Living Constitution, Dying Faith: Progressivism and the New Science of Jurisprudence

By Bradley C. S. Watson

A “living” constitution. Runaway courts. Legislating from the bench.
 
These phrases come up a lot in the national political debate. They raise the ire of many Americans.
 
But where did the ideas come from? Why do courts play a role so alien to the one the American Founders outlined? And how did unelected judges gain so much power in our democratic republic?
 
Political scientist and legal philosopher Bradley C. S. Watson provides the answers in this important book.
 
To understand why courts today rule the way they do, Watson shows, you must go back more than a century. You’ll find the philosophical and historical roots of judicial activism in the late nineteenth century. Watson traces a line from social Darwinism and pragmatism, through the rise of Progressivism, to our situation today.
 
Living Constitution, Dying Faith reveals a radical transformation of American political thought.
 
This ebook features a new introduction examining the latest developments—which only highlight the prescience of Watson’s arguments.

• Language: English
• Publisher: Open Road Integrated Media
• Release date: Nov 17, 2020
• ISBN: 9781504066396

Bradley C. S. Watson

Bradley C. S. Watson teaches at the Van Andel Graduate School of Government at Hillsdale College in Washington, D.C.. He is the author and editor of numerous books, including Living Constitution, Dying Faith: Progressivism and the New Science of Jurisprudence and Progressive Challenges to the American Constitution: A New Republic.

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Living Constitution, Dying Faith

Progressivism and the New Science of Jurisprudence

Bradley C. S. Watson

I dedicate this book to the memory of my parents,

Charles W. and Nelsie Watson—

the all resistless hurricane has swept over them

Contents

Acknowledgments

Introduction to the Paperback Edition

Chapter 1

The Organic Constitution

Chapter 2

The Constitution of the Fathers

Chapter 3

The Social Darwinist Moment

Chapter 4

Progressive Political Leadership

Chapter 5

The New Science of Jurisprudence

Chapter 6

Academic Progressivism

Chapter 7

The Future Is Now

Notes

Index

Let us have faith that right makes might, and in that faith, let us, to the end, dare to do our duty as we understand it.

—Abraham Lincoln

Ever in the making, as law develops through the centuries, is this new faith which silently and steadily effaces our mistakes. . . . [W]­e worry ourselves overmuch about the enduring consequences of our errors. . . . The future takes care of such things.

—Benjamin N. Cardozo

Acknowledgments

I am exceedingly grateful to ISI Books, and especially its editor, Jed Donahue. He has been a pleasure to work with—from initial publication through the many years this book has been in print. At Jed’s prompting, the book is now going to a paperback edition. I hope this will help bring it to the attention of a new generation of readers.

No book springs fully formed from the mind of its author alone, and this one is certainly no exception. I owe many debts of gratitude to those who helped me think through my topic and then commit my thoughts to paper. I wrote most of the book during a sabbatical year at Princeton, where I was a visiting fellow in the James Madison Program in American Ideals and Institutions at Princeton University. The program provides Princeton—and the ­nation—with a unique center for the study of American political institutions and principles and their relationship to the great moral, cultural, and philosophic problems of our times and all times. To speak of the program is necessarily to speak also of its founder and director, Professor Robert P. George. His boundless ­energy—and dedication to promoting the moral and ­intellectual virtues to the glory of God—ought to be an inspiration to the entire academic world.

I am also grateful to Bradford P. Wilson, the Madison Program’s executive director, who has worked tirelessly on behalf of the interests of the visiting fellows, and who commented on various parts of this book in the manuscript ­stages. While at Princeton, I benefited enormously from the regular intellectual stimulation and generous advice offered by the other visiting fellows of the Madison Program. And I must say, too, that I benefited from the occasional gauntlets laid down by them: Alan Gibson, Matthew Holland, Carson Holloway, Catherine McCauliff, and Paul Moreno—all of whom I now call friends. When I presented a part of the present work as a public paper at Princeton, I was fortunate enough to have in the audience Walter F. Murphy, whose penetrating questions led me to clarify my arguments on the nature of the American founding, and in particular Lincoln’s interpretation of it.

