an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
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John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
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Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
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K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Evangelical Origins of the Living Constitution
John W. Compton's The Evangelical Origins of the Living Constitution (Harvard University Press 2014) is an outstanding addition to the literature on American constitutional development. The book argues that the progressive critique of the Constitution in the early twentieth century that led to the New Deal was presaged and to some extent made possible by earlier social movements of evangelical Christians in the nineteenth century who sought to ban alcohol and lotteries. The idea that the Constitution's practical meaning must adjust to changing social conditions is often associated with the progressive critique of the 1920s and 1930s. But Compton shows that evangelicals made similar moves decades before in order to reshape constitutional understandings and justify government power to ban alcohol and lottery sales.
In the early nineteenth century, three different features of constitutional doctrine stood in the way of evangelical efforts at reform. The first was the doctrine of vested rights, protected by the Contracts Clause, which prevented states from abolishing lotteries once legislatures had granted lottery companies corporate charters. (The key precedent was the Dartmouth College Case). Second, the Due Process Clause (or its equivalent in state constitutions) allowed alcohol producers to challenge state attempts at prohibition on the ground that this would destroy their investment in business. Third, attempts to ban interstate shipment and sales of alcohol and lottery tickets were limited both by the Commerce Clause and by the Dormant Commerce Clause. The federal government was widely believed to lack the power to enact police regulations through the Commerce Clause. Although the states did have a police power, because the of the Dormant Commerce Clause, it was assumed that they could not ban or tax the interstate shipment of goods moving through their borders because it was necessary to keep the channels of interstate commerce clear.
Evangelical mobilizations during the nineteenth century successfully whittled away at all three of these basic assumptions of nineteenth century constitutionalism. Eventually courts agreed that the Contracts Clause did not bar states' attempts to ban lotteries, because state legislatures could not contract away their power to protect the health, safety and welfare of their citizens. In Mugler v. Kansas, the Supreme Court interpreted the Due Process Clause to allow a total ban on alcohol sales in the state of Kansas, even though this effectively destroyed the value of the owners' investments in alcohol. Finally, in the Lottery Case, Champion v. Ames, the Supreme Court took a significant step toward erasing the distinction between commerce and police by allowing the federal government to completely ban the interstate shipment of lottery tickets, even though its reasons for doing so were essentially no different than police power rationales.
During the nineteenth and early twentieth centuries, judges sometimes tried to treat these cases as narrow carveouts that did not alter basic constitutional principles protecting common law rights and the system of dual federalism. Eventually, however, progressives pointed to these earlier decisions about alcohol and lotteries to justify state police power to protect workers' rights, and federal power to regulate the economy generally. Thus, in his famous dissent in Lochner v. New York, Justice Holmes used "the prohibition of lotteries" to justify his argument that "state constitutions and state laws may regulate life in many ways which we as legislators might think as injudicious, or if you like as tyrannical, as this, and which, equally with this, interfere with the liberty to contract." It became increasingly difficult to cabin these examples as special regulations of contraband; they seemed to stand for the broader authority of both federal and state governments to modify property and contract rights in the interests of public health, safety and welfare.
Compton's discussion of these cases is admirably clear and straightforward, in the process, he shines new light on the history of American constitutional development. He does a tremendous service in recalling cases and debates that were once very important to constitutional theory but are no longer. (One example is the original package doctrine, which fascinated and bedeviled courts and commentators for decades but has largely been superseded by statutory and judicial innovations). And he shows why key cases like Mugler v. Kansas and Champion v. Ames were so controversial in their day, and how much was at stake in now-forgotten struggles over lottery and alcohol regulation. (Although Champion is still taught in some courses, Mugler is largely forgotten today, and few people spend very much time on the development of the Contract Clause.)
It has long been understood that vice laws played a role in the development of constitutional doctrine, but Compton shows us why. Equally important, Compton offers wonderful examples of nineteenth century versions of democratic or popular constitutionalism. He shows how waves of earlier social mobilizations organized around religion shook up constitutional doctrines, paving the way for progressive triumphs decades later. Like twentieth century social movements (in which religious groups also sometimes played major roles) nineteenth century evangelicals used political organization and social persuasion to influence legal and policy elites, eventually moving ideas from "off the wall" to "on the wall." Of course, the role that religious groups played in the fight for abolition of slavery is well known; but Compton shows how religious groups also affected constitutional understandings of federalism, contract and property rights, and due process.
In fact--and especially in the book's discussion of antebellum constitutional doctrine--slavery is the elephant in the room, yet Compton says very little about it. Although the omission is important, it is also to some extent excusable. Explaining the many connections between Compton's argument and contemporaneous debates over slavery would have greatly lengthened the book and complicated his story. Nevertheless, the debates over the right to sell and transport alcohol and lottery tickets had remarkable similiarties to the arguments for and against the right of slaveholders to take their slaves into federal territories (and into other states). The important differences were that (1) slavery, unlike alcohol and lottery tickets, was widely seen as a "special" form of property because it was deemed contrary to natural law (Southerners like Chief Justice Taney vehemently disagreed on this point); and (2) neither North nor South wanted to treat slaves as articles of commerce. Doing so would have led to potentially explosive conclusions about Congress's power to regulate or even ban the interstate slave trade (Note, however, that it was generally conceded that Congress could ban the international trade of slaves through its powers to regulate commerce with foreign nations).
In sum, The Evangelical Origins of the Living Constitution is a truly valuable book that greatly enhances our understanding of the development of constitutional law in the nineteenth century. After reading this book, and grasping its lessons, you will not be able to teach the basic Constitutional Law course the same way again. That is not true of many books, and it is a mark of its excellence and its importance.