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The Undoing of American Constitutionalism

How a political revolution begun more than a century ago led to Sonia Sotomayor.

By Richard M. Reinsch
September 18, 2009
http://article.nationalreview.com/?q=MmYxZWQ2YzIyMzljOTIxYWUwNDE4NzZlNmEyZDFhODQ=

Those who were desperately confused, if not enraged, by candidate Barack Obama’s contention that the ideal federal judge should fashion his opinion in empathy with the more downtrodden and oppressed party in a case should consult Bradley Watson’s Living Constitution, Dying Faith: Progressivism and the New Science of Jurisprudence to understand how the man who has become president could assert the primacy of personal opinion over law. Watson’s book daringly asks what social Darwinism and pragmatism have to do with the progressivist evolution in American politics and jurisprudence during the 20th and 21st centuries. Together they were, Watson argues, akin to an intellectual tsunami that shaped, developed, and still informs, albeit in evolved modalities, the dominant understanding of the American constitutional order (or lack thereof) held by the judicial, academic, and political classes. Strange as it might seem, Watson convincingly shows how these philosophical schools flowed into the main currents of American political and judicial thinking.

The social-Darwinist ingredient in progressive jurisprudence is the notion of the state as an organic principle, informed by the general will of society and by the particular facts, circumstances, and history of a people. Subject to no fixed limits, eschewing belief in objective justice, the state follows a path of incessant growth and flexibility, limited only by the ever-changing needs of society. As dictated by the laws of progress and evolution, the state moves society along an inevitable ascent. By application of “scientific” expertise and rationalizing administration, government directs this growth. Expressly left behind is Madisonian constitutionalism and its notions of natural rights, limited government, the rule of law, prevention of faction, and vigilance against the possibility of overly centralized and unaccountable government.

Watson marshals the speeches and writings of Theodore Roosevelt and Woodrow Wilson, and the jurisprudence of Justice Oliver Wendell Holmes, among others, as evidence for his claim of the pervasive influence of social Darwinism in the intellectual cocktail that is progressivism. As Wilson demonstrates, the progressives sought to move the energy of government from the democratic branches to the bureaucracy. Insulated from politics and popular opinion, federal bureaucrats would engage in the scientific administration of government — the overriding ethos of progressivism. The expert and, in time, the judge would supply regulations and orders to fill the multiplying and unruly (i.e., unregulated) gaps of modern industrialized society. Thus, the real purpose of politics under progressivism informed by social Darwinism is not justice, or the preservation of personal and economic liberty — those worthless dregs of past history — but the infusion into federal and state governments of the substantive powers needed to achieve the perfection of government administration.

There was, however, that second element informing progressive thought. Almost seamlessly interwoven with the evolutionary ideal of social-Darwinian ideology, pragmatism equally challenged the fixed understanding of America’s constitutional order. William James — the pragmatist par excellence — brilliantly summarized this school of thought with his statement that ideas “become true just in so far as they help us to get into a satisfactory relation with other parts of our experience.” More succinctly, “The reason why we call things true is the reason that they are true.” Virtually synonymous with the idea that state and society are to be subjected to ongoing experimentalism, pragmatism, like social Darwinism, embraced the idea of ceaseless adaptation and change. It presented the state as the entity most capable of selecting the optimal arrangements for meeting the challenges of new social, political, economic, and technological circumstances. Devastatingly absent was any consideration of the ends or purposes of democratic deliberation. For the pragmatist, the Constitution and its express limits on democratic energy must be negated lest necessary and positive change be wrongly arrested.

For the pragmatist, the importance of democratic thought and choice is not in the considerations of justice or law, not with final causes or transcendent purpose, which informs past understandings and meanings, but pure practicality. Moving with the inherent flux of the times determines the emphasis for law and politics. The truth of ideas and the validity of political and economic movements are now to be found in the actual successes these movements have in achieving practical operations. As Justice Holmes articulated the rationale for the protection of free speech, “If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.” In response to Justice Holmes’s constitutional nominalism, Watson deftly notes, “If the Constitution — or the presently established constitutional order — is itself neutral or indifferent on this question [i.e., legitimate government], what is the basis for a constitutional ruling in favor of a First Amendment claim?” Indeed, progressivism’s pervasive skepticism ends in denying the philosophical grounding of constitutionalism and its animating principle — the rule of law. This, Watson argues throughout the book, is the damage rendered to American constitutionalism by progressivism and its twinned social-Darwinian and pragmatist components.

Against these apostles of ceaseless adaptation, progress, and organic growth of the state loom the men who framed America’s constitutional order and its underlying philosophy. Watson synthesizes the varying rationales for liberty held by the Founders under the overarching understanding they held of man’s natural rights in his property and person, and the corollary that government must secure these rights and, in turn, defend citizens from the government itself. However, this conception of government as necessary to the protection of man’s natural rights, but also preternaturally dangerous because of man’s vice-ridden passions and propensity to form factions, is simply incompatible with progressivism. Under the latter’s dispensation, the citizen now joins in an undulating partnership with the government, under the administration of experts whose intervention actualizes the liberty and self-development of persons and groups. From this perspective, natural rights are seen more as the negation rather than the fulfillment of freedom. James Madison has been thrown into the dock.

Abraham Lincoln also stands athwart progressive ideology in his attempts to reground American politics on a firmer understanding of the singular dignity of the person. Through the spoken word and through his statesmanship, Lincoln rearticulated the natural basis of republican government, and the goods it must secure and the evils it must crush if it is to endure. Noteworthy is Watson’s contention that after the victory over the slaveholding South, Lincoln’s recovery of the political justice of the Declaration of Independence was rejected by the rising tide of progressivism in the decades following his presidency. The denatured person seen by progressivism requires an unlimited government to deploy the operations and powers necessary to unlock social progress.

The spillover to our time can be seen in Justice Sotomayor’s statement to a group of law clerks that the appellate courts are where policy is made. Justice Sotomayor was merely following her progressive teachers, who have risen to dominance in American law schools and courts. Their continuing attempt to replace constitutionalism now finds its purest and most honest expression with those federal judges who openly equate judicial power with politics and policy. Watson’s scholarship exposes the intellectual stair-stepping that has taken us to the brink of this dangerous precipice.

-- Richard M. Reinsch is a program officer at Liberty Fund, and author of the forthcoming Whittaker Chambers: The Spirit of a Counter-Revolutionary, to be published by ISI Books.