The Legal Academy "N-word": Nihilism

Sandy Levinson

I have read Brian's posting on Sandra Day O'Connor, and the ensuing discussion, with great interest. I'm intrigued to see the re-emergence of the term "nilihism" within the debate. As somebody who has, on occasion, been labeled a "constitutional nihilist," I want to offer some clarifications as to what the term might mean (and what my current position is):

1) The term really arose in the great wars over "indeterminacy." As to what Robert Jackson termed "the majestic generalities of the Constitution," including, most notably, the Fourteenth Amendment, I continue to believe that any competent lawyer can get wherever he/she wants to go. I constantly push the book by Doug Rae et al., Equalities, and its demonstration that there are 108 logically consistent notions of that term. The text of the Amendment provides not the slightest clue as to which one is "best," and the history is hopelessly tangled with regard to only one candidate emerging, even if it's quite easy to eliminate many of the potential candidates--such as the notion that "everyone should be treated identically, i.e., that no distinctions can ever be made between any A's or B's." So, generally speaking, I don't take legal doctrine very seriously in its rhetorically "strong form" that insists that an adjudicator has "no choice" in the matter because the law speaks so clearly.

This being said, my turn toward constitutional design has made me into much more of a "textual determinist" inasmuch as the parts of the US Constitution I'm now most interested in--and about which I incessantly blog--are the "hard-wired" structural provisions that are not, pragmatically speaking, open to "interpretation" in an ordinary-language sense. Although I, like most law professors, can do a riff on how "35" is indeterminate, that is recognized as "academic" in the most pejorative sense; unless and until some 33-year-old is viewed as the truly indispensable person to inhabit the Oval Office, it will be taken as a given that we "know" what "35" means, which means a the passage of time time measured in solar (and not, for example, lunar) years. The fact that it is completely arbitrary to reject the eligibility of someone who is 35 in lunar years or, even more to the point, of someone who has maturity and experience far beyond most 40-year-olds doesn't negate the force of the clause (which is why I call for its elimination in my book). Much more to the point, I'm distinctly not a "nihilist" with regard to such questions as "can Arnold Schwarzenegger be elected as President," "how many senators does each state get in the Senate" or "how many days remain in George W. Bush's term of office, assuming good health and no impeachment?" However much I wish that the answers were a) yes (not because I support Arnold, but because I think the ban is indefensible); b) a number proportionate to its population and c) one, all three of these answers are clearly and unequivocally incorrect.

2) As these very examples suggest, though, the fact that something may be constitutionally determinate does not in the least guarantee that it's normatively defensible. I won't rehearse all the arguments why I regard equal voting in the Senate and Bush's fixed terms as constitutional deficiencies, in the case of the latter a true constitutional disaster. And Mark Graber's great book discusses the out-and-out "evil" that might have been embedded into the original Constitution with regard to slavery. It should be obvious that no one who take such critical positions can be a "nihilist," but it certainly leads to a loss of "constitutional faith," unless one indeed is willing to admit that the object of one's devotion may be radically defective and even evil.

An aside: I have recently had occasion to reread Turgenev's Fathers and Sons, which is often said to introduce the term "nihilist" into literature through the character Bazarov. (And Tom Stoppard picks up on this in his trilogy The Coast of Utopia.) My own reading, for what it is worth, is that Bazarov says nothing in the novel to indicate that he rejects any and all values, but, rather, that he is savagely critical of the conventional sources of value in early 19th century Russia, primarily the Russian Orthodox Church and other institutions that Bazarov, a would-be scientist, recognizes as simple instantiations of superstition. (See also Ivan Karamazov in The Brothers Karamazov. Whatever he is, I don't think it's "nihilist," even though he rejects the jejune religiosity of his brother Alyosha.) A "true" nihilist is, I think, a sociopath who believes only in a personal will to power. From this perspective, even Hitler was no nihilist, since he was committed to a thoroughly repugnant system of values based on racial/ethnic superiority.
Posted 5:43 PM by Sandy Levinson [link]