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point of constitutional adjudication ; it threatens our social existence
and the nature of public life as we know it in America ; and it de–
means our lives."
"Text" to Fiss is a complex term indeed, for he takes great pains
to distinguish his position from that "arid and artificial interpreta–
tion" which he labels "textual determinism." He links that latter con–
ception with the form of legal positivism that emphasizes the "writ–
ten constitution" and stresses factors like the use of particular words
or the intent or beliefs of the framers, all of which have little or no
moral relevance. " Part of the reason for Fiss's caveat is his awareness
of modern hermeneutical criticisms of such positivism . But Fiss also
argues that, even if one granted the theoretical coherence of posi–
tivism , the problem remains that "[a] too rigid insistence on posi–
tivism will inevitably bring into question the ultimate moral author–
ity of the legal text-the justness of the Constitution." Thus he
concedes that an all-too-cognizable Constitution might well be read
to have protected slavery, and this fact alone would justify raising
the question as to why the Constitution - and beyond that , any legal
system - is worthy of respect and obedience. Indeed, the mere pres–
ence of such a question indicates "[ a] moment of crisis in the life of a
constitution ."
For Fiss, however, a resolution to any such crisis is available.
Judges must be willing "[ t]o read the moral as well as the legal text.
The judge quickly learns to read in a way that avoids crises ." Indeed,
Fiss accords the judiciary a "[ s]pecial competence to interpret a text
such as the Constitution, and to render specific and concrete the
public morality embodied in that text." The judiciary is not given a
blank check; there need be no fear of the judge's becoming a Nietz–
schean master. Instead, the judicial interpreter "is disciplined by a
set of rules that specify the relevance and weight to be assigned to the
material (e .g. , words , history , intention, consequence) , as well as by
those that define basic concepts and that establish the procedural
circumstances under which the interpretation must occur."
Fiss, of course, is fully aware that legal adepts argue vigorously
among themselves over meanings of the Constitution and of all other
textual materials; he does not seriously suggest that lawyers or
judges are significantly more likely to agree with one another than
are professors of literature debating the meaning of
Hamlet.
He
argues, however, that lawyers are different from literary critics by
I
