an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
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
by Sandy Levinson [link]
A follow up to your aside:
Although it may not be correct to describe Ivan Karamazov as a nihilist, would you agree that his father Fyodor qualifies as one? Further, although I disagree with your characterization of Alyosha's religious faith as "jejune," couldn't the same description apply with equal force to Ivan's atheism?
What all of this has to say about legal interpretation is, of course, another matter.
The Karamozov's father struck me as a drunken lout rather than anyone with a "philosophy." If he counts as a nihilist, then I think we'd have to use the same term to apply to many, say, of our leading sports stars and entertainers who seem wrapped up in their own egotism and carnality.
I agree that this may have little or nothing to do with legal interpretation. It has to do only with the application of the term "nihilist" to refer to people with presumptively insufficient "faith" in law or legal (as distinguished from other forms of) reasoning.
Goodness, you really *can* get whatever you want out of the text, can't you? ;)
More seriously, I suppose that SL is referring to the "Rebellion" and "Grand Inquisitor" chapters -- you know, the ones that Laura Bush is able to admire without seeing any potential relevance to current events.
Arguably, Alyosha's religion *is* "jejune" at that point; he has not yet undergone his crisis after the death of Father Zossima.
Contrary to the popular definition of nihilism as the belief in nothing, I understood the term to refer to a belief in which traditional values are arbitrary, because there is no objective truth. Everything’s relative, leaving the nihilist to create her/his own values. So, the nihilist may very well still believe in values, and those values don’t necessarily need to be self-serving. Instead, an egoist would seem to better fit the cynic’s definition.
As nihilism applies to American legal interpretation, I found the notion that insufficient “faith” in the law amounts to nihilism as intriguing. Can the law really operate separately from other forms of reasoning and outside societal context? Simply because the “rules” may adapt in application or interpretation with the passage of time, does that somehow make them completely arbitrary? Are there not limits based on reason and societal constraints?
The American debate seems rather perplexing. For a remarkably similar country, the Canadian approach differs quite a bit. We’ve adopted a “living tree” method to constitutional interpretation, in which the constitution is viewed as an organic entity capable of growth and adaptation to reflect societal changes. If the “Fathers of Confederation” intended on limiting the constitution to the past, then it would loose its relevance for future generations.
Nihilism is one of those words that instantly biases me against the writer unless a strong enough case has been built up by the time the word is used that I know exactly what the writer means by it. Same goes for Moral Relativism.
So often the term is given meaning only by the use of a logical falacy whereby the writer picks some aspect of their own moral system and says that any moral system must hold to that principle in order to be a moral system, and that therefore if you do not agree on that point, you are a nihilist or a moral relativist.
It's a straw man, because most of the time the writer never explores what the logic of the dissenter's moral system is. Much of the time they don't even clearly identify which aspect of their moral system they find to be essential to moral systems.
Try to free the term from this logical falacy and things always seem to come to a point where Nihilism is so narrowly defined that no one could realisticly endorse it, or so broadly defined that anyone with an ounce of epistemological caution is a Nihilist.
I think it must say something bad if serious legal thinkers are using the word again.
With regards to indeterminacy, a text could be said to have some greater level of determinacy if it belongs to a tradition that stipulates how indeterminacies in the text should be resolved. For example, certainly the original constitution's presidential succession mechanism is indeterminate, but if it was understood that such indeterminacies would be worked out through a process of political consensus and precedent establishment, then it would be fair to say that by the time Lincoln was shot, it was constitutionally determinate that Johnson should fully assume both the duties and office of President, rather than simply serving as the acting president, even if the question hadn't been so clear for Vice President Tyler.
Since I am the one who uncorked the "nihilist" word in the comments over at Brian Tamanaha's post, I feel that I owe Brian and Sandy a bit of an apology, since it seems that my off-the-cuff choice of the word "nihilism" to describe what I was talking about was extremely ill-chosen.
A little background: As another commenter at that post divined, I am trained as a philosopher and not a legal theorist. Philosophers get notorious leeway for stipulating definitions of their terms that may not cohere exactly with anyone else's usage. Also, given that I am not a legal theorist, I was only vaguely aware (and too late, obviously) that "nihilism" was a more or less well-defined charge in legal-theoretic circles.
When I referred to "nihilism" in my earlier comment, I wasn't referring to any elaborated theoretical commitment in legal theory. Instead, I was referring to what I considered a rather lazy habit of mind that I sense among more bluntly ideological understandings of law in the wider culture. That habit involves an overeager application of Ockham's razor without stated justification, as if parsimony about the sort of things we are willing to grant as meaningful subjects of conversation is BY ITSELF a reason to deny that discussion of them fails to be meaningful. (The philosopher Donald Davidson once referred to this as "ontological Puritanism," which is perhaps a more apt phrase.)
What this means is that any position on interpretation, legal or otherwise, that acknowledges SOME constraints on interpretation, or acknowledges NO constraints after arriving at that conclusion by a reasoned argument, is not "nihilist" in the sense I had in mind.
Again, apologies to Brian, Sandy, and all of the readers of this blog for muddying the waters needlessly. I shall choose my terms more carefully in the future.
Straying away from the Nihilism debate (of which I know nothing! Nothing, Lebowski!), I'd like to say I've lived in China and in Korea. Both of those countries count age differently. In China, they add a year to your age on January 1, not on your actual birthdate.
In Korea, they add a year to your age on January 1 and also start counting at 1, not zero. In Korea, you could be two years older than you would be in the US system.
So, when I teach the requirements of the US Constitution to my undergrads in China, I have to explain to them that we count it a bit differently...that's three different ways to count age without going into lunar calendars.