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Progressivism and Law

Progressivism and the New Science of Jurisprudence

Published on February 24, 2009 by Bradley Watson

Morethan any other branch of government, the judicial branch has adopted ahistoricist view of the Constitution and constitutionalism. This historicistview is not simply that we have, of necessity, an interpretable Constitution.It goes further and posits that the Constitution must be interpreted in lightof a Progressive understanding of society in which the historicallysituated, contingent nature of the state, the individual, society, andconstitutionalism itself determines the meaning of our fundamental law.

Thisunderstanding is in a considerable amount of tension with the earlier Americanconstitutionalism of limited and dispersed powers serving the "Laws ofNature and of Nature's God." As Herman Belz has noted:

Theconception of the constitution as a formal legal instrument or code givingexistence to government and prescribing and limiting the exercise of itspowers, rather than as the basic structure of the polity, not consciouslyconstructed but growing organically through history, was one of the distinctiveachievements of the American Revolution, and oriented constitutionaldescription and analysis in the early republic toward a legalistic approach.[1]

Themodern historicist, as opposed to legalistic, approach to the Constitution hasbeen embraced by judicial appointees of different Presidents from differentdecades, Democrat and Republican, "liberal" and"conservative." A major transformation in American political thoughtwas necessary to bring such a diverse cast of characters to the same organicview of the Constitution.

Thistransformation is little understood. Legal historians have preferred toconcentrate on legal education or legal theory narrowly construed rather thanon the philosophical ideas that animate thought and action.[2] Political theorists for the most parthave not filled the gap. We can only begin to assess the newconstitutionalism-as well as the new science of jurisprudence that is itshandmaiden-by tracing its philosophical origins.[3]

In1863, Abraham Lincoln declared that America "was conceived in liberty, anddedicated to the proposition that all men are created equal." In Lincolnwe can see the culmination of the older understanding of the Americanconstitutional order and the political principles it enshrined. OurConstitution and its principles were, in Lincoln's view, handed down by theFounding Fathers, who bequeathed them to later generations to preserve. Fromrelatively early in his adult life through the coming and prosecution of theCivil War, Lincoln exemplified the belief in formal constitutionalismoverlaid with the complementary belief in the necessity of active statesmanshipfor preserving it.

Lincoln'srhetoric and actions are testaments to the propositions that there are suchthings as natural rights that do not change with time; that the AmericanConstitution is dedicated to preserving them; and that the role of greatpolitical actors, while responding to urgent necessities, is to look backwardrather than forward. For Lincoln, the state is more formal than organic;history is not destined to unfold in a democratic direction; and democracyitself, because of its indissoluble link with the passions rather than reason,is always combustible. Moral and political regress is as likely-perhaps morelikely-than progress. Furthermore, there are certain fixed principles beyondwhich progress is impossible. Sharing with Plato and Aristotle the belief thatnegative regime change is an ever-present possibility, Lincoln wasprofoundly wary of the very notion of progress; evolution and growth were notpart of his political vocabulary.

Americanpolitical thought subsequent to Lincoln for the most part has underminedLincoln's (and the Founders') conception of American constitutionalism and thephilosophical proposition on which it rests. This transformation in politicalthought, commencing after Reconstruction and running through the Progressiveera of the early 20th century, undergirds many forms of political action inAmerica.

Thisessay will discuss the Progressive transformation of jurisprudence, but it willbegin by explaining the Progressive philosophy as a coalescing of socialDarwinism and pragmatism into a powerful intellectual movement that decisivelyinforms institutional attitudes and behaviors-particularly, starting in theearly 20th century, those of the judicial branch. Only by understandingthis coalescence of social Darwinism and pragmatism can we identify the sourceof the novel legal ideas of Progressive jurists in the 20th century and today.

TheSocial Darwinist Moment

In theAmerica of the late 19th century, the old understanding of the nature andpermanent limits of politics was dead or dying. The death of the old view ofpolitics was necessarily linked to a reevaluation and redefinition of theAmerican Founders' political ideas. The death was hastened, and arguablycaused, by the arrival on the intellectual scene of the various doctrines andphilosophic assumptions commonly associated with the phrase "socialDarwinism." As Richard Hofstadter has observed, "In some respects theUnited States during the last three decades of the nineteenth and at thebeginning of the twentieth century was the social Darwiniancountry."[4]

TheBasic Tenets of Social Darwinism

On thefoundation laid by the social Darwinists and those in allied philosophicalmovements, many of the most influential American political thinkers andactors-particularly judicial actors-came, in the 20th century, to share sixcore, overlapping ideas regarding the nature of politics and constitutionalgovernment:

