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

by Bradley C.S. Watson

In Living Constitution, Dying Faith , political scientist and legal historian Bradley Watson examines how the contemporary embrace of the “living” Constitution has arisen from the radical transformation of American political thought. This transformation, brought about in the late nineteenth century by the philosophies of social Darwinism and pragmatism, explains how and why contemporary jurisprudence is so alien to the constitutionalism of the American Founders. To understand why today’s courts rule the way they do, one must start with the ideas exposed by and explained in Watson’s timely tome.

Today’s view—rooted in progressivism—is not simply that we have an interpretable Constitution, but that we have a Constitution which must be interpreted in light of “historically situated,” continually evolving notions of the individual, the state, and society. This modern historical approach has been embraced by the judicial appointees of both Democratic and Republican presidents, by both liberals and conservatives, for a century or more. Living Constitution, Dying Faith shows how such an approach has directly undermined Americans’ faith in a limited Constitution—as well as their faith in the eternal verities.

Genres: Politics, History, Nonfiction

250 pages, Hardcover

First published January 1, 2009

Reviews

[Dave Franklin · Rating 4 out of 5]

Progressivism first made its debut on the American political scene in the late 19th century. A malleable term it lacks precise definition. Historians have depicted Progressivism as an era, a movement, an economic outlook, a theory of governance, and a philosophy of life. Bradley C.S. Watson’s “Living Constitution, Dying Faith: Progressivism and the New Science of Jurisprudence,” succinctly examines these disparate strands, and persuasively displays the deleterious impact Progressive thought has wrought on American jurisprudence.

Progressive thought is in itself intellectually inchoate. Following the demise of Transcendentalism and coinciding with post-Civil war industrialization, the movement borrowed heavily from Hegelian philosophy( what is real is right), Darwinism (both right and left), and Protestant eschatology. A heady brew that defies easy categorization.

Above all else Progressivism is an historicist doctrine. Textbooks generally represent Progressivism as a force for justice in a besotted world. In this cosmic play, public- minded reformers sought to restrain rapacious, reactionary, business moguls. With respect to the American constitutional order, historians tend to follow Charles Beard’s argument that the Founders produced a document designed, in the main, to protect their own economic interests. Thus, in this view, the Founding was tainted from the beginning and is historically obsolete. To them, human nature is a social construct, natural rights are a fiction, and limited government, along with the separation of powers, is hopelessly feckless.

Watson argues that jurisprudence today has become hostage to historicist thought, seasoned with a sprinkling of moral relativism. Watson’s work splices together the main intellectual currents of the late 19th-century and early 20th-century, and argues that the case method pedagogy in law schools contributed to the current situation. Formerly judges looked to the past and relied on text and principle, the Progressive jurist became future -oriented, often making a decision, and then seeking a rationale.

Watson devotes considerable attention to three titans—Oliver Wendell Holmes, Jr., Louis Brandeis, and Benjamin Cardozo—whose opinions fostered the ‘living Constitution.’ Watson is fair in his appraisal of their thought, but does not belabor the reader with long excerpts from their opinions. Watson shines sunlight on the Progressive judge’s game: legal principles are malleable and there is no invariant truth. Government is best left to experts who understand the direction of History.

Watson quotes Christopher Wolfe, who comments on Benjamin Cardozo’s view of judge as legislator:

Such an understanding of judicial power marks a radical change in the role of the judge in American political thought. A traditional understanding of judicial power would raise serious questions about the very possibility of such “judicial objectivity” in legislation, since the framers’ understanding of human nature recognized that power, while necessary, was always likely to be abused… Certainly the framers would have provided other institutional mechanisms to counteract the “ambition” of judges, if they had conceived of judicial power as essentially legislative in nature, however “interstitial” it might be.

“Living Constitution, Dying Faith” is an important study of modern jurisprudence. Unfortunately, it will largely be ignored by the legal profession. That said, Watson has given Americans who care about self-government a tremendous gift.

[Jordan · Rating 3 out of 5]

This is a good read on an interesting and very important subject matter (the rise of Progressive jurisprudence, its consequences and what the future holds) but the writing is at times disjointed and fragmented. Perhaps it is simply because the subject matter is too much to adequately address in 200 pages, but I will hesitate to assign this book in the future.