The Supreme Court’s response to New Deal legislation has often been credited (or blamed) for undermining economic due process in the service of a hugely popular administrative state, a shift that some have blamed on the idea of the “living Constitution.” Yet as Compton observes, nearly “every argument advanced during the New Deal period began by quoting from Justice Harlan’s opinion in Champion v. Ames.” That is, it was the morals decisions of the late nineteenth century that made the New Deal cases possible.

Constitutional originalism has long been an unquestioned dogma for conservative evangelicals, as the recent nomination of Neil Gorsuch to the Supreme Court has again confirmed. Evangelical political leaders responded to the announcement with unrestrained praise. As the Southern Baptist Convention’s Russell Moore wrote, “Judge Neil Gorsuch…is a brilliant and articulate defender of Constitutional originalism in the mold of the man he will replace: Justice Antonin Scalia.”

Focus on the Family’s James Dobson struck a similar note, suggesting that Gorsuch would “uphold and defend the Constitution of the United States and the original intent of its framers.” For many evangelical conservatives, originalism has a dogma-like status not just because it is the proper way to read and interpret a text, but because the competing doctrine of the “living Constitution” has brought us not only the administrative state in the New Deal, but Roe and Obergefell.

Yet if John Compton’s fascinating new bookThe Evangelical Origins of the Living Constitution is right, evangelicals at the turn of the twentieth century are largely to blame for evangelicals’ problems here at the turn of the twenty-first century: It was evangelicals then who made the doctrine of the “living Constitution” plausible, even if evangelicals today lament it.

Compton’s fascinating and masterfully executed argument goes something like this: Evangelical campaigns against alcohol and lotteries in the late nineteenth and early twentieth century aimed at not merely regulating such vices, but prohibiting them. But to enact their political vision, they had to break existing traditions of constitutional interpretation. By exerting political pressure upon courts and subordinating constitutional interpretation to their political aims, evangelicals helped create the legal and intellectual conditions in which the doctrine of the “living Constitution” arose.

Regulating Public Morality

Compton’s argument for this thesis is intricate, but it demands and deserves unwinding. He posits that the political and moral perfectionism of antebellum Protestants created standards of public morality that “threatened the core ideals of the commercial republic” that the Constitution was drafted to engender and protect. That is, evangelicals wanted to regulate public morality in ways that impinged upon commercial and business practices that had been legal, if not always favorably smiled upon, since the country’s founding.

While evangelical campaigns against liquor and lotteries eventually aimed at eradication, rather than tolerant regulation, such a goal was at odds with existing doctrines of constitutional interpretation. The attempt to abolish existing lottery grants, for instance, ran aground upon the Contract Clause, while prohibitions on alcohol possession and sales infringed commonly accepted notions of property rights. Not only that, but prohibition at the local level could not be accomplished without overcoming the Commerce Clause. Interstate sales were protected by the federal government, while police powers were reserved to local governments—a dilemma that left “immoral” property free to be distributed and sold across state lines.

Compton traces these conflicts through their development in state courts, and then within the Supreme Court, to show that evangelical morality eventually influenced constitutional interpretation. To pick but one small aspect of Compton’s many data points, he contends that until the mid-1870s, agreements between “legislatures and private entities were contracts within the meaning of the Contract Clause,” which would have included lottery grants. However, in the 1880 case Stone v. Mississippi, Chief Justice Morrison Waite invalidated such a contract—a lottery grant from Mississippi—on grounds that the government, as Compton says, “possessed the inherent right to suppress immoral activities.”

It is, of course, theoretically possible that such a doctrinal shift had pristine intellectual and interpretative causes. However, Compton points out that the decision was made in the midst of a significant public controversy about the Louisiana Lottery, which was at the time probably the most notorious of the lottery companies.

As prohibitions on gambling at the local level had increased, the Louisiana Lottery had survived and expanded through interstate ales. They were so well known that in 1879, Anthony Comstock—of the anti-contraception laws fame—arrested dozens of Louisiana Lottery agents in New York City. The Louisiana legislature subsequently revoked the lottery’s 25-year charter—but it was protected in court by a judge who was, Compton says, “widely denounced as a shill for lottery interests.”

Doctrinal Incoherence

This was the political context in which the Stone case was decided, and which set the stakes for the Supreme Court’s ruling. Protecting the lottery grant on the basis of the Commerce Clause would mean the “most notoriously corrupt corporation in America” would enjoy immunity for the length of its charter. However, revoking the grant would undermine the traditional interpretation of the Commerce Clause, which had protected lottery grants.

Waite’s opinion in Stone suggests he is not unaware of such political realities. Waite had written that because lotteries were prohibited in many states, the “will of the people has been authoritatively expressed” on the question. The court could either embrace precedent and oppose the will of the people—or innovate. They chose the latter course, and created an “exception” that they tried to quarantine from having broader doctrinal effects.

Read More