More than any other branch of government, the judicial branch
has adopted a historicist view of the Constitution and
constitutionalism. This historicist view is not simply that we
have, of necessity, an interpretable Constitution. It goes further
and posits that the Constitution must be interpreted in light of a
Progressive understanding of society in which the historically
situated, contingent nature of the state, the individual, society,
and constitutionalism itself determines the meaning of our
This understanding is in a considerable amount of tension with
the earlier American constitutionalism of limited and dispersed
powers serving the "Laws of Nature and of Nature's God." As Herman
Belz has noted:
The conception of the constitution as a formal legal instrument
or code giving existence to government and prescribing and limiting
the exercise of its powers, rather than as the basic structure of
the polity, not consciously constructed but growing organically
through history, was one of the distinctive achievements of the
American Revolution, and oriented constitutional description and
analysis in the early republic toward a legalistic approach.
The modern historicist, as opposed to legalistic, approach to
the Constitution 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 the same organic view of the
This transformation is little understood. Legal historians have
preferred to concentrate on legal education or legal theory
narrowly construed rather than on the philosophical ideas that
animate thought and action. Political theorists for the most part have
not filled the gap. We can only begin to assess the new
constitutionalism-as well as the new science of jurisprudence that
is its handmaiden-by tracing its philosophical origins.
In 1863, Abraham Lincoln declared that America "was conceived in
liberty, and dedicated to the proposition that all men are created
equal." In Lincoln we can see the culmination of the older
understanding of the American constitutional order and the
political principles it enshrined. Our Constitution and its
principles were, in Lincoln's view, handed down by the Founding
Fathers, who bequeathed them to later generations to preserve. From
relatively early in his adult life through the coming and
prosecution of the Civil War, Lincoln exemplified the belief in
formal constitutionalism overlaid with the complementary belief in
the necessity of active statesmanship for preserving it.
Lincoln's rhetoric and actions are testaments to the
propositions that there are such things as natural rights that do
not change with time; that the American Constitution is dedicated
to preserving them; and that the role of great political actors,
while responding to urgent necessities, is to look backward rather
than forward. For Lincoln, the state is more formal than organic;
history is not destined to unfold in a democratic direction; and
democracy itself, because of its indissoluble link with the
passions rather than reason, is always combustible. Moral and
political regress is as likely-perhaps more likely-than progress.
Furthermore, there are certain fixed principles beyond which
progress is impossible. Sharing with Plato and Aristotle the belief
that negative regime change is an ever-present possibility, Lincoln
was profoundly wary of the very notion of progress; evolution and
growth were not part of his political vocabulary.
American political thought subsequent to Lincoln for the most
part has undermined Lincoln's (and the Founders') conception of
American constitutionalism and the philosophical proposition on
which it rests. This transformation in political thought,
commencing after Reconstruction and running through the Progressive
era of the early 20th century, undergirds many forms of political
action in America.
This essay will discuss the Progressive transformation of
jurisprudence, but it will begin by explaining the Progressive
philosophy as a coalescing of social Darwinism and pragmatism into
a powerful intellectual movement that decisively informs
institutional attitudes and behaviors-particularly, starting in the
early 20th century, those of the judicial branch. Only by
understanding this coalescence of social Darwinism and pragmatism
can we identify the source of the novel legal ideas of Progressive
jurists in the 20th century and today.
The Social Darwinist Moment
In the America of the late 19th century, the old understanding
of the nature and permanent limits of politics was dead or dying.
The death of the old view of politics was necessarily linked to a
reevaluation and redefinition of the American Founders' political
ideas. The death was hastened, and arguably caused, by the arrival
on the intellectual scene of the various doctrines and philosophic
assumptions commonly associated with the phrase "social Darwinism."
As Richard Hofstadter has observed, "In some respects the United
States during the last three decades of the nineteenth and at the
beginning of the twentieth century was the social Darwinian
The Basic Tenets of Social
On the foundation laid by the social Darwinists and those in
allied philosophical movements, many of the most influential
American political thinkers and actors-particularly judicial
actors-came, in the 20th century, to share six core, overlapping
ideas regarding the nature of politics and constitutional
- First, that there are no fixed or eternal principles
that govern, or ought to govern, the politics of a decent regime.
Old political categories are just that, and Lincoln's understanding
of the Founders' Constitution, to the extent it is worthy of any
consideration at all, is a quaint anachronism.
- Second, that the state and its component parts are
organic, each involved in a struggle for never-ending growth.
Contrary to the Platonic ideal of stasis, and contrary as
well to the Aristotelian notion of natural movement toward
particular ends, the Progressive organic view of politics suggests
that movement itself is the key to survival and the
- Third, that democratic openness and experimentalism,
especially in the realm of expression, are necessary to ensure
vigorous growth; they are the fertilizer of the organic state.
There are no limits to our experimenting with our institutions and
laws. Such experimentalism implies a particular sort of
consequentialism or utilitarianism when judging institutions and
laws: If no experiments are off-limits, the only way to distinguish
good policy from bad is pure consequentialism.
- Fourth, that the state and its component parts exist
only in history, which is understood as an inevitable process
rather than as a mere chronicling of events.
- Fifth, that some individuals stand outside of this
process and must, like captains of a great ship, periodically
adjust the position of this ship in the river of history to ensure
that it continues to move forward rather than run aground and
stagnate. Politics demands an elite class, possessed of
intelligence as a method, or reason directed to instrumental
matters rather than fixed truth. This elite class springs into
action to clear obstacles in the path of historical progress in the
form of outdated institutions, laws, and ideas.
- Sixth-and a direct corollary to the strong historicism
reflected in the fourth idea, that the moral-political truth or
rightness of action is always relative to one's moment in history,
or the exact place of the ship in the river of time.
The Influence of Darwin on Political
According to the social Darwinists and those who would follow in
their footsteps, a new social science was being formed from
Darwinian principles, the organic, genetic, and experimental logic
of which could be brought to bear on an array of human problems
heretofore considered unsolvable, or at least permanent. Darwin
came to be understood as a political philosopher and political
scientist rejecting old modes and orders.
