Interview with Bradley C. S. Watson, author of
Living Constitution, Dying Faith:Progressivism and the New Science of Jurisprudence
Why has the Supreme Court become so controversial?
The Court has become a political rather than legal body when it comes to major moral and cultural questions. It has become the locus of attention for those concerned with the “culture wars.” If the Supreme Court behaved as a traditional common law court, neutrally adjudicating truly legal questions, it would consistently be the most respected and least controversial branch of government
Tell us about the constitutionalism of our Founders and the faith that you say informed it.
The Founders had great faith in both revealed and rational truths that transcended time and place. They understood the Constitution to be a limited document that was consonant with, and supported, the morally ordered universe of human affairs. The Constitution in their minds could never rightfully be interpreted to require things contrary to the laws of nature and nature’s God. Nor was the Constitution intended to provide the means to address every social ill, real or imagined, without the consent of the people.
Abraham Lincoln had something to say about this faith too, didn’t he?
Lincoln placed enormous importance on reverence for things past, and had great faith in the enduring principles of the regime. The Founders and founding principles, for him, were the touchstone of politics in his time, and in all times. The fall of a republican people from grace comes gradually, not precipitously; it comes not from an act, but from a slow loss of collective memory, from loss of “the faith that right makes might.” A political religion—a kind of orthodoxy on fundamental constitutional questions—is required to maintain this faith.
We hear a lot of talk about what contemporary jurisprudence isn’t—for example, that it isn’t rooted in the intentions of our Founders, or the written text of the Constitution—but you make anargument about what it is. Tell us more about this.
Contemporary jurisprudence traces its origins to a theory that was in principle hostile to the work of the Founders and to the limited Constitution they created. The judicial branch, more than any other branch of government, has adopted the Historical view of the Constitution and constitutionalism. The view is not simply that we have, of necessity, an interpretable Constitution, but one that must be interpreted in light of a particular understanding of the historically situated, contingent nature of the state, the individual, society, and constitutionalism itself. This understanding is in a considerable amount of tension with the earlier constitutionalism of limited and dispersed powers serving the “laws of nature and nature’s God.” The modern Historical approach has been embraced by judicial appointees of different presidents, from different decades, Democrat and Republican, “liberal” and “conservative.” A major transformation in American political thought was necessary to bring such a diverse cast of characters to a common view of the Constitution. This transformation involved the merging of social Darwinism and pragmatism in the early 20th century into a powerful intellectual progressivism.
What’s going on in our law schools?
The progressive tide has swept over them. They emphasize historical progress and process rather than faith in eternal verities, and this lack of faith is transmitted to law students who will become, whether we like it or not, constitutional arbiters for the rest of us. As History demands new constitutional interpretations, they will stand at the ready to provide them.
If the Constitution “lives,” is that a bad thing?
American society of course lives. The Constitution provides a framework whereby a free people can choose among competing policies and governing ideas. It was never intended to be an empty vessel into which an unelected body of men could pour their ideology of Historical progress without the consent of fellow citizens.
Is “big government” related to social Darwinism and pragmatism?
Yes. The progressive synthesis argued openly for an overturning of the principled Madisonian constitutionalism of natural rights and limited and dispersed power, in favor of an organic, evolutionary model of the Constitution that requires a government that is, in principle, unlimited in its power. It becomes the government’s—especially the judiciary’s—task to guide the unfolding of History.
What’s the relationship between the evolutionary model of our Constitution and political freedom?
Political freedom, in the form of the rights of individual citizens as opposed to the collective, is unimportant to the progressives. The Constitution evolves toward a notion of fairness in the allocation of resources and even political freedoms.
You claim that our evolving understanding of constitutionalism is really at the heart of the same-sex marriage debate. How is this so?
Same-sex marriage is one of the most compelling contemporary manifestations of the new science of jurisprudence. Human personality must be allowed to develop by keeping the state out of the business of restricting “intimate associations.” The asserted primacy of freedom of choice unguided by rational or traditional norms thus allows us to define our natures as we see fit. The process of redefinition is in principle virtually unlimited, and will continue to unfold as new understandings of human personality manifest themselves in History.
If our Constitution is evolving, where does it end?
It never ends. The new science of jurisprudence will attempt to perpetuate itself because of its own premises. Progressivism emphasizes motion and growth, or else stasis and death. Therefore motion must be chosen, and court decisions will continue to be understood as the engines of History and social growth, just as incremental genetic mutations are the engines of organic growth. As someone once said of the English idea of parliamentary supremacy, Parliament can do anything but make a man into a woman. This remark highlights the notion that some things exist in nature and even a governmental institution supreme over human affairs is not omnipotent. But the commentator was speaking only of Parliament, not of the far more hubristic, nominally common-law courts of America, which have come, under the influence of historicist doctrines of progress, much closer to toying with the order of nature than Parliament ever dreamed possible. 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. We are at a precipice, not only for constitutional law but also for thought itself.