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The 2023 year of language

This beginning of a new semester at Notre Dame coincides with the beginning of the calendar year. While my friends know (perhaps more than they’d like) of my opinions about how we don’t emphasize Advent enough in the church liturgical calendar, the secular New Year provides just as solid an opportunity for introspection, reflection and resolution.

But how slippery human resolve can be! As anyone who has given up on dry January or cancelled a new gym subscription can tell you, intentions established on Jan. 1 do not necessarily lead to actions taken on Jan. 2, 3 or 4. It was with this problem in mind that CGP Grey put out a YouTube video to address the pitfalls of making New Year’s resolutions. For those who don’t know, CGP Grey is an educational YouTube channel that goes in depth on the most random assortment of things — everything from politicking at the Supreme Court (which has obvious appeal to a law student like myself) to the superiority of the hexagon (which though not at all related to the law nonetheless is oddly appealing as well). I generally enjoy his videos, and I highly recommend them to the intellectually curious. About this time two years ago, Grey put out another in his eclectic collection titled “Your Theme.” Its premise was simple enough: instead of developing a New Year’s resolution that is oriented toward a goal, such that failure to meet that goal is taken as an understanding that the resolution itself failed, we should instead develop New Year’s resolutions surrounding a particular theme. One example he gives is that instead of shooting for X pounds of weight loss in Y years, one could instead dub 2023 the “Year of Health.”  

I, however, take the view that Grey’s suspicion of goal-oriented resolutions is only partially warranted. Sure, New Year’s resolutions that are metrically measurable can lead one to conclude that he or she has “failed” for not having met the metric, but by the same token, the very same metric can show me that I am “succeeding” at my New Year’s resolution if my relevant metric is being met. There are pros and cons to Grey’s central point here. However, a different point issue Grey pins down in that YouTube video is one I hope to adapt to my own life circumstances: themes can and should be broad. For Grey, this is because a broad theme gives one flexibility to adapt to changing circumstances without having missed a metric and thus “failed” a resolution. I think there’s a simpler case to be made: broad themes give us a wider capacity to brainstorm ways to do things that are on theme.

I’ll use an example to explain what I mean: I’ve chosen “Year of Language” as my 2023 theme. Right now, I have three things in mind that I mean to be doing to stay on theme. The first is that I hope each day of 2023 to make some forward progress on the goal of learning French. I was blessed with the opportunity to join the Notre Dame Liturgical Choir towards the end of last semester, and while it is only a possibility that I may accompany Team LC on tour to Paris this spring break, I have had other additional reasons to want to learn French for a long time. While I was at Michigan State University for undergraduate, I was involved with their Canadian Studies Center, gaining a unique perspective on Canadian politics from many of the top movers and shakers. As edifying as those experiences were, some of them were held back by the fact that I lacked even a rudimentary knowledge of French. This, then, is something that I hope to rectify in 2023, at least in some small part.

But the wonderful thing about a broad theme is that “Year of Language” does not boil down to French. I’ve written previously about my shortwave radio listening hobby, and one of the things I’ve often thought about doing is learning more about radio transmission and telegraphy. Knowing Morse code would be exceptionally helpful for the task, so in this themed 2023 Year of Language, I intend to “use Morse code for things,” which of course implies learning Morse Code in the first place as a prerequisite. As a staunch Android partialist, an app called Morse Mania has been a godsend as I embark on that endeavor, and one way that I’ve been able to put this newfound knowledge to practical use is by installing a different app called BuzzKill that I’ve been able to program to have people’s texts buzz my phone in Morse code so I know who’s trying to contact me without having to look at my phone. If I keep this up, here too the 2023 Year of Language will be a true success.

Lastly, Year of Language encompasses not just what we say to other people (or how we say it for that matter) but also what we say to God and how we listen to him in turn. One of the reasons I felt drawn to Year of Language as my 2023 theme was that it gave me the opportunity to really hone in and reflect on my prayer life. This year, I look forward to opportunities to expand my prayer horizons by engaging with devotions that have only ever been in my periphery. As to things like adoration and the Divine Office that I know exist but do not tend to utilize in my prayer life? I think this year may be the time to try some of those and see what sticks. If exploration of different avenues of prayer leads me to a new way of prayer or two that I really enjoy, then the 2023 Year of Language will be three for three.

So whether it’s a foreign tongue like French, a different means of communicating information like Morse code or a different conduit for building a relationship with our Heavenly Father, I think “Language” is capacious enough to contain them all and whatever other such similar opportunities I haven’t even thought about yet. I truly look forward to seeing just what the 2023 Year of Language will bring! I hope this column might inspire you to make a late themed resolution of your own. If you take me up on this, I’d love to hear about it; my email is in my byline!

Devin Humphreys is a 3L at Notre Dame Law School. When he isn’t serving as the sacristan at the Law School Chapel, singing with the Liturgical Choir or Chorale, or competing at a quiz bowl tournament, he’s sharing his thoughts on the legal developments of the day with anyone who will listen. For advice on law school, hot takes on Mass music, and free scholarly publication ideas, reach out to Devin at dhumphr2@nd.edu 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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Not worshiping ash, but preserving fire

Let me tell you a story. A couple of months ago, I was at an establishment at the Duncan Student Center that definitely shall not be named, securing a late lunch of chicken nuggets and waffle fries one Tuesday afternoon. Unfortunately, one of said chicken nuggets was exceptionally crispy, so much so that it chipped one of my teeth! And thus I was required to schedule a dentist appointment to get that taken care of. Eventually, once all was said and done, in early November I was able to get in to have my teeth X-rayed, and the dentist arrived at the conclusion that the cavity that had formed would need a root canal. So a couple of weeks later, I returned for the dentist to prepare my tooth for the root canal process, only for the dentist to find that the situation was not as bad as she had anticipated. I would only need a crown to handle the problem with that tooth. She placed a temporary crown over my tooth, and by the time you’re reading this, that crown will have been replaced with a permanent one.