  • First, that there are no fixed or eternal principles that govern, or ought to govern, the politics of a decent regime. Old political categories are just that, and Lincoln's understanding of the Founders' Constitution, to the extent it is worthy of any consideration at all, is a quaint anachronism.
  • Second, that the state and its component parts are organic, each involved in a struggle for never-ending growth. Contrary to the Platonic ideal of stasis, and contrary as well to the Aristotelian notion of natural movement toward particular ends, the Progressive organic view of politics suggests that movement itself is the key to survival and the political "good."
  • Third, that democratic openness and experimentalism, especially in the realm of expression, are necessary to ensure vigorous growth; they are the fertilizer of the organic state. There are no limits to our experimenting with our institutions and laws. Such experimentalism implies a particular sort of consequentialism or utilitarianism when judging institutions and laws: If no experiments are off-limits, the only way to distinguish good policy from bad is pure consequentialism.
  • Fourth, that the state and its component parts exist only in history, which is understood as an inevitable process rather than as a mere chronicling of events.
  • Fifth, that some individuals stand outside of this process and must, like captains of a great ship, periodically adjust the position of this ship in the river of history to ensure that it continues to move forward rather than run aground and stagnate. Politics demands an elite class, possessed of intelligence as a method, or reason directed to instrumental matters rather than fixed truth. This elite class springs into action to clear obstacles in the path of historical progress in the form of outdated institutions, laws, and ideas.
  • Sixth-and a direct corollary to the strong historicism reflected in the fourth idea, that the moral-political truth or rightness of action is always relative to one's moment in history, or the exact place of the ship in the river of time.

TheInfluence of Darwin on Political Philosophy

Accordingto the social Darwinists and those who would follow in their footsteps, a newsocial science was being formed from Darwinian principles, the organic,genetic, and experimental logic of which could be brought to bear on an arrayof human problems heretofore considered unsolvable, or at least permanent.Darwin came to be understood as a political philosopher and political scientistrejecting old modes and orders.

No onemore clearly explicates the nature of this new science than John Dewey-oneof the most prominent Progressive philosophers-in an important essay entitled"The Influence of Darwinism onPhilosophy."[5] By the time he wrote it in 1909,Dewey was effectively summarizing the intellectual tenor of his times. He wasgiving an account of the origins of an already dominant pattern of Americansocial and political thought.[6]

AsDewey explains, the publication of Darwin's Origin of Species marked arevolution not only in the natural sciences, but also in the human sciences,which can continue in their old form only because of habit and prejudice. Tospeak of an "origin" of species is itself a revolution in thought,implying that the organic sciences as well as the inorganic can concentrate onchange rather than stasis.

InDewey's words, "The influence of Darwin upon philosophy resides in hishaving conquered the phenomena of life for the principle of transition, andthereby freed the new logic for application to mind and morals and life."[7] Darwin, more than anyone else, allowsus to move from old questions that have lost their vital appeal to ourperceived interests and needs. We do not solve old questions, according toDewey:

[W]eget over them. Old questions are solved by disappearing, evaporating, while newquestions corresponding to the changed attitude of endeavor and preference taketheir place. Doubtless the greatest dissolvent in contemporary thought of oldquestions, the greatest precipitant of new methods, new intentions, newproblems, is the one effected by the scientific revolution that found itsclimax in the "Origin of Species."[8]

Dewey'sDarwin rejects "the sacred ark of permanency" that had governed ourunderstanding of human beings. Darwin challenges the most sacred belief in the Westerntradition, one that had been handed down from the Greeks: the belief in the"superiority of the fixed and final," including "the forms thathad been regarded as types of fixity and perfection."[9] The Greeks expounded upon thecharacteristic traits of creatures, attaching the word species to them.As they manifested themselves in a completed form or final cause, these specieswere seen to possess uniform structure and function and to do so repeatedly, tothe point where they were viewed as unchanging in their essential being. Allchanges were therefore held "within the metes and bounds of fixedtruth."[10] Nature as a whole came to be viewedas "a progressive realization of purpose."[11] The Greeks, then, propounded ethicalsystems based on purposiveness.

Butnow, according to Darwin, "genetic" and "experimental"processes and methods can guide our inquiries into the human things. In fact, on Darwinian terms,change is the essence of the good, which is identified with organic adaptation,survival, and growth. With experimental social arrangements, change in uselessdirections can quickly be converted into change in useful directions. The goalof philosophy is no longer to search after absolute origins or ends, but tosearch after the processes that generate the right kind of change.[12] What materially isbecomes more important than what ought to be, because only the formercan be observed by the new empirical science.

Inthe absence of fixity, morals, politics, and religion are subject to radicalrenegotiation and transformation. Essences are no longer the highest object of inquiry, orindeed any object of inquiry. Rather, science concentrates on particularchanges and their relationship to particular useful purposes, which depend on"intelligent administration of existent conditions."[13] Philosophy is reduced from the"wholesale" to the retail level, from the realm of general ideas tothe realm of particular effects.[14] Through the emphasis onadministration of concrete conditions, Dewey claims, responsibility isintroduced to philosophy. Instead of concentrating on metaphysics, or evenpolitics in the full Aristotelian sense, we are in effect freed to concentrateon policy-or, in Dewey's language, "the things that specificallyconcern us."[15]

TheReduction of Political Philosophy to Modern Scientific Method

Darwinbroke down the last barriers between scientific method and reconstruction inphilosophy and the human sciences generally because of his attack on the viewthat human nature is different from the physical sciences and thereforerequires a different approach. Briefly put, the Progressive view is that thephysical and moral (or "social") sciences are indistinguishable. Thisis contrary to Aristotle's understanding that different methods of inquiry arerequired for different kinds of beings: There is no single scientific orphilosophic mode of inquiry that applies across the board. Philosophy andscience-the human striving after wisdom or knowledge-seeks an understanding ofthe highest things through an examination of all things accordingto methods appropriate to each.

