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The Evangelical Origins of the Living Constitution
The Evangelical Origins of the Living Constitution
John W. Compton
Harvard University Press, 2014
272 pp., $47.50

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David Skeel


Morals Legislation, Revisited

Unintended consequences.

The title of John W. Compton's intriguing history of morals legislation and American constitutional history, The Evangelical Origins of the Living Constitution, should pique the interest of anyone who knows the code words of the our recent political debates. A "living constitution" is not tethered to the Founding Fathers' intent or the literal text of the Constitution; it evolves through time, adjusting to changing circumstances. When Republican presidential aspirants vow to appoint justices who respect the constitution, they know that most evangelicals, especially those over thirty, will share their disdain for the living constitution. Yet here is a Chapman University political scientist insisting that evangelicals didn't just support the living constitution in earlier generations. They helped to create it!

In Compton's telling, mustard seeds were sown in the early and mid-19th-century battles over lotteries and prohibition. After widespread acceptance in the founding era, lotteries came under increasing attack when the Second Great Awakening began to reshape American culture. Church membership soared during this period, and many newly devout Americans no longer accepted lotteries as a convenient and pleasurable way to raise money for everything from church buildings to bridges. Not surprisingly, those who held lottery licenses were not anxious to relinquish them. When states enacted lottery bans, license holders insisted that the bans violated the Contracts Clause of the Constitution, which forbids the states from impairing previously granted contractual rights. Contrary to the conventional wisdom, which assumes that 19th-century judges consistently embraced morals legislation, the license holders frequently prevailed.

The temperance movement faced similar obstacles. When states passed anti-liquor laws, liquor businesses insisted that their right to make or sell liquor was constitutionally protected property and couldn't be taken ...

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