Political scientist John W. Compton provides a new way of understanding the New Deal revolution in American constitutionalism and the origins of the vision of a living United States Constitution. Evangelical Protestants are to blame. Compton turns away from the standard examination of the United States Supreme Court's adjudication of progressive economic regulation, and instead explores courts’ reception of the legislative results of nineteenth century moral crusades. Early judicial sanction of alcohol and lottery prohibitions, he reveals, helped open the door for the Court's broader abandonment in the 1930s of the traditional protections of property rights and the customary boundaries of federalism. Grounded in an examination of state and federal appellate cases as well as legal commentary and reform literature, this insightful study will interest scholars of American courts and constitutionalism.

Compton covers nearly 150 years of history in five chapters. In the first, Compton establishes his view of the early constitutional order and evangelicals' subsequent challenge. To him, protecting vested property rights and bolstering the commercial republic's economic development were the bedrock constitutional values. Reform efforts inspired by the Second Great Awakening, however, sought to destroy ostensibly immoral forms of property. Fruitfully looking beyond the usual focus—slave property—Compton examines lottery grants and alcohol. Evangelicals' assault on these forms of property and on their movement across state lines, he argues, threatened the founders’ constitutional order. Chapters two through four turn to the courts and explore the impact of anti-alcohol and anti-lottery legislation on nineteenth century constitutional development. Here, Compton spars with a section of historian William J. Novak's The People's Welfare: Law and Regulation in Nineteenth-Century America (Chapel Hill, 1996). Scholars of alcohol regulation should consider these works in tandem. In Compton's telling, state judiciaries at first strove to uphold the existing constitutional order by rejecting new regulations. This changed in the late 1850s, particularly as Republican jurists upheld the prohibitory Maine Laws that destroyed property rights in alcohol. Compton's insight about the partisan stakes of the later Maine Law decisions is significant. It might have been deepened by exploring the connections between these decisions and Republican's concurrent concerns about slaveholders’ rights in the age of Dred Scott.

Although both Novak and Compton agree that the Maine Law era was transformative, it works differently for their respective arguments. Novak emphasizes the birth of a new concern for constitutional rights that threatened long-standing regulatory traditions and that would grow alongside the expanding late nineteenth century and early twentieth century state. Compton differently sees eventual judicial sanction of the Maine Laws as a change that inaugurated a “dynamic understanding of constitutionalism in which the rights and duties of citizens evolved to keep pace with the moral progress of the larger community”—in other words, living constitutionalism (85). This view expanded in post-Civil-War lottery and alcohol cases in which the United States Supreme Court created doctrinal exceptions to foundational constitutional norms. Mounting exceptions put the Court in the difficult position of explaining why, for example, anti-lottery regulations interfering with interstate commerce were constitutional whereas industrial regulations were not. Moving into the early twentieth century, Compton's final chapter begins with Oliver Wendell Holmes, Jr. and shows how progressive jurists and legal commentators used morals precedents to defend the constitutionality of economic regulations. In the 1930s, this tactic of dissenting jurists, Compton reveals, became the approach of the majority of the United States Supreme Court that came to sustain the New Deal's expansion of federal regulatory authority.

Compton's fundamental argument about doctrinal evolution—that evangelically inspired morals precedents helped judges uphold the New Deal—is certainly convincing. Scholars of New Deal constitutionalism and theorists of the “living constitution” should take notice. But perhaps just as significantly, Compton alerts other scholars to new avenues of research. Scholars of social movements and popular constitutionalism, for example, might extend Compton's look at evangelical constitutional thought, which fades from his story after the mid-nineteenth century. Notably, such late nineteenth century activists as Carrie Nation (who appears on the book's cover) receive little attention. How did reformers and their constitutional thinking change from 1830 to 1930? Did moralists, especially the well-known capitalists among them, recognize that their calls for regulating alcohol and lotteries might legitimate state interference with other businesses? Moreover, scholars of American political development might target what Compton implicitly demonstrates: that anti-alcohol and anti-lottery legislation were key components of state-building in the long Progressive era—not only for the judicial precedents they produced—but also for the clear exercise of governmental authority at both the state and federal levels. Long before the New Deal, the American state policed the morality of the marketplace, and as Compton shows, the lottery and alcohol businesses were chief among those that felt its power.