SANFORD LEVINSON
249
with references not only to Gadamer, Nietzsche, and Heidegger, but
also to classical theories of Talmudic interpretation .
In short, American legal thought, like many other contempor–
ary disciplines, is now engaged in a renewed appreciation of the cen–
trality of hermeneutic concerns: "[T]he interpretive turn," as Clif–
ford Geertz has recently described it, has as "its most visible outcome
. .. a revised style of discourse" in legal studies. This turn does not,
to be sure, represent something fundamentally new. On the con–
trary , the interest in hermeneutics signifies a return to some of the
oldest concerns of legal theorists . Its re-emergence at this time,
though , is nonetheless a significant development within the legal
academy .
Law certainly is not unique as an enterprise that revolves
around the meaning of social norms derived from texts. Yet, the im–
pact on people's lives of an interpretation (especially by judges) of
patches of legal texts is especially great. The consequence of a par–
ticular decision may concern an inheritance, an abortion in a public
hospital, or the busing of one's child across town. The ever–
increasing role of the judiciary, seen by some as an "imperial" role,
has made the legitimacy of judicial "activism" a central political
issue. Losers in legal disputes are always ready (and morally enti–
tled) to ask for justifications; they are also often quite ready to
believe that the reasons for these applications are but impositions of
alien political values held by undisciplined judges. What is at stake is
how we interpret the activity of the judges, and this in turn puts into
question the relationship of the judges to the texts they are inter–
preting .
The received doctrine goes back to John Marshall. "The
powers of the legislature are defined, and limited," he wrote, "and
that those limits may not be mistaken, or forgotten, the constitution
is written ." Central to Marshall's rhetoric is the notion that it is not
he,
but the Constitution itself, which demands the result. 'Judicial
power, as contradistinguished from the power of the laws, has no ex–
istence. Courts are the mere instruments of the law , and can will
nothing," Marshall wrote . The Court is the mere "messenger" of a
Constitution whose commands are transparent.
The degree of emphasis on a textual constitution - and the con–
comitant status of a court as being only its messenger- is no small
matter. Those who have emphasized "the liberal tradition in Amer–
ica," such as Louis Hartz , have focused on so-called "Lockean liber-
