Left-Evangelicalism and the Constitution - Harvard Law Reivew Forum

Left-Evangelicalism and the Constitution - Left-Evangelicalism and the Constitution:
book review by Andrew Koppelman
The Evangelical Origins of the Living Constitution. By John W. Compton. Cambridge, Mass.: Harvard University Press. 2014. Pp. 272. $45.00.

 American constitutional law has, in many ways, abandoned the vision of the Framers. The original Constitution prohibits states from “impairing the Obligation of Contracts,”1× 1. U.S. Const. art. 1, § 10, cl. 1. but claims based on this provision, which was energetically enforced in the nineteenth century, today rarely succeed. Persons may not “be deprived of life, liberty, or property, without due process of law,”2× 2. Id. amend. V. but states can enact legislation that radically diminishes its value. The power to “regulate Commerce . . . among the several States”3× 3. Id. art. I, § 8, cl. 3. has nearly become a general federal police power.
This is a radical change from the law that prevailed until the early twentieth century. That law protected property, contract, and interstate transportation of goods from legislative interference, and sharply limited Congress’s power to regulate the interstate economy. The transformation is often attributed to the New Deal, when judges appointed by Franklin Roosevelt are thought to have abruptly discarded all these rules. Professor John Compton’s important book, The Evangelical Origins of the Living Constitution, shows that the change started within a few decades of the founding. In response to pressure from evangelicals who wanted to ban alcoholic beverages and gambling, the Court relaxed the preexisting constitutional rules.
The consequence was a growing doctrinal incoherence, with police powers that, once acknowledged, could not be limited in any sensible way. The New Deal judges were simply amputating doctrines that had already become gangrenous. Compton’s narrative offers a new perspective on originalism. It shows the folly of trying to read into the Constitution ideas of the founding generation that are not in the text. A flexible Constitution, with constructed interpretive rules that are open to judicial revision in light of experience, is both more democratic and more consistent with the Constitution’s fundamental purposes. His story also shows why the American left should reconsider its hostility toward morals legislation and religiously motivated political action.
Compton’s narrative offers a new perspective on originalism. It shows the folly of trying to read into the Constitution ideas of the founding generation that are not in the text. A flexible Constitution, with constructed interpretive rules that are open to judicial revision in light of experience, is both more democratic and more consistent with the Constitution’s fundamental purposes. His story also shows why the American left should reconsider its hostility toward morals legislation and religiously motivated political action.
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