One wayto understand Dewey's enterprise is to view it as an attempt to reintegratescience and philosophy, which had been torn asunder by modernity. But whileDewey seeks their reintegration, he does so on uniquely modern terms by reducingphilosophy to empirical, naturalistic science-the process of science withoutthe ends or essences or highest things.[16]

Accordingto Dewey, we can therefore reduce human sciences, including politics, torelatively simple principles, contrary to the Aristotelian or ancient view,which held that politics is much harder than physics precisely becauseone must take into account unpredictable behavior and choice-worthy, purposivebehavior toward complex ends rather than more predictable motions andprocesses toward simple ends. The human sciences, which at the highest levelinvolve statesmanship, are, for Aristotle, more complex than the physical andrely on great practical, experiential wisdom as well as theoretical wisdom.[17] By contrast, for Dewey and hisgeneration, Darwinism seemed to break down the barriers between the human andthe non-human.

Dewey'selucidation of the utility of Darwinism to social science and the newphilosophy of man draws from the thought of a number of the major socialDarwinist thinkers, including William Graham Sumner, Lester Frank Ward, and W.E. B. DuBois. Together with Dewey, these men provided many of the intellectualcategories of their age, and their ideas continue to exert a powerful controlover political and jurisprudential discourse to the present day. Collectively,they point to a view of society as an organism that, constantly in the throesof change, must grow and evolve or die.

For thesocial Darwinists, to look backward-whether to founding principles or any otherfixed standard of political right-inevitably reflects a death wish. While tosome degree borrowing Hegelian historical categories, American social Darwinismshares no single rational end point with Hegelianism. Change in itself becomesthe end in many instances and is always preferable to its opposite.

Pragmatismand Programmatic Liberalism

Despiteits defining many of the terms of intellectual discourse in late 19th centuryAmerica, social Darwinism would not become known as the quintessential Americanphilosophy. This honor belongs to pragmatism. In fact, it has recently beensuggested that by the 1890s, social Darwinism was a "fadingideology."[18]

However,the links between pragmatism and social Darwinism are profound, and it isimpossible to understand the "American philosophy" of pragmatismwithout understanding its relationship to social Darwinism. It is alsoimpossible to dismiss social Darwinism's enduring influence on American politicalthought. The pragmatic tradition worked "with the basic Darwinianconcepts-organism, environment, adaptation," and spoke "the languageof naturalism."[19]

WilliamJames's reflections on "What Pragmatism Means"[20] elucidate the links between thesetwo schools of thought that combined to produce American Progressivism. Jamesrecognizes himself as the popularizer of Charles Peirce's argument that theonly meaning of a thought or idea is what conduct or consequences it is fittedto produce.[21] Even though James rejected theHegelian-Darwinian historical categories that were never far from the thinkingof his fellow pragmatist and younger contemporary John Dewey, the two shared athoroughgoing skepticism about the tradition of absolutes, a faith in progress,and an emphasis on the process rather than essence of human life and activity.

Pragmatism'sRejection of Absolute Truths

WithDarwinism, pragmatism rejects the "rationalist temper" that isossifying rather than instrumental and accepts the displacement of design fromscientific consciousness.[22] According to James, all ideas mustbe interpreted in light of practical consequences rather than purposes ormetaphysical underpinnings. If no practical difference in the realm ofconsequences can be found, the debate over any competing notions is idle anduseless.[23] There are no important differencesin abstract truth that do not express themselves in concrete fact-noprinciples, absolutes, or a prioris can govern the pragmatic method,which is an attitude of casting one's glance away from first things toward lastthings, meaning the "fruits, consequences, facts" of life.[24]

Whilepragmatism has much in common with earlier empiricism, it is purer in itsrejection of finality and its concentration on action and power. However, itdoes so without the materialist or anti-ideological bias that characterizedempiricism.[25] Ideas "become true just in sofar as they help us to get into satisfactory relation with other parts of ourexperience."[26] James's pragmatism thereforecontains within it a theory of truth, not just meaning. New ideas are true ifthey gratify "the individual's desire to assimilate the novel in hisexperience."[27]

Thetest of the truth of a proposition is its ability to marry what we know to newfacts. Pragmatism thus becomes a method and means to bind old belief to a newset of facts when new beliefs are inchoate, providing a kind of psychictranquility that prevents internal conflict: "The reason why we callthings true is the reason why they are true."[28] In short, what works for us is true,and the pragmatist understanding of what works is linked to the inevitabilityof change and growth. At the very end of his essay "The Will toBelieve," James approvingly quotes Fitzjames Stephen: "We stand on amountain pass in the midst of whirling snow and blinding mist.... If we standstill we shall be frozen to death. If we take the wrong road we shall be dashedto pieces. We do not certainly know whether there is any right one."[29]

It ishardly clear that these two understandings of pragmatism-as a theory of methodto arrive at objective reality and as a theory of subjective satisfaction thatmight affect the questions we choose to ask-are entirely compatible.Nonetheless, James runs with them, going so far as to argue that even mysticalexperiences are true if they have practical consequences. If "God"works for us-if religious belief is effective in guiding our actions or givingus comfort-then pragmatism cannot deny it.[30] Religion-the will to believe-canhave its place.

