In 1863, Abraham Lincoln told his listeners at Gettysburg that America was “conceived in liberty, and dedicated to the proposition that all men are created equal.” Decades earlier, he had said that Americans were the “legal inheritors” of the “fundamental blessings” bequeathed by the Founders — whose principles, institutions, and very names they had a duty to preserve. The Founders, he said, bequeathed us a constitutional order in conformity with the eternal cause of civil liberty and natural rights, and they must therefore shine on in “naked, deathless splendor.” Lincoln was profoundly wary of the notion of progress in government; for him, the Founders stood for fixed principles beyond which progress was impossible. An American statesman must therefore look backward, rather than forward, for direction.
Not long after Lincoln’s death, however, that conception of the Founders and their Constitution was already dying, for in the late 19th century a new “progressive” constitutionalism began sweeping the intellectual classes. According to this doctrine, we were no longer to celebrate our Founding in the light of things that don’t change come what may. Instead, we were to cultivate a new understanding of the Constitution as a living, breathing, evolving document — with its actual words becoming, in effect, merely an empty vessel into which the preferences of the age might be poured. In this new dispensation, the very notion of fixity, or constitutional principle, is something that must be overcome, and Lincoln’s understanding of the Founders’ Constitution, to the extent it is worthy of any consideration at all, becomes a quaint anachronism. Progressives in the political arena have ofttimes paid lip service to constitutional principles and traditions, but their words ring hollow when understood in the context of the theory that informs progressive constitutionalism.
This new view of the Constitution arose from two important strains of American political thought: Social Darwinism and pragmatism. As the names suggest, Social Darwinism was the notion that social institutions must evolve to survive, just as species do in nature, while pragmatism was a system of philosophy that placed a strong emphasis on results over reasoning. Together, these doctrines rejected the notion of timeless truths and placed adaptation, experimentation, and change at the center of American political thinking and rhetoric. By the early 20th century, they had coalesced to form the intellectual backbone of the progressive movement.
According to progressives, intelligent guidance and sociopolitical reform are always possible, because no problem is inherent in human nature, which is malleable and perfectible. This alone is sufficient to distinguish the progressives’ understanding from the political science of the Federalist — and the Founders’ Constitution.
But the progressive critique was even more radical, being part of a larger attack on eternal verities in all spheres. According to the progressive philosopher John Dewey, Darwin’s Origin of Species marked a revolution not only in the natural sciences, but in the social sciences as well:
Prior to Darwin the impact of the new scientific method upon life, mind, and politics, had been arrested, because between these ideal or moral interests and the inorganic world intervened the kingdom of plants and animals. The gates of the garden of life were barred to the new ideas; and only through this garden was there access to mind and politics. 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.
In the absence of fixity, morals and politics and religion are subject to radical renegotiation and transformation. According to Dewey, we no longer direct our minds to old questions, “we get over them.” When social arrangements are maximally experimental and fluid, change is most likely to occur — and can most easily be guided in useful directions.
Dewey’s elucidation of the new modes of social inquiry drew upon the thought of a number of Social Darwinist and pragmatist thinkers, including William Graham Sumner, Lester Frank Ward, William James, and W. E. B. Du Bois. These thinkers provided the intellectual categories of their age, and today those categories continue to exert a powerful influence over political — and jurisprudential — discourse. Collectively, they point to a view of society as an organism that is constantly in the throes of change and must adapt or die. Like the Social Darwinists, the pragmatists used naturalistic concepts and emphasized change, while rejecting what James called the “rationalist temper” that ossifies rather than adapts. For the Social Darwinists and pragmatists, looking backward — as Lincoln had done — to founding principles, or to any other fixed standard of political practice, inevitably hinders the process of adaptation.
In early progressivism we see what would become a dominant theme of 20th- and 21st-century American liberalism: the belief that there is an intelligence, or “method of intelligence,” that can be applied to solve all social problems. For a progressive like Dewey, it is this intelligence, which makes no pretense to knowledge except as the residue of observation and pragmatic calculations, that captures the spirit of democracy more than any philosophical or institutional analysis. So while all social relations are historically situated and in flux, there is one constant: the application of intelligence as a progressive ideal and method. As Dewey says, “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 adaptation.
