Oh, I drew the distinction between the Constitution and the Declaration because the Declaration actually says "We hold these truths to be self-evident". They AREN'T self-evident; Jeremy Bentham called this passage "Nonsense on stilts" if I recall correctly (though he was a BIG fan of the American Experiment). The U.S. Constitution contains nothing of the sort. It's a three-way contract between the people (from whom all legitimate governing authority derives), the state governments, and the federal government which the document itself creates. First and foremost, the U.S. Constitution is a creature of political horse trading. Your comment, though, about discovering what's there vs. creating new law has been a vexing theory problem since ancient times. As a practical lawyer and judge I don't think it matters. No matter what you think a judge should do, or how it should be done, the nature of a separation of powers requires that there be an ultimate arbiter of what the text itself means in any given situation. You could vest this authority in the Executive and end up with a Weimar dictatorship, or do as England did throughout much of her history and place it in some part of the Legislature. We chose to create an independent committee for the purpose and call it the Supreme Court. The power of the appellate judiciary to do what it thinks best regarding a constitutional question is very great but there are at least two strong checks on that power. The greater but more cumbersome power is that the people can enact amendments to the Constitution to correct a Supreme Court decision they don't like (i.e. Dred Scott and the XIVth Amendment). The subtler but more significant restriction is that no Court may exercise its authority unless some case or controversy is brought before it. The flip side of that second restriction is that no Court may refuse to decide a case once that case is properly brought. So (for example) a trial judge HAS to decide whether an individual's right to be free of a particular search was violated because the search was 'unreasonable'. If the situation is novel (and these days it often is) the judge will make law in the process in the process of deciding what's 'reasonable'. The Supreme Courts of the U.S. and the various states cannot perform their functions without creating a great deal of law when the trial judge's decisions are appealed. Well, once you've decided to have an arbiter and selected the people who will serve in that position, as a practical matter it is immaterial whether the law is "discovered" or "created". Either way, it's the law going forward unless the people change it. That's the agreement we live under.