It takes a book like Living Constitution, Dying Faith: Progressivism and the New Science of Jurisprudence by Bradley C. S. Watson, to put the current progressive mindset into perspective. The seemingly endless debate in the courts regarding judicial interpretation often breaks up into two general camps, arguing either for judicial restraint or judicial activism. In Watson’s new book, he traces the roots of judicial activism as part of the liberal progressive movement, and discusses the foundational misunderstandings and flaws of progressive jurisprudence.
Watson’s core argument is that sociological jurisprudence is taking the place of constitutional reasoning. In other words, judges now see it as their role to guide society through social change rather than simply to interpret the Constitution when disputes arise. The courts have become agents of social change, and in turn, the champions of the progressive movement.
This development in the judiciary is problematic because it runs counter to the Constitution—the very document that judges are assumed to know best. Watson writes that progressivism in the judiciary has had trouble gaining complete legitimacy in American eyes for the precise reason that it is “something deeply and ineradicably hostile to the American Constitution.”
The judges that effectively gave birth to the progressive movement in the courts, familiar names like Oliver Wendell Holmes, Louis Brandeis and Benjamin Cardozo, deeply changed the way policy is debated and social movements are regarded. With a deep feeling of their own importance, these judges, and the many who followed similar approaches, were pulled in two directions by their commitment to progressivism. On one hand, they sought to make decisions that the community would perceive as legitimate, because they felt that they were society’s agents of social change and had a responsibility to respond to society’s necessities as expressed by other progressives. On the other hand, they tried to make decisions to counter “illegitimate” majority rule.
“The difficulty,” writes Watson, “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.”
Watson discourages a view of society that considers only the here and the now. While judges traditionally made decisions based on history, relying on cherished truths and legal precedent, progressives seek to make decisions based on History—an understanding that truth changes with time and circumstance, that the current movement of society is inevitably the right one, and that judges are there simply to help that progress take place.
Americans are great believers in change. The American Revolution brought about deep changes that created the Constitution and allowed the Founders to express ideals in the Declaration of Independence and Preamble to the Constitution that have given the United States an ideological foundation. Watson argues that society, through the help of activist judges, has gone too far. We have become obsessed with the idea of a society perfecting itself. In turn we have begun to reject traditional truths under the mistaken understanding that “progress” is upon us every time a social movement gains popularity. Judges, who think their role is to shepherd society through these times of change, are sometimes willing to reject even the majority’s “illegitimate” opinion in order to be ahead of the times, and move American civil and legal life toward a more perfect form.
A key problem with this approach is that progressivism assumes that humans naturally seek what is best for society through seeking recognition for their own desires, and therefore that every impulse of the masses is in the best interest of the country. This is an ideology that has no room for restraint and self control, but gives precedent to the whims and passions of the time. However, the whims and passions change with each generation. If progressive judges continue to shape American society to conform to every popular movement, with both eyes on History and none on the Constitution, we will, as a country, grow further and further detached from the founding principles that we once cherished.
Under such an approach to legal interpretation, “art trumps economics, expression trumps the common good, subjectivity trumps morality, freedom trumps natural law, and will trumps deliberation.”
Progressive jurisprudence, which encompasses many of the theories expounded by social Darwinists, applies Darwin’s theory to American civil life to ill effect. The theory works in nature because generally the well-known maxim works itself out to be true, and “only the strongest survive.”
This is untrue of jurisprudence, however. If it were, it would suggest that change, also called “progress,” is always a good thing, which it most certainly is not. One can imagine thousands of changes to American life that would be detrimental. However, with the current thought process of many judges it would not matter which of these detrimental causes gained popular support, it would matter only that it had popular support. Unlike in nature, the causes that survive are handpicked by legal arbiters who think that they understand the current time, place, circumstance and movement of History.
For progressive judges, as Watson writes, “Whatever prevails is right, and therefore all political developments are good until they are no longer in ascendancy, and every regime is worthy until it is overthrown or crumbles.” Those who love the country that they live in and admire its foundation may find this hard to swallow.
The next eight years will likely see a reinvigoration of debates regarding social issues that progressive judges have championed in the past—abortion and gay marriage to name only two. In Living Constitution, Dying Faith, Watson exposes the cracks and faults in the reasoning that gave rise to progressivism in jurisprudence. At this point in history, as in times past, judges will decide whether to rely on principles as timeless as our country—judicial restraint, the separation of powers and the role of federal judges—or to offer the nation’s spirit into the hands of an angry, illegitimate minority.