No one more clearly explicates the nature of this new science
than John Dewey-one of the most prominent Progressive
philosophers-in an important essay entitled "The Influence of
Darwinism on Philosophy." By the time he wrote it in 1909, Dewey was
effectively summarizing the intellectual tenor of his times. He was
giving an account of the origins of an already dominant pattern of
American social and political thought.
As Dewey explains, the publication of Darwin's Origin of
Species marked a revolution not only in the natural sciences,
but also in the human sciences, which can continue in their old
form only because of habit and prejudice. To speak of an "origin"
of species is itself a revolution in thought, implying that the
organic sciences as well as the inorganic can concentrate on change
rather than stasis.
In Dewey's words, "The influence of Darwin upon philosophy
resides in his having conquered the phenomena of life for the
principle of transition, and thereby freed the new logic for
application to mind and morals and life." Darwin, more than anyone
else, allows us to move from old questions that have lost their
vital appeal to our perceived interests and needs. We do not solve
old questions, according to Dewey:
[W]e get over them. Old questions are solved by disappearing,
evaporating, while new questions corresponding to the changed
attitude of endeavor and preference take their place. Doubtless the
greatest dissolvent in contemporary thought of old questions, the
greatest precipitant of new methods, new intentions, new problems,
is the one effected by the scientific revolution that found its
climax in the "Origin of Species."
Dewey's Darwin rejects "the sacred ark of permanency" that had
governed our understanding of human beings. Darwin challenges the
most sacred belief in the Western tradition, one that had been
handed down from the Greeks: the belief in the "superiority of the
fixed and final," including "the forms that had been regarded as
types of fixity and perfection." The Greeks expounded upon the
characteristic traits of creatures, attaching the word
species to them. As they manifested themselves in a
completed form or final cause, these species were seen to possess
uniform structure and function and to do so repeatedly, to the
point where they were viewed as unchanging in their essential
being. All changes were therefore held "within the metes and bounds
of fixed truth." Nature as a whole came to be viewed as "a
progressive realization of purpose." The Greeks, then,
propounded ethical systems based on purposiveness.
But now, according to Darwin, "genetic" and "experimental"
processes and methods can guide our inquiries into the human
things. In fact, on Darwinian terms, change is the essence of the
good, which is identified with organic adaptation, survival, and
growth. With experimental social arrangements, change in useless
directions can quickly be converted into change in useful
directions. The goal of philosophy is no longer to search after
absolute origins or ends, but to search after the processes that
generate the right kind of change. What materially
is becomes more important than what ought to be,
because only the former can be observed by the new empirical
In the absence of fixity, morals, politics, and religion are
subject to radical renegotiation and transformation. Essences are
no longer the highest object of inquiry, or indeed any object of
inquiry. Rather, science concentrates on particular changes and
their relationship to particular useful purposes, which depend on
"intelligent administration of existent conditions."
Philosophy is reduced from the "wholesale" to the retail level,
from the realm of general ideas to the realm of particular
effects. Through the emphasis on administration of
concrete conditions, Dewey claims, responsibility is introduced to
philosophy. Instead of concentrating on metaphysics, or even
politics in the full Aristotelian sense, we are in effect freed to
concentrate on policy-or, in Dewey's language, "the things that
specifically concern us."
The Reduction of Political Philosophy to Modern
Darwin broke down the last barriers between scientific method
and reconstruction in philosophy and the human sciences generally
because of his attack on the view that human nature is different
from the physical sciences and therefore requires a different
approach. Briefly put, the Progressive view is that the physical
and moral (or "social") sciences are indistinguishable. This is
contrary to Aristotle's understanding that different methods of
inquiry are required for different kinds of beings: There is no
single scientific or philosophic mode of inquiry that applies
across the board. Philosophy and science-the human striving after
wisdom or knowledge-seeks an understanding of the highest
things through an examination of all things according to
methods appropriate to each.
One way to understand Dewey's enterprise is to view it as an
attempt to reintegrate science and philosophy, which had been torn
asunder by modernity. But while Dewey seeks their reintegration, he
does so on uniquely modern terms by reducing philosophy to
empirical, naturalistic science-the process of science without the
ends or essences or highest things.
According to Dewey, we can therefore reduce human sciences,
including politics, to relatively simple principles, contrary to
the Aristotelian or ancient view, which held that politics is much
harder than physics precisely because one must take into
account unpredictable behavior and choice-worthy, purposive
behavior toward complex ends rather than more predictable
motions and processes toward simple ends. The human sciences, which
at the highest level involve statesmanship, are, for Aristotle,
more complex than the physical and rely on great practical,
experiential wisdom as well as theoretical wisdom. By contrast, for
Dewey and his generation, Darwinism seemed to break down the
barriers between the human and the non-human.
Dewey's elucidation of the utility of Darwinism to social
science and the new philosophy of man draws from the thought of a
number of the major social Darwinist thinkers, including William
Graham Sumner, Lester Frank Ward, and W. E. B. DuBois. Together
with Dewey, these men provided many of the intellectual categories
of their age, and their ideas continue to exert a powerful control
over political and jurisprudential discourse to the present day.
Collectively, they point to a view of society as an organism that,
constantly in the throes of change, must grow and evolve or
For the social Darwinists, to look backward-whether to founding
principles or any other fixed standard of political
right-inevitably reflects a death wish. While to some degree
borrowing Hegelian historical categories, American social Darwinism
shares no single rational end point with Hegelianism. Change in
itself becomes the end in many instances and is always preferable
to its opposite.
Pragmatism and Programmatic Liberalism
Despite its defining many of the terms of intellectual discourse
in late 19th century America, social Darwinism would not become
known as the quintessential American philosophy. This honor belongs
to pragmatism. In fact, it has recently been suggested that by the
1890s, social Darwinism was a "fading ideology."