Less proximately, but no less importantly, I am thankful for the extraordinary environment of the political philosophy program at the Claremont Graduate University, where I finished my doctorate. It was there that I came to see progressivism’s enduring importance for American politics. I owe special thanks to Charles R. Kesler, who introduced me to the thought of so many of the progressives with whom I deal in this volume.

Though I’m formally identified as a political scientist, I don’t especially embrace this identification, at least in its current significations. I consider myself rather a teacher, and student, of the Great Books of Western civilization and the great political writings of the American tradition. The fact that this aspiration has remained largely a reality is due very much to my home institution, Saint Vincent College. Gary M. Quinlivan, the dean of the academic division of Saint Vincent in which I reside—the Alex G. McKenna School of Business, Economics, and Government—faces the daunting task of harmonizing the theoretical and the practical, and strives mightily not to stint the former for the sake of the latter. At Saint Vincent, where I’ve long been supported and protected against many of the most fashionable and pernicious trends in contemporary higher education, I’ve been relatively free to be a guide for my students—as best I can be—to the complex and fascinating relationship between ideas and action. I have been free also to dwell on the eternal questions of politics and human life—right and wrong, justice and injustice, good and evil. The extent to which I can successfully do these things is subject mostly to my own—not institutional—­limitations.

There were people I should have acknowledged in the first edition of this book but didn’t. I’ve always regretted that, and I’m very happy to correct the oversight here. They are the many students in my American Political Thought class, which I’ve now taught for more than two decades at Saint Vincent. The class surveys the intellectual origins of progressivism, the ideas and institutions against which it rebelled, and the political and jurisprudential consequences of that rebellion. It was that class, more than anything else, that gave birth to this book. For years, as I taught and refined what I was teaching—with countless inputs from students (some were silent, but nevertheless spoke very clearly!)—I recall thinking: There’s an important book in all of this. Somebody needs to write it. Then I realized who that somebody was.

Unfortunately, I always find writing to be a painful struggle. As usual, my family—Barbara, Victoria, Charles, and James—bore the brunt of my absences as I struggled to complete this volume. I am grateful to them.

It should go without saying—but I will say it anyway—that errors and oversights in this work are faults of mine, and not of those who have instructed, advised, or inspired me.

Introduction to the

Paperback Edition

Changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations. . . . The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions. . . . The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest."

Thus did Justice Anthony Kennedy invoke the living ­Constitution—which amounts to no Constitution at all—in his majority opinion in Obergefell v. Hodges (2015). He based his extension of the right to marry on a grab bag of judicial considerations, including individual autonomy, the importance of a two-person union (though he did not say why a union should be so limited), the purported safeguards for children and families, and marriage’s being a keystone of our social order.

Many arguments might be made, and have been made, for the desirability of same-sex marriage from a moral or policy perspective. But to win the day, such arguments must convince fellow citizens—i.e., other rational, moral beings. Why go to such trouble when one can go to court instead? ­Moral-political ­argumentation, resulting ultimately in lawmaking, seems to matter less and less to a Supreme Court so consumed by progressive hubris that it is willing, on the whims of a slim five-member majority, to redefine this keystone of our social order in a hitherto unimaginable way—and to do so entirely without the consent of the governed. Indeed, in light of what had been going on in many states prior to the edict in Obergefell, the decision can be described as contemptuous of such consent. We now live in a world wherein the Supreme Court routinely amends the Constitution while pretending merely to interpret it. As Justice Antonin Scalia said in his dissent, This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.