ForJames personally, belief in the Absolute clashes with other truths whosebenefits he hates to give up,[31] but for others it might not. Ifbelief in the Absolute could be restricted "to its bare holiday-givingvalue," it would not clash with James's other truths,[32] for such a belief would understandreligious symbols in purely secular terms. Alas, James cannot personally adoptreligious belief, for underlying the belief is a system of logic andmetaphysics of which he is the enemy.[33]

Ofcourse, this opens James and pragmatism to the same lines of criticism that canbe directed toward utilitarianism or laissez-faire economics: There can bedifferent truths or goods for different people, depending on what is expedientfor them. James's pragmatism here comes perilously close to reducing all humanbeings to isolated individuals seeking the greatest good not even for thegreatest number, but for themselves. It has no fixed ends beyond growth andpracticality, but the direction of this growth is not rationally intelligiblein a way that transcends a consequentialist analysis. As James argues:

Rationalismsticks to logic and the empyrean. Empiricism sticks to the external senses.Pragmatism is willing to take anything, to follow either logic or the sensesand to count the humblest and most personal experiences. She will countmystical experiences if they have practical consequences. She will take a Godwho lives in the very dirt of private fact-if that should seem a likely placeto find him.

Heronly test of probable truth is what works best in the way of leading us, whatfits every part of life best and combines with the collectivity of experience'sdemands, nothing being omitted....

But yousee already how democratic she is. Here manners are as various and flexible,her resources as rich and endless, and her conclusions as friendly as those ofmother nature.[34]

It isindeed the very protean nature of pragmatism, its willingness to take anything,combined with its democratic ethos and faith in scientific intelligence, thathas made it an enduringly popular doctrine for Americans-politicians andjurists no less than private-sector entrepreneurs. Indeed, in the pragmaticunderstanding, it seems that any idea or pursuit can be justified if it servesthis ethos and this faith.

Thefact that versions of pragmatism that were not espoused at the time of theFounding are today espoused in all branches of American government is tellingwith respect to the development of our constitutional understandings. Many havenoted the movement in 20th century political rhetoric away from discussions ofthe Constitution or constitutionalism and toward discussion of policy.[35] This move is at least partly areflection of the hold of pragmatism on the American political imagination.

JohnDewey's Combination of Pragmatism and Social Darwinism

Deweybrought pragmatism and social Darwinism together as a compact set of politicalideas while showing their mutually reinforcing character. Dewey's pragmatism insome respects follows James, but it remains reliant on the intellectualcategories of "left" social Darwinism.

James'spurer pragmatism all but did away with the categories of nature and natural lawthat were still central, albeit only in a materialist sense, to the Darwinists.Dewey's pragmatism, by contrast, re-injects natural forces and a strong senseof historical unfolding. It is in Dewey that we can see how social Darwinismand pragmatism together become an intellectual and political force to bereckoned with: a modern liberalism whose goal is to help history along itsdemocratic path, relying on the intellectual inputs of an elite vanguard thatneed not directly consult the people or ask for their consent.

Whilestill a graduate student at Johns Hopkins, Dewey had fortuitously heard thesocial Darwinist Lester Frank Ward present his paper, "Mind as a SocialFactor."[36] But more fundamentally, Dewey wasdeeply antagonistic-as was an increasing proportion of the intellectual classof his day-toward classical economics and philosophical individualism. LikeWard, Dewey thought human beings had the capacity and responsibility to makechoices aimed at directing organic social and individual growth, which is nowstifled by outmoded notions of competition and individual rights.

Suchchoices and the policies that flow from them are always provisional responsesto the flux of life, but their ultimate end is a more democratic society. Ideasgrow and survive not because they are true or transcend human experience, butbecause they respond to circumstances most effectively. "Socialaction" is called for once we understand that scientific intelligence canin fact oversee the unfolding of History.[37]

In hisshort book Liberalism and Social Action, based on a series of lectures,Dewey offers a history of liberalism, an analysis of the crisis it faces, andits prospects for a renaissance that will cement it as the guiding force ofsocial life. As reason becomes purely instrumental, no longer concerned withultimate truths but only with "concrete situations,"[38] liberalism comes into its own.

Accordingto Dewey, the Western understanding of liberalism has evolved from Locke'snatural rights to Adam Smith's dynamic economism to Jeremy Bentham's psychologyof pleasure and pain that seeks the greatest happiness for the greatest number.Bentham's theory argued for judging law by its consequences and for thesupremacy of the national over the local. Furthermore, Bentham picked up onHume's denial of natural rights-which exist only in "the kingdom ofmythological social zoology"[39]-and thereby set the stage for thefinal move from individualist to collectivist liberalism.[40] Dewey thus presents the evolution ofliberalism as a gradual and rational process in which the implicit ideas ofLocke are realized most fully in the modern liberal ideas that follow.