You might be thinking: “Devin, where’s the ‘Law’ and ‘the Lord’ in this story?” I propose to you, dear reader of this column, that my dentist’s process in fixing my tooth serves as an allegory for how we should treat our traditions, both in the Church and in our law. Since the Dobbs decision, much ink has been spilled criticizing the Court’s reliance on “history and tradition” in key cases from issues ranging from abortion to gun rights and everything in between, but I contend that most of this commentary is suspicious of tradition less on the principle that tradition as a general matter is suspect, but rather on the content of our nation’s traditions themselves. Thus, whether one supports the Court’s formulation of the “history and tradition” test or not, there is something to be gleaned from these critiques of being too quick to defer to traditions we haven’t examined for whether or not they hold up to the contemporary scrutiny that even those of us who tend instead to hold the idea of tradition in high regard can keep in mind.

I’ve been privileged to be a part of the Notre Dame Chorale this semester, and we had our two performances of Handel’s Messiah last Friday and Saturday at DPAC. Before the Friday concert, our esteemed director, Alex Blachly, imparted words of wisdom upon us as we took the stage, quoting Gustav Mahler (who may have himself been quoting St. Thomas More?) in saying that “tradition,” properly understood, “is not the worship of ashes but the preservation of fire.” But then how do we tell the difference between ash and fire in the traditions onto which many of us hold so dearly? Building upon the story of my recent dental work, I think there are three things we should take to heart in examining our traditions.

The first requires a bit of explanation. My mother encouraged me to be just a tad more scrupulous than normal about how the dental procedures for placing my permanent crown were unfolding. She explained that if I’m not careful to make sure on my end that the bite feels natural, it’ll be a similar feeling to when a grain of sand is stuck between your teeth – sure, it’s small, but in your mouth it feels quite big indeed. In other words, while it may be necessary to fill the hole in my tooth or even put on a crown to restore said tooth to its former form, if the dentist were to try to use that as an opportunity to reshape my bite, the results would be incredibly annoying. So too with our traditions: while sometimes our traditions require re-examination, especially with an eye to restoring something from which we have gone astray, we should be careful about how we go about it. Over-innovation may be as small as a grain of sand, but when all’s said and done, it could make the whole difference.

The second is this: my dentist did not simply jump to making me go through a root canal surgery. She was careful about how much of my tooth she drilled and filed away, and when all was said and done the root canal could be avoided in favor of just a crown. The point? Sometimes it doesn’t take reinventing the wheel to fix a problem, a fact that we only realize if we’re careful enough about how much of the old we get rid of at any given point in time.

Third and finally: the dentist gave me a temporary crown a couple weeks ago to get me through until they had the permanent crown available. That temporary crown was meant to ensure that my teeth didn’t move around in the time between my first and second appointments, and it succeeded in doing that job quite well. So it is, too, with how we handle traditions that need to change: sometimes it takes time to craft the new well, and we need something to fill the gap between the old and the new. In such situations, we shouldn’t let the perfect be the enemy of the good, because having something in place to get us by is just as important as having something better and more permanent down the road. So as we continue to think, individually, in the communities in which we find ourselves a part, and in our nation, about the traditions that shape us and how we can shape those traditions in turn, let’s let our amendments to those traditions not stick out like a grain of sand in our mouths. Let’s take care not to put our traditions through a root canal surgery when a crown would do just fine, and let’s make sure that when we go about changing things when that change is necessary, we think about what “temporary crown” we need to get from A to B.

Have a blessed rest of your Advent, and if you weren’t able to catch the Chorale’s performance of the Messiah, you can listen to our live-stream video on Facebook!

Devin Humphreys is a 3L at Notre Dame Law School. When he isn’t serving as the sacristan at the Law School Chapel or competing at a quiz bowl tournament, he’s sharing his thoughts on the legal developments of the day with anyone who will listen. For advice on law school, hot takes on Mass music and free scholarly publication ideas, reach out to Devin at dhumphr2@nd.edu.

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

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The machine gun method

When I was in Algebra II my freshman year of high school, we were taught a couple of different ways to solve a quadratic equation. A couple have fallen by the wayside (as we law students do not regularly employ math more complicated than the Hand Formula), but I remember two distinct methods that had almost opposite pros and cons: factoring, which we learned first, and using the quadratic formula, which we learned last. As my math teacher, Mr. Josh Taylor, explained and demonstrated, factoring is the easiest of the ways to solve a quadratic equation, but it doesn’t always work. In contrast, the quadratic formula always works, but it has the uncanny tendency to get unwieldy at the times when it would make the most sense to factor instead. As a result, Mr. Taylor gave the quadratic formula the nickname of “the machine gun method” — it always gets the job done, but sometimes by using more “bullets” than the job required.

