Living Constitution, Dying Faith:
Progressivism and the New Science of Jurisprudence

by Bradley C.S. Watson
ISI Books, 250 pages, $25

The Constitution is the focus of our national political life, the trump card in our national policy debates. The political party or position with the Constitution on its side wins. This fact, in large measure, explains why the debate over constitutional interpretation continues to rage. Different interpretative methodologies lead to variant constitutional meanings.

Bradley C.S. Watson is a veteran of these debates. Watson, in his most recent foray into the area, Living Constitution, Dying Faith , argues that social Darwinism, coupled with philosophical pragmatism, created the progressive movement, in both its intellectual and political guises. In turn, progressive legal theory challenged and then eclipsed the received theory of constitutional interpre-tation. That is why, today, the dominant theory of constitutional interpretation focuses on the “living” or “organic” Constitution, often labeled “nonoriginalism” in the legal academy.

According to Watson, progressive legal theory was initially formulated in the early twentieth century by such scholars and judges as Dean Roscoe Pound and Justice Holmes. It came to dominate American legal thought, Watson explains, during the New Deal. Progressive legal theory is characterized by a commitment to big-H History: The courts, and particularly the Supreme Court, must guide the inexorable social change to which our society is subject by interpreting the Constitution to advance progress. Watson concludes that progressive legal theory is “ineradicably hostile to the American Constitution.” Therefore, to maintain legitimacy, it must “lurk in the shadows” of law schools and courts.

Progressive legal theory, Watson contends, displaced the “Constitution of the Fathers.” The traditional, and proper, method of interpretation involves application of existing law, the Constitution. It thereby advances the correct understanding of natural rights and human nature embodied in the Constitution and originating in the Declaration of Independence.