The Roots of the Judicial Assault on the Family

Living Constitution, Dying Faith:
Progressivism and the New Science of Jurisprudence
  • Bradley C. S. Watson
  • ISI 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 found in either the text or history of the Constitution. The often unthinking embrace of the living Constitution by judges sitting today and likely to sit tomorrow leads Watson to imagine that a court eventually will affirm such an absurdity as that a man is a woman.

Watson traces the origins of progressivism after the Civil War and its emergence in the early twentieth century. The death of the “old nature of politics”—which had prevailed from the founding through Abraham Lincoln, and which encompassed a belief in natural rights, limited government, and a written Constitution—was hastened by the arrival of social Darwinism and then pragmatism, the seedlings of progressivism. Watson’s account of this development is compelling and rare. He explains the understandings of human nature, history, government, and society advanced by the advocates of social Darwinism and pragmatism. Rejecting any notion of fixed human nature, the social Darwinists were open to “endless sociopolitical reform” because “no problem is understood to be an inherent facet of human nature.” Meanwhile, the pragmatist William James popularized the notion that the only meaning of an idea is what it produces, which is to say: what works is what is true. Watson reveals that at the core of both social Darwinism and pragmatism is “a marked historicism”—the belief that “truth is always and everywhere relative to its time and place.”

The two strains of “historicist thinking” eventually merged to create a “powerful, intellectual progressivism.” Advanced by John Dewey and Woodrow Wilson, it held sharp implications for politics. The progressives sought growth that would be “physical, intellectual, and moral,” Watson explains, and from which “all classes and individuals must benefit.” Such growth could not be left to chance but required the attention of a large administrative state whose power was not subject to constitutional limits. Inevitably, it would require judges willing to advance progressive ends even if that required ignoring the law of the Constitution.

Dewey had for years lamented the “unusually inflexible” nature of American political institutions resulting from “interpretations made by courts of a written constitution.” But in a 1924 law review article, he called for a new legal logic that would be far from syllogism, fixed forms, and the application of antecedent principles. Instead, Watson observes, it would look to “concrete circumstances.” As it happened, not legal theoreticians but judges themselves provided that new logic. Three Supreme Court justices—Louis Brandeis, Oliver Wendell Holmes, and Benjamin Cardozo—played key roles. “Each” writes Watson, “represented progressivism in action.”

In 1908, a year before he became a justice, Brandeis filed a brief for the state in the Supreme Court case of Muller v. Oregon. At issue was an Oregon statute that, like other progressive legislation of that era, sought to protect women from the harsher aspects of industrialization. This law sought to limit to ten the number of hours women employed in factories and laundries could work in a single day. The brief Brandeis prepared is famous in Supreme Court history: it spent two pages on legal analysis and the rest of its 100 pages on factual data. A model of “sociological jurisprudence,” it was the first brief ever filed in a Supreme Court case that discussed anything other than the law. But it was an approach to deciding cases that Brandeis would carry with him throughout his twenty-three years on the Court.

What is striking is that the brief provided an argument for judicial restraint—for the Court to stay its hand from finding the Oregon law unconstitutional. Yet, as Watson observes, this argument was not tied to the actual Constitution but rather to the advancement of progressive legislative ends. Thus, while the Court held unanimously for Oregon, Brandeis’s brief left open the possibility that courts might strike down an otherwise constitutional statute or other state action if it blocked progressive objectives—if, in other words, it were not in step with the living Constitution. Muller’s significance lay in the fact that the Court affirmed that something other than the text and history of the Constitution, or even the case law handed fairly developed from it, could count as constitutional argument.

Holmes, who sat from 1902 to 1932, rejected natural law and devised a jurisprudence grounded in positive law that, writes Watson, “becomes merely a predictive tool”—meaning it indicates where the law will take us next. For Holmes, the positive law best advances when judges provide “creative responses dictated by the times”—responses in which they may engage in “weighted balancing,” meaning a balancing of rights in light of “social advantage and progress.” Not surprisingly, Holmes did not think the Constitution was a document that judges actually should interpret. After Holmes, and because of Holmes, writes Watson, “judges came more to look to the future,” where the living Constitution might lead, “than to the past,” where lay the “dead” Constitution (as Justice Scalia once called the original Constitution), “and to take on a new role.”

Holmes’s successor, Cardozo, spent just six years on the Court. In his opinions, writes Watson, “We see the flowering of judicial progressivism during the New Deal period.” Long before he went to the High Court, however, Cardozo, duly influenced by Holmes, had expounded on judicial progressivism. Contending for sociological jurisprudence, he said that law should be interpreted not by “formalistic criteria” (such as original intention) but by “social function.” He said a judge must act as “an interpreter of the community of its sense of law and order” and “supply omissions,” looking always for the “light among the social elements of every kind that are the living force behind the facts.”

Brandeis, Holmes and Cardozo, like other progressive jurists of their eras, tended to defer to legislative judgments in the economic realm and to be activists on civil rights and social issues. Those tendencies can be seen today. It may seem, then, that progressivism has a legal theory. But Watson says that progressivism is rather “a judicial disposition in search of a theory.” It is a disposition to step outside the bounds of traditional constitutionalism “for the sake of a faith in the future rather than in the past” and in behalf of “expressive individualism.”

Living Constitution isn’t an easy read. Watson’s argument doesn’t always proceed chronologically. Large ideas are sometimes treated too summarily. Readers may also note odd omissions: Watson doesn’t discuss the many death penalty cases in which the Court has so narrowed permissible uses of capital punishment as to almost read it out of the Constitution. Here the appeal to the living Constitution has just about killed off parts of the original Constitution.

These, however, are quibbles, for Watson succeeds in revealing the destructive impact of progressivism upon constitutional law. It is a depressing story, not least because of what the new jurisprudence has meant for marriage and the natural family. Rulings effectively affirming “expressive individualism” have taught that individuals may define their natures as they see fit, subject only, to the requirement of mutual consent. “This process of redefinition,” writes Watson, “is, in principle, virtually unlimited [and] will continue to unfold as new understandings of human personality manifest themselves in History.”

If this process continues, one can imagine marriage, family, and parenthood becoming in law whatever expressive individualists want them to be, subject only to limits imposed by criminal law. Thus is it possible to imagine a man declared by a court to be a woman marrying a woman declared by a court to be a man. This is the crazy, mixed up world that is the legacy of progressivism and its living Constitution. Watson doesn’t offer a way to avoid it. But there can be little doubt that it would portend vast cultural change that would not be easy to reverse.

Mr. Eastland is publisher of The Weekly Standard in Washington, D.C. His books include Religious Liberty in the Supreme Court: The Cases That Define the Debate Over Church and State (Ethics and Public Policy Center, 1993).