Interestingly,Dewey notes that the source of factory laws and other reforms in England wasnot Benthamite liberalism alone. Rather, liberalism was informed by evangelicalpiety, humanitarianism, literary romanticism, and Tory hostility to industry.German idealism also played a role, emphasizing the organic connection ofindividuals to the collective and the creation of the conditions for positivefreedom.[41]

Still,there was nothing fundamental to Bentham's doctrine "that stood in the wayof using the power of government to create, constructively and positively, newinstitutions if and when it should appear that the latter would contribute moreeffectively to the well-being of individuals."[42] Liberalism accommodated andassimilated a wide range of doctrines but never lost its historicism,consequentialism, or scientism. As a result, "the majority who callthemselves liberals today are committed to the principle that organized societymust use its powers to establish the conditions under which the mass ofindividuals can possess actual as distinct from merely legal liberty."[43] The challenge for this modernliberalism is to make itself a "compact, aggressive force."[44]

Thisnew liberalism is distinct from its outmoded earlier version because it makesitself relevant to the problems of social organization and integration ofvarious historically situated forces. In fact, the lack of a historical senseon the part of earlier liberals blinded them to the fact that their owninterpretations of liberty were historically conditioned rather than immutabletruths. In other words, the problem of the earlier liberals like Locke is thatthey thought their ideas were good for all places and all times. Later liberalslike Dewey have recognized that ideas are contingent upon their time period,relative to their society.

Historicalrelativity finally frees liberalism to assert that economic relations are the"dominantly controlling" forces of modernity and that they requiresocial control for the benefit of the many.[45] Ensuring free competition and theremoval of artificial barriers to economic activity is no longer enough.Instead, in modern liberalism, the individual's powers must be "fed,sustained, and directed"[46] through cooperative control of theforces of production.[47] Individuality itself does not simplyexist, but is attained through continuous growth.[48]

Thedemand for a form of social organization that should include economicactivities but yet should convert them into servants of the development of thehigher capacities of individuals, is one that earlier liberalism did not meet.If we strip its creed from adventitious elements, there are, however, enduring valuesfor which liberalism stood. These values are liberty, the development of theinherent capacities of individuals made possible through liberty, and thecentral role of free intelligence in inquiry, discussion, and expression.[49]

InDewey, we see a dominant theme of American Progressivism and 20th centuryliberalism: the belief that there is an intelligence or "method of intelligence"that can be applied to solve social problems, which are themselves primarilyeconomic in nature. It is this intelligence, which makes no pretense toknowledge except as a result of a pragmatic experimentation,[50] that captures the spirit ofdemocracy more so than any philosophical or institutional analysis. While allsocial relations are historically situated and in flux, there is one constant:the application of intelligence as a Progressive ideal and method.

ForDewey, therefore, "the only adjustment that does not have to be made that effected through intelligence as a method."[51] It is the only simulacrum of God inan otherwise desiccated world of process, evolution, and growth.

Dewey'sVision for Modern Liberalism

Deweyrounds out his discussion by giving us insight into the nature of a"renascent liberalism." Self-realization of the individual must bephysical, intellectual, and moral, and all classes and individuals mustbenefit. This, of course, means that a vast state mechanism must be constructedthat is confidently dedicated to ensuring individual self-realization by meansof progressive education, the welfare state, and redistribution of capital.

Theolder political science of the Founding era, including that of The Federalist,is easily swept aside by Dewey. While the exact contours of public power andpolicy are not necessarily the same for him as they are for Progressivepolitical actors such as Theodore Roosevelt and Woodrow Wilson, they all agreethat there are no inherent limits on state power. Like Roosevelt and Wilson,Dewey is impatient with constitutional restraints and institutional forms.Separation of powers is a doctrine rooted in stasis and, therefore, politicaldeath. It stands in the way of progress and change.

Meanwhile,concerning oneself with constitutional forms and formalities is to give toinstitutions an abiding and permanent character they do not deserve. Certainly,Dewey did not concern himself with the possibility that many publics are formedby complex industrial societies and that a theory of representation is neededto integrate them. Such considerations are subsumed to the newly politicalcategories of change and growth. Long before "the courage to change"became an effective presidential campaign slogan, Dewey helped ensure that"change" would have a central position in American politicalrhetoric.

Asconstitutional restraints are seen as counterproductive and even dangerous, therestraints of character take their place in a decent political order. Educationbecomes a check on the power of the state as it creates citizens capable ofparticipating fully in the republic of experimentation.[52] But the old virtues-whether they beof Aristotle's Ethics, Plato's Republic, or the Judeo-Christian Bible-mustbe overcome in Dewey's estimation. They must be replaced by the new virtuesinculcated by a democratic education, including non-competitive striving,cooperation, and self-actualization.

All-aroundgrowth, peculiarly, seems to exclude certain individual strivings, suchas those after honor, money, or power. Dewey seems to be concerned about theexercise of arbitrary power but has little concern for the accumulated power ofthe state that his vision entails. The cure for a powerful democratic stateseems to be constant evolution in the direction of more democracy. The key tothe perpetuation of our political institutions is far removed from either theconstitutionalism of the Founders or the statesmanship of Lincoln.