While the choices I have made in undergraduate and law school have largely seen me avoid using the stellar mathematic training I received in high school, this underling idea about there being multiple ways to solve a problem with their own disadvantages hasn’t just stayed with me as a back-of-my-mind idea. It’s come up, over and over again, both in other disciplines I’m studying and in other parts of my life. I’ll give three examples to illustrate the point, starting with my time in undergrad as a political theory and constitutional democracy major (think of a PLS-style Great Books program), during which we of course read Aristotle’s “Politics,” in which Aristotle articulates six distinct sorts of regimes of rule by one, the few, or the many, and then divided into three “correct” kinds — “kingship, aristocracy, and polity” respectively — and three “deviations from these — tyranny from kingship, oligarchy from aristocracy and democracy from polity” (IV.2, Becker Stephanus p. 1289a). The spring of my 1L year, I had the opportunity to TA Professor Patrick Deneen’s Political Theory course, where I graded a section of 30 students. They too read this quote from Aristotle’s “Politics,” but Deneen saw fit (in my view rightly) to emphasize a different line from this same general area, at which Aristotle notes that polity is a particularly unstable “mixture of oligarchy and democracy” (IV.8, Becker p. 1293b). So, while Aristotle emphasizes that polity is “the best possible” regime (IV.8, Becker p. 1288b), it’s also the regime least able to be kept, and so most societies settle for something more inferior but more stable. In that sense, then, both oligarchies and democracies (towards one of which every polity bends) are political machine-gun methods.

For a second example, let’s consider a paper I wrote before having taken Administrative Law on the relationship between legislative and executive power. Its central thesis was basically that American separation of powers has a “legislative silence” problem. If our Constitution gives Congress the power to make laws (see generally Article I), the President the responsibility to take care that the laws are enforced (see generally Article II), and the federal courts the responsibility to decide cases and controversies arising under the Constitution or those laws (see generally Article III), does it commit these powers exclusively to each respective branch? In that paper, I answered that it doesn’t but it should. James Madison proposed to spell separation of powers out in a constitutional amendment that was part of the original draft of the Bill of Rights, but the First Congress rejected it, with members voting no both because they disagreed with its substance and because they agreed with its substance so much that they found it unnecessary. That ambiguity in turn led to widespread executive encroachments on executive power, so I argued that we should reconsider whether the amendment was as unnecessary as some First Congress naysayers thought. After having taken Administrative Law, my view on that issue has quite a bit more nuanced, and while I still think the executive branch tends to exercise too much quasi-legislative power too much of the time, I readily acknowledge that the idea, whether put forward by James Madison in a constitutional amendment proposal or advocated by me in an old paper, that there is one right set of actors for every governmental function is a governmental machine-gun method.

And then there is the very nature of our legal system itself. I’ve previously written about the distinction between law and equity, and about the Remedies course I took last fall from Professor Samuel L. Bray, one of our nation’s leading scholars on equity. One of the things I most appreciated about taking his class was the opportunity it gave me to think about how the law courts (and legal remedies) and the equity courts (and equitable remedies) contribute to a well-ordered judicial system. As Prof. Bray would put it, anyone arguing (as he does) that maintaining a distinction between law and equity makes sense needs to have a compelling answer to the question of why we shouldn’t simply commit ourselves to making one of those systems work well all of the time. In response, Prof. Bray essentially ballparked that making either law or equity work well for 90% of cases all of the time is a rather easy task; 99% is harder but still doable. But to have one of these frameworks cover every situation is a practical impossibility. So instead we use two systems (formerly the separate courts of law and equity, now simply different legal and equitable remedies), relying on law to more efficiently handle most cases, then counting on equity to clean up that which law does not handle well. Thus, although I continued asking the question of why we don’t simply resort to equitable relief in more circumstances, Prof. Bray answered my question by essentially saying that a larger equity power would turn equity into a machine-gun method.

My dear friend Caroline Gramm and I were talking about this concept of “machine-gun methods” the other day, and she suggested that sometimes we get complacent in employing machine-gun methods for the problems we solve in our own day-to-day. Why? Because we’re risk-averse. We’re much more comfortable doing something we’ve done a zillion times before, even if it’s inefficient, than to try a new way to handle a life problem because we think it might not work. But think of how much more we’d be able to do if we weren’t so stuck in this risk-aversion! So, the next time an opportunity arises to do something a different way, maybe that’s an opportunity God is giving us to move from a mindset of “we know what works, so let’s keep doing that even if it’s inefficient” to something more like “maybe let’s try this, and if that fails, we’ve got the machine gun method.” We might be pleasantly surprised at what happens next!

Devin Humphreys is a 3L at Notre Dame Law School. When he isn’t serving as the sacristan at the Law School Chapel or competing at a quiz bowl tournament, he’s sharing his thoughts on the legal developments of the day with anyone who will listen. For advice on law school, hot takes on Mass music and free scholarly publication ideas, reach out to Devin at dhumphr2@nd.edu.

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

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Reflections on the Sacred Heart

Sacred Heart.

What do you think of when you hear those two words? For me, they most clearly bring to mind Sacred Heart Academy, the K-12 school in Mount Pleasant, Michigan that changed my life for the better by bringing me to the Catholic faith I now call my own. But they also bring other things to mind: our Basilica, for instance, that bears the Sacred Heart as its namesake, or even Timothy R. Smith’s Mass of the Sacred Heart, composed to fill the liturgical music void caused by 2011’s revised English translation of the Roman Missal. 

I have previously written about my conversion to Catholicism in the seventh grade, but in that column I never really wrote about what led to my conversion. When people hear that I grew up reading a Protestant Bible, with a non-denominational Protestant conception of Christianity, they often make certain assumptions about what aspects of our Catholic faith were the biggest stumbling blocks along my way. Most of the time, these assumptions are made in good faith as generalizations of other, more public conversion stories. The book “Rome Sweet Home”, for instance, relays an absolute blessing of a modern Protestant-to-Catholic conversion story. But I find myself not relating to many of the flashpoints Dr. Scott Hahn and Kimberly Hahn raise in that book. 

