The Family Research Council, a conservative Christian lobbying group, offers on its website a 5,000-word essay on the United States Constitution. The article covers such topics as political philosophy, history, policy, and, of course, jurisprudence. The upshot is a critique of constitutional positivism: “Some jurists,” the piece warns, “are willing to redefine words or develop a most creative interpretation of the Constitution's text to obtain the political goals they seek.” By favorable contrast, conservatives recognize that “the Constitution's meaning is sufficiently clear and its limitations on government clearly distinct” (Rob Schwartzwalder, “Conservatives and the Constitution: The Political Imperative of Retaining our Allegiance to Constitutional Governance” http://www.frc.org/ConservativesandConstitution).

For many evangelicals, the “living Constitution” is one among many postmodernist targets in the ongoing culture wars. Evangelicals bring a biblical sensibility to this fight, maintaining, as an article of faith, that the intentions behind the Constitution are both comprehensible and authoritative. The framers knew better than we do, goes the thinking; to innovate through jurisprudence (that is, to circumvent the formal amendment process) is to subvert the republic itself, much like bending the scriptures subverts the Christian faith.

The zeal they bring to the originalist project, however, belies a curious fact of history: Evangelicals have come to their reverence for the United States Constitution only recently. As John W. Compton shows in The Evangelical Origins of the Living Constitution, for much of American history, evangelicals have stood on the opposite side of this fight, leading the charge against a formalistic reading of the founding text. On the battlegrounds of the anti-liquor and anti-lottery movements, Compton argues, 19th-century evangelicals chafed against an unmistakably secular Constitution as they sought to redefine the police power of government and the boundaries of private property. They eventually succeeded, first at the state level, and later in the Supreme Court, advancing a flexible jurisprudence that would, if not directly inspire the “living Constitution” philosophy of the Progressive Era, then at least lay the conditions for judicial innovation.

A phenomenon of grassroots organization, the evangelical reform movements of the 19th century grew out of the Second Great Awakening, encompassing a wide range of issues like slavery, temperance, Sabbath observance, dueling, and lotteries, as well as hundreds of state-level societies promoting legislative solutions to moral problems. The sway of these movements over public opinion makes the constitutional roadblocks they faced all the more notable. Compton organizes his narrative around three such obstacles: first, the Contract Clause (Article I, Section 10), which barred states from canceling lottery grants that had been allocated to the private firms that ran the drawings; second, the various due process safeguards of private property against the confiscation of alcohol; and third, the interstate commerce provisions (Article I, Sections 8 and 9), which were originally understood to limit the police power over the traffic of legitimate commodities, including items like liquor and lottery tickets.

From the early years of the evangelical movement into the 1850s, a strict understanding of these clauses generally held ground against attempts to curtail the lottery and beverage industries. Statewide prohibitions of alcohol, for instance, were often gutted by their own state courts, beginning in Maine, the state that introduced prohibition in 1851 only to find it overturned a year later. State courts, however, began to bend to reformist pressure in the middle part of the century. Compton highlights the Vermont Supreme Court's 1855 decision to uphold prohibition, which had passed in 1853. In his analysis of the Lincoln v. Smith ruling, Compton underlines the nascent marks of judicial revisionism, particularly in the way that Justice Milo Bennett recalibrated the relationship between private property and police power: “When men enter into the social compact, they give up a part of their natural rights,” wrote Bennett in defense of the ruling. “Now,” Compton explains, “it was the abstract right of the individual — and not the police power of the state — that was subject to practical limitation” (81).

Starting in the 1880s the United States Supreme Court itself began to crack. For Compton, the 1887 case, Mugler v. Kansas, is definitive. In an 8-1 decision, the Court upheld Kansas’ prohibition law in total. Justice Harlan, writing for the majority, defended the rights of a legislature to remove threats to “the public health, the public morals, and the public safety,” even at the expense of private property (115). Bowing to the pressure of a nationalized temperance movement, the Court simply reclassified alcohol as an “inherently noxious” type of property, overturning decades of jurisprudence in the process.