In aprofound summation of social Darwinism, Progressivism, and contemporaryliberalism, Dewey claims:

[Flux]has to be controlled [so] that it will move to some end in accordance with theprinciples of life, since life itself is development. Liberalism is committedto an end that is at once enduring and flexible: the liberation of individualsso that realization of their capacities may be the law of their life.[53]

Humanlife therefore is nothing in particular, beyond a continual unfoldingand advancement, and liberalism is dedicated to its liberation through socialpolicy. When the economic necessities are provided, individuals may pursue thehigher life according to their spiritual needs, whatever they might be andhowever they might change.

Andchange they will. Dewey's vision of liberalism is ultimately of an individualfree of the various constraints that previously were thought by so many to benecessitated by a dangerous and eternal nature. This vision of liberalism is aversion of Marx's notion that truly free men may fish in the afternoon andcriticize after dinner. Although today's constraints happen to be, for Dewey,largely economic in nature, it is not materialism but growth toward freedomthat is at the heart of modern liberalism.

TheProgressive Synthesis and the New Science of Jurisprudence

Progressivismas an intellectual and political (as opposed to populist) movement amounts tothe politicizing of the twin doctrines of social Darwinism andpragmatism. By harnessing these doctrines for political ends-as Dewey hoped-theProgressives were able to usher in a new order of the ages that would overtakeAmerican politics.

Commencingin the early years of the 20th century, political and judicial actors borrowedfreely from pragmatism and social Darwinism to construct a theory of politics,constitutionalism, and human life. Politically, the age-old question of"what works" was increasingly divorced from a sense of constitutionalrestraint, which was replaced by an organic conception of a state unlimited inprinciple, with growth and development to buttress certain contemporaryunderstandings of democracy and the choosing self as its only end.

By thelate 20th century, the Progressive synthesis was bearing full fruit,particularly in the judicial branch. For example, in the early 1990s, theplurality opinion of the U.S. Supreme Court in Planned Parenthood v. Casey[54] (1992) famously asserted or reassertedan individual right to be "free from unwarranted governmental intrusioninto matters so fundamentally affecting a person as the decision whether tobear or beget a child." It went on to add that such "intimate andpersonal choices" are "central to personal dignity and autonomy"and to the liberty protected by the Fourteenth Amendment, which at its heartsupplies "the right to define one's own concept of existence, of meaning,of the universe, and of the mystery of human life," all of which"define the attributes of personhood."

Affirmingthis language a decade later, Justice Anthony Kennedy, writing for the majorityin Lawrence v. Texas[55] (2003), also asserted the importanceof an "emerging recognition" of new rights worthy of judicialprotection, in this case concerning homosexual conduct. "In allevents," he argued, "we think that our laws and traditions in thepast half century are of most relevance here" because they "show anemerging awareness that liberty gives substantial protection to adult personsin deciding how to conduct their private lives in matters pertaining tosex."

Onlythrough recognition of such liberty, argued Justice Kennedy, can we avoidstigmatizing and demeaning the autonomous choices of individuals, whose dignityis revealed in time. In fact:

Hadthose who drew and ratified the Due Process Clauses of the Fifth Amendment orthe Fourteenth Amendment known the components of liberty in its manifoldpossibilities, they might have been more specific. They did not presume to havethis insight. They knew times can blind us to certain truths and latergenerations can see that laws once thought necessary and proper in fact serveonly to oppress. As the Constitution endures, persons in every generation caninvoke its principles in their own search for greater freedom.

Instriking down the state statutes at issue, these decisions relied on purportedsubstantive due process protections of the Fourteenth Amendment-in JusticeKennedy's phrasing, the "due process right to demand respect for conductprotected by the substantive guarantee of liberty." But in order tojustify their opinions, they also advanced particular, interlockingunderstandings of constitutionalism, individuality, and a dynamic of historicalunfolding, or history as more than a mere record of events. Along with theseunderstandings is a theory, adopted sub silentio, of the judiciary'srole in History.

LivingConstitutionalism and the Court as Engine of history

This isa theory adopted more explicitly by the late Justice William J. Brennan when heclaimed that judges must recognize that "the genius of the Constitutionrests not in any static meaning it might have had in a world that is dead andgone, but in the adaptability of its great principles to cope with currentproblems and current needs."[56] According to Brennan, the"vision of our time" is destined to be different from the vision ofother times, and a central part of the judicial role is to act as visionary.Although the Constitution is in some degree a "structuring text"marking out the bounds of government, it is more fundamentally a visionarydocument demanding ever more democracy and respect for individual dignity.[57]

Toinject meaning into these terms, the judge will eschew "a technicalunderstanding of the organs of government" in favor of "a personalconfrontation with the wellsprings of our society."[58] Asserting that individual dignity isthe most important of all political values, Brennan sees the judge's job asarticulating its meaning as that meaning reveals itself in time.

Thisrevelation is aided by the full play of ideas. The reason for the protection of"broad and deep rights of expression"[59] is that they are related to theintellectual and spiritual growth over time that lends dignity to the humancreature. Citing approvingly Justice Brandeis's dictum in Whitney v.California[60] (1927) that the state has no endbeyond ensuring full development of human faculties, Brennan avers that the"demands of human dignity will never cease to evolve."[61] Dignity is not fixed; it has noprinciples or laws beyond those governing its internal evolutionary dynamic. Infact, the very act of looking for fixed principles or laws is regressive, forin so acting we cast a glance toward a past wherein dignity was, by definition,less developed and more stultified.

