Jack Balkin’s “living originalism” notwithstanding, views of the constitution’s meaning as either fixed or fluid are typically in opposition. And, like so much else these days, the dispute is often observed to map neatly onto social divides: conservatives and the religiously inclined lean originalist, while the left says the document lives. There’s an irony, then, in John W. Compton’s contention that teetotaling nineteenth-century evangelical Protestants paved the way for the most important constitutional developments of the twentieth century. Compton makes his case in The Evangelical Origins of the Living Constitution, the argument of which he introduces below.
In twenty-first century America, religion seems to go hand in hand with veneration of the Constitution and its framers. Recent polling from the Pew Research Center, for example, suggests that devout believers are far more likely than other Americans to endorse the view that the Constitution should be interpreted as “originally written.” Socially conservative politicians, in turn, routinely object to the nomination of judges whose past decisions or public statements are deemed inconsistent with the “original meaning” of the text. And every year, dozens of books portraying the framers as orthodox Christian believers and the Constitution as divinely inspired appear in bookstores.
In light of such evidence, it should come as no surprise that scholars have rarely looked to religious Americans or religiously-inspired social movements as instruments of constitutional change. Indeed, some have argued for a natural affinity between Biblical literalism, on the one hand, and a quasi-religious deference to the views of the founding generation, on the other.
And yet, religious Americans’ affinity for the Constitution has varied greatly over time. During the antebellum period, pious abolitionists publicly burned copies of the Constitution to protest provisions protecting the rights of slaveholders. A few decades later, prohibitionists, including at least one U.S. Senator, denounced the Constitution as “the great legal fortress of intemperance” and “the great almighty obstacle in the way of…reform.” Early anti-lottery crusaders, in turn, likened constitutional provisions protecting the contractual rights of lottery operators to the Biblical King Herod’s infamous agreement with Salome.
Why did the nation’s earliest religious activists often express disdain for a constitutional inheritance that their twenty-first-century successors regard with awed reverence? In short, through a process I trace in The Evangelical Origins of the Living Constitution, evangelicals living in the aftermath of the Second Great Awakening came to regard as sinful many forms of property that the founding generation had tolerated, or even actively promoted. And as movements to eradicate sinful forms of property gained momentum, reformers soon discovered that the nation’s constitutional system was ill equipped to accommodate a radical shift in social mores. For while the framers did not set out with the aim of inhibiting the moral development of future generations, they did envision a republic whose fundamental law would hinder attempts to interfere with settled property rights or restrict the flow of goods in interstate markets. And for this reason, the evangelical-led effort to rid the nation of newly immoral forms of property was from the outset hampered by serious constitutional obstacles.
Over time, evangelical reformers succeeded in winning a series of judicial concessions that not only facilitated the abolition of “sinful” forms of property but also weakened property rights and federalism constraints in areas far removed from moral reform. Indeed, one unintended effect of the successful evangelical crusades against liquor and lottery gambling was to convince many Americans that foundational constitutional categories, including “property” and “commerce,” were social constructs that could—and should—be reinterpreted to reflect the nation’s evolving sense of morality. In this way, the evangelical reform movements of the nineteenth and early twentieth centuries helped pave the way for the better known constitutional changes of the New Deal period, including the vast expansion of federal regulatory authority under the commerce power.
This finding calls into question the widely held view, recently expressed by former House Speaker Newt Gingrich, that the constitutional changes of the New Deal period were the work of “anti-religious” or “secular” forces. If we have abandoned the property-centered constitutional vision of the framers, much of the blame (or credit, depending on one’s perspective) lies with an earlier generation of evangelicals, including the revivalist Lyman Beecher, who preached that Americans must never “do wrong in obedience to custom.”