In contrast to these accommodations to evangelicals, the Court in this period held fast against progressive reform in the industrial realm, invalidating child labor laws, minimum wages, and workplace regulations. This disparity brings Compton's analysis to its final point, concerning the birth of the “living Constitution” in the early 20th century: It is not that the Court's anti-vice rulings gave way directly to this new tradition; rather, the cognitive dissonance in the Court's jurisprudence incited “a sustained assault on the doctrinal underpinnings of the traditional constitutional order” (133). Progressives like Justices Holmes and Brandeis conceived the living Constitution doctrine by way of ironing out the incoherence.

Compton's work is remarkable for the sheer number of conventions, scholarly and otherwise, that it unwinds. The book undoubtedly recasts the popular trope that ties evangelicalism to originalism. Far more than this, Compton recovers the constitutional significance of the evangelical reform movements — these were not just a subcultural phenomenon. He dispels the notion, furthermore, that the anti-vice jurisprudence late in the century merely exposed an unconscious Victorian sensibility; these rulings, he makes clear, involved a deliberate reversal of precedent under popular pressure. Finally, Compton corrects the widespread view that economic changes alone begged the creation of the living Constitution in the early 20th century. He accomplishes all of this through a comparative analysis of many obscure but fascinating cases, from Preston v. Drew (1852) in the State of Maine to the Supreme Court's Mugler case of 1887.

Historians of the 19th century will no doubt feel the absence of the anti-slavery movement in Compton's narrative. Evangelical activism on this issue hovers over the entire period, complicating the ideological texture of this community. Imposing Puritan morals on society was certainly not the only business of evangelicals in the 19th century. Compton steers clear of abolitionism, however, for the straightforward reason that this battle was neither fought nor won in the field of jurisprudence, and therefore has little bearing, one way or another, on the storyline of the living Constitution.

The bigger question that looms over Compton's work concerns how it happened that American evangelicals would ultimately turn against the living Constitution. Compton, toward the end of the book, implies that the point of departure may well date to the early 20th century, conceding obliquely that “the links between evangelicalism and progressivism are complex” (135). He might consider two contemporaneous factors that contributed to the shift. The first is a broad sea-change in eschatology among American Protestants. Earlier in the book Compton underscores the importance of postmillennial thinking to the political theology of 19th-century Christians: To view the present age as part of the “thousand-year” reign of Christ on earth is to maintain an optimistic rationale for reforming the world. While the morality of these believers might seem conservative, the theology behind the reform agenda was adamantly progressive. By contrast, viewing the present age as the reign of Satan not only takes a more literal view of the Book of Revelation (Chapter 20), but also puts a damper on reformist ambitions. Premillennial thinkers await the future reign of Christ, believing that the human condition will only deteriorate until then, no matter what correctives are deployed. It is vital to note that in the 1880s and 1890s, a century of postmillennial theology finally triggered a backlash, a literalist movement within American Christianity that would eventually style itself as “fundamentalism.” Gaining strength in the early 20th century, fundamentalists decried the progressive project, in all of its forms, as a vain distraction from the salvific work of Christ.

Just as significant as the birth of fundamentalism was the migration, in the early decades of the century, of the “evangelical” moniker from the liberal Protestant establishment to a more conservative home. The story of this shift is complex, involving not only rival churches and denominations, but also colleges, magazines, radio shows, missionary activity, and political activism among the different camps. Mainline Protestants grew gradually less comfortable with the evangelical label, so that by the time the National Association of Evangelicals formed in 1942, the brand belonged almost exclusively to the now formidable clutch of Christians with a conservative sensibility — who read the Bible literally, who emphasized the need of personal conversion over social reform, and who leaned toward a premillennial eschatology. It is to this sort of evangelical that originalist jurisprudence makes the most sense. In this light, the prehistory of the living Constitution is less a point of irony than a window onto the theological evolution of American Christians.