Chris Geidner

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To end a law review article with an unexpected conclusion is not unheard of. It is, however, not an everyday occurrence. In Sanford Levinson's "Law as Literature," he concludes with the statement that John Marshall was "�perhaps, the greatest Nietzschean judge of our tradition." Levinson's analysis, support and critique of nihilistic constitutional interpretation, as well as the meaning and accuracy of his commentary on this nation's "Nietzschean" Justice, is the focus of this comment.

"It is no more than a moral prejudice that truth is worth more than appearance . . . Indeed, what compels us to assume there exists any essential antithesis between 'true' and 'false'?"

In Friedrich Nietzsche's Beyond Good and Evil, he asks that we question the veracity of truthfulness. As detailed in the quotation above, he means this quite literally. Can there be one truth? Is it any different than what we would call a 'lie?'

Constitutional scholars write about proper and improper interpretations of texts. Professors discuss correct and incorrect decisions of the Supreme Court. In his unending wisdom, Justice Scalia has often put forward examples and explanations of the absolutism of truth. Nietzsche would laugh at all of these actors. In Levinson's discussion, he details several scholars, including Nietzsche, Richard Rorty and Stanley Fish, who have posited a viewpoint opposite that of Justice Scalia -- that there is no absolute determination of what is or what is not the Constitution. To the contrary, Fish writes "[t]he objectivity of the text is an illusion and, moreover, a dangerous illusion, because it is so physically convincing."

After handily disposing of nearly every method of constitutional interpretation, from originalism and intentionality to "'weak' textualists" (those weak interpreters who attempt to find some other definitive method of interpreting the Constitution), Levinson takes on a search for Nietzsche's Ubermensch (overman). "'Strong' textualists" (those strong interpreters who "reject the whole notion of questing for the essential meanings of a text") are those to whom Levinson would seemingly turn for his constitutional interpretation.

Rather than determining some ultimate method for interpreting constitutional texts, Levinson's overmen would reject the concept of "truth-seeking" as a "philosophical error" in and of itself. Each would shape the malleable words of the Constitution in the way most similar to his or her personal agenda or political leanings.

The problem of this analysis, Levinson states, is that if we are unable to determine an opinion's correctness, then we are left with no way to study opinions. Throughout his essay, however, Levinson seems to somewhat agree with those who argue (or converse) that court opinions are simply "insight[s] into the ideology of the time." In fact, earlier in his essay, Levinson writes,

In other words, there is no reliable, consistent way of analyzing the "correctness" of any opinion. In so doing, one would be placing his or her value judgments, wishes or desires upon the opinion -- effectively "beat[ing] the text into a shape which will serve his own purpose."

Like many commentators on Nietzschean thought, Levinson tries to keep his distance from such a fluid, nihilistic approach to constitutional interpretation. It is, after all, his job to interpret and comment on the Constitution.

At first glance one would think that a former Chief Justice of the Supreme Court would be adamantly opposed to such a fluid reading of the Court's sacred document. In his conclusion to "Law as Literature," however, Levinson suggests the opposite -- that Marshall may have been the very essence of a Nietzschean judge.

After a scathing interpretation of what Levinson sees as Marshall's definitively non-textualist rulings -- from "intellectually dishonest" to "majestically visionary," he writes -- Levinson dismisses his own complaints as being "irrelevan[t]." "[Such a criticism] assume[s] the existence of a privileged discourse that allows me to dismiss Marshall as 'untruthful' rather than merely different."

This is perhaps the most important question posed in his article, one that is relevant to all constitutional interpretation -- regardless of the standing given to Nietzsche, Rorty and others.

This question is the base concept of Levinson's article, Rorty's methodology and Nietzsche's conceptions. What is it that we have got that Marshall did not have? What is it that gives me a greater understanding of constitutional law than Justice Scalia? What makes say, Justice Kennedy "more enlightened" than say, Justice Breyer in a given opinion? What authority can one really claim in interpreting the constitution?

Marshall, Levinson suggests, avoided that question altogether, and instead "beat[] the text" as he so pleased -- much to the delight of Nietzsche and his loyal strong textualists -- in his attempt at developing the young United States.

"�Certainty generally is illusion�"

While this comment would be lost in the work of Nietzsche or Rorty, it does most certainly highlight itself in the context of this discussion when coming from Marshall's colleague, Justice Oliver Wendell Holmes. As one who worked in the time in between Marshall and Levinson, Holmes' critique of historical and logical over-reliance lends credence to the theory of nihilistic interpretation. Justice Oliver Wendell Holmes, in an 1897 speech, said,

Holmes and the strong textualists would certainly argue over whether or not our "evolution" makes us more or less qualified to interpret laws -- even in and for the present day. It is clear, however, that at the turn of the century Nietzsche was not the only great mind questioning the value and permanence of our decisions. While Nietzsche found his answer in nihilism and Holmes his with enlightened skepticism, both found fault in absolutist theories of legal interpretation. No judge is truly "Nietzschean" without such a finding. For that reason, I believe that Holmes, more so than Marshall, represents "�the greatest Nietzschean judge of our tradition."