I’m reliably informed that we’re late to the game of celebrating a very rare Pythagorean theorem day: 9/16/25. (The last one was March 4, 2005 I believe.)

Fortunately, we at the The Catholic University of America Columbus School of Law can beat that with “The Double Coincidence of September 17.”

One double coincidence is personal to the office held by CIT’s Director Prof. Joel Alicea. Alicea is the St. Robert Bellarmine Professor of Law and Director, the Center for the Constitution and the Catholic Intellectual Tradition (CIT). This overlap between CIT and Alicea’s endowed chair provides today’s first double coincidence: the Feast Day of St. Robert Bellarmine and Constitution Day. (We can save for another time why September 17 was a strange day for Congress to have picked to celebrate what might better have been called “We Finally Have a Plan for a Constitution Day.”)

The second coincidence is “Double Doctor Day” (perhaps the one and only such day in the Church calendar, though I haven’t done the research to verify this. Today is not only the feast of St. Robert Bellarmine, but also St. Hildegard of Bingen. Both of these saints are Doctors of the Church. St. Robert Bellarmine was declared a Doctor of the Church by Pope Pius XI in 1931. St. Hildegard of Bingen was declared a Doctor of the Church by Pope Benedict XVI in 2012. What does this second coincidence have to do with The Catholic University of America Columbus School of Law? A clue may be found in the logo of our Center for Law and the Human Person. As explained on CLHP’s “Mission” page, “The human figure is the Universal Man of St. Hildegard of Bingen. Man, as presented by St. Hildegard, is the pinnacle of God’s creation and made in His image. St. Hildegard’s man is not autonomous and self-sovereign; rather, the human person is part of creation, embedded in a network of relations, drawn to the common good, and governed by God’s Providence.” CLHP Co-Director Professor Elizabeth Kirk provides further details in this Disputatio post. Vade et lege.

Lon Fuller’s account of the “internal morality of law” is sometimes described as a kind of “merely procedural natural law theory.” But Fuller also held that “the most important respect in which an observance of the demands of legal morality can serve the broader aims of human life generally” is something that “lies in the view of man implicit in the internal morality of law.” (p. 162. All quotations are from Fuller, The Morality of Law, Revised Ed. 1969.) Fuller explains that “[t]o embark on the enterprise of subjecting human conduct to the governance of rules involves of necessity a commitment to the view that man is, or can become, a responsible agent, capable of understanding following rules, an answerable for his defaults.” (p. 162) This is the set-up for the excerpt that follows:

Every departure from the principles of the law’s inner morality is an affront to man’s dignity as a responsible agent. To judge his actions by unpublished or retrospective laws, or to order him to do an act that is impossible, is to convey to him your indifference to his powers of self-determination. Conversely, when the view is accepted that man is incapable of responsible action, legal morality loses its reason for being. To judge his actions by unpublished or retrospective laws is no longer an affront, for there is nothing left to affront—indeed, even the verb ‘to judge’ becomes itself incongruous in this context; we no longer judge a man, we act upon him. (pp. 162-63) …

* * *

The whole body of law is permeated by two recurring standards of decision: fault and intent. Philosophic discussion of these notions has largely concentrated on their role in the criminal law, where they have given rise to the most abstruse arguments, including that concerning freedom of the will. But these twin standards play an equally important role in the law of contracts, torts, and property. Examined closely they turn out to be difficult and elusive conceptions in whatever area of the law they appear. Yet without them we would have no thread to guide us through the labyrinth. When one of them fails, we are apt to reach for the closest approximation of it. When there is no clearly determined intent, we ask what intention the parties would have had had they foreseen the situation that has arisen. When neither party seems chargeable directly with fault, we ask which of them had the best chance to prevent the harm—which, in other words, as closest to being at fault. (p. 167)

Notice what happens when these two tests, and their near relatives, fail completely. This occurs in the law of contracts when performance of an agreement is hampered or its significance is changed by some external event, such as the cancellation of a coronation procession. In the law of property our familiar standards fail when nature intervenes and takes control, as when a river shifts its course, removing twenty acres from A’s land and adding twenty-five to B’s. In cases like these the litigants do not appear as responsible agents, but as the helpless victims of outside forces. We can no longer ask: Who was to blame? What did they intend? Since our usual standards of justice fail us, we are at a loss to know what justice requires. If we were to lose throughout the law the view of man as a responsible center of action, all legal problems would become like those I have just suggested. (p. 167)

Today’s feast of St. Joseph the Worker draws one’s attention at this university-based Catholic law school to the work of those in the legal profession. The “entrusting of legal institutions to professionals” and “the training of those professionals in a discrete body of learning” are two of the ten characteristics of “the Western legal tradition” that Harold Berman traced to the so-called papal revolution that took place in Europe in the eleventh and twelfth centuries.in his magisterial.

