A Declaratory Theory // The Observer
One of the things that Notre Dame Law School does really well is develop in its students an understanding of what actually makes the American constitutional project as novel as it is. Many people, when thinking about the founding and “what makes America great,” will jump to something along the lines of freedom of religion, protection from unlawful search and seizure, or even the right to bear arms, but regardless of one’s opinion on it Regardless of the importance of any of these listed rights, the fact is that they were not an integral part of the American constitutional project in the first place. The whole reason the Bill of Rights exists as a collective document is because the First Congress decided that a number of rights should be enumerated and set forth in the Constitution, but the founders were relatively convinced when the Constitution originally had few Years ago it was written that a Bill of Rights was unnecessary or perhaps even counterproductive. So, even if we ignore the problems in articulating a set of rights that, on the face of it, imply universal applicability that quite obviously wasn’t a thing for most of American history, the fact is that that’s not even the aspiration is to secure these enumerated rights for everything that underpins the novelty of the American constitutional project.
Rather, as any Notre Dame law student learns in 1L Con Law, it is the separation of powers that gives our Constitution its novelty, and the separation of powers upon which almost every other innovation in American government rests. (Yes, careful reader, I have omitted here the related, equally important, doctrine of federalism; that is a worm for another time.) It was Baron de Montesquieu, in “The Spirit of Laws‘, which articulated the doctrine that governmental power rests in three zones: the legislature (which makes laws), the executive (which enforces laws), and the judiciary (which interprets laws) – but even Montesquieu acknowledged that none of the Indeed, nations of the world of his day divided governance entirely into three distinct zones of this structure. For example, in Britain at the time of its founding, legislative power rested in a bicameral Parliament (the House of Commons and the House of Lords), but while executive power technically rested with the King, it was practically exercised by his Prime Minister, ministers, and fellow ministers who also Members of Parliament (typically the House of Commons) were. Likewise, judicial power rested with the House of Lords, which in turn was still part of Parliament. While one could pinpoint where these zones of power rested with one’s finger, they were not separate.
And that’s how things were until the US Constitution made that very separation. Article I of the Constitution gives Congress legislative power, Article II gives executive power to the President, and Article III gives judicial power to the federal courts. Legislators make laws, the executive branch enforces laws, and the judiciary interprets laws…right? But consider this hypothetical: Two parties come into federal court and present a case of first impressions. This court must decide the case, but that decision will have repercussions for similarly situated litigants, as the decision will set a precedent where none previously existed. Isn’t that legislation? Doesn’t the judiciary exercise legislative power in such a case? Justice Antonin Scalia acknowledged that yes there are times when judges deal with legislation, but in the 1991 case meant his approval James B. Beam Distilling Company v. Georgia that even if judges are right in a case, they should be right”like judges dowhat to say as if they “find” it – know what the law is isinstead of prescribing what it is today switched toor what it will be tomorrow In other words, when judges find a law, they don’t (or maybe they shouldn’t) notice where the law has changed. That task is instead left to the legislature. Instead, a judge should strive not to ” find what the law is will better be what it is has been the whole time.
This notion that judicial law-making is more like, or perhaps just should be, judicial finding of justice, is part of what is now known as the “declaratory theory of law,” and although I don’t myself think that this theory explains most or even at In many court decisions, I think the underlying principle that judges should strive to “find” laws rather than “make” them has a very powerful appeal, and while I’m here at Notre Dame Law, I’ve had the privilege to have many conversations both with friends of mine who sympathize with this principle and with those who oppose it either on pragmatic grounds (“judges cannot not make laws”) or are ideologically opposed to it (“actually judges should To make Laws or rules”). The ins and outs of these different camps are beyond the scope of this article, but let’s just say that conversations surrounding this topic are a rare moment when a person’s political ideology isn’t necessarily a proxy for their position on a legal issue . I have met and spoken to conservatives who believe that judges make or should make laws, liberals who believe that legislation is or should be the exclusive prerogative of legislation, and vice versa for all.
But even if you think that “finding” justice is a legal fiction at best, I daresay it could also (or instead) apply to another area of our lives: our friendships. Just last week I was fortunate enough to have two dear friends of mine, Theresa and Katie Heidenreich (the two exceptional violinists of the Notre Dame Folk Choir) with me for a game night. When we weren’t having fun playing three-player Euchre, conversations turned to other things, and one thing I did express was my regret that I hadn’t intended to seek her friendship sooner. However, what I realized in that moment was that these were friendships found rather than made. Just because we couldn’t tell when or exactly how we became friends doesn’t mean we weren’t friends all along, and that’s the whole point: sometimes the most cherished friendships are made rather than made. And so, dear reader, I close this column with this admonition: May we take the opportunity in these next two weeks to consciously ponder where to find another friend. May God grant us this grace.
Devin is a member of the Class of 2023 at Notre Dame Law School. Originally from Farwell, Michigan, he is a 2020 graduate of Michigan State University‘s James Madison College. In his spare time he sings with the Notre Dame Folk Choir and discusses the legal developments of the time with all who will listen. Inquiries about his surplus of legal 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.