This faith in intelligence and expertise translated into support for a vast state mechanism that would be confidently dedicated to ensuring growth — by means of progressive education, the administrative state, and redistribution of capital. The older political science of the founding era was easily swept aside by the progressives; for them, the separation of powers was a doctrine rooted in stasis, and therefore political death. To concern oneself with constitutional forms and formalities was to give institutions an abiding character they do not deserve. Our 18th-century Constitution was seen as nothing more than an old idea, designed to deal with old questions — so we must get over it.
To be sure, the actual words of the Constitution remain stubbornly fixed (with rare exceptions through the cumbersome amendment process), and new provisions cannot be wished or assumed into existence. But those words require interpretation, and just as new institutions, technologies, and ideas arise to accommodate changing times, so too do new methods of interpretation. Through this insight, formal constitutionalism was subordinated to the newly politicized categories of change and growth. Long before “the courage to change” and “hope and change” became effective presidential campaign slogans, progressive intellectuals helped ensure that “change” would have a central position in American political rhetoric.
Like the progressive theorists, the great progressive presidents — Theodore Roosevelt, Woodrow Wilson, and Franklin Delano Roosevelt — were impatient with constitutional restraints and institutional forms. While the exact contours of public power and policy were not necessarily the same for all of them, they agreed that there are no inherent limits on state power. Wilson, the only political scientist to become president, was both theorist and political actor. He was explicitly contemptuous of the American constitutional order, which he understood as embodying Newtonian, mechanical ideas and institutions that stood in the way of necessary and vital organic growth. For Wilson, the state and its component parts exist only in the context of History, which is understood as a process directed toward an end, rather than a mere record of events. Leaders must always embrace change in order to stay on the right side of History. And indeed, some great men stand outside the process and must, like nautical captains, periodically adjust the position of the ship of state in the current of History — to ensure that it will continue to move forward, rather than run aground and decay.
Governance therefore demands an elite class, possessed of a certain kind of historical intelligence and insight. This elite class springs into action to clear blockages in the path of historical progress, whether in the form of anachronistic institutions, laws, or ideas. These blockages occur when openness and experimentalism prove inadequate; they stand in the way of the increasingly egalitarian aims of modern politics. Only “intelligent administration,” in Dewey’s formulation, can remove them. In this progressive vision, social planners and big-government schemers become the philosopher kings of the new age.
Wilson advocated, at different stages in his life, nothing short of constitutional revolution, whether in the form of a modified parliamentary system or, in a more diluted version, of strong executive leadership of Congress and the nation. All this was in aid of providing centralized command and control mechanisms that, under the archaic 18th-century system of limited and distributed powers — the system of the Founders — could not coalesce and become the necessary vanguard to direct the Constitution’s evolution in accordance with the historical process.
But Wilson and the progressives faltered after World War I, and it was not until the ascendancy of FDR that the language and practice of American politics changed for good, such that it would become virtually unrecognizable to the Founders or to Lincoln. In September 1932, on the campaign trail, FDR called on Americans to engage in “a reappraisal of values.” He told them that the earlier concepts of the American constitutional order would have to be adapted — ever adapted — to suit the conditions of the day. In the course of saying that, he relied on a striking reconfiguration of the Founders’ constitutionalism. He told his audience that “the Declaration of Independence discusses the problem of government in terms of a contract. . . . Under such a contract rulers were accorded power, and the people consented to that power on consideration that they be accorded certain rights. The task of statesmanship has always been the redefinition of these rights in terms of a changing and growing social order.” In this formulation, rights themselves are decidedly political rather than pre-political — the gifts of government, not God, and therefore eminently negotiable, according to the exigencies of the age.
FDR also told Americans that their “task now is not discovery or exploitation of natural resources, or necessarily producing more goods. It is the soberer, less dramatic business of administering resources and plants already in hand . . . of adjusting production to consumption, of distributing wealth and products more equitably.” He announced that “the day of enlightened administration has come,” administration in aid of “a more permanently safe order of things.”
And in words that sound remarkably contemporary, he went on to proclaim that “every man has a right to life; and this means that he has also a right to make a comfortable living. . . . Every man has a right to his own property; which means a right to be assured, to the fullest extent attainable, in the safety of his savings. . . . The responsible heads of finance and industry, instead of acting each for himself, must work together to achieve the common end. They must, where necessary, sacrifice . . . and in reciprocal self-denial must seek a general advantage. It is here that formal government — political government, if you choose — comes in.”
