The Evangelical Origins of the Living Constitution – John W. Compton

The Evangelical Origins of the Living Constitution

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!

Jon Stewart, Historians Will Miss You

I will miss Jon Stewart when he leaves The Daily Show after sixteen years of poking fun at the American political system. Each episode features an interview with an actor, author, or politician. While there’s only so much an interviewee can say in five or six minutes of banter with Stewart, an appearance on the show gives a significant boost to book sales.

A handful of professional historians have appeared on the show to promote their books, but most of the historical work that caught Stewart’s eye was written by journalists for trade presses. That says more about the sad state of the discipline than it does the show. The incentives in the academy push historians to craft technical works on narrow subjects for tiny audiences. We’ve ceded popular history–and even compelling narrative storytelling–to journalists and other non-specialists. That said, The Daily Show encouraged young, liberal Gen X-ers and Millennials to read more history. That’s a win in my book. Thanks, Jon Stewart.

Lyndon Johnson has Some Advice for 2016’s Presidential Hopefuls

Today we take for granted that presidential hopefuls will make a pilgrimage to Iowa. They put on dad jeans, roll up pristine shirtsleeves, and pretend to be interested in farming. Iowa’s tradition as the first state caucus on the presidential circuit only began in 1972, but playing the regular Joe in Iowa began much earlier.

In October 1964 Lyndon Baines Johnson’s internal polls showed him cruising towards a victory over surprise Republican candidate Barry Goldwater. Still politicians are an insecure breed and LBJ’s aides encouraged him to do some last minute campaigning in Iowa.

Now, LBJ has a better claim to authentic everyman status than his modern-day, wannabe successors. He was raised on a hardscrabble farm in the Texas Hill Country. Still, he’d left that lifestyle behind forty years before, which made his aide’s advice for his Iowa trip as condescending as it is amusing.

The Iowans have one request to make of you for your visit next week, and I think it is politically sound, even if it sounds earthy. They want you to get some manure on your shoes. In other words, they want you to take about 30 minutes to visit a farm, have some pictures taken, look at some pigs and livestock.

So far so good, lame pun included. Nothing that a politician worth his salt (or even a North Korean dictator) isn’t already used to. Then the kicker.

Four years ago you apparently purchased a pig at an Iowa farm during the campaign. They still talk about it and this time they would like you to buy another pig, say you did so because the pig you bought four years ago was so good. This is pure corn — it’s also Iowa.

As presidential candidates start showing an untoward interest in farm equipment and livestock later this year, remember, it’s just good ol’ pure Iowa corn.

HT: John M. Bailey Papers, Thomas J. Dodd Research Center, University of Connecticut

HT: John M. Bailey Papers, Thomas J. Dodd Research Center, University of Connecticut

Woody Guthrie Turns in His Grave, or, How Jeep Sells Jeeps by the Seashore

Automobile brand Jeep paid ~$4.5 million to air a commercial during the Super Bowl yesterday. The ad, which features a montage of grand American vistas followed by landmarks from around the globe, is accompanied by two stanzas of folksinger Woody Guthrie’s classic, “This Land Was Your Land.” On the surface the connection between Jeep and Guthrie’s song makes perfect sense.

Guthrie penned the song in 1940; the first Jeep came off the line in 1941. It makes sense to pair rugged and remote locations with the message of those two verses of the song, that if you want to see the land which the Lord your God will give you was made for you and me, then drive that “ribbon of highway” in a Jeep from sea to shining sea. Jeep sells luxury vehicles to those who want to off-road in comfort. (Although I saw far more Jeeps in Philly’s urban streets than I have out here in rural Pennsylvania. Perhaps we should say it sells luxury vehicles to those who like the idea that they could off-road in comfort if they ever got a break from trading derivatives or preparing legal briefs).

Yet the pairing is completely incongruous once you look at Guthrie’s original intent with the song. Guthrie wrote it in 1940 because he was frustrated with all the airplay given to Irving Berlin’s 1938 hit “God Bless America.” Berlin, a Russian immigrant, was thankful for his adopted country and the success he had enjoyed as a songwriter in the US which would have been barred to him as a Jew in much of the rest of the world. For Berlin, America was free, fair, and God-guided.

To Guthrie, Berlin’s lyrics were naive. Guthrie was native-born in Oklahoma and the son of a moderately successful businessman and local politician. In the 1930s he became a communist (although he did not officially join the CPUSA). While Berlin saw freedom and opportunity in the American expanse, Guthrie saw its limits. He originally titled his response, “God Blessed America,” with the emphasis on the past tense. Yes, America was a beautiful gift, but a gift given to a select few.

The original six verses of the song brought the listener along with Guthrie as he traveled across the country, all the way “from California to the New York Island” (v. 1). When he looked out over the valleys (v. 2), wheat fields (v. 5), and deserts (v. 3), Guthrie realized that this land, which had been made for all, had become the preserve of the few. Verses 4 and 6 were the heart of the song. (The original title was later crossed out and the familiar phrase put in its place.)

Was a high wall there that tried to stop me
A sign was painted said: Private Property,
But on the back side it didn’t say nothing–
God blessed America for me. This land was made for you and me.

One bright sunny morning in the shadow of the steeple
By the Relief Office I saw my people–
As they stood hungry, I stood there wondering if
God blessed America for me. This land was made for you and me.

Guthrie wrote the song to protest the economic inequality of American society. As a communist, he blamed that inequality on private property and believed individual ownership of the means of production had resulted in the poverty and scarcity which plagued America during the Great Depression. If God had blessed America with abundance for all, why were so many struggling without? All this wealth and land and yet people were standing in soup kitchen lines.

