Rights exists as a collective document is because the First Congress decided that a set of rights should be enumerated and laid out in the Constitution, but the Founders were relatively convinced, at the time the Constitution was originally written just years earlier, that a bill of rights was unnecessary or perhaps even counter-productive. So, even if we ignore the problems with articulating a set of rights that appear on their face to imply universal applicability that has very obviously not been a thing for most of American history, the fact of the matter is that it is not even the aspiration towards securing those enumerated rights for all that underpins the novelty of the American constitutional project.

Rather, as any Notre Dame law student learns in 1L Con Law, it is separation of powers that gives our Constitution its novelty, and separation of powers upon which almost every other innovation of American government rests. (Yes, careful reader, I’ve omitted here the related, equally important doctrine of federalism; that’s a can of worms for another time.) It was Baron de Montesquieu, in “The Spirit of Laws,” who articulated the doctrine that governmental power rests in three zones: the legislative (which makes law), the executive (which enforces law) and the judicial (which interprets law) — but even Montesquieu acknowledged that none of the nations of the world of his time actually fully divided governmental power into three distinct zones of this structure. For instance, in Britain at the time of the founding, legislative power rested in a two-house Parliament (the House of Commons and the House of Lords), but while executive power technically rested in the King, it was practically exercised by his Prime Minister and ministerial colleagues, who were also members of Parliament (typically the House of Commons). Similarly, the judicial power rested in the House of Lords, which again was still part of Parliament. While one could put a finger on where each of these zones of power rested, they weren’t separated.

And so things were, until the U.S. Constitution engaged in that very separation. Article I of the Constitution gives legislative power to Congress, Article II gives executive power to the President and Article III gives judicial power to the federal courts. Legislatures make law, the executive enforces law and the judiciary interprets law… right? But consider this hypothetical: Two parties come before a federal court, bringing before it a case of first impression. This court must decide the case, but that decision will have consequences for similarly situated litigants because the decision will set precedent where there was none before. Isn’t that lawmaking? Isn’t the judiciary, in such a case, exercising legislative power? Justice Antonin Scalia conceded that yes, there are times that judges end up engaging in the making of law, but opined in his concurrence in the 1991 case of James B. Beam Distilling Company v. Georgia that even if judges are making law in a case, they should make law “as judges make it, which is to say as though they were ‘finding’ it — discerning what the law is, rather than decreeing what it is today changed to, or what it will tomorrow be.” In other words, when judges find law, they don’t (or perhaps shouldn’t) note where the law has changed. That task is instead left to legislatures. Instead, a judge should strive to “find” not what the law will be but rather what it has been all along.

This notion that judicial lawmaking is, or perhaps merely should be, more like judicial law-finding is part of what is today known as the “declaratory theory of law,” and while I myself am not of the opinion that this theory explains most or even many judicial decisions, I do think that the underlying principle that judges should seek to “find” law rather than “make” it has a very strong appeal, and I’ve had the privilege while here at Notre Dame Law of having many a conversation both with friends of mine who are sympathetic to this principle and those who either reject it for pragmatic reasons (“judges can’t not make law”) or are ideologically opposed (“actually judges should make law”). The pros and cons of these various camps are beyond the scope of this article, but let’s just say that the conversations surrounding this issue are a rare moment where someone’s political ideology isn’t necessarily a proxy for their position on a legal issue. I’ve met and talked to conservatives who think that judges do or should make law, liberals who think that lawmaking is or should be the exclusive legislative prerogative, and vice versa for each.

But even if you think that the “finding” of law is at best a legal fiction, dare I say it might additionally (or instead) apply to another area of our lives: our friendships. Just last week, I had the blessing of having two dear friends of mine, Theresa and Katie Heidenreich (the Notre Dame Folk Choir’s two beyond-exceptional violinists), over for a game night. When we weren’t having a blast playing three-player euchre, conversation turned to other things, and one thing I expressed was regret at not having been more intentional about seeking out their friendship sooner. What I realized in that moment, though, was that these were friendships found rather than friendships made. Just because we couldn’t put a finger on when or how exactly we became friends didn’t mean that we weren’t friends all along, and that’s the whole point: Sometimes, the most cherished friendships are found rather than made. And so, dear reader, I conclude this column with this exhortation: May we take the opportunity, over these next two weeks, to be intentional about where another friend may be found. May God give us this grace.

Devin is a member of the Notre Dame Law School’s class of 2023. Originally from Farwell, Michigan, he is a 2020 graduate of Michigan State University’s James Madison College. In his free time, he sings with the Notre Dame Folk Choir and discusses the legal developments of the day with anyone who will listen. Inquiries into his surplus of law journal articles and note ideas can be directed to [email protected] or @DevinJHumphreys on Twitter.

The views expressed in this column are those of the author and not necessarily those of The Observer.

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