Reviewing Berman’s magisterial 1983 book Law and Revolution: The Formation of the Western Legal Tradition for the Catholic University Law Review, Columbus School of Law Professor Raymond Marcin summarized the ten characteristics identified by Berman as follows:

(1) a relatively sharp distinction between legal and other types of institutions; (2) the entrusting of the legal institutions to professionals; (3) the training of those professionals in a discrete body of learning; (4) the existence of that body of learning in a complex, dialectical relationship to the legal institutions, giving the law the capability of a meta-law by which it can be analyzed and evaluated; (5) law as a coherent whole, a body; (6) law as having an ongoing character, a capacity for growth, an inherent mechanism for change; (7) that growth as being logical, patterned, regular, reflecting an inner necessity; (8) law as being supreme over the political authorities, this linked to its historicity; (9) law’s coexistence and competition within diverse legal systems, making the supremacy of law both necessary and possible; and (10) the existence of a tension between ideals and realities, between the dynamic and the stable, between transcendence and immanence, a tension which leads to tradition- renewing revolutions.

In establishing the federal government, the Constitution’s Framers sought to overcome a problem: men are not angels, and thus they should not be treated as such.  The solution was to design a government in which “[a]mbition” could “counteract ambition.”  The idea being that, although the human(s) in any one branch could not be trusted entirely with governmental power, tensions between the three federal branches pushing-up against each other could help ensure that no one branch acted tyrannically.

As someone who often writes on separation-of-powers topics, I have had occasions to reflect on Madison’s lesson regarding the distinction between men and angels.  And in doing so I have come to see more clearly a deeper lesson that is implicit in Madison’s quip (whether he intended as much or not).  Yes, men are not angels.  That much is obvious.  But men are not the evil opposite of angels, either.  Instead, humans are human.  Which is to say that humans are created in the image of God, and have the capacity to choose whether they will pursue the good. 

Our constitutional system of separated powers is a great gift that has been left to us by past generations.  To be proper stewards of that system, which consciously seeks to account for human nature, we should think carefully about what that human nature entails.  Thus, in a series of recent works (published here, here, and here), I have sought to more fully introduce the concept of virtue ethics into modern separation-of-powers literature.  

A virtue is a characteristic that is both instrumental to achieving excellence, and a constitutive part of what it means to be excellent. We might say, for example, that an excellent steak knife has a firm handle and a sharp blade—two virtues that allow the steak knife to fulfill its purpose (i.e., cutting steak) excellently.  Like steak knives, there are character traits (i.e., virtues) that enable humans to achieve their purpose excellently. And as a fundamental matter, those virtues include the four cardinal virtues: prudence, justice, courage, and temperance.

The law can help instill those virtues in humans.  For example, a law that punishes military desertion might give soldiers a legal incentive to face danger, and thus develop a habit of acting courageously.  Over time, they might actually become courageous (rather than just imitate the virtue due to legal requirements). Laws against excessive intoxication might similarly offer legal incentives to develop a form of temperance, and so on.

When we think of the law as a tool for instilling virtue, we might often think of the law instilling virtue in the citizenry (e.g., soldiers and public house patrons). And that is indeed a worthy use of law.  But there is another type of law that governs those who govern us: constitutional law.

Thus, I have proposed using constitutional law to instill in federal officials the virtues they need to perform their governmental functions excellently.  And I contend that performing those functions excellently means, in part, performing those functions in a way that respects the Constitution’s separation of powers. 

To offer one example: an excellent federal legislator is one who exhibits the virtue of courage.  This means carrying-out legislative responsibilities in the face of political dangers—i.e., the dangers associated with taking clear legislative stances that can be properly evaluated by voters at the ballot box.  But today, lax enforcement of the Constitution’s nondelegation principle permits federal legislators to exhibit a form of political cowardice.  By enacting laws that kick policy questions over to federal administrators (many of whom are themselves purportedly insulated from political accountability) legislators do not have to make as many tough calls.  

By ducking tough decisions, a federal legislator deprives himself of opportunities to act courageously.  Constitutional law can help with that.  To wit, courts can enforce the Constitution’s nondelegation principle more stringently.  That would give legislators more opportunities to face political consequences, and thus learn how to courageously rise to the occasion—something an excellent legislator would do.  Federal administrators (who exercise the President’s executive power on his behalf) can similarly play a role in enforcing the Constitution’s nondelegation principle by informing Congress that clearer legislative guidance is needed in particular situations.

Many more examples could be offered.  But in sum, if we are to have a government staffed by humans, the law ought to be used as a tool that helps those humans be excellent.