However, the links between pragmatism and social Darwinism are
profound, and it is impossible to understand the "American
philosophy" of pragmatism without understanding its relationship to
social Darwinism. It is also impossible to dismiss social
Darwinism's enduring influence on American political thought. The
pragmatic tradition worked "with the basic Darwinian
concepts-organism, environment, adaptation," and spoke "the
language of naturalism."
William James's reflections on "What Pragmatism Means"
elucidate the links between these two schools of thought that
combined to produce American Progressivism. James recognizes
himself as the popularizer of Charles Peirce's argument that the
only meaning of a thought or idea is what conduct or consequences
it is fitted to produce. Even though James rejected the
Hegelian-Darwinian historical categories that were never far from
the thinking of his fellow pragmatist and younger contemporary John
Dewey, the two shared a thoroughgoing skepticism about the
tradition of absolutes, a faith in progress, and an emphasis on the
process rather than essence of human life and activity.
Pragmatism's Rejection of Absolute
With Darwinism, pragmatism rejects the "rationalist temper" that
is ossifying rather than instrumental and accepts the displacement
of design from scientific consciousness. According to James, all
ideas must be interpreted in light of practical consequences rather
than purposes or metaphysical underpinnings. If no practical
difference in the realm of consequences can be found, the debate
over any competing notions is idle and useless. There are no
important differences in abstract truth that do not express
themselves in concrete fact-no principles, absolutes, or a
prioris can govern the pragmatic method, which is an attitude
of casting one's glance away from first things toward last things,
meaning the "fruits, consequences, facts" of life.
While pragmatism has much in common with earlier empiricism, it
is purer in its rejection of finality and its concentration on
action and power. However, it does so without the materialist or
anti-ideological bias that characterized empiricism.
Ideas "become true just in so far as they help us to get into
satisfactory relation with other parts of our experience."
James's pragmatism therefore contains within it a theory of truth,
not just meaning. New ideas are true if they gratify "the
individual's desire to assimilate the novel in his experience."
The test of the truth of a proposition is its ability to marry
what we know to new facts. Pragmatism thus becomes a method and
means to bind old belief to a new set of facts when new beliefs are
inchoate, providing a kind of psychic tranquility that prevents
internal conflict: "The reason why we call things true is the
reason why they are true." In short, what works for
us is true, and the pragmatist understanding of what works is
linked to the inevitability of change and growth. At the very end
of his essay "The Will to Believe," James approvingly quotes
Fitzjames Stephen: "We stand on a mountain pass in the midst of
whirling snow and blinding mist.... If we stand still we shall be
frozen to death. If we take the wrong road we shall be dashed to
pieces. We do not certainly know whether there is any right one."
It is hardly clear that these two understandings of
pragmatism-as a theory of method to arrive at objective reality and
as a theory of subjective satisfaction that might affect the
questions we choose to ask-are entirely compatible. Nonetheless,
James runs with them, going so far as to argue that even
mystical experiences are true if they have practical
consequences. If "God" works for us-if religious belief is
effective in guiding our actions or giving us comfort-then
pragmatism cannot deny it. Religion-the will to believe-can have its
For James personally, belief in the Absolute clashes with other
truths whose benefits he hates to give up, but for others it
might not. If belief in the Absolute could be restricted "to its
bare holiday-giving value," it would not clash with James's other
truths, for such a belief would understand
religious symbols in purely secular terms. Alas, James cannot
personally adopt religious belief, for underlying the belief is a
system of logic and metaphysics of which he is the enemy.
Of course, this opens James and pragmatism to the same lines of
criticism that can be directed toward utilitarianism or
laissez-faire economics: There can be different truths or goods for
different people, depending on what is expedient for them. James's
pragmatism here comes perilously close to reducing all human beings
to isolated individuals seeking the greatest good not even for the
greatest number, but for themselves. It has no fixed ends beyond
growth and practicality, but the direction of this growth is not
rationally intelligible in a way that transcends a consequentialist
analysis. As James argues:
Rationalism sticks to logic and the empyrean. Empiricism sticks
to the external senses. Pragmatism is willing to take anything, to
follow either logic or the senses and to count the humblest and
most personal experiences. She will count mystical experiences if
they have practical consequences. She will take a God who lives in
the very dirt of private fact-if that should seem a likely place to
Her only test of probable truth is what works best in the way of
leading us, what fits every part of life best and combines with the
collectivity of experience's demands, nothing being omitted....
But you see already how democratic she is. Here manners are as
various and flexible, her resources as rich and endless, and her
conclusions as friendly as those of mother nature.
It is indeed the very protean nature of pragmatism, its
willingness to take anything, combined with its democratic
ethos and faith in scientific intelligence, that has made it an
enduringly popular doctrine for Americans-politicians and jurists
no less than private-sector entrepreneurs. Indeed, in the pragmatic
understanding, it seems that any idea or pursuit can be justified
if it serves this ethos and this faith.
The fact that versions of pragmatism that were not espoused at
the time of the Founding are today espoused in all branches of
American government is telling with respect to the development of
our constitutional understandings. Many have noted the movement in
20th century political rhetoric away from discussions of the
Constitution or constitutionalism and toward discussion of
policy. This move is at least partly a reflection
of the hold of pragmatism on the American political
John Dewey's Combination of Pragmatism and Social
Dewey brought pragmatism and social Darwinism together as a
compact set of political ideas while showing their mutually
reinforcing character. Dewey's pragmatism in some respects follows
James, but it remains reliant on the intellectual categories of
"left" social Darwinism.
James's purer pragmatism all but did away with the categories of
nature and natural law that were still central, albeit only in a
materialist sense, to the Darwinists. Dewey's pragmatism, by
contrast, re-injects natural forces and a strong sense of
historical unfolding. It is in Dewey that we can see how social
Darwinism and pragmatism together become an intellectual and
political force to be reckoned with: a modern liberalism whose goal
is to help history along its democratic path, relying on the
intellectual inputs of an elite vanguard that need not directly
consult the people or ask for their consent.
