THE EVANGELICAL ORIGINS OF THE LIVING CONSTITUTION
by John W. Compton. Cambridge: Harvard University Press, 2014. 272pp. Hardcover $45.00, ISBN 9780674726796.
Reviewed by Justin Buckley Dyer, Department of Political Science, University of Missouri
American evangelical Christians today are politically associated with the conservative coalition forged during the Reagan years. Once in power, one of the stated goals of the Reagan administration was to commit the government and federal courts to “originalism” in constitutional interpretation. As Reagan’s Attorney General, Edwin Meese, suggested in a 1985 speech to the American Bar Association, a “jurisprudence seriously aimed at the explication of original intention would produce defensible principles of government that would not be tainted by ideological predilection.” The alternative to originalism was some variant of the “living Constitution,” which allows judicial interpretation of various clauses to change over time in light of contemporary social mores and economic conditions. Since the 1980s, academic constitutional theorists have revised, expanded, criticized, and discarded various aspects of each of these interpretive methodologies. But evangelicals remain, on a popular level, committed to originalism in constitutional interpretation. According to recent polls conducted by the Pew Research Center, the vast majority of evangelical Christians self-identify as either conservative (52%) or moderate (30%), and these ideological groups overlap with the “staunch conservative” and “main street Republican” types who agree the Supreme Court should “base its rulings on what the Constitution meant as originally written.”
All of this makes the thesis of John W. Compton’s new book, THE EVANGELICAL ORIGINS OF THE LIVING CONSTITUTION, both provocative and intriguing. Compton, a political scientist at Chapman University, argues that the evangelical moral reform movements of the late nineteenth century paved the way for the New Deal. Evangelical reformers, Compton argues, “came to regard as sinful many activities and forms of property that the Founding generation had tolerated, or even actively promoted” (p.2). In particular, evangelicals aimed to rid the nation of the social evils attendant to lotteries and liquor consumption. The American Constitution proved an obstacle to these reform movements, and evangelical moral reformers soon broke with the traditional constitutional categories that had long governed the Supreme Court’s jurisprudence respecting contracts, interstate commercial regulation, and the protection of private property rights. As Compton notes, turn-of-the-century evangelicals came to believe the “hope of national regeneration depended on a turn away from the inflexible property protections and jurisdictional boundaries of Founding-era constitutionalism” (p.2). Late nineteenth-century evangelicals were, in short, proto-progressives who challenged accepted constitutional [*222] structures and made possible the “living Constitution” jurisprudence of the twentieth century.
The bulk of Compton’s study focuses on three policy goals of nineteenth-century evangelical reformers and connects each goal to a specific constitutional hurdle. First, reformers sought to quash lotteries at the state level, but the Constitution prohibits states from “impairing the obligation of contracts.” Second, reformers sought to prohibit the sale of liquor at the state and national levels, but doing so “could only be attained by uprooting a complex system of statutory and common law rules that had remained in operation, with only minor alterations, since the early colonial period” (p.43). Finally, reformers sought to ban the interstate shipment and sale of immoral forms of property such as lottery tickets, but this goal threatened to transform the American federal system by allowing Congress to use the Commerce Clause for national cultural and moral reform instead of encouraging national economic activity. The result, Compton argues, was “an existential threat to the framers’ constitutional order” (p.43).
Consider, as one example, the Supreme Court case of CHAMPION V. AMES (1903), which dealt with the constitutionality of the 1895 Federal Lottery Act. Congress had prohibited the movement of lottery tickets in interstate commerce, and Charles Champion was arrested for violating the act. Constitutionally, the question was whether Congress had the authority under the Commerce Clause to pass this act at all. Writing for a divided court, John Marshall Harlan affirmed Congress’ authority to ban lottery tickets from interstate commerce, reminding his colleagues that the “the power of Congress to regulate commerce among the states is plenary, is complete in itself, and is subject to no limitations except such as may be found in the Constitution.” “We should,” Harlan warned, “hesitate before adjudging that an evil of such appalling character [as lotteries], carried on through interstate commerce, cannot be met and crushed by the only power competent to that end.”