For a key example, take our relationship with the saints. In my religion classes, we learned about the distinction between God, who we worship, Mary, who we venerate and the saints, of whom we ask for intercession as those who have the ear of God. Nothing about this was objectionable theology to my young not-yet-Catholic ears. Then, on reading “Rome Sweet Home” when our parish gave all its parishioners that book as a Christmas present not long after my own conversion in 2012, I got the sense that many a more well-educated non-Catholic theologian than I ever had been in my own pre-conversion childhood may be operating under a misperception of how the Catholic Church views her saints.

After all, we don’t pray to saints. We ask the saints to pray for us on our behalf to our Heavenly Father, the same way that we ask our friends to do the same. And it truly is the same way, because in our Apostles’ Creed, we confess a belief in the communion of saints, by which we mean that the church militant (those on earth), the church suffering (those in purgatory) and the church triumphant (the saints in perfect union with God in Heaven) are in communion with one another. The saints in Heaven can intercede for those in purgatory and those of us on earth, and we on earth can intercede for those in purgatory. 

But if I had a nickel for every time that I have heard a Catholic friend of mine say that they’re going to pray “to” St. Anthony to help them find a lost thing, pray “to” St. Joseph of Cupertino regarding an exam they haven’t studied for as much as they’d like or pray “to” St. Blaise because their voice gave out after a legendary weekend where Notre Dame’s victory over Clemson led to much rejoicing, I would have far more than two nickels, and that’s the crux of the matter: what the Church actually believes and what her faithful actually practice are too often entirely different things.

This is not news to anyone who’s followed the ever-present issue of bad catechesis surrounding the issue of transubstantiation. A 2019 update of the Pew Research Center’s survey of U.S. Catholics on their beliefs regarding transubstantiation and the Eucharist was exceptionally telling, because it asked both about what people actually believe and about what people think the Church teaches on the issue. All of its findings are surprising and insightful, but here are a few examples.

First, while 31% of Catholics believe in transubstantiation, 2% of Catholics think the Church teaches that the Eucharistic bread and wine are mere symbols but believe in transubstantiation anyway. Second, 69% of Catholics do not believe that the bread and wine become the Body, Blood, Soul and Divinity of Christ in the Eucharist, but only 22% of Catholics believe that the Eucharistic bread and wine are mere symbols while understanding that the Church teaches differently on the issue. Third, and finally, a whopping 43% of Catholics do not believe in Christ’s Real Presence in the Eucharist, not because they know Church teaching and are in disagreement with it but because they think the Church teaches something she doesn’t. My guess is that these numbers would be similar for a poll asking about Church teaching regarding the saints.

But this seeming diametrical opposition between official Church teaching on one hand and the private beliefs and practices of the faithful on the other is not the whole story. It’s already convoluted to note that there’s about a 2-to-1 split between Catholics who don’t know what the Church teaches and Catholics who don’t care what the Church teaches on the Eucharistic issue, but the Eucharist, or the saints, are matters on which the Church has authoritative Magisterial teaching that we are called as Catholics to accept as a matter of faith. What about the places where our private understanding of the faith concords with Church teaching, but in a diversity of ways?

I opened this column with two words: “Sacred Heart.” And the various Sacred Heart name-drops I mentioned have little to do with each other besides pointing outside of themselves to three simple metaphysical realities. First, Jesus was a man, who “loved us all with a human heart” (CCC 478). Second, Jesus was divine, therefore said heart is sacred. And third, accordingly, it is a good Catholic spiritual practice to give devotion to the Sacred Heart. While the Catechism of the Catholic Church does briefly discuss the Sacred Heart in paragraph 478, it does so mainly in definitional terms, describing the Sacred Heart as “the chief sign and symbol of that . . . love with which the divine Redeemer continually loves the eternal Father and all human beings without exception” (internal quotations omitted).

The message we are to take from Church doctrine on the Sacred Heart, however, is clear: Jesus loves us, each of us, more than we could imagine, and understanding the significance of His Passion is something that asks more of us than both knowing and accepting the teachings of the Church. Instead, we’re asked to go further, to develop and embrace a personal relationship with Jesus, with particular regard for His Sacred Heart. This relationship will look different from person to person, but that’s not just to be expected but to be embraced. Each of us is not just told in John’s Gospel that “God so loved the world” (3:16), but also in Galatians that “the Son of God . . . has loved me and given himself up for me” (2:20, emphasis mine). So the relationship each of us has to Christ’s Sacred Heart is innately personal, something not to be learned from spiritual reading or a good theology class but instead cultivated through prayer and through welcoming Christ into our daily walk of life.

As I began embracing the faith 10 years ago, I found myself drawn to the doctrinal clarity the Church provides on things like the sacraments, moral philosophy, the dignity of every human life, the sanctity of marriage and the need for guiding authority in our lives. But the roots of my conversion, roots I have so often lost while considering the minutiae of our faith, are in the Sacred Heart. So let’s commit ourselves to commemorating Jesus’s Sacred Heart as the source of God’s love for us, that we might in turn grow in our love of God and one another.

Devin Humphreys is a 3L at Notre Dame Law School. When he isn’t serving as the sacristan at the Law School Chapel or competing at a quiz bowl tournament, he’s sharing his thoughts on the legal developments of the day with anyone who will listen. For advice on law school, hot takes on Mass music and free scholarly publication ideas, reach out to Devin at dhumphr2@nd.edu.