While still a graduate student at Johns Hopkins, Dewey had
fortuitously heard the social Darwinist Lester Frank Ward present
his paper, "Mind as a Social Factor." But more fundamentally,
Dewey was deeply antagonistic-as was an increasing proportion of
the intellectual class of his day-toward classical economics and
philosophical individualism. Like Ward, Dewey thought human beings
had the capacity and responsibility to make choices aimed at
directing organic social and individual growth, which is now
stifled by outmoded notions of competition and individual
Such choices and the policies that flow from them are always
provisional responses to the flux of life, but their ultimate end
is a more democratic society. Ideas grow and survive not because
they are true or transcend human experience, but because they
respond to circumstances most effectively. "Social action" is
called for once we understand that scientific intelligence can in
fact oversee the unfolding of History.
In his short book Liberalism and Social Action, based on
a series of lectures, Dewey offers a history of liberalism, an
analysis of the crisis it faces, and its prospects for a
renaissance that will cement it as the guiding force of social
life. As reason becomes purely instrumental, no longer concerned
with ultimate truths but only with "concrete situations,"
liberalism comes into its own.
According to Dewey, the Western understanding of liberalism has
evolved from Locke's natural rights to Adam Smith's dynamic
economism to Jeremy Bentham's psychology of pleasure and pain that
seeks the greatest happiness for the greatest number. Bentham's
theory argued for judging law by its consequences and for the
supremacy of the national over the local. Furthermore, Bentham
picked up on Hume's denial of natural rights-which exist only in
"the kingdom of mythological social zoology"-and thereby set
the stage for the final move from individualist to collectivist
liberalism. Dewey thus presents the evolution of
liberalism as a gradual and rational process in which the implicit
ideas of Locke are realized most fully in the modern liberal ideas
Interestingly, Dewey notes that the source of factory laws and
other reforms in England was not Benthamite liberalism alone.
Rather, liberalism was informed by evangelical piety,
humanitarianism, literary romanticism, and Tory hostility to
industry. German idealism also played a role, emphasizing the
organic connection of individuals to the collective and the
creation of the conditions for positive freedom.
Still, there was nothing fundamental to Bentham's doctrine "that
stood in the way of using the power of government to create,
constructively and positively, new institutions if and when it
should appear that the latter would contribute more effectively to
the well-being of individuals." Liberalism accommodated
and assimilated a wide range of doctrines but never lost its
historicism, consequentialism, or scientism. As a result, "the
majority who call themselves liberals today are committed to the
principle that organized society must use its powers to establish
the conditions under which the mass of individuals can possess
actual as distinct from merely legal liberty." The challenge for
this modern liberalism is to make itself a "compact, aggressive
This new liberalism is distinct from its outmoded earlier
version because it makes itself relevant to the problems of social
organization and integration of various historically situated
forces. In fact, the lack of a historical sense on the part of
earlier liberals blinded them to the fact that their own
interpretations of liberty were historically conditioned rather
than immutable truths. In other words, the problem of the earlier
liberals like Locke is that they thought their ideas were good for
all places and all times. Later liberals like Dewey have recognized
that ideas are contingent upon their time period, relative to their
Historical relativity finally frees liberalism to assert that
economic relations are the "dominantly controlling" forces of
modernity and that they require social control for the benefit of
the many. Ensuring free competition and the removal
of artificial barriers to economic activity is no longer enough.
Instead, in modern liberalism, the individual's powers must be
"fed, sustained, and directed" through cooperative
control of the forces of production. Individuality itself does
not simply exist, but is attained through continuous growth.
The demand for a form of social organization that should include
economic activities but yet should convert them into servants of
the development of the higher capacities of individuals, is one
that earlier liberalism did not meet. If we strip its creed from
adventitious elements, there are, however, enduring values for
which liberalism stood. These values are liberty, the development
of the inherent capacities of individuals made possible through
liberty, and the central role of free intelligence in inquiry,
discussion, and expression.
In Dewey, we see a dominant theme of American Progressivism and
20th century liberalism: the belief that there is an intelligence
or "method of intelligence" that can be applied to solve social
problems, which are themselves primarily economic in nature. It is
this intelligence, which makes no pretense to knowledge except as a
result of a pragmatic experimentation, that captures the spirit
of democracy more so than any philosophical or institutional
analysis. While all social relations are historically situated and
in flux, there is one constant: the application of intelligence as
a Progressive ideal and method.
For Dewey, therefore, "the only adjustment that does not have to
be made over again...is that effected through intelligence as a
method." It is the only simulacrum of God in an
otherwise desiccated world of process, evolution, and growth.
Dewey's Vision for Modern
Dewey rounds out his discussion by giving us insight into the
nature of a "renascent liberalism." Self-realization of the
individual must be physical, intellectual, and moral, and all
classes and individuals must benefit. This, of course, means that a
vast state mechanism must be constructed that is confidently
dedicated to ensuring individual self-realization by means of
progressive education, the welfare state, and redistribution of
The older political science of the Founding era, including that
of The Federalist, is easily swept aside by Dewey. While the
exact contours of public power and policy are not necessarily the
same for him as they are for Progressive political actors such as
Theodore Roosevelt and Woodrow Wilson, they all agree that there
are no inherent limits on state power. Like Roosevelt and Wilson,
Dewey is impatient with constitutional restraints and institutional
forms. Separation of powers is a doctrine rooted in stasis and,
therefore, political death. It stands in the way of progress and
Meanwhile, concerning oneself with constitutional forms and
formalities is to give to institutions an abiding and permanent
character they do not deserve. Certainly, Dewey did not concern
himself with the possibility that many publics are formed by
complex industrial societies and that a theory of representation is
needed to integrate them. Such considerations are subsumed to the
newly political categories of change and growth. Long before "the
courage to change" became an effective presidential campaign
slogan, Dewey helped ensure that "change" would have a central
position in American political rhetoric.