The Obergefell decision was penned six years after the first edition of this book went to press. In that edition, I predicted it would be only a matter of time before federal courts took up the charge to lead History in a thoroughly Orwellian direction on same-sex marriage: "Suffice it to say that we are given a clue by Justice Kennedy’s majority musings in Lawrence v. Texas (2003) on the ‘emerging recognition’ of new rights in sexual matters, derivative from a Constitution that ‘persons in every generation’ can invoke in their search for ‘greater freedom.’ "

My prediction was based on a philosophical-historical argument that I think has held up well. For this new edition, I have elected not to change the body of the book to show just how well—and to avoid taking advantage of hindsight, or gilding any lilies. But the attentive reader will undoubtedly think of many examples (for they are legion) of full-blown living constitutionalism that I have not addressed. They might include things such as a long line of Eighth Amendment cases. Justice Kennedy’s cruel and unusual reasoning in the more recent cases includes his penchant for relying on questionable interpretations of the latest data and fashionable pseudo-science to arrive at ever-evolving constitutional determinations.¹

One might even add Justice Neil Gorsuch’s majority opinion in Bostock v. Clayton County (2020), which makes a mockery of textualism (not to mention basic and ancient canons of statutory interpretation and English usage) insofar as it rejects the notion that a judge should interpret legal texts according to their ordinary meaning, or what they conveyed to reasonable people at the time they were written. Although the case involved a statutory rather than a constitutional question, Gorsuch’s pretextual textualism cries out for application in constitutional cases, where it can be used as a convenient mask for the next rounds of living constitutionalism—which are now limited only by our judges’ perfervid imaginations.

The problem with the Supreme Court—unlike the problem that is so easy to perceive with other branches and levels of government—is not that we are ruled by empty suits. Rather, it is that the suits are very much stuffed full of themselves and their radical governing philosophy, and are unafraid to let their will become law.² The real question is, How did we get to this point?³

Some might consider constitutional interpretation to be arid ground traversed solely by legal specialists, and even then, only at the risk of death by boredom. I hope this book will convince them otherwise. Constitutional interpretation is a vital window into the world of ideas and moral-political action. Most attentive citizens intuit this, at least now and then. The curtains covering this window are occasionally lifted during Senate confirmation hearings for Supreme Court justices. These hearings have, since the 1980s, become popular spectator sports, one part partisan politics, one part morality play. Still, a significant number of Americans seem baffled by what happens in them, uncertain as to the kinds of questions that the senators should ask and the kinds of answers that the nominees should offer.

In many ways, the judicial branch of government, and in particular the Supreme Court of the United States, has become the most politically controversial of all the branches. It has become the locus of attention for those concerned with what are often referred to as the culture wars. How and why this has come to be the case is a fascinating story.

It is a story that begins with the transformation of American political thought that commenced in the late nineteenth century and has continued apace throughout the twentieth and twenty-first. This transformation led, in a word, to progressivism, and it continues to inform contemporary notions of a living or organic Constitution. My aim is to elucidate the connection between American progressivism, as a philosophical movement and political ideology, and American legal theory and practice. This book shows how the philosophical currents that came to dominate American political thinking in the second half of the nineteenth century played out, and continue to play out, in the realm of jurisprudence.

While I touch on conventional arguments as to what contemporary jurisprudence isn’t—for example, the fact that it is not originalist or textualist—this is not really the heart of my argument. Rather, I seek to elucidate what contemporary jurisprudence is—that is, to explicate it on its own terms, and to show why and how such a jurisprudence is destined to destroy any and all claims of fixed moral or political truth. Contemporary historicist jurisprudence is hostile not only to the liberal constitutionalism of the American Founders but to any moral-political philosophy that allows for the possibility of a truth that is not time-bound. Therefore, while concentrating on American progressive thought, the book is also a meditation on political thought more generally, as well as an examination of legal history and the intellectual origins of modern constitutional ­interpretation.