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

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Chevron, Perry the Platypus and transubstantiation

Once upon a time in my high school days I encountered a meme entitled “The Engineering Flowchart.” Translated into prose, it basically asserts the following four propositions: first, if it moves, and it’s supposed to move, you have no problem. Second, if it doesn’t move, and it’s not supposed to move, you also have no problem. Third, if it moves, and it shouldn’t, duct tape. Fourth and finally, if it doesn’t move, and it’s supposed to, WD-40. 

I think I was drawn to the Engineering Flowchart in high school for its humoristic simplicity. All the world’s problems solved with WD-40 and duct tape? Yes, please! And a flowchart featuring a mere two questions and four possible avenues down which to travel? All the better! But what if I told you that a key doctrine of administrative law has a flowchart that purports to be even simpler than the Engineering Flowchart to apply? Welcome to the wonderful world of Chevron. The case of Chevron v. Natural Resources Defense Council, decided in 1984, set out a deceptively simple principle of administrative law. In flowchart-esque terms: Is the statute ambiguous? If not, then courts should simply interpret the statute. If it is, then ask: is the relevant administrative agency’s construction of the statute reasonable? If so, follow that construction. If not, then don’t. Two questions, and three total avenues? What could be better?

But I did just state that Chevron set out a deceptively simple principle of administrative law. I don’t think it’s quite true that describing legal principles as simple is an inevitable oxymoron, but in Chevron as in most legal doctrines, the devil’s in the details. Interestingly, the debate over the Chevron doctrine has not always been on ideological lines. Modern commentators like to paint a narrative that more conservative jurists tend to want to overturn the doctrine (thinking it’s given too much fuel to the administrative state), while more liberal jurists see Chevron as a vehicle by which experts in administrative agencies can have their expertise more easily deferred to. But no legal narrative is so neat. Chevron itself was a unanimous decision, and while Justice Antonin Scalia was not on the Court at the time the case was decided, he quickly became one of that decision’s most ardent defenders.

Whether we’re willing to engage with the nuances of the debate over Chevron deference or not, one thing is certain: the doctrine itself is in significant peril. Two key cases that came before the Supreme Court last term were seen as possible avenues for the Court to overturn Chevron: American Healthcare Association v. Becerra and West Virginia v. EPA.  The second of these decisions was one of the last cases the Court released back in June of this year, and its “major questions” doctrine, which says that Congress needs to legislate clearly if it wants to delegate the ability to construe major components of its statutes to administrative agencies, got significant media attention. But I think the case that will have more impact on how Chevron is applied in the courts in these years to come, even though it might not get as much credit for it, is the aforementioned AHA v. Becerra.

On its face, AHA doesn’t seem like the kind of groundbreaking decision I’m talking about. Justice Kavanaugh wrote the decision for a unanimous court, and the case dealt with how to calculate the formula for reimbursing prescription drug costs to hospitals participating in Medicare. But I think AHA is more important for what it didn’t do than what it did do. As SCOTUSblog commentator James Rommoser explained after AHA was released, “business groups and conservative legal organizations had urged the justices to use the case as a vehicle to overhaul — or even overturn — the 38-year-old doctrine known as Chevron deference.” However, the justices did no such thing, and perhaps most notably, they didn’t even cite Chevron in the resulting opinion! Instead, they relied on the “traditional tools of statutory interpretation” to conclude that the Department of Health and Human Services’ understanding of how the formula worked was incorrect, then instructed HHS to fix it accordingly. By using “traditional tools of statutory interpretation” before even determining whether the underlying statute was ambiguous or not, the result is that I get the feeling, yet to be corroborated, that the Court adopted a decision that walks like it doesn’t overturn Chevron, talks like it doesn’t overturn Chevron, but yet basically overturns Chevron.

My hunch about what the Court did in AHA may be flat-out wrong, but I don’t actually mean to prognosticate about how the Court is going to handle administrative deference in the years to come. Other people get paid far more than I do to write that kind of analysis, and they’re much better at it than I am. I write anyway, however, because of how these recent events have led me to reflect on two very different things pointing to the same fundamental truth. First, I thought of a classic clip from an episode of “Phineas and Ferb,” the animated series where every episode has the same plotline. As the main sideplot in this episode unfolded, as always featuring Perry the Platypus seeking to thwart Dr. Doofenshmirtz’s latest attempt to take over the tri-state area, hilarity ensued as Perry entered Doofenshmirtz Evil Inc. without Doof trapping Perry in his trap of the week. Instead, Perry “disguised” himself as a plumber to obtain entry into the building, then handed Doof a bill for having fixed the plumbing in a mere 15 seconds, resulting in a hilarious conversation: “What kind of a plumber are you?” Perry takes off his plumber hat: “A platypus plumber?” He puts on his Agent P hat: “Perry the Platypus Plumber?” It’s only when Perry ditches his plumber belt that Doof realizes the trouble he’s in: “PERRY THE PLATYPUS?!” Of course, one of the running gags of the series is Doof’s inability to recognize Agent P without his signature hat, but this exchange plays with the underlying trope to reveal just how incapable Doof is of recognizing what’s going on right in front of him.

We are all Doofenshmirtz at times. Sometimes we can be Doofs about things like recognizing that the Court’s overturned Chevron without overturning Chevron — though when all is said and done, if my hunch is wrong about that then I’ll have been the Doof. But other times we can be Doofs about matters of faith. Take for instance a principle that is at the core of our Catholic faith: the doctrine of transubstantiation. As Catholics, we believe that at each and every Mass, the bread and wine offered on the altar really and truly become the Body, Blood, Soul and Divinity of Jesus Christ. The stuff on the altar looks like bread and wine, smells like bread and wine and tastes like bread and wine, but the substance of it is not bread and wine. It’s Jesus, physically present before us every Sunday, and for those of us that go to daily Mass, every single day. But that doesn’t mean we recognize the real presence the way we should. We can be Doofs about this too: “What kind of bread is this? Regular bread? Bread and Jesus? JESUS INCARNATE?!” 

