A review of Living Constitution, Dying Faith: Progressivism and the New Science of Jurisprudence, by Bradley C.S. Watson
 

Over a century has passed since Progressivism made its presence known in American political culture. Though library shelves bend under the weight of scholarly assessments of its origins, growth, and impact, the term beggars precise definition. At once over- and under-inclusive, it has become a word of almost promiscuous utility among historians, who have variously deployed it to denote an era, a social movement, a specific economic and political agenda, and a philosophical outlook. Progressivism is all these things, and more. Coming to terms with it is made doubly difficult because reformers of many stripes who often disagreed about strategy and tactics nevertheless claimed the label. The problem is further compounded by the fact that Progressive thought was itself intellectually promiscuous, blending elements of Hegelian philosophy, social Darwinism, and millennial Protestant enthusiasms (among other ideas) into a distinctively American stew.

Sorting all this out is no easy task, the more so because so much of our understanding has been filtered through academic and popular authors who are generally sympathetic to Progressivism's goals, and have rewritten the history of America to comport with their opinions. For most of the 20th century, virtually all leading texts in American history and government, like Progressivism itself, have been built on decidedly historicist presumptions. Typically, the story of Progressivism is portrayed in the form of an easily digestible morality play in which enlightened, forward-looking, public-spirited reformers triumphed over entrenched, reactionary, and venal interests. When discussing the American constitutional order, this literature tends to take at face value the argument first comprehensively articulated by Woodrow Wilson in the 1880s—that the American Founding was historically outmoded in its understanding of human nature, its embrace of natural rights, and its belief in limited government, and that its most distinctive features were anti-democratic, inefficient, or both.

Only in recent years has this literature been subjected to critical reassessment by scholars astutely trained in political philosophy. Revisionists such as John Marini, Charles Kesler, Ronald J. Pestritto, and Thomas G. West (to name only four) have challenged the conventional hagiography on empirical as well as philosophical grounds. In so doing, they have deeply enriched our understanding of Progressivism's philosophical origins and pretensions and, no less, its destructive implications for the founders' regime. Now Bradley C.S. Watson, the Philip M. McKenna Chair in American and Western Political Thought at Saint Vincent College, gives us a welcome addition to this thoughtful, expanding literature. His Living Constitution, Dying Faith: Progressivism and the New Science of Jurisprudence is a work of brilliant compression. Indeed, what Watson pulls together in 200 pages is astonishing, both for its clarity and comprehensiveness, and for the skill with which it weaves together seemingly disparate strands of Progressivism's philosophical and political arguments. Until something better comes along, Watson's book may justly take pride of place as the primer of choice for students wishing to understand how the idea of the "living Constitution" came to be, and why it exercises a kind of talismanic charm over academic thinkers and jurists.

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Watson's overarching thesis—that constitutional jurisprudence today is thoroughly permeated by historicism and dogmatic moral skepticism—is not new. What is new is the way in which he makes a coherent whole out of diverse strains of late 19th-century and early 20th-century Progressive legal speculation. The particular power of historicist thought in America, Watson argues, arose from the marriage of social Darwinism and pragmatism—a marriage that, when mediated by (among others) John Dewey, shaped mature Progressive thought and, by turns, the modern understanding of law as an eternally unfolding process without any fixed end in sight. The result is what Watson calls the "Organic Constitution," in contrast to that of the founders. His first two chapters present crisp accounts of these contrasting concepts.

The third chapter, on social Darwinism, articulates the essence of that phenomenon in 30 pages without sacrificing anything of importance. The fourth chapter, "Progressive Political Leadership," addresses in concise yet nuanced fashion the thought and actions of Woodrow Wilson and Theodore Roosevelt. These early chapters set the stage for his longest and in some respects most important chapter, "The New Science of Jurisprudence." Here the reader will find thoughtful assessments of three jurists—Oliver Wendell Holmes, Jr., Louis Brandeis, and Benjamin Cardozo—whose opinions provided the juridical foundation for the living Constitution. Watson's portraits capture the kernel of their thought in remarkably succinct fashion, and his synopsis of Holmes's jurisprudence in particular, which weighs in at a mere 16 pages, is as good as one can find in a short space. Along the way, Watson exposes the core contradiction that lies at the heart of modern jurisprudence: the rejection of permanent truth and the simultaneous insistence that society ought to be guided in a particular direction by experts who claim to know the inexorable laws of History. As Watson says:

There is a residual incoherence to progressivism as legal theory. It alternates between two poles. On the one hand, it expresses the desire to make decisions that are legitimate in the eyes of the community—ones that respond to something like the "felt necessities" of the age. On the other, it seeks to make decisions that counter what it claims is illegitimate majority will. Neither pole is rooted in constitutional text, tradition, logic, or structure, but rather in the judge's view of just what necessities are most deeply felt, most in accord with social growth, and therefore most compatible with the dictates of History.

The chapter on law is followed by a brief tour d'horizon of academic progressivism, the rise of modern social science, and the myriad ways in which moral skepticism and historicism have permeated legal and political thought in the classroom and in the courts. Here, as elsewhere in his survey of progressive thought, Watson demonstrates a comfortable mastery of the materials under review, the kind of mastery that can come only from close reading of texts and many years of thoughtful teaching and learning.

All in all, Watson has performed a singular service. Living Constitution, Dying Faith is a splendid, compact introduction to modern constitutional jurisprudence. It is too much to expect that it will be read by law professors, who are long practiced at disguising their moral opinions beneath a veil of historical inevitability. But for curious students not yet overwhelmed by historicist premises, Watson's primer will help them to understand the framers' Constitution and, for those who love liberty, why it must be preserved—not as mere relic, but as the expression par excellence of what a living Constitution, rightly understood, ought to be.