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  • The Evangelical Origins of the Living Constitution by John W. Compton
  • Michael E. Parrish
The Evangelical Origins of the Living Constitution. By John W. Compton (Cambridge, Mass., Harvard University Press, 2014) 261pp. $45.00

Every so often a historical monograph appears that challenges cherished orthodoxies and interpretations of American legal history. Compton’s Evangelical Origins of the Living Constitution can be counted as one of them. It asks us to reconsider the following questions: (1)What were the core principles of Constitutional “originalism” and how and when were they subverted? (2) Who engaged in these acts of sabotage and for what reasons? (3) Was there a “constitutional revolution” during the presidency of Franklin D. Roosevelt? (4) Who gets the praise or the blame for these developments?

Depending upon ideological orientation, the heroes or bomb-throwing seditionists in this narrative are those Bible-beating Protestant evangelicals and pietists (mainly Methodists, Baptists, and Presbyterians) who sought through law to purge our land of its manifold evils—especially slavery, lotteries, and alcohol. They also led the crusade to curb the influence of the Catholic Church and its desire to tap public funds for religious education, although Compton does not touch on this subject.

This Second Great Awakening of American Protestantism achieved its greatest victories before 1900 with the three Constitutional amendments that abolished slavery, established African-Americans citizenship, and banned race as a qualification for voting. But Compton’s focus remains exclusively on the legal campaigns to eradicate lotteries and make America “dry” during the years before the ratification of the eighteenth amendment in 1919/20. To achieve these ends, these religious reformers had to confront and overthrow three bedrock pillars of the Founder’s Constitution—the Contract Clause, the Due Process Clause, and Dual Federalism—all of which had been designed to prevent rapacious majorities from eviscerating property rights and breaking down the walls that separated federal from state jurisdiction.

Although not without a struggle, the moral reformers reached their basic goals through state legislation but then faced a predictable gauntlet of judicial obstacles erected initially by the Supreme Courts of John Marshall and Roger Taney with respect to the revision of corporate charters; the boundaries of the police power; and the defense of an integrated, national marketplace. Despite these initial setbacks in the courts, the [End Page 593] well-organized opponents of lotteries and booze had largely won their victory by 1903. As Finley Peter Dunne’s fictional Mr. Dooley reminded us around that time, “the Supreme Court followed the election returns.”

The opposition’s retreat began in 1880 with Stone v. Mississippi, simultaneously abolishing a state-sanctioned lottery charter and blowing a huge doctrinal hole in the Contract Clause. It continued in Mugler v. Kansas (1887), in which John Marshall Harlan and the majority dynamited the Due Process Clause as a limitation on the destruction of property in the case of intoxicants. It climaxed in 1903 with the Harlan opinion in Champion v. Ames, eroding the once-hallowed distinction between “commerce” and “police power.”

While religious zealots drove the political agenda, their legislative victories gained the ultimate constitutional endorsement of the Supreme Courts led by Morrison Waite and Melville Fuller, bodies seldom noted for their radical inclinations when it came to social and economic reforms. Nonetheless, when such hard-boiled critics as Oliver Wendell Holmes, Roscoe Pound, and the Legal Realists sallied forth to bury the Founders’ Constitution once and for all, they discovered that the evangelicals of the Second Great Awakening and their unusual judicial allies had already completed the demolition.

Compton is not the first scholar to note the significance of lotteries and temperance for American constitutional development, but he is the first to trace its precise role in destabilizing the original intention of the Founders and how progressive and New Deal secular activists drew upon this body of precedents. Justices Scalia and Thomas take note.

Michael E. Parrish
University of California, San Diego
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