In particular, I examine the confluence of two strains of historicist thinking—social Darwinism and pragmatism—and the metamorphosis of these twin doctrines into a powerful intellectual progressivism. These doctrines could and did mean different things to different people, and each spawned right and left versions. But together they decisively undermined the classical understanding of politics as that understanding had manifested itself in the new world through such organizing documents as the U.S. Constitution and such writings as The Federalist. Of course, an older confidence in progress, including a new science of politics, had deep roots in America, but these roots never grew into a doctrine, or a philosophy of history. They could not support the growth of intellectual progressivism, which first manifested itself a century after the founding and was exemplified by such political thinkers as John Dewey, W. E. B. DuBois, William James, Francis Lieber, William ­Graham Sumner, and Lester Frank Ward, and such political actors as Theodore Roosevelt and Woodrow Wilson. At its high-water mark, this progressivism argued openly for overturning the principled Madisonian constitutionalism of natural rights and limited and dispersed power in favor of an organic, evolutionary model of the Constitution and regime that, today, is most evident in constitutional jurisprudence.

Progressivism continues to exist largely as legal theory. Woodrow Wilson had argued, in various ways and with varying degrees of candor, against what he understood to be the anachronistic Madisonian constitutionalism that he saw as an obstacle in the path of historical unfolding. This degree of historical consciousness, and overt suspicion of traditional American political institutions, has been uncommon among political actors since then. It has not, however, been uncommon among Supreme Court justices. It is to the Court and its key decisions, particularly in the area of civil rights, that we must look to see most clearly progressivism’s continuing hold on American public life.

The American constitutional landscape has changed dramatically over the past century. The most obvious facets of change are as clear to those who embrace the new landscape as to those who have their doubts about it. They include the dramatic enlargement of national power at the expense of the states; courts of law that increasingly assert themselves as policy makers and implementers; judges who have become increasingly sensitive to the perceived historical exigencies of their time when interpreting the Constitution; and individual and group claims against the larger polity that gain increasing traction in the judicial system.

The early progressive justices, particularly Oliver Wendell Holmes, Louis Brandeis, and Benjamin Cardozo, show us the extent of the progressive era’s influence on our understanding of the Constitution and constitutionalism. Their progressivism caused them—and so many who followed in their footsteps—to fluctuate wildly and often randomly between two aspirations: to make decisions perceived to be legitimate in the eyes of the community (because they respond to the felt necessities of the age), and to make decisions that counter what they claimed to be illegitimate majority will. The difficulty is that neither aspiration is rooted in constitutional text, tradition, logic, or structure. Rather, each is rooted in the judge’s view of where we are in the ever-flowing river of History. It is our place in this river, rather than the metes and bounds of the formal Constitution, that determines which necessities are most deeply felt and which manifestations of majority will are illegitimate. This organic, historically conditioned view of constitutionalism has, over the past century, effectively triumphed, although it must still exist within a constitutional structure that is formally hostile to it.

In chapter 1, I sketch the meaning and implications of the living or organic Constitution, partly by showing its pervasiveness as a metaphor for contemporary constitutional interpretation. It is a metaphor that would have been profoundly alien to the Founders, whose understanding of law was structured around the idea of a knowable, unchanging moral order, to which human law and the Constitution—and therefore constitutional interpretation—were subservient. With Socrates in Plato’s Minos, the Founders would have agreed that law aims to be a discovery of what is. With Saint Thomas Aquinas, they would have agreed that all human law, to be law, cannot contradict the natural law that reflects the divine reason. The well-known cases to which I aver in this chapter engage major cultural controversies and seek to resolve them judicially in a way that would have been unimaginable to the Founders given their understandings of common-law constitutionalism—and indeed would be unimaginable in many a common-law courtroom outside the United States today. Many justices evidence their faith in a philosophy of History, with a capital H. They share a notion of historical unfolding—History as more than a mere record of events—and they conjoin this with an understanding of the judiciary’s role in History. That is to say, they see the Court as the governmental institution on the cutting edge of an inexorable process, one that guides and fine-tunes History. For today’s legal elites, constitutional interpretation lives—as does the Constitution itself—but the unchangeable and unshakable faith behind it is dead.