So perhaps my advice for these weeks to come is simply this: Let’s pay more attention to what’s actually going on around us, so as to try to avoid having a Doof moment. Whether it’s Chevron or the Real Presence of Christ in the Eucharist, sometimes the chaos of our lives is made simpler if we only take a little bit of extra time to acknowledge those things that stare us in the face. 

Devin Humphreys is a 3L at Notre Dame Law School. When he isn’t serving as the sacristan at the Law School Chapel or competing at a quiz bowl tournament, he’s sharing his thoughts on the legal developments of the day with anyone who will listen. For advice on law school, hot takes on Mass music and free scholarly publication ideas, reach out to Devin at dhumphr2@nd.edu.

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

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Spotting the natural law

Often when I was an undergraduate at Michigan State, and occasionally nowadays here at Notre Dame, friends of mine and I have gathered around a table, and someone has suggested that we play a round of the card game known as Chairman Mao. I won’t spoil the game for those who have never played (half the “fun” is in introducing new players to the game), but essentially Chairman Mao is a game for those who love rules. More accurately, Chairman Mao is a game for those who love to make up rules… and not tell anyone what they are… and penalize those who break them. Indeed, the aim of Chairman Mao is to learn what gets you penalized to avoid penalties and obtain victory. To say any more than that would earn me a penalty in my next game of Chairman Mao.

Last month, I took a significant shift in my choral direction from years past and joined the Notre Dame Chorale. It has been a true privilege to sing with another one of Notre Dame’s top-notch choral ensembles, and I’ve enjoyed making another set of new friends and singing solid sacred music and school songs with my choral colleagues. But dear reader, Chorale is not just an organization dedicated to performing sacred music and school songs. Nay, for the social fabric of Chorale is a tapestry woven with many a tradition dating back to time immemorial, and one of those traditions is a little game that members of Chorale tend to refer to as “spotting.”

The general rules (for the rules of this game are only ever articulated in general terms) are as follows: members of Chorale should acknowledge each other when their paths cross in unforeseen contexts. Failure to acknowledge is grounds for a chorister to snap a candid photo and take recourse in the group chat by posting the photo and tagging the subject, publicly calling out whichever Chorale member lacked a keen sense of observation in that given instance. I for one will admit to having been spotted five times last month, a number slightly tempered by the fact that as a newbie to the choir, I’m still learning for whom I need to watch out. I won’t take full responsibility, as sometimes my colleagues spot me in very creative places. How are you supposed to be on guard from being spotted at a dance, for instance? It doesn’t matter — them’s the unwritten, understood rules.

Sometimes, however, spotting gets a little out of hand. Is it legal, for instance, to spot someone if they’re on their way to rehearsal? Before, during, or after Mass? What about places you expect to see someone? The answers to all of these questions are not written down, and I dare not write them down here, lest I contradict the point this article seeks to make. But where these and other edge cases arise, I observed a phenomenon in my fellow members of Chorale: a tendency toward self-regulation and the declaration of what the rule has always been and will always be.

Now, I don’t know why this particular mode of dispute resolution surprises me so much. After all, I’ve written other columns for the Observer where I’ve waxed poetic about the so-called “declaratory theory” of law, by which judges find law rather than make it, and when judges find law, they are able to do so because the law has always been what it is being declared to be. But surprise me it did, and I think to figure out why we have to turn to that ridiculous card game with which I have opened this column. What’s the difference between my Chorale friends declaring the spotting rules and players getting penalties in Chairman Mao?

I think we can find the answer in natural law theory, of all places. The Catechism of the Catholic Church explains that “[t]he natural law is written and engraved in the soul of each and every man” (¶ 1954, quoting Leo XIII’s papal encyclical Libertas praestantissimum). Although there are variations in how natural law is applied in different societies (¶ 1957), and “[t]he precepts of natural law are not perceived by everyone clearly and immediately” (¶ 1960), it is this foundational idea that law is bigger than what we write down that underpins both the Church’s canon law and (to a lesser extent) the very fabric of our social order.

So what does natural law have to do with Chorale spotting, or Chairman Mao for that matter? I offer the following juxtaposition: the rules of Chorale spotting are common sense, while the rules of Chairman Mao are deliberately convoluted. In Chairman Mao, one only learns the rules by breaking them. The rules are not discernible any other way. On the other hand, if you don’t overthink it, you could go through a year of Chorale spotting without running into an issue, snapping photos of your non-acknowledging compatriots, calling them out in the group chat and having a jolly old time putting names to faces as Chorale newbies must.

At the end of the day, I have always been at least a little bit skeptical of the pull of broad, sweeping theories of natural law. Even given the Catechism’s caveats as to how widely natural law can be applied, I have struggled to understand how we humans are capable of doing such weirdly different things. As St. Paul says in Romans, “I do not do what I want, but I do what I hate” — concupiscence is definitely a thing that pulls us away from the natural law. But my skepticism is of more than simply our capacity for doing wrong when we should do good. How are we capable of having such different notions of what “good” even is? I think the answer is that we are all too busy trying to play a game of Chairman Mao. I’ve been overthinking it the whole time! Instead, we should be aiming to “spot” the natural law, in prayer, in conversations with friends and in simply living our day-to-day lives. May God give us this grace.

