I recently finished reading John W. Compton‘s new book The Evangelical Origins of the Living Constitution. Compton’s argument about nineteenth century jurisprudence is intriguing to me as a twentieth century historian because it challenges a common conservative perspective on Constitutional history. There are few phrases that the New Christian Right loathes more than “a living constitution.” America is in its current dire straits, so the story goes, because secular humanists conspired to both destroy American morals and to undermine the US Constitution. Liberals had encroached on private property, banned school prayer, enshrined abortion rights, and protected pornography. These nefarious progressives saw the Constitution as a “living document” that should be routinely updated according to changing social customs and political needs. In response, conservatives, led by US Supreme Court Justice Antonin Scalia, have rallied around the banner of “originalism”; Constitutional meaning is fixed and thus judges and legal scholars should attempt to return jurisprudence as much as possible to the original intent of the Founding Fathers.
Compton, however, turns that story on its head. He shows that the major tenets of living constitutional jurisprudence were not inventions of the Progressive Era but the result of nineteenth century evangelical activism. When contemporary evangelicals complain about the “living constitution,” they are complaining about a judicial philosophy that their ancestors did much to foment.
The Founding generation were no laissez-faire libertarians; they assumed the need for regulation of lotteries and alcohol but for the sake of public order, not the suppression of vice. During the colonial era alcohol licenses were required “not, ultimately, to minimize liquor consumption but rather to ensure that inns and taverns did not become disorderly” (44). Taxes on liquor sales were a significant source of revenue for the federal and state governments and lotteries funded most infrastructure development in the early Republic. If a town needed a new church building or bridge, the congregation or town sought permission from the state legislature to run a lottery to pay for it. Lotteries enabled the construction of infrastructure in the absence of concentrated capital and without reliance on government control.
That old attitude towards regulation changed with the rise of evangelicalism from persecuted minority in the 18th century to religious and cultural majority by the mid-nineteenth century. That rise to prominence also corresponded with a significant theological shift. The old style Calvinism–with its emphasis on human depravity–had given way to the Wesleyan pursuit of sanctified perfection. The old Anglican planters in Virginia and Puritan divines in New England believed that the presence of sin was an ever present reality on earth. This was true for individuals, yes, but for broader society as well. Thus, laws aimed at eradicating vice were a fool’s errand. The best that could be hoped for was to control vice to limit its harmful consequences, not eradicate it altogether. The Wesleyans–including not only Methodists but also many Baptists and Presbyterians–believed that sinless perfection was attainable. And what kind of man would deny the benefit of moral living to his fellow men? Surely the law could give Americans a useful little push along the road to righteousness. Furthermore, the rise of postmillennial eschatology meant that a majority of evangelicals believed that they and the government had a role to play in ushering in the millennial kingdom of God on earth. And those pearly gates didn’t need lottery funding or liquor tax revenue!
Yet evangelicals hit a major legal roadblock in the US Constitution’s guarantees of private property (touched on in six of the ten amendments in the Bill of Rights). The Constitution protects life, liberty, and property which is deeply inconvenient when one is determined to rid the country of a particular kind of property. In order to get the social outcomes they desired, evangelicals had to weaken the contract clause, massively expand the definition of interstate commerce, and deny individual rights to property. And it was a roaring success. You’ll have to read the book for the dirty details.
Nineteenth century evangelicals might not have ushered in the kingdom of God, but they had given front row seating to the essentially unlimited government of the Progressive Era and the New Deal. Ironically, when nineteenth century evangelicals weakened Constitutional protections for individual property and liberty, they left their twenty-first century descendants vulnerable to a new wave of anti-vice laws. But this time around the targets are racism and homophobia rather than drinking and gambling. Oh, you think that business is your property so you can dispose of its goods and services as you will? Think again and thank your evangelical predecessors.
Meanwhile, I’ll go enjoy a nice dram of Elijah Craig, named for the eighteenth century Baptist preacher who founded an early distillery in Kentucky. Cheers to the (probably apocryphal) father of Bourbon!