Reconsidering the Founders’ constitutionalism helps us to understand just how far we have come over the past two centuries. In chapter 2, I deal squarely with this constitutionalism and its authoritative latter-day interpretation by Abraham Lincoln. I highlight the tension between historicism and the Founders’ view of limited and dispersed powers serving the laws of nature and nature’s God. I also show the importance both the Founders and Lincoln placed on reverence for things past and on faith in the enduring principles of the regime. By laying this groundwork, I aim to show, in later chapters, the disjunction between the Founders’ understandings of constitutionalism and common-law reasoning, on one hand, and the progressive jurisprudence whose foundations were laid after the Civil War, on the other. The Founders’ understanding took the reasoning of common-law judges to be an accessory to political liberty, not the apotheosis of it. Unlike the new science of jurisprudence, the old science of jurisprudence largely limited itself to a careful application of existing law and attended to particular circumstances. Advocates of the new science of jurisprudence are therefore mistaken insofar as they argue that the contemporary evolutionary understanding of the Constitution reflects traditional, organic, common-law reasoning.

In chapter 3, I trace the intellectual origins of the historicism explicit in the new science of jurisprudence through the schools of thought and thinkers mentioned above, as well as others. I argue that our contemporary lack of belief or faith in a merely legalistic Constitution parallels the decline of faith in the laws of nature and nature’s God, which succumbed long ago, at least for legal elites, to the blows of Darwinism and pragmatism.

In chapter 4, I show how this historicism came to dominate political thinking by the early twentieth century. Two of the century’s most influential presidents—Theodore Roosevelt and Woodrow Wilson—laid the groundwork, through both the theory and practice of vigorous presidential leadership, for the institutionalization of progressive thought in all branches of government, especially the judiciary.

It is to the courtroom in particular that I turn in chapter 5. I show in detail the relationship of this dominant current of American political thought to constitutional jurisprudence. And I examine the jurisprudence of Brandeis, Holmes, and Cardozo in an inductive effort to sketch the legal theory implied by progressivism, including its links to sociological and realist jurisprudence. This new science of jurisprudence has profound implications for our own day.

In chapter 6, I show how the progressive tide swept through key academic disciplines, especially law and political science. From Francis Lieber—America’s first political scientist—to Woodrow Wilson—the first political scientist to become ­president—the new approach to regime phenomena and therefore constitutional jurisprudence illustrates the merger not only of disciplines but also of left and right under the banner of an organicism of historical process and progress. Of necessity, this organicism was marked by a declining faith in eternal verities. As it dominated the government, so it quickly came to dominate the university, which in turn helped to institutionalize the new way of thinking and solidify its hold on the minds of legal and political elites. As early progressivism came to define political science at its disciplinary birth (a fact to which Wilson alluded in his inaugural address on becoming president of Princeton University), so it also found a home—and ultimately a more enduring one—in American law schools.

In the final chapter, I return to the most compelling contemporary manifestations of the new science of jurisprudence, including the postmodern right to a noun that is indicated by same-sex marriage decisions. I thereby conclude with reflections on the importance of political ideas to the current and future state of our jurisprudence and, in turn, the importance of jurisprudence to furthering particular moral-political understandings of the nature of things. The new science of jurisprudence attempts to perpetuate itself because of its own premises. Progressivism emphasizes motion and growth, to which the only alternative is stasis and death. Therefore, court decisions will continue to be understood as the engines of History and social growth, just as incremental genetic mutations are the engines of organic growth.

The argument of this book stands on its own. Nevertheless, I conceive of the volume as a companion to my earlier book, Civil Rights and the Paradox of Liberal Democracy (1999). In that book I examined the unfolding of human consciousness with respect to fundamental moral-political categories relevant to