If that is true, however – if Congress is the only power competent to meet and crush the appalling evil of lotteries – would this not lead “necessarily to the conclusion that Congress may arbitrarily exclude from commerce among the states any article, commodity, or thing, of whatever kind or nature or however useful or valuable, which it may choose, no matter with that motive, to declare it shall not be carried from one state to another”? In other words, how slippery is this slope? Harlan did not say. “It will be time enough,” he insisted, “to consider the constitutionality of such legislation when we must do so.” The portended time to consider similar legislation arose 15 years later in the case of HAMMER V. DAGENHART (1918). In the Federal Child Labor Act of 1916, Congress had prohibited from interstate commerce products made in any establishment that employed children more than 8 hours a day or 6 days a week. In a 5-4 vote, the Court struck down this congressional act, arguing that it went beyond Congress’ power to regulate interstate commerce. But how could the Court square HAMMER with the precedent in CHAMPION? According to the majority opinion, written by William Day, the Child Labor law (unlike the Federal Lottery Act) was an indirect regulation of production, and “the [*223] production of articles, intended for interstate commerce, is a matter of local legislation.”
Whether or not CHAMPION and HAMMER can be successfully reconciled in theory, the apparent tension between the cases lent credence to the allegation that “traditional constitutional principles merely served to mask the judiciary’s subjective preferences for laissez-fair economic policies” (p.134). Lottery cases – along with similar precedents involving liquor regulation – thus “served, in effect, as the flexible and pragmatic backdrop against which the Court’s rigid opposition to progressive economic regulation could plausibly be described as hypocritical” (p.135). Simply put: if Congress may use the Commerce Clause to combat the evil of lotteries, why may Congress not also use the Commerce Clause to combat the evil of child labor? Or liquor consumption? Or low wages, long working hours, low commodity prices, racial discrimination, marijuana possession, partial-birth abortion, or any other social or economic evil Congress desires to legislate against? Since 1937, of course, Congress has enacted national regulations in each of these areas under an expansive interpretation of the Commerce Clause. Scholars have written extensively about the development of the Court’s post-1937 Commerce Clause jurisprudence, but Compton nicely supplements traditional narratives by adding the historical and cultural context of nineteenth-century evangelical reform movements.
Yet for a book about the evangelical underpinnings of progressive constitutional reform, Compton says little about evangelicalism itself. The book’s narrative is court-centric, and it focuses on judicial responses to evangelical reform. Compton thus leaves several important questions unexplored. Why exactly do we call these reform movements evangelical as opposed to progressive? When Justice Harlan wrote of the evils of lotteries, was he writing as an evangelical or a progressive or both? (He did reportedly teach a Sunday school class while sitting on the Court.) Did these reform efforts spring from the progressive Social Gospel movement, and can this movement not plausibly be characterized as a forerunner to mainline Protestant Christianity rather than contemporary evangelicalism? What was the relationship between the progressive movement generally and the progressive element within evangelical Christianity specifically? As Compton acknowledges in a footnote, from “the 1890s through the 1910s, one can identify a number of prominent Americans who self-identified as both progressive and evangelical” (p.236, fn.5). There is a complex relationship between progressivism and Christianity that Compton needs to explore in greater depth to shore up his thesis that evangelicals laid the foundations for the living Constitution.
Despite his primary focus on courts and judges, however, Compton does make a real contribution to the literature on American politics by highlighting the influence moral reform movements had on American political development. In short, he treats religion and culture seriously as significant independent variables that influenced the trajectory of American constitutionalism. Scholars studying early twentieth-century constitutional development will have to wrestle with Compton’s thesis and [*224] consider whether evangelical social engagement was foundational to the restructuring of the American constitutional order during the New Deal.
Meese, Edwin. 1985. Speech before the American Bar Association, July 9. Washington, DC. Transcript: http://www.fed-soc.org/resources/page/the-great-debate-attorney-general-ed-meese-iii-july-9-1985
Pew Forum on Religion and Public Life, “U.S. Religious Landscape Survey: Portrait of Evangelical Churches – Social & Political Views” (February 2008) http://religions.pewforum.org/pdf/social_portrait-Evangelical%20Churches.pdf
Pew Research Center for the People & the Press, “Ideological Chasm Over Interpreting the Constitution” (June 2011) http://www.people-press.org/2011/06/20/ideological-chasm-over-interpreting-constitution/.
CHAMPION V. AMES 188 U.S. 321 (1903).
HAMER V. DAGENHART 247 U.S. 251 (1918).
Copyright 2014 by the Author, Justin Buckley Dyer.