Acorollary of this view is that the scope and power of government-whether state ornational-are in principle unlimited because of the need to support humandignity and the constant development of human faculties. Courts merelyadjudicate at the "collision points" between state and society andare on guard against anything that stifles salutary development.[62]

Thetask of judging is therefore itself protean, accurately reading and respondingto the constant flux of human aspiration.[63] The Supreme Court has the last wordon constitutional interpretation, but the last word for any one time is not thelast word for all time, or else the Constitution "falls captive" tothe "anachronistic views of long-gone generations."[64] The Constitution is timeless onlybecause its interpretations are time-bound; its genius lies in its recognitionof the inevitability of the "evolutionary process."[65] Adaptation to the"ever-changing conditions of national and international life"[66] is the sine qua non ofconstitutionalism, and the motor of this process is the judicial branch.

Brennan'scolleague on the Court, the late Justice Thurgood Marshall, also pointedlyclaimed that the meaning of the Constitution was not fixed in Philadelphia oranywhere else.[67] The Constitution that emerged fromPhiladelphia was merely "a product of its times,"[68] as is the Constitution we now have.The changes we have witnessed in our constitutional fabric were not, and couldnot have been, foreseen or accepted by those who gathered in 1787 to draft thedocument.[69] The constitutional text itself liesdead in a vault in the National Archives.[70] The views of our own time are allthat lives.

Constitutionalinterpretation therefore involves perceiving and clearly articulating thedirection of evolutionary change for an organic document that serves the needsof an organic state. Those who possess an insight into History-namely, thosesitting on the Supreme Court-must redefine outdated notions of liberty,justice, and equality. Their aim is to aid a process that is outside the fullcontrol of any one individual or institution. The historical process is animmense struggle for survival of the good over the bad, and good fortune isindispensable to a proper unfolding of History.[71]

TheRapidity of the Court's Directional Change

On somequestions, history moves rapidly. It is the job of the wise majority of theCourt to recognize its direction and clear the obstacles, often in the form ofstate laws, that stand in its way. The rapidity of Historical change isillustrated by the difficulty even the Court has in keeping up with it. Certainminority opinions gain majority status in remarkably short periods of time.

It tookonly 17 years for Lawrence to overturn Bowers v. Hardwick[72] (1986), in which a 5-4 majority ofthe Supreme Court upheld a Georgia anti-sodomy statute. According to JusticeKennedy in Lawrence, even as Bowers was being decided, there wasan "emerging recognition" of the substantial liberty of adult personsto choose freely in "matters pertaining to sex." The Court's majorityin Bowers failed by failing to recognize the stamp of approval thathistory had already placed on homosexual conduct-but this Historical fact wasnot lost on the Bowers dissenters.

Forexample, Justice Harry Blackmun quoted Oliver Wendell Holmes-the Court's firstsocial Darwinist-in condemning a law whose grounds "have vanished longsince." Such "blind imitation of the past"[73] is senseless because the ethicalgrounds upon which such statutes were based have shifted radically over time.For our time, at least, "much of the richness of a relationship will comefrom the freedom an individual has to choose the form and nature"[74] of that relationship. Humanpersonality must be allowed to develop by keeping the state out of the businessof restricting "intimate associations."

Theasserted primacy of freedom of choice thus allows us to define our natures aswe see fit, subject only to the principle of mutual consent. The process ofredefinition is in principle virtually unlimited and will continue to unfold asnew understandings of human personality manifest themselves in History.

A mereeight years before Lawrence, in Hurley v. Irish-American Gay,Lesbian, and Bisexual Group of Boston[75] (1995), the Court had heldunanimously that a privately organized parade could exclude groups that wished toconvey a message contrary to that favored by the parade organization, thusprotecting the organization's First Amendment rights. However, just five yearslater, in Boy Scouts of America v. Dale[76] (2000), the Court could muster onlya slim 5-4 majority for the proposition that an open homosexual did not have aright to join the Boy Scouts as an adult leader because his presence in theorganization would convey a message contrary to the one the Boy Scouts wishedto convey.

Whathad happened in the intervening five years?[77]

Thedissent in Boy Scouts, penned by Justice John Paul Stevens, gives ussome clues. For him, unfavorable views of homosexuals are rooted in ancientprejudices, best likened to the "equally atavistic opinions about certainracial groups," that have "been nourished by sectariandoctrine." Only "habit, rather than analysis" grounds theman-woman distinction.

Thusdoes Justice Stevens, in a single paragraph, take on and dismiss bothrevelation and classical moral reasoning. In the same paragraph, he goes on tosubstitute history and historical progress for these outdated forms of moralreasoning, including the findings of social science as revealed in history:

Overthe years...interaction with real people, rather than mere adherence totraditional ways of thinking about members of unfamiliar classes, have modifiedthese opinions. A few examples: The American Psychiatric Association's and theAmerican Psychological Association's removal of "homosexuality" fromtheir lists of mental disorders; a move toward greater understanding withinsome religious communities; Justice Blackmun's classic opinion in Bowers;Georgia's invalidation of the statute upheld in Bowers; and New Jersey'senactment of the provision at issue in this case. Indeed, the past month alonehas witnessed some remarkable changes in attitudes about homosexuals.

