Without Grounding, There Is Only Personal Preference
Another founding father of modern progressivism described in the series of National Review essays that I mentioned yesterday is Oliver Wendell Holmes, whose repercussions in modern jurisprudence Bradley Watson describes thus:
There is a residual incoherence to the progressive jurisprudence that has followed Holmes. It alternates between two poles. On one hand, it expresses the desire to make decisions that are legitimate in the eyes of the community–decisions that respond to something like, in Holmes’s words, the “felt necessities” of the age. On the other, it encourages decisions that oppose what it claims is illegitimate majority will. But 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 tremendously weather-beaten from its triumphal march of a hundred years’ duration.
In sum, the preferences of an elite statist class, as inculcated in a given judge, trump everything. It’s outcome first, reasoning post hoc, and there’s no way to oppose it in common terms among countrymen, because the arguments aren’t, as Watson says, rooted in anything. That is to say that the argument itself is a mere performance in support of a peremptory opinion.