As constitutional restraints are seen as counterproductive and
even dangerous, the restraints of character take their place in a
decent political order. Education becomes a check on the power of
the state as it creates citizens capable of participating fully in
the republic of experimentation. But the old
virtues-whether they be of Aristotle's Ethics, Plato's
Republic, or the Judeo-Christian Bible-must be
overcome in Dewey's estimation. They must be replaced by the new
virtues inculcated by a democratic education, including
non-competitive striving, cooperation, and self-actualization.
All-around growth, peculiarly, seems to exclude certain
individual strivings, such as those after honor, money, or
power. Dewey seems to be concerned about the exercise of arbitrary
power but has little concern for the accumulated power of the state
that his vision entails. The cure for a powerful democratic state
seems to be constant evolution in the direction of more democracy.
The key to the perpetuation of our political institutions is far
removed from either the constitutionalism of the Founders or the
statesmanship of Lincoln.
In a profound summation of social Darwinism, Progressivism, and
contemporary liberalism, Dewey claims:
[Flux] has to be controlled [so] that it will move to some end
in accordance with the principles of life, since life itself is
development. Liberalism is committed to an end that is at once
enduring and flexible: the liberation of individuals so that
realization of their capacities may be the law of their life.
Human life therefore is nothing in particular, beyond a
continual unfolding and advancement, and liberalism is dedicated to
its liberation through social policy. When the economic necessities
are provided, individuals may pursue the higher life according to
their spiritual needs, whatever they might be and however they
And change they will. Dewey's vision of liberalism is ultimately
of an individual free of the various constraints that previously
were thought by so many to be necessitated by a dangerous and
eternal nature. This vision of liberalism is a version of Marx's
notion that truly free men may fish in the afternoon and criticize
after dinner. Although today's constraints happen to be, for Dewey,
largely economic in nature, it is not materialism but growth toward
freedom that is at the heart of modern liberalism.
The Progressive Synthesis and the New Science of
Progressivism as an intellectual and political (as opposed to
populist) movement amounts to the politicizing of the twin
doctrines of social Darwinism and pragmatism. By harnessing these
doctrines for political ends-as Dewey hoped-the Progressives were
able to usher in a new order of the ages that would overtake
Commencing in the early years of the 20th century, political and
judicial actors borrowed freely from pragmatism and social
Darwinism to construct a theory of politics, constitutionalism, and
human life. Politically, the age-old question of "what works" was
increasingly divorced from a sense of constitutional restraint,
which was replaced by an organic conception of a state unlimited in
principle, with growth and development to buttress certain
contemporary understandings of democracy and the choosing self as
its only end.
By the late 20th century, the Progressive synthesis was bearing
full fruit, particularly in the judicial branch. For example, in
the early 1990s, the plurality opinion of the U.S. Supreme Court in
Planned Parenthood v. Casey (1992) famously asserted
or reasserted an individual right to be "free from unwarranted
governmental intrusion into matters so fundamentally affecting a
person as the decision whether to bear or beget a child." It went
on to add that such "intimate and personal choices" are "central to
personal dignity and autonomy" and to the liberty protected by the
Fourteenth Amendment, which at its heart supplies "the right to
define one's own concept of existence, of meaning, of the universe,
and of the mystery of human life," all of which "define the
attributes of personhood."
Affirming this language a decade later, Justice Anthony Kennedy,
writing for the majority in Lawrence v. Texas
(2003), also asserted the importance of an "emerging recognition"
of new rights worthy of judicial protection, in this case
concerning homosexual conduct. "In all events," he argued, "we
think that our laws and traditions in the past half century are of
most relevance here" because they "show an emerging awareness that
liberty gives substantial protection to adult persons in deciding
how to conduct their private lives in matters pertaining to
Only through recognition of such liberty, argued Justice
Kennedy, can we avoid stigmatizing and demeaning the autonomous
choices of individuals, whose dignity is revealed in time. In
Had those who drew and ratified the Due Process Clauses of the
Fifth Amendment or the Fourteenth Amendment known the components of
liberty in its manifold possibilities, they might have been more
specific. They did not presume to have this insight. They knew
times can blind us to certain truths and later generations can see
that laws once thought necessary and proper in fact serve only to
oppress. As the Constitution endures, persons in every generation
can invoke its principles in their own search for greater
In striking down the state statutes at issue, these decisions
relied on purported substantive due process protections of the
Fourteenth Amendment-in Justice Kennedy's phrasing, the "due
process right to demand respect for conduct protected by the
substantive guarantee of liberty." But in order to justify their
opinions, they also advanced particular, interlocking
understandings of constitutionalism, individuality, and a dynamic
of historical unfolding, or history as more than a mere record of
events. Along with these understandings is a theory, adopted sub
silentio, of the judiciary's role in History.
Living Constitutionalism and the Court as Engine of
This is a theory adopted more explicitly by the late Justice
William J. Brennan when he claimed that judges must recognize that
"the genius of the Constitution rests not in any static meaning it
might have had in a world that is dead and gone, but in the
adaptability of its great principles to cope with current problems
and current needs." According to Brennan, the "vision of our
time" is destined to be different from the vision of other times,
and a central part of the judicial role is to act as visionary.
Although the Constitution is in some degree a "structuring text"
marking out the bounds of government, it is more fundamentally a
visionary document demanding ever more democracy and respect for
To inject meaning into these terms, the judge will eschew "a
technical understanding of the organs of government" in favor of "a
personal confrontation with the wellsprings of our society."
Asserting that individual dignity is the most important of all
political values, Brennan sees the judge's job as articulating its
meaning as that meaning reveals itself in time.
