The Roots of the Judicial Assault on the Family

• Post by: Terry C. Eastland
• January 27, 2010

Living Constitution, Dying Faith:Progressivism and the New Science of Jurisprudence Bradley C. S. WatsonISI Books, 2009; 250 pages, $25.00 Toward the end of Living Constitution,Bradley C. S. Watson recalls the remark by the second Earl of Pembroke as to how Parliament can do anything but make a man into a woman. Pembroke’s point was that Parliament is supreme over human affairs but also, as a merely human institution, unable to alter those things that are fixed in nature, the most fundamental being that which distinguishes a man from a woman. Watson applies Pembroke’s words to another institution of government—the American federal judiciary—at the apex of which sits the Supreme Court. Would a majority stay its hand if asked to toy with the order of nature? Watson is not optimistic: “We can now foresee the day when, in effect, courts will routinely declare men to be women, and vice versa, according to the political pressures of the age.” Living Constitution explains why such a day has nearly dawned. As such, it is an argument about a particular idea, the progressivism of a century ago, and its consequences for the present day. Progressivism provided essential premises for what Watson calls “the new science of jurisprudence,” which developed in the first decades of the last century. The handmaiden to that new science—the “living” or “organic” Constitution, as it has been described—began to appear in those same years in judicial opinions. Under the living Constitution, interpretation of the supreme law involves, Watson explains, “perceiving and clearly articulating the direction of evolutionary change for an organic document that serves the needs of an organic state.” Accepted by many judges, if not by very many ordinary Americans, it has led to such decisions as Roe v. Wade (1973), in which the Supreme Court declared a constitutional right to abortion, notwithstanding that no such right can be foun