Devin Humphreys is a 3L at Notre Dame Law School. When he isn’t serving as the sacristan at the Law School Chapel or competing at a quiz bowl tournament, he’s sharing his thoughts on the legal developments of the day with anyone who will listen. For advice on law school, hot takes on Mass music and free scholarly publication ideas, reach out to Devin at dhumphr2@nd.edu.

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Fine-tuned prayer

I am an avid fan of shortwave radio. It was my Gram and Grandpa who got me into the hobby. For years, they’ve had this big Schaub-Lorenz radio from the 1960’s at their house. The radio is so old that it lists frequencies in kilocycles (kc) and megacycles (Mc) because the hertz as a unit of frequency hadn’t been invented yet, but it works perfectly to this day in spite of the fact. That radio had four frequency bands: the standard AM and FM that any radio has (except AM was labeled “MW” for “medium-wave”), plus “SW 1” and “SW 2”. We grandkids knew the radio had these extra buttons, but neither we nor Gram nor Grandpa knew what they did, and whenever we pressed the button out of curiosity, all we heard was static, so we all kind of assumed that was the end of the matter.

How wrong we all were. One rainy day when I was a sophomore in high school, I decided to fiddle with the radio once again and figure out the mysteries of “SW 1” and “SW 2”. Imagine my surprise when, after turning the tuning knob a bit, I start hearing a ticking noise. No, not that ticking noise, Potter Puppet Pals fans. After a few seconds, the source of the ticking explained itself: “At the tone, 22 hours, 35 minutes, Coordinated Universal Time.” Then a beep, then more ticking. I had found my first shortwave radio station, WWV from Fort Collins, Colorado. The idea of being able to pick up a radio transmission from the other side of the continent was mind-baffling, but my ears (and Google) did not deceive me.

And that was just the tip of the iceberg. After a quick bit of Googling to better explain what was going on here, I found out that shortwave stations are capable of having not just national but oftentimes global reach, and there are multiple directories you can use to find what stations are on the air. And boy, is it an eclectic bunch. First, you’ve got the religious broadcasters. AM and FM radio bands are strictly regulated by the FCC, and with a bunch of would-be radio stations applying for licenses, fees get expensive, and commercial broadcasters end up monopolizing these spaces. Shortwave is also technically regulated by the FCC, but since shortwave signals are subject to international interference, the FCC is much more hands-off about giving licenses, and it’s far less expensive to run a shortwave station. This means that religious broadcasters (mostly Christian, but running the gamut from folks preaching about how Jesus isn’t really God to EWTN’s shortwave department) find it much more hospitable to operate on shortwave, and honestly, who wouldn’t — what with the wider reach and less government bureaucracy to contend with?

But wait, there’s more! Many countries’ state-run media have shortwave presences, and I’ve been amazed to discover government-operated radio broadcasts from Turkey, Vietnam, Japan, China, Sudan and Spain, just to name a few. Indeed, perhaps the most fascinating part of modern shortwave radio is that it is one of the final frontiers of the Cold War. Because of shortwave’s global scope, authoritarian regimes are incapable of censoring it the way many of them censor the Internet, but that doesn’t mean they don’t try. For instance, South Korea regularly transmits broadcasts targeted to North Korea. However, North Korea responds in kind both by broadcasting propaganda toward the South and by “jamming” South Korea’s broadcasts, which works as well as a kid plugging his ears and saying “la la la la la!” when someone is saying something the kid doesn’t want to hear (that is, not well at all).

The United States and Cuba are also in an ongoing propaganda war, but instead of jamming (which both we and the Cubans realize doesn’t actually work all that well), both countries focus on using the shortwave band to its full effect. Radio Habana Cuba is the station I run into the most when I’m listening to shortwave, while the independent U.S. Agency for Global Media has a dedicated Office of Cuba Broadcasting which transmits Radio Martí to the Cuban people. Since shortwave radio is so easily accessible, I’m able to tune into both stations and hear their Spanish-language broadcasts, and I must say I really appreciate Radio Martí’s lighthanded approach. No need to beat the listener over the hand with government propaganda. “Happy” by Pharrell Williams does the job just fine, thank you very much. 

But what does any of this have to do with prayer? Dear reader, I have three analogies (pardon the pun) which I’ve lately found helpful in my prayer life, and they’re all things that prayer has in common with shortwave radio. First, prayer, like listening to a shortwave radio, requires patience. If you’re not prepared to take a steady hand to the analog dial, you’ll miss stations you could’ve hit if you’d simply taken your time. So too with God’s voice in our lives — if we don’t take the time to listen to him, it’s not his fault if we aren’t hearing him. Second, shortwave radio signals tend to warble a bit, but if you’ve tuned the station to the right frequency, this is no cause to adjust the dial. St. Ignatius tells us “in times of desolation, never make a change” — the mere fact that we’re having trouble hearing God’s voice in our lives at any given point does not mean that we are necessarily doing something wrong. Third and finally, on the shortwave band, if you’re paying enough attention, you’ll hear things you couldn’t possibly have expected. How much more true this is of our Heavenly Father.

My two takeaways: first, you should buy a shortwave radio. The one I’m using now I got with reward points from doing legal research on Lexis, but a reasonable-quality shortwave radio will run you about $30 and has good value for money. Second, I hope my profferings about the similarities between successful shortwave radio listening and a deep, fulfilling prayer life may prove useful to you in these weeks to come.

