A review of The Evangelical Origins of the Living Constitution, by John W. Compton.

Roscoe Filburn likely did not intend to write the obituary for the American Constitution. The citizen-farmer from Ohio simply wanted to grow enough wheat on his 95-acre farm to support his family. But when he produced more bushels than allowed by New Deal bureaucrats claiming to exercise the federal power to regulate “interstate commerce,” he found himself subjected to fines.

Not one to give in without a fight, Filburn sued, making a common-sense argument: growing wheat so he could feed his own cows and bake his own bread was not commerce, let alone commerce between the states. Unfortunately, common sense was in short supply at the Supreme Court. In Wickard v. Filburn (1942), the Court ruled 8-0 that even wheat reserved for personal use could be regulated under the Constitution’s Commerce Clause. After all, the Justices opined, the more wheat Filburn grew for his family, the less wheat he would purchase from others, which might eventually affect its market price.

By that logic, of course, virtually any activity could be regulated as interstate commerce—even if it wasn’t interstate, and even if (as in this case) it wasn’t commerce. Justice Robert Jackson said as much, declaring that even if an “activity be local, and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.”

Although there were other court decisions that ratified the New Deal, it is hard to find another one that signaled quite so decisively the demise of the founders’ idea of limited government and its replacement with what Progressives called the evolving or “living” Constitution. This overthrow of the founders’ Constitution by Progressives was nothing short of a revolution in our constitutional system—or so many scholars, especially on the conservative end of the spectrum, have claimed over the past two decades.

* * *

John Compton begs to differ, and in The Evangelical Origins of the Living Constitution he tries to show why. In his view, far from being a radical departure from the past, the Progressives’ idea of the living Constitution had deep roots in American politics and jurisprudence, specifically in America’s 19th-century evangelical moral reformers who crusaded against lotteries and intemperance.

An assistant professor of political science at Chapman University, Compton argues that these reform crusades, starting in the early 1800s, conflicted with the original Constitution’s protection of property rights; and that subsequent legal wrangling to stretch the Constitution’s meaning to accommodate these assaults on property supplied precedents upon which later Progressive reformers could draw. Seen in this light, the Progressive revolution was not revolutionary at all; it was an outgrowth of a long history of constitutional development.

Compton’s account is sophisticated, and he clearly has immersed himself in the details of 19th-century politics and culture. Though he acknowledges that his “study cannot settle the question of whether the constitutional changes of the 1930s should be regarded as legitimate,” he clearly hopes that his new account will bolster the Progressive cause by making it appear more evolutionary than revolutionary. But for all his careful scholarship, he cannot distinguish the proverbial forest from the trees.

* * *

For one thing, Compton exaggerates the tension between evangelical reformers and the original Constitution. He depicts the founders as champions of an amoral commercial republic in which property rights were virtually absolute. If this were an accurate description of their political philosophy, Compton’s analysis might be more persuasive. Evangelical efforts to restrict previously-licensed sellers of alcohol or the operators of lotteries unquestionably interfered with property rights. Contrary to Compton, however, this doesn’t make their efforts inherently incompatible with the founders’ constitutional principles.

In their understanding, property rights were sacred but not absolute. Liberty with regard to property was not the right to do whatever one pleased anytime one pleased. Rather, it was the right to freely use property for lawful and morally unobjectionable purposes. Put another way, liberty was not an excuse for license. That is why the founding generation as a whole had few qualms about restrictions on economic activities such as prostitution or even commerce on Sundays.

Once one understands this fact, it is hard to see why evangelical efforts to curtail the selling of alcohol or ban the operation of lotteries posed a serious threat to the founders’ conception of ordered liberty. Some evangelical proposals may have been foolish or overzealous, and evangelical reformers may have overreached in certain cases when arguing for restrictions that violated the vested rights of particular property owners. But the original constitutional order already accepted the principle that restrictions on illicit economic activities need not be a violation of property rights.

Compton himself concedes that traditional common-law principles and public policy allowed for the abatement of economic activities deemed “nuisances,” but he fails to grasp the importance of his concession, contending that evangelicals had a much more negative view of certain economic activities (especially the selling of alcohol) than did most of the founding generation. True, but the founders already accepted in principle that the right of property did not protect immoral economic activities, so the evangelicals were disagreeing about the application of a principle, not the principle itself.

Yet there is a deeper problem with Compton’s analysis. Even if Progressives made use of previous court decisions upholding state and national efforts at moral reform, their use of those decisions seems to have been opportunistic. If one wants to uncover the real roots of Progressive thought, one needs to look elsewhere—in particular, to G.W.F. Hegel’s historicism and Charles Darwin’s natural science. In the broader sweep of history these were far more significant to the development of the Progressives’ radicalism than any 19th-century evangelical preacher.

* * *

The appeal of Darwinian biology to the Progressives was especially significant. Imbued from the start with a kind of quasi-religious fervor, Darwinism was ready-made to be applied to the social and political realm in a wide variety of ways. Invoking Darwin, Progressives claimed that not only history but science itself confirmed their evolutionary view of the Constitution. Woodrow Wilson argued as much during his campaign for president in 1912, proclaiming that

living political constitutions must be Darwinian in structure and in practice. Society is a living organism and must obey the laws of Life…. All that progressives ask or desire is permission—in an era when “development,” “evolution,” is the scientific word—to interpret the Constitution according to the Darwinian principle.

Darwinian biology also fueled a vigorous form of coercive utopianism during the Progressive era. Nowhere was this more evident than in the eugenics movement, which invoked the prestige of science in order to breed a better race. It was no accident that the Second International Congress of Eugenics in 1921 was held at the American Museum of Natural History, one of the nation’s premier scientific institutions, or that its guest of honor was Leonard Darwin, son of the famed British naturalist. The message presented to all concerned was that eugenics was unassailable as public policy precisely because it represented the authority of modern biological science applied to politics; attack eugenics and one would be guilty of attacking the authority of science itself.

One speaker at the conference, Alleyne Ireland, made explicit the consequences of this Progressive fusion of science and politics for the future of representative democracy, declaring that current conditions had rendered “utterly unsuitable” America’s original form of government established by the Constitution and the Declaration of Independence. He complained that America’s founders believed that “governments derive their just powers from the consent of the governed,” and they set up arrangements “designed with a view to making abuse of power difficult.” But in an age when government must increasingly provide a wide range of social services, society could no longer afford to rely on government by non-experts. Instead, it was “imperative…that the omnipresent activity of government should be guided by the light of scientific knowledge and conducted through the instrumentality of a scientific method.”

* * *

In the end, what those who championed the living Constitution were truly demanding was not a living Constitution at all. It was a dead Constitution—dead to any stable meaning that might have imposed real limits on government power. One hopes that in their more unguarded moments some defenders of the new order might have expressed at least a moment of regret for the Constitution that the Progressives had so effectively displaced.

I recall a conversation years ago with the late Leonard Levy, one of the great constitutional historians of the last generation. Winner of the Pulitzer Prize in History for his book Origins of the Fifth Amendment (1968), Levy spent much of his life trying to understand the founders’ political thought. Nevertheless, as a proud New Deal liberal, he remained largely unsympathetic to conservative arguments for constitutional originalism. So I was shocked one day when he expressed to me his dismay that members of Congress no longer even pretended to ask whether they had the authority to pass some new regulation of the economy. Legislators, he lamented, simply assumed that they had the power to do whatever they wanted, and judges obliged them.

John Compton may believe that the Progressive view of the Constitution was not revolutionary, but Levy was not so blind.