The Five Days in June When Values Died in American Law
66 Pages Posted: 21 Feb 2018
Date Written: November 1, 2015
There was a particular five day period when one could see that values had died in American law. Those five days were June 24 to June 29, 1992. During those five days, the United States Supreme Court decided Lee v. Weisman and Planned Parenthood v. Casey. Every Justice on the Court joined either Justice Anthony Kennedy’s majority opinion in Lee or Justice Antonin Scalia’s dissent in Casey. In these two opinions, all of the Justices ultimately agreed that normative judgments are just human constructions. Future Justices of the Supreme Court thereafter abdicated authority to set objective standards over a wide range of issues, ultimately resulting in a regime of constitutional law dominated by what I call here the death of values in American Law.
Isn’t this surprising? Avant garde law professors and postmodern thinkers may make arguments about the non-foundational nature of reality. But do we expect Supreme Court Justices to talk this way?
Consider the statement by the late Richard Rorty that “non-theists make better citizens of democratic societies than theists” because nontheists believe “that agreement among human beings is the source of all norms.” Are we then to consider all nine Justices on the United States Supreme Court to be functional atheists as of June 1992? If so, have we law professors told this to our students? Have we acknowledged, in the classroom, the arrival of nihilism?
Keywords: Law, Morality, Nihilism, Relativism, Objectivity, Constitution
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