In a characteristically insightful essay, Vincent Clarke connects the textualism of Justice Neil Gorsuch’s majority opinion in Bostock v. Clayton County with the postmodern project of deconstruction, typified by the philosopher Jacques Derrida. Clarke observes that Derrida’s development of deconstruction was an attempt to make more effective Martin Heidegger’s attempt to demolish Western metaphysics. For Heidegger, metaphysics had to be destroyed to make room for a new approach to the experiences that became being. Derrida proposed a more effective mechanism for the same process. It is concerning, of course, from a theological and philosophical perspective to see postmodernism take hold in the Supreme Court. But there are other reasons for concern. Carl Schmitt’s 1959 lecture, The Tyranny of Values, argues that value philosophy runs to fill the void left by the destruction of metaphysics—with the gravest consequences for the state.
Clarke observes that Justice Gorsuch’s textualism in Bostock holds the same presuppositions as Derrida’s deconstruction. For Gorsuch no less than Derrida, there is nothing outside the text. Derrida used this mechanism to demolish the idea that there was an objective reality that could resist deconstruction. Gorsuch uses this mechanism likewise to establish the supremacy of his interpretation of the law. In Bostock, Gorsuch imposes his interpretation of the law over metaphysical and biological realities. Gorsuch writes: “When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.”
In other words, for Gorsuch no less than Derrida, there is nothing outside the text. The upshot for both is that postmodern methods dissolve metaphysics in favor of something else. It is precisely this dissolution of the metaphysical that has the most serious consequences for the state. In 1959, Carl Schmitt gave a lecture in Ebrach in Upper Franconia called The Tyranny of Values: Reflections of a Jurist on Value Philosophy. This lecture was printed privately in 1960 and again in 1967, with a lengthy introduction, for a festschrift for Ernst Forsthoff’s 65th birthday. (It was printed once more during Schmitt’s lifetime, in 1979.) In The Tyranny of Values, Schmitt identifies value philosophy as “a positivistic ersatz for the metaphysical.” That is to say, the destruction of the metaphysical calls for some other way of asserting the freedom and responsibility of humans—value philosophy.
Schmitt contends that the subjectivity required by value philosophy or value ethics leads to serious conflict. Indeed, Schmitt compellingly argues that values lead inexorably to a war of all against all, conducted with fanatical commitment and armed with new, terrifying weapons. Textualism provides an opening for postmodernism, with its unceasing struggle against metaphysical truth—more often than not successful. Textualists’ attempt to find neutral bases for decision—e.g., original public meaning—in fact unleashes a war of subjectivity. Any attempt, therefore, to ground some sort of truce within the state in textualism (or originalism, for that matter) is doomed to failure. Clarke argues that, in order to combat the destruction of meaning entailed by postmodernism, a return to metaphysics is necessary. Schmitt shows that such a return is necessary to save the state from the total war of subjectivity.
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Schmitt begins The Tyranny of Values with the intriguing assertion that “[v]alue is not, rather it holds.” That is to say that value “is not real, but directed toward realization and longs for enforcement and implementation.” It is ultimately Schmitt’s point that, however neutral and tolerant value philosophy may seem, it “only stokes and intensifies the old, enduring battle of convictions and interests.” Indeed, for Schmitt, values turn “the murderous natural condition of the state philosophy of Thomas Hobbes” into a “veritable idyll[].” This is especially true given the development of scientific weapons and procedures of extermination, which are a source of anxiety for Schmitt throughout The Tyranny of Values.
Schmitt sees Martin Heidegger and, ultimately, Friedrich Nietzsche as the source of value philosophy. Schmitt observes that “[a] causal-legal and, therefore, value-free science threatened the freedom of the human and his religious-ethical-juristic responsibility.” Value philosophy responds by asserting the human as a holder of values; in this way, the human remains “a free, responsible essence.” For this reason, Schmitt accepts Heidegger’s assertion that value philosophy is “a positivistic ersatz for the metaphysical.”
In his 1967 introduction, Schmitt observes that philosophers, theologians, and jurists “promise themselves” from value philosophy their “salvation” precisely as philosophers, theologians, and jurists “from an irresistibly advancing natural scientificity.” Yet the process of converting the foundations of philosophy, theology, and law into values only hastens a neutralizing process. Schmitt remarks, perhaps not without, we might say, a certain sarcasm, that even the opposition between science and the realm of the ideal has been neutralized. Value philosophy cannot, ultimately, escape the value-free science threatening human freedom and “religious-ethical-juristic responsibility.”