This revelation is aided by the full play of ideas. The reason
for the protection of "broad and deep rights of expression" is
that they are related to the intellectual and spiritual growth over
time that lends dignity to the human creature. Citing approvingly
Justice Brandeis's dictum in Whitney v. California
(1927) that the state has no end beyond ensuring full development
of human faculties, Brennan avers that the "demands of human
dignity will never cease to evolve." Dignity is not fixed; it
has no principles or laws beyond those governing its internal
evolutionary dynamic. In fact, the very act of looking for fixed
principles or laws is regressive, for in so acting we cast a glance
toward a past wherein dignity was, by definition, less developed
and more stultified.
A corollary of this view is that the scope and power of
government-whether state or national-are in principle unlimited
because of the need to support human dignity and the constant
development of human faculties. Courts merely adjudicate at the
"collision points" between state and society and are on guard
against anything that stifles salutary development.
The task of judging is therefore itself protean, accurately
reading and responding to the constant flux of human aspiration.
The Supreme Court has the last word on constitutional
interpretation, but the last word for any one time is not the last
word for all time, or else the Constitution "falls captive" to the
"anachronistic views of long-gone generations." The Constitution
is timeless only because its interpretations are time-bound; its
genius lies in its recognition of the inevitability of the
"evolutionary process." Adaptation to the "ever-changing
conditions of national and international life" is the sine
qua non of constitutionalism, and the motor of this process is
the judicial branch.
Brennan's colleague on the Court, the late Justice Thurgood
Marshall, also pointedly claimed that the meaning of the
Constitution was not fixed in Philadelphia or anywhere else.
The Constitution that emerged from Philadelphia was merely "a
product of its times," as is the Constitution we now have. The
changes we have witnessed in our constitutional fabric were not,
and could not have been, foreseen or accepted by those who gathered
in 1787 to draft the document. The constitutional text
itself lies dead in a vault in the National Archives.
The views of our own time are all that lives.
Constitutional interpretation therefore involves perceiving and
clearly articulating the direction of evolutionary change for an
organic document that serves the needs of an organic state. Those
who possess an insight into History-namely, those sitting on the
Supreme Court-must redefine outdated notions of liberty, justice,
and equality. Their aim is to aid a process that is outside the
full control of any one individual or institution. The historical
process is an immense struggle for survival of the good over the
bad, and good fortune is indispensable to a proper unfolding of
The Rapidity of the Court's Directional
On some questions, history moves rapidly. It is the job of the
wise majority of the Court to recognize its direction and clear the
obstacles, often in the form of state laws, that stand in its way.
The rapidity of Historical change is illustrated by the difficulty
even the Court has in keeping up with it. Certain minority opinions
gain majority status in remarkably short periods of time.
It took only 17 years for Lawrence to overturn Bowers
v. Hardwick (1986), in which a 5-4 majority of the
Supreme Court upheld a Georgia anti-sodomy statute. According to
Justice Kennedy in Lawrence, even as Bowers was being
decided, there was an "emerging recognition" of the substantial
liberty of adult persons to choose freely in "matters pertaining to
sex." The Court's majority in Bowers failed by failing to
recognize the stamp of approval that history had already placed on
homosexual conduct-but this Historical fact was not lost on the
For example, Justice Harry Blackmun quoted Oliver Wendell
Holmes-the Court's first social Darwinist-in condemning a law whose
grounds "have vanished long since." Such "blind imitation of the
past" is senseless because the ethical grounds
upon which such statutes were based have shifted radically over
time. For our time, at least, "much of the richness of a
relationship will come from the freedom an individual has to
choose the form and nature" of that relationship.
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 thus allows us to
define our natures as we see fit, subject only to the principle of
mutual consent. The process of redefinition is in principle
virtually unlimited and will continue to unfold as new
understandings of human personality manifest themselves in
A mere eight years before Lawrence, in Hurley v.
Irish-American Gay, Lesbian, and Bisexual Group of Boston
(1995), the Court had held unanimously that a privately organized
parade could exclude groups that wished to convey a message
contrary to that favored by the parade organization, thus
protecting the organization's First Amendment rights. However, just
five years later, in Boy Scouts of America v. Dale
(2000), the Court could muster only a slim 5-4 majority for the
proposition that an open homosexual did not have a right to join
the Boy Scouts as an adult leader because his presence in the
organization would convey a message contrary to the one the Boy
Scouts wished to convey.
What had happened in the intervening five years?
The dissent in Boy Scouts, penned by Justice John Paul
Stevens, gives us some clues. For him, unfavorable views of
homosexuals are rooted in ancient prejudices, best likened to the
"equally atavistic opinions about certain racial groups," that have
"been nourished by sectarian doctrine." Only "habit, rather than
analysis" grounds the man-woman distinction.
Thus does Justice Stevens, in a single paragraph, take on and
dismiss both revelation and classical moral reasoning. In the same
paragraph, he goes on to substitute history and historical progress
for these outdated forms of moral reasoning, including the findings
of social science as revealed in history:
Over the years...interaction with real people, rather than mere
adherence to traditional ways of thinking about members of
unfamiliar classes, have modified these opinions. A few examples:
The American Psychiatric Association's and the American
Psychological Association's removal of "homosexuality" from their
lists of mental disorders; a move toward greater understanding
within some religious communities; Justice Blackmun's classic
opinion in Bowers; Georgia's invalidation of the statute
upheld in Bowers; and New Jersey's enactment of the
provision at issue in this case. Indeed, the past month alone has
witnessed some remarkable changes in attitudes about
A series of "right to die" cases further illustrates the
centrality of historical reasoning to some members of the Court. In
Cruzan v. Missouri Department of Health (1990), a 5-4
majority held that a competent person has a constitutionally
protected Fourteenth Amendment liberty interest in refusing
unwanted medical treatment, but that the state of Missouri could
require clear and compelling evidence of an incompetent person's
wishes concerning the withdrawal of lifesaving medical
Justice Scalia, in a concurring opinion, would have had the
Court stand back from "right to die" questions entirely, for the
Constitution is silent on the matter, and indeed it has never been
the case that states have been prohibited from interfering with
such a purported right, the contours of which "are neither set
forth in the Constitution nor known to the nine Justices of this
Court any better than they are known to nine people picked at
random from the Kansas City telephone directory." But in
considering right to die cases non-justiciable on constitutional
grounds, Scalia was a minority of one.
