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PoliCon
03-02-2009, 08:46 PM
Heritage hits one out of the park again. :)
February 24, 2009
Progressivism and the New Science of Jurisprudence
by Bradley C. S. Watson
First Principles #0024

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 fundamental law.

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.[1]

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 Constitution.

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.[2] 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.[3]

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.CONTINUED (http://www.heritage.org/Research/Thought/fp0024.cfm)

PoliCon
03-02-2009, 08:50 PM
their First Principles (http://www.heritage.org/Research/index_fp.cfm) series is the ultimate in what it means to be a conservative.