Guthrie died in 1967, but his song–sans verses 4 and 6–became a popular anthem in the 1960s when a variety of folk revival groups covered it, from Bob Dylan to the Kingston Trio. But by removing the politically-charged verses, the song became just another generic paean to the beauty and greatness of America. It had become the very thing it had been written to critique.

Jeep’s 2015 ad takes that defanging to an extreme. It ends with Jeep’s new slogan, the first words of which seem quite fitting: “The World is a gift.” Well, Woody wouldn’t disagree with that. Okay. But then the second half of the slogan was revealed: “Play responsibly.” Apparently, this land is a playground for those wealthy enough to afford a brand new Jeep. A song meant to critique inequality is now a celebration of privilege. And Guthrie’s rejection of private property has been turned into an ad to convince people to buy luxury cars.

Marshawn “Bartleby” Lynch

Credit: Ted S. Warren/AP Images

Credit: Ted S. Warren/AP Images

Although the Deflategate brouhaha has stolen most of the air out of the early media coverage of Super Bowl 49, Seattle Seahawks running back Marshawn Lynch still made headlines for his curious approach to the recent Super Bowl media day. For nearly five minutes he responded to every single question put to him with, “I’m just here so I don’t get fined.” This is not the first time Lynch only grudgingly cooperated with the NFL’s requirement that players make themselves available to the media. For the last several months he has been keeping the letter of the law while violating the spirit of it with gusto. He makes himself available to the media but answers questions unhelpfully. In past post-game conferences he’s responded with nothing but “Yeah,” and “Thanks for asking.” And Lynch only cooperated to that limited extent because the NFL fined him $100,000 for not speaking to the media at all.

Sports journalists have speculated about why Lynch is so reticent with the media. Perhaps it has to do with his upbringing in Oakland or maybe it’s his way of complaining about his contract. Perhaps it’s just a tacit “eff you” to sports journalism. He’s certainly gotten under the skin of some media members, although I suspect many welcome his silence because it makes their job–shoehorning athlete statements into click-worthy narratives–that much easier. They can write whatever they want; nothing is blanker than a blank slate! Yet the “why” of Lynch’s silence is less interesting than what it reveals about the NFL and ourselves.

Lynch is a modern-day, tatted, braided Bartleby. In Herman Melville’s 1853 short story an otherwise unremarkable clerk named Bartleby suddenly refuses to perform a simple task. He gives no explanation for his refusal, simply stating, “I would prefer not to.” Over time Bartleby stops doing any work at all and begins to live at the office. He turns down an offer of free housing with the same words, “I would prefer not to.” Bartleby’s employer, co-workers, and the narrator repeatedly try to persuade him to behave rationally, to act in his own self-interest, but he only responds again with “I would prefer not to.” Ultimately he is evicted and sent to jail, where he prefers not to eat and thus starves to death.

Literary scholar Allan Moore Emery suggested that Bartleby, the Scrivener: A Story of Wall Street was Herman Melville’s entry in a longstanding philosophical debate over the nature of free will. Puritan divine Jonathan Edwards and free-thinker Joseph Priestley, despite their differences in theology, had both argued a century before Melville’s story that free will only existed in “perfect isolation at any moment of decision.” To be truly free the will must separated from “emotions, habits, dispositions, and general behavioral principles.” Otherwise, the will was being determined by something other than the individual’s free choice. If Bartleby had done the job asked of him, taken the housing, or eaten the food he was offered, he would have fulfilled the expectations of others, not acted according to his own free will.

Melville, echoing Edwards and Priestley, used the story of Bartleby to reject the idea of free will. As a character Bartleby shows the ludicrous impossibility of a human being who is truly free from all external influence. Anyone who tried such a lifestyle would die like poor, brave Bartleby. Yet all human beings are prone to thinking that we do live freely. We think we freely choose what we read, watch, say, and even believe. Bartleby reminds us that it’s a sham, a fiction we tell ourselves that’s even more preposterous than Melville’s little story.

Marshawn Lynch is as inscrutable to us as Bartleby. Lynch would prefer not to speak to the media even when most players do. Speaking to the media pays dividends in greater exposure to the public, fatter endorsement deals, and, of course, not paying fines to the NFL. Lynch’s stonewalling is maddening precisely because it seems so irrational, so against his own self-interest.

Now Lynch doesn’t go so far as Bartleby. He’s still eating so far as I know. Mostly Skittles. Yet I’m not sure that we today have the philosophical chops to properly appreciate Lynch’s ongoing game of charades with the league. The NFL is a soulless conglomerate with a Borg-like focus on packaging spectacle for easily-awed audiences. Players are often treated like commodities to be admired, yes, but also to be used up and discarded once age sets in or injuries accumulate. Thanks to the hard fought gains of the NFL Players Association, it’s not nearly so bad as the NCAA’s treatment of “stoo-dent ath-o-letes,” but it’s on the same spectrum.

And Marshawn Lynch gums up the works of this whole machine of NFL glitz and media glamour. His noncompliance should make us take a step back. We should be questioning why we don’t find it strange that a sports league is forcing someone who carries footballs for a living to give boilerplate quotes to bored reporters writing fluffy, color-by-numbers articles. We should wonder about the petty authoritarianism of an organization that would fine Lynch half a million dollars for so small an act of defiance. And most importantly, we should wonder whether our society could tolerate the idea of Bartleby when we can’t even make space for Marshawn Lynch.

This Super Bowl I’m cheering for Bartleby Mode.