In Washington> v. Glucksberg (1997), the Court upheld a
Washington> State statute that outlawed assisted suicide. In writing
for the majority, Chief Justice Rehnquist noted the cases in which
the Court had held that the Fourteenth Amendment's Due Process
Clause offers substantive protections of liberty going beyond fair
procedure. These have included, among other things, the right to
marry, the right to marital privacy, and (in Casey) the
right to abortion. But Rehnquist also asserted the reluctance of
the Court to expand substantive due process to other areas because
of the fundamentally political nature of the enterprise and the
superiority of legislative debate, experimentation, and compromise
to judicially imposed substantive standards.
In a concurring judgment, Justice Souter agreed that the
experimentation of the legislative process is to be preferred-but
only for the present time. "The Court should accordingly stay its
hand to allow reasonable legislative consideration. While I do not
decide for all time that respondents' claim should not be
recognized," wrote Souter, "I acknowledge the legislative
institutional competence as the better one to deal with that claim
at this time." For Souter, judicial intervention is not called for
until it is called for. Facts revealed as history unfolds, rather
than common law or constitutional principles, determine the
justiciability of fundamental moral-political questions.
Souter offered a similar concurrence in Vacco v. Quill
(1997), which was heard in conjunction with Glucksberg. In
Vacco, an equal protection claim was raised against a New
York law that allowed competent patients to refuse medical
treatment but made it a crime to assist a competent person to
commit suicide, including by prescription of lethal medication. The
argument in favor of striking down the law alleged that it resulted
in different treatment for similarly situated patients, one subset
of whom chose suicide by refusal of treatment, the other by
ingestion of medication.
Justice Rehnquist, speaking for the Court, maintained that the
distinction between refusal of treatment and assisting with suicide
was rational, the former resulting in death from "an underlying
fatal disease or pathology" and the latter involving the intention
on the part of a doctor that "the patient be made dead." In his
concurrence, Justice Souter would say only that he did "not
conclude that assisted suicide is a fundamental right entitled to
recognition at this time." According to Justice Souter's reasoning,
for the time being-but only for the time being-the state
statutes in Glucksberg and Vacco are not
unconstitutional under either the due process standard or the equal
protection standard; but history will be the ultimate judge, and
the Court will discern when history has rendered a pronouncement on
Like its overtly political counterpart, Progressivism in
jurisprudential guise steps outside the bounds of Madisonian
constitutionalism for the sake of faith in the future rather than
faith in the past. The Progressive task is to read the public mind
and loosen the chains of society enough to allow individual and
There is a residual incoherence to Progressive jurisprudence. 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, in Oliver Wendell
Holmes's words, the "felt necessities" of the age-and on the other,
it expresses the desire for decisions that counter what it claims
is illegitimate majority will.
However, neither pole is rooted in constitutional text,
tradition, logic, or structure. Rather, they are both rooted in the
judge's view of which necessities are most deeply felt and most
likely to encourage social and personal growth. The practical
result, in contemporary jurisprudence, is that art trumps
economics, expression trumps the common good, subjectivity trumps
morality, freedom trumps natural law, and will trumps deliberation.
Such is the face of Progressive jurisprudence, a face that now
seems barnacle-encrusted from its triumphal march of a hundred
Because of the extent to which this jurisprudence is now rooted
in the historicist thought that guides America and, under different
names, the Western world as a whole, and because of the strength
and momentum it has gained on its virtually uninterrupted path, its
effects will not be reversed any time soon. Its success is marked
by the fact that it no longer seeks victory-only legitimation.
Bradley C. S. Watson holds the Philip M. McKenna Chair in
American and Western Political Thought at St. Vincent College. As
Fellow in Politics and Culture at Saint Vincent's Center for
Political and Economic Thought, he directs the Center's Government
and Political Education Lecture Series, Culture and Policy
Conferences, and George Washington> Fellowship Program. This essay
is adapted from the author's book, Living Constitution, Dying
Faith: Progressivism and the New Science of Jurisprudence (ISI
Herman Belz, "The Constitution in the Gilded
Age: The Beginnings of Constitutional Realism in American
Scholarship," The American Journal of Legal History, Vol.
13, No. 2 (April 1969), p. 111.
reluctance of historians to deal with philosophical categories,
including those of the old constitutionalism that was replaced by
the new, has been noted by Mark Warren Bailey in Guardians of
the Moral Order (DeKalb, Ill.: Northern Illinois University
Press, 2004), pp. 2-6.
Belz notes, a strain of constitutional realism became evident in
historical studies written in the years after Reconstruction by
such pre-Progressive scholars as John W. Burgess, Herman Edward von
Holst, J. Franklin Jameson, Alexander Johnston, Brooks Adams,
George Bancroft, Christopher Tiedeman, and Sidney George Fisher.
These men emphasized the importance of extraconstitutional
influences on the practice of American politics and the development
of constitutional understandings, from the growth of political
parties to the particular actions of the branches of government.
While they went "beyond the façade of the formal written
document" and examined particular historical circumstances, they
did not, for the most part, rely on a strong theory of History or
concentrate their attention on the role of the Supreme Court in
promoting organic growth. See Belz, "The Constitution in the Gilded
Age," passim. Woodrow Wilson would become the most prominent
exponent of a theory of History that suggested evolution in a
particular direction-though he saw the executive rather than the
judicial branch as primary expositor and superintendent of this
Richard Hofstadter, Social Darwinism in
American Political Thought, rev. ed. (Boston: Beacon Press,
1955). The phrase "social Darwinism" gained widespread intellectual
currency as an appropriate descriptor of an amalgam of ideas only
with the publication of the first edition of this book in 1944.