Commencing with the New Deal, this “political government” has consistently substituted purported expertise for the invisible hand of the marketplace, and in so doing has overcome federalism and fostered the stunning growth of the administrative and welfare state. All this has been done in the name of the superintendence of large-scale social and economic forces. Government must ensure that the “change” that enlightened thinkers “hope” for — and believe at a deep level that History requires — is in fact the change we get.
In other very contemporary-sounding exhortations, FDR urged citizens to “save our economic structure from confusion, destruction, and paralysis.” According to FDR, we needed “government cooperation to help make the system of free enterprise work.” Such “government cooperation,” he claimed, “is entirely consistent with the best tradition of America.”
Nowadays, of course, when our current president utters similar lines about economic policy and American “values” or traditions, they ring truer than they did in FDR’s time, since so much of our tradition has been redefined by the thought and language of the progressivism that the New Deal institutionalized. Hence FDR’s boldness and inventiveness, in speaking with a straight face about such a tradition, compared with Barack Obama’s far more platitudinous invocations of it, as in his inaugural speech, in which he claimed: “We the People have remained faithful to the ideals of our forebears, and true to our founding documents.” However, these ideals and documents must be interpreted in light of the fact that “this is our moment. This is our time.”
But early progressive hopes for a concentration of power in the hands of the executive and its administrative handmaids were too often dashed by the realities of the Founders’ Constitution. Presidents proved not quite powerful enough — and, in the view of progressives, too beholden to populist sentiments — to become unchallenged captains of the ship of state. So as the 20th century wore on, the judiciary was tasked with fostering cutting-edge progressive reform.
The Supreme Court has proven to be the only institution that can, in effect, all but ignore the Founders’ Constitution, since it has the ability to define the terms thereof. Throughout the 20th century the Court steadily expanded its power, as it diminished the power of legislatures and citizens. It now does this routinely, without course correction or regret. The Court behaves as if it believes Wilson’s formulation that citizens are mere rustics “handling delicate machinery.”
When Alexander Hamilton argued that the judiciary would be the “least dangerous” branch, no one in the founding generation, Federalist or anti-Federalist, imagined that the Supreme Court would find itself in the grip of a powerful progressive philosophy. Such a philosophy has for some time suggested to a working majority of the Court that it is often the judiciary’s job to interpret the Constitution not in accordance with the document’s words, or the traditions of American republicanism, but with the demands and direction of History.
Progressivism in jurisprudential guise is marked by a disposition to step outside the bounds of Madisonian constitutionalism for the sake of faith in the future, rather than the past. This disposition underlies Justice Kennedy’s assertion, in Lawrence v. Texas (2003), of the importance of an “emerging recognition” of a new right to homosexual sodomy. “In all events,” he claims, “we think that our laws and traditions in the past half century are of most relevance here.” It also accounts for Justice Souter’s suggestion in Washington v. Glucksberg (1997) that there is no judicially recognized right to die “at this time.” But Souter recognizes that the Constitution might require such a thing in the future: For progressives, the times are always a-changin’.
And let us not forget the late Supreme Court justice William J. Brennan’s assertion 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, judges must eschew “a technical understanding of the organs of government” in favor of “a personal confrontation with the wellsprings of our society.” And Brennan’s colleague on the Court, the late Justice Thurgood Marshall, famously suggested that the Founders’ Constitution was merely a “product of its times,” whose text lies dead in a vault in the National Archives.
Over the last century and more, the progressive synthesis — the melding of Social Darwinism and pragmatism — has leveled blow after blow against the Founders’ Constitution. The age-old question of “what works” politically — or what should be given a chance to prove itself — has increasingly been divorced from any sense of constitutional restraint. What Lincoln considered our “great charter of liberty” has been relegated to an afterthought, to the extent it is thought of at all.
Neither party is exclusively to blame for this. While Democrats trip over themselves to consolidate the administrative state as a matter of principle, Republicans move more slowly to do the same as a matter of opportunism. But has the battle been joined? It is, after all, the glory of the American people — or their defect, from the progressive point of view — that so many of them look backward to the nation’s Founding for guidance. Conservatives, classical liberals, and tea partiers alike share this disposition. Lincoln’s words still resonate. Their founding documents, their institutions, and their Founders live on in naked, deathless splendor. It remains to be seen whether the people will stand up, or stand down.
– Mr. Watson holds the Philip M. McKenna Chair in American and Western Political Thought at Saint Vincent College and is the author of Living Constitution, Dying Faith: Progressivism and the New Science of Jurisprudence.