The Present View

As with any religious orthodoxy, the positions one might take on constitutional interpretation are many, and the political valances of those positions are not always clear.Footnote ¹ As matter of convenience, originalism and living constitutionalism usually define the polar positions in scholarly and popular literature, as they do in Compton's narrative. Adherents of the former insist the original meaning underlying the constitutional text is relatively certain and that any contemporary interpretation of the text should remain consistent with this original meaning (unless, of course, formal processes are undertaken to amend the text itself). Living constitutionalists meanwhile hold to some nexus of beliefs that, as Compton summarizes it, “the will of democratic majorities should be afforded greater weight in constitutional adjudication; that the ideals of the Founding generation should not be permitted to bar the moral progress of future generations; and that the meaning of constitutional concepts should be updated to reflect advances in scientific knowledge” (15). Interpreting the Constitution by the latter strategy, one might find oneself permitting actions the original framers and readers clearly understood the text to forbid.

As presidential campaigns and judicial confirmation battles since the 1980s have made clear, originalism today is often the favored method of political conservatives, particularly socially conservative evangelical Christians. A 2011 Pew Research Center survey that Compton cites reported that 88 percent of “staunch[ly] conservative,” religiously devout Americans thought originalism was the normatively correct approach to constitutional interpretation. Living constitutionalism, meanwhile, has tended to find strongest support among the descendants both of New Deal liberals and champions of autonomous individualism, that is, those who approve of constitutional changes like the rise of the administrative state or of privacy rights that gained judicial recognition without textual amendments to the Constitution (183). But to Compton, the present view is not the eternal truth. In fact, he argues, the earliest US proponents of a living constitution were politically active evangelicals whose views on social mores—about alcohol, gambling, sex, and the welfare of children—closely align with the most conservative of their contemporary counterparts. And from these evangelicals Holmes (certainly no friend to religion himself) and the proponents of the New Deal order inherited their understanding of constitutional change.

Since the George W. Bush Administration, scholars have paid increasing attention to the formation of the Religious Right and its attempts to reorient the US judiciary toward originalism (Schulman and Zelizer Reference Schulman and Zelizer2008). Compton focuses rather on the influence of evangelicalism on constitutional theory a century earlier, from the early nineteenth century to the constitutional triumphs of the New Deal, and argues an evangelical “morals revolution” ultimately changed both the meaning of the Constitution and the major method of its interpretation.

Rum and the Lottery

Although antebellum evangelicals directed their reform efforts at numerous perceived social evils, from slavery to Sabbath breaking, poverty to prostitution, Compton gives almost exclusive focus to the two singled out by Holmes: liquor and lottery prohibition. Unlike penalties for blasphemy, Sabbath breaking, and sexual deviance—for which there was a long common law tradition of vice regulation—Compton argues that drinking and gambling were relatively unregulated and socially unproblematic at the time of the founding. Indeed, lotteries helped build many a church edifice in the colonies and early republic, while quaffing alcohol preceded baseball as America's pastime. At the turn the nineteenth century, liquor and lotteries were regulated industries, but not in ways distinct from other lawful industries. One needed a license to sell alcohol, but once acquired, both the license and the stock of liquor it secured were private property, protected from public seizure.Footnote ² Likewise, after the Marshall Court decided that corporate charters were contracts that state legislatures could not retract (Dartmouth College v. Woodward), so too lottery grants created obligations that states could not impair, per the Contracts Clause of the Constitution.Footnote ³ The legitimate prohibition of liquor or lotteries after the formation of the republic, Compton concludes, thus required either an amendment to these problematic texts or the abandonment of the original meanings of property, due process, and contractual rights.

As his study of judicial doctrine proceeds, Compton reveals the extent to which liquor and lottery regulations encountered other problems stemming from the constitutional text, particularly the Commerce Clause and the US structure of federalism instantiated in the Tenth Amendment.Footnote ⁴ As freights of alcohol or packets of lottery tickets crossed state lines for sale, they became articles of interstate commerce protected by the federal government from purely local “police” concerns, a constitutional obstacle that blasphemy laws or school Bible-reading provisions never had to confront.

Of course, the fight against slavery sprang from a similar morals revolution that sought to redefine what the nation's founders had considered protected property and a legitimate interstate trade in commodified persons. Compton does not engage with the history of antislavery evangelicalism because the destruction of slavery involved “formal amendments” to the Constitution's text, not “shifts in constitutional doctrine and interpretive methodology” (13).Footnote ⁵ As the moral dilemma of antislavery constitutionalism has become well-trodden ground in legal scholarship (Cover Reference Cover1984), Compton brings antislavery into his narrative only when it reinforces the saliency of his observations that, for instance, economically disruptive morals reform was unpopular in the antebellum South (35), antebellum jurists were particularly anxious about tampering with constitutional categories of property and interstate commerce (12), and therefore the