Shall These Bones Live? Property, Pluralism, and the Constitution of Evangelical Reform

Abstract

The Supreme Court of the New Deal era transformed the US Constitution, making the Constitution's original protection of property rights give way to democratically popular regulations. In The Evangelical Origins of the Living Constitution (2014), John W. Compton argues that twentieth-century progressives turned the Court toward this “living” interpretation of the Constitution by relying on legislative methods and judicial precedents created by nineteenth-century evangelicals. Evangelical reformers accomplished national prohibition of liquor and lotteries, but their regulations destroyed property rights that were legally valid and socially acceptable at the inauguration of the Constitution. Courts ultimately acquiesced in these novel economic proscriptions because of overwhelming majoritarian sentiment driven by evangelical populism. Relying on a recent literature of law and religion, Compton alters conventional accounts of the US constitutional tradition of protecting property. This essay reverses the path of analysis and argues that evangelical concerns with constitutional property rights challenge standard accounts of law and religion in US history. Rather than a simplistic imposition of moralism, evangelical reform was derived from antislavery liberalism. The legal and religious pluralism that had impeded antislavery, however, also hindered prohibition and spurred evangelicals to seek federal remedies to national sins. Thus national prohibition, no less than New Deal constitutionalism, centered on the US dilemma of how to wield illiberal regulations to safeguard liberalism.