Aseries of "right to die" cases further illustrates the centrality ofhistorical reasoning to some members of the Court. In Cruzan v. MissouriDepartment of Health[78] (1990), a 5-4 majority held that acompetent person has a constitutionally protected Fourteenth Amendment libertyinterest in refusing unwanted medical treatment, but that the state of Missouricould require clear and compelling evidence of an incompetent person's wishesconcerning the withdrawal of lifesaving medical treatment.

JusticeScalia, in a concurring opinion, would have had the Court stand back from"right to die" questions entirely, for the Constitution is silent onthe matter, and indeed it has never been the case that states have beenprohibited from interfering with such a purported right, the contours of which"are neither set forth in the Constitution nor known to the nine Justicesof this Court any better than they are known to nine people picked at randomfrom the Kansas City telephone directory." But in considering right to diecases non-justiciable on constitutional grounds, Scalia was a minority of one.

In Washington>v. Glucksberg[79] (1997), the Court upheld aWashington> State statute that outlawed assisted suicide. In writing for themajority, Chief Justice Rehnquist noted the cases in which the Court had heldthat the Fourteenth Amendment's Due Process Clause offers substantiveprotections of liberty going beyond fair procedure. These have included, amongother things, the right to marry, the right to marital privacy, and (in Casey)the right to abortion. But Rehnquist also asserted the reluctance of the Courtto expand substantive due process to other areas because of the fundamentallypolitical nature of the enterprise and the superiority of legislative debate,experimentation, and compromise to judicially imposed substantive standards.

In aconcurring judgment, Justice Souter agreed that the experimentation of thelegislative process is to be preferred-but only for the present time. "TheCourt should accordingly stay its hand to allow reasonable legislativeconsideration. While I do not decide for all time that respondents' claimshould not be recognized," wrote Souter, "I acknowledge thelegislative institutional competence as the better one to deal with that claimat this time." For Souter, judicial intervention is not called for untilit is called for. Facts revealed as history unfolds, rather than common law orconstitutional principles, determine the justiciability of fundamentalmoral-political questions.

Souteroffered a similar concurrence in Vacco v. Quill[80] (1997), which was heard inconjunction with Glucksberg. In Vacco, an equal protection claimwas raised against a New York law that allowed competent patients to refusemedical treatment but made it a crime to assist a competent person to commitsuicide, including by prescription of lethal medication. The argument in favorof striking down the law alleged that it resulted in different treatment forsimilarly situated patients, one subset of whom chose suicide by refusal oftreatment, the other by ingestion of medication.

JusticeRehnquist, speaking for the Court, maintained that the distinction betweenrefusal of treatment and assisting with suicide was rational, the formerresulting in death from "an underlying fatal disease or pathology" andthe latter involving the intention on the part of a doctor that "thepatient be made dead." In his concurrence, Justice Souter would say onlythat he did "not conclude that assisted suicide is a fundamental rightentitled to recognition at this time." According to Justice Souter'sreasoning, for the time being-but only for the time being-the statestatutes in Glucksberg and Vacco are not unconstitutional undereither the due process standard or the equal protection standard; but historywill be the ultimate judge, and the Court will discern when history hasrendered a pronouncement on such matters.


Likeits overtly political counterpart, Progressivism in jurisprudential guise stepsoutside the bounds of Madisonian constitutionalism for the sake of faith in thefuture rather than faith in the past. The Progressive task is to read thepublic mind and loosen the chains of society enough to allow individual andsocial growth.

Thereis a residual incoherence to Progressive jurisprudence. It alternates betweentwo poles. On the one hand, it expresses the desire to make decisions that arelegitimate in the eyes of the community-ones that respond to something like, inOliver Wendell Holmes's words, the "felt necessities" of the age-andon the other, it expresses the desire for decisions that counter what it claimsis illegitimate majority will.

However,neither pole is rooted in constitutional text, tradition, logic, or structure.Rather, they are both rooted in the judge's view of which necessities are mostdeeply felt and most likely to encourage social and personal growth. Thepractical result, in contemporary jurisprudence, is that art trumps economics,expression trumps the common good, subjectivity trumps morality, freedom trumpsnatural law, and will trumps deliberation. Such is the face of Progressivejurisprudence, a face that now seems barnacle-encrusted from its triumphalmarch of a hundred years' duration.

Becauseof the extent to which this jurisprudence is now rooted in the historicist thoughtthat guides America and, under different names, the Western world as a whole,and because of the strength and momentum it has gained on its virtuallyuninterrupted path, its effects will not be reversed any time soon. Its successis marked by the fact that it no longer seeks victory-only legitimation.

BradleyC. S. Watson holds the Philip M. McKenna Chair in American and WesternPolitical Thought at St. Vincent College. As Fellow in Politics and Culture atSaint Vincent's Center for Political and Economic Thought, he directs theCenter's Government and Political Education Lecture Series, Culture and PolicyConferences, and George Washington> Fellowship Program. This essay isadapted from the author's book, Living Constitution, Dying Faith: Progressivism and the NewScience of Jurisprudence (ISI Books, 2009).