Who sets values? Necessarily it has to be the human being in pure subjectivity: values are how one saves the human as a “free, responsible essence.” Schmitt finds this in Max Weber, who identifies the opposition of the pure subjectivism of value philosophy to scientific positivism. But this comes at a cost. It is the pure subjectivity of values that leads to the endless war of all against all. Even if one attempts to find an objective ground for value—as Max Scheler and Nicolai Hartmann did—the unreality of values leads to the same outcome. This is Schmitt’s chilling insight: whatever their basis, values have to be made valid, which is to say that they must be imposed. “Virtues one exercises; norms one applies; commands are fulfilled; but values are set down and imposed. Whoever asserts their validity must make them valid.”
Schmitt dwells on the point of attack—Angriffspunkt—to reveal the “immanent aggressiveness” of value philosophy. Values must be imposed by humans against humans. To value is also to devalue and to oppose non-values. One may disguise this, Schmitt says, with the language of the “standpoint” and the “point of view,” but the language of the point of attack reveals what is happening. And it must happen. Borrowing from Hartmann, this is what Schmitt means by the tyranny of values. Once a person has accepted a value, that value forces him to participate in the war of all against all with a certain fanaticism. “In terms of value logic, it must always be valid: that for the highest value the highest price is not too high and must be paid.” In classical morality, a good end could not justify evil means. In value morality, values annihilate non-values and the negation of a non-value is itself a positive value.
To summarize. Values are purely subjective and must be made valid. This is necessarily, inevitably aggressive: valuing implies devaluing and non-values. And once one accepts a value, that value and the process of devaluations consumes that person. “[F]or the highest value the highest price is not too high and must be paid.” The non-value has no rights against the value. Schmitt suggests that when the highest values are implicated—and they must be implicated given their tyranny over those who hold them—the question is always only that of annihilation. Yet the realization of values against lesser values or non-values, the payment of a price that is never too high, is always their imposition against persons—holders of lesser values or non-values. This is the crux of the problem. For Schmitt, if values become immediate and self-enforcing, the consequence is terror.
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One already sees in concrete contexts the war of all against all entailed by values, by the tyranny of values. The course of the United States since March 2020 has been one long process of valuing, devaluing, and revaluing. The pandemic has constituted one field of points of attack. The nationwide unrest following the killing of George Floyd has constituted another. The two have intersected at times, to our great misfortune. The coming election and the anticipated fall of Donald Trump constitute a third. The evidence in support of Schmitt’s analysis is overwhelming and anxiety inducing.
One may therefore speak of the perversity of the textualist project. The liberal wing of the Supreme Court in the 1960s and 1970s—that is to say, the Warren Court—imposed, through what Clarke might call an existentialist hermeneutic, a concept of morality on the United States. Conservatives reacted with putatively neutral hermeneutics, originalism and textualism. In this way they hoped to avoid a substantive discussion of morality while achieving the result of imposing a traditional (i.e., 18th century) moral framework in opposition to the progressive Warren Court decisions. Clarke demonstrates that these putatively neutral hermeneutics in fact are part of the postmodern project.
When Justice Gorsuch engages in postmodern jurisprudence—“Only the written word is the law”—he unintentionally demolishes the metaphysical foundations of law. Value philosophy rushes in to fill the void where metaphysics used to be. The consequences are clear: the pure subjectivity of values leads to an unceasing process of valuing, devaluing, and revaluing, to say nothing about the attack on lesser values and non-values. When metaphysics is swept away, the war of all against all follows. There is no grand bargain within the state that can be struck by means of textualism. The necessary consequences of postmodern textualism prevent such a bargain from being struck: no price is too high to pay for the highest values.
Schmitt concludes The Tyranny of Values by discussing the serious challenge of mediating the realization of values and preventing the terror that the immediate realization of values brings. It is far from clear judges—despite their competence in many dimensions—are entirely up to the stern task of preventing values from running their course to terror. Certainly textualism and originalism, having unleashed the terror, are inadequate to contain it.
Pat Smith