Living Constitution, Dying Faith

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At a Heritage event, political scientist and legal historian Bradley C.S. Watson discussed how the contemporary embrace of the living Constitution has arisen from the radical transformation of American political thought. Today’s view is that we have a Constitution that must be interpreted in light of “historically situated,” continually evolving notions of the individual, the state and society. This modern historical approach has been embraced by the judicial appointees of both Democratic and Republican presidents. His discussion was based on his newly released book, Living Constitution, Dying Faith: Progressivism and the New Science of Jurisprudence.

Watson cited some examples of historical progressive thinking. His first example was opinion of the U.S. Supreme Court in Planned Parenthood v. Casey. In this case, the constitutionality of several Pennsylvania state regulations regarding abortion was challenged. He said “the opinion of the U.S. Supreme Court asserted or reasserted an individual’s right to be “free from unwarranted government intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” He pointed out that “it went on to add that such ‘intimate and personal choices are central to the personal dignity and autonomy’ and to the liberty protected by the Fourteenth Amendment.”

Another example Watson used was the Cruzan v. Missouri Department of Health case. In this case the Supreme Court ruled in favor of Missouri and agreed it was acceptable to require clear and convincing evidence for the removal of life support. Watson said “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 treatment.” Watson believes the “right to die” case illustrates the centrality of historical reasoning to some members of the Court.”

Watson said “progressivism is a social movement rather than an intellectual movement and is characterized by a set of ideas.” He went on to describe the judicial system as experimental and problematic. He also described six pillars of the historical approach to constitutional law:

• “There are no fixed or eternal principles that govern the politics of a decent regime,
• The state and its parts are organic and are in a struggle for growth,
• Democratic openness is necessary for growth,
• The state and its parts exist only in history,
• Some individuals stand outside of this position,

• and the moral, political truth is always important.”

Watson also said John Dewey believed in a combination of pragmatism and social Darwinism. He said “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 rights.” He believed “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.” He believed Dewey helped ensure “change” would have a central position in American political rhetoric.

Alanna Hultz is an intern at the American Journalism Center, a training program run by Accuracy in Media and Accuracy in Academia.