Dewey, "The Influence of Darwinism on Philosophy," in The
Influence of Darwinism on Philosophy and Other Essays in
Contemporary Thought (New York: Henry Holt and Co., 1951).
only other contender for the throne was the vigorous, pragmatic
individualist frontier strain of thought associated with such
figures as Frederick Jackson Turner and Mark Twain, but this strain
was never as theoretically unified as social Darwinism and never
found the same acceptance among the intellectual classes. Not
coincidentally, perhaps, it could not be said to have undermined,
in any direct or consistent manner, the principled understanding of
the American Founding articulated by Lincoln.
Dewey, "The Influence of Darwinism on Philosophy," pp. 8-9.
Ibid., p. 6. There are problems with
this Deweyan tendency to identify nature as final cause or form
with changelessness. Such an account comes close to capturing the
essence of Plato's forms, but for Aristotle there are no fixed,
immutable ideas separate from matter. Rather, things develop to
their natural perfection, which for human beings is happiness,
relying on a combination of intellectual and moral virtue. There is
a tension in Aristotle between philosophy (man as knower) and
politics (man being a political animal-i.e., a virtuous
actor-rather than, or in addition to, a knower). It is far from
clear, in either Aristotle or Plato, how these virtues interact at
all levels. What is clear is that there is no simple
teleology in Aristotle when it comes to human beings. Simple
teleologies are for the lower forms, whereas for humans there are
choices involving politics, ethics, and philosophy, and nature many
times misses its mark. Furthermore, for Aristotle, essence is not
form simply, but activity or what a thing does. In his science,
repose does not represent the highest state of being. Although
there is a good amount of truth to Dewey's characterization of
Western science, or philosophy, as the search for the transcendent,
he seems wrong insofar as he puts a Platonic gloss on
Dewey, "The Influence of Darwinism on Philosophy," p. 6.
See, for example, John Dewey, Reconstruction in Philosophy
(Boston: Beacon Press, 1957), passim.
This is the reason why we do not expect great
statesmen-exercising practical and theoretical wisdom-to be young,
whereas mathematicians might be.
Louis Menand, The Metaphysical Club
(New York: Farrar, Straus, Giroux, 2001), p. 302.
Hofstadter, Social Darwinism in American
Political Thought, p. 125.
William James, "What Pragmatism Means," in William James, Essays
in Pragmatism, ed. and int. Alburey Castell (New York: Hafner
Press, 1948); originally delivered by James as a lecture in
Ibid., pp. 144-145, 154.
Ibid. Emphasis in original.
William James, "The Will to Believe" (1896),
in Pragmatism: A Reader, ed. and int. Louis Menand (New
York: Vintage Books, 1997), p. 92.
James, "What Pragmatism Means," pp.
Interestingly, U.S. courts, in Establishment
Clause jurisprudence, have come to deal with the Absolute in
similarly pragmatic terms. If government celebration of or teaching
about religious holidays, institutions, or symbols can be
understood in purely secular terms, it passes constitutional
muster. Unlike James, many judges do not appear to suffer cognitive
dissonance as a result.
James, "What Pragmatism Means," pp. 157-158.
One need only compare the constitutional
rhetoric of Lincoln to that of virtually any recent President to
see this difference in stark relief. See Jeffrey K. Tulis, The
Rhetorical Presidency (Princeton, N.J.: Princeton University
Menand, The Metaphysical Club, p. 302.
Indeed, Louis Menand notes that the growth of
American social science disciplines was a consequence of the
rejection of the notion that evolutionary laws govern in a way that
cannot be improved upon by public policy. See Menand, The
Metaphysical Club, p. 302.
Dewey, Liberalism and Social Action
(Amherst, N.Y.: Prometheus Books, 2000; orig. pub. 1935), p.
This move was delayed in the United States
due to the more agrarian nature of its economy and the lack of a
Benthamite influence. See Dewey, Liberalism and Social
Action, pp. 27-28.
See especially John Dewey, Democracy and Education: An
Introduction to the Philosophy of Education (New York: The Free
Press, 1966; orig. pub. 1916).
Dewey, Liberalism and Social Action, p. 61.
Planned Parenthood of Southeastern
Pennsylvania v. Casey, 505 U.S. 833 (1992).
John Geddes Lawrence and Tyron Garner v.
Texas, 539 U.S. 558 (2003).
William J. Brennan, "The Constitution of the United States:
Contemporary Ratification," South Texas Law Review,
Vol. 27 (1986), p. 438.
Whitney v. California, 274 U.S. 357 (1927).
Brennan, "The Constitution of the United States," p. 443.
Excepting those areas where the judge's
position apparently should be "fixed and immutable"-for example, in
opposition to capital punishment as a violation, in all
circumstances, of the Eighth Amendment ban on cruel and unusual
punishment. See Brennan, "The Constitution of the United States,"
Brennan, "The Constitution of the United States," p. 444.
Thurgood Marshall, "The Constitution: A Living Document," Howard
Law Journal, Vol. 30 (1987), p. 915.
Bowers v. Hardwick, 478 U.S. 186 (1986).
This is a quotation from Holmes's essay, "The Path of the Law."
Bowers v. Hardwick, 478 U.S. 186 (1986) (Blackmun, J.,
dissenting). Emphasis in original.
Hurley v. Irish-American Gay, Lesbian, & Bisexual Group of
Boston, 515 U.S. 557 (1995).
Boy Scouts of America v. Dale, 530 U.S. 640 (2000).
For an extended discussion of the relationship of this and similar
cases to the doctrine of stare decisis, see John C. Eastman,
"Stare Decisis: Conservatism's One-Way Ratchet Problem," in Bradley
C. S. Watson, ed., Courts and the Culture Wars (Lanham, Md.:
Lexington Books, 2002), pp. 127-137.
Cruzan v. Missouri Department of Health, 497 U.S. 261
Washington v. Glucksberg, 521 U.S. 702 (1997).
Vacco v. Quill, 521 U.S. 793 (1997).