Devin Humphreys is a 3L at Notre Dame Law School. When he isn’t serving as the sacristan at the Law School Chapel or competing at a quiz bowl tournament, he’s sharing his thoughts on the legal developments of the day with anyone who will listen. For advice on law school, hot takes on Mass music, and free scholarly publication ideas, reach out to Devin at dhumphr2@nd.edu.

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

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The unexpected directions of the Holy Spirit

In a prior column, I wrote about times in my spiritual journey where the voice of our Heavenly Father has been clear (mostly in telling me I need to read the Psalms more frequently). And while it’s true that there are times where God speaks with what St. Ignatius would call a “clarity beyond doubt,” those are the exceptions that prove the cloudy rule: It’s hard to discern the voice of God as we strive to have a handle on the day to day. Sometimes, the Holy Spirit instead opts to speak through circumstances so otherwise implausible that if they were the basis for a claim in federal court, the judge would 12(b)(6) that claim so fast you couldn’t even say “Twiqbal.”

This summer is an example. On the good word of a friend who had participated in the program the summer before, I applied and was accepted to a summer fellowship run by The Fund for American Studies, or TFAS for short. This alone was a curveball; I was not even vaguely familiar with TFAS before my friend participated in the program, so if you had asked me in undergrad or even during 1L how I was going to be spending my post-2L summer, this program would not have even been on my radar.

Nonetheless, it became clear as the summer progressed that TFAS had three main things to offer its fellows: professional development, a seminar on originalism through George Mason University’s Antonin Scalia Law School and internship matching. TFAS had a rockstar professional development schedule, with federal judges from all across the country speaking on all sorts of topics, a recruiter from the DOJ encouraging applications to the DOJ Honors program and meet-ups with assigned mentors who were alumni of the TFAS fellowship. The originalism seminar with Prof. Jeremy Rabkin was likewise a solid opportunity to evaluate the judicial philosophy by which a majority of justices of the U.S. Supreme Court interpret the Constitution.

But it was TFAS’ internship-matching program that turned one curveball into two. One alumnus of TFAS is Peter Feldman, a commissioner at the U.S. Consumer Product Safety Commission (yes, that Consumer Product Safety Commission with the somewhat edgy Twitter account). He told the internship coordinator at TFAS that he would be interested in bringing a fellow on for the summer. And my coordinator, working through the group of 20 or so of us that were fellow for the summer, decided that I would be a good fit, recommended I apply and flagged my application to Commissioner Feldman. Keep in mind: While I’d taken torts in 1L and knew a thing or two about products liability, I hadn’t even the beginnings of an understanding about what the federal government had to do with any of it. Nonetheless, after an interview with Commissioner Feldman and his staff, I was offered a position as Commissioner Feldman’s legal intern for the summer, working in Bethesda, MD.

I learned so much while at the Commission. For instance, now I know that section 15(b) of the Consumer Product Safety Act gives every company in the United States who sells consumer products (that aren’t otherwise regulated by, for instance, the Food and Drug Administration or the National Highway Traffic Safety Administration for cars) an affirmative duty to report manufacturing or design defects to the Commission once the company knows about them, so the Commission can work with the company to either recall the product or take other corrective action. 

Companies that fail to report defects in a timely manner are slapped with civil (and sometimes even criminal) penalties. One of my main responsibilities while working for Commissioner Feldman was helping him articulate a coherent philosophy surrounding when (and how much) companies should be penalized for failing to report defects (or even selling recalled products). But conversely, because giving the Commission all this information about company products is a major trade secret risk, the Commission is barred from releasing any company-specific information to the general public, unless they give enough notice to the company that it can exercise its due process rights should it wish to do so. 

All of this might give you a better understanding of how the Consumer Product Safety Commission works, but how does that relate to what I promised with this column’s title and introduction — the more subtle ways the Holy Spirit works in our lives? Great question, and to answer, let me say a few words about my boss this summer, Peter Feldman.

Peter is the kind of individual who can go from drafting a press statement on why the CPSC’s recent civil penalties make no sense to giving a keynote to the undergraduate division of TFAS on how Tocqueville’s insights on free associations underpin much of the work he does on the Commission, all before lunch. Peter (and his counsel, Doug Dziak and Thomas Fuller) taught me too much about the workings of federal bureaucracy to encapsulate in a thousand-word piece like this one, but far more importantly, I learned this summer how principled collegiality works in practice. Too often, those committed to principles are willing to defend those principles to the point of being caustic towards colleagues who don’t share those principles, while others are willing to sell their principles in the name of building relationships. Peter showed me how to avoid falling into both traps while at the Commission, by boldly and consistently speaking out against policy decisions he disagreed with while maintaining exceptionally collegial relationships with the other four members of the Commission.

In short, while neither TFAS nor CPSC were anywhere close to how I thought my 2L summer would look, both experiences were exactly where the Holy Spirit was moving me at this stage in my life. The unexpected directions He led me this summer have filled me with nothing but gratitude, and now in Peter I not only have a mentor and a resource as I start more broadly researching and writing on consumer product safety issues, but a principled man for whom I am blessed and honored to have worked. In these weeks to come, as we make decisions about what summer internships to go after, or even what we aim to do after graduation (if there are any federal judges reading this column, I’m still on the clerkship market!), may we give God some room to lead us in similarly unexpected directions. 

Devin Humphreys is a 3L at Notre Dame Law School. When he isn’t serving as the sacristan at the Law School Chapel or competing at a quiz bowl tournament, he’s sharing his thoughts on the legal developments of the day with anyone who will listen. For advice on law school, hot takes on Mass music and free scholarly publication ideas, reach out to Devin at dhumphr2@nd.edu.

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

Devin Humphreys

Contact Devin at dhumphr2@nd.edu