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Abstract

During a five day period in June, 1992, every Justice on the United States Supreme Court joined one or the other of two opinions that denied the objectivity of values—either Justice Kennedy’s majority opinion in Lee v. Weisman or Justice Scalia’s dissent in Planned Parenthood v. Casey. Both of these opinions expressed the view that normative judgments are merely human constructions. This moment represents symbolically the death of values in American law. The arrival of nihilism at the heart of American law is a world-changing event for law that must be acknowledged.

The death of values was announced by Nietzsche as the death of God. But nihilism is not a purely religious matter. Nihilism means that higher values have lost their binding power. A civilization can no longer be sustained through them. Nihilism has grown in society generally and in the consciousness of law professors.

The death of values is reflected in the shape of the constitutional interpretation of rights. Because we do not share the understanding of the founding generation that rights are real, we flee to attempts at purported objectivity or fully surrender to subjectivity when substantive value judgments are at stake. Thus, we see the intermittent uses of history and individual choice in constitutional interpretation and the tendency to emphasize process rather than substance. These trends are illustrated in a brief contrast of procedural due process and free speech with substantive due process and cruel punishments, as well as the struggles over religious exemptions from generally applicable laws.

The attempts by American law to cope with the death of values through denial, retreat to history and the elevation of the individual are unsuccessful stopgaps. Such coping mechanisms lead to the tolerance of immorality and ultimately the abandonment of all moral claims. In such a world, constitutional government itself cannot be justified. Even democracy loses its authority. And politics descends into gamesmanship.

The death of values and the unreality of our coping mechanisms play a role in the recent collapse of law school enrollment. There is a real crisis in the West. Law schools undoubtedly will have an important role to play in that crisis. But that role cannot be played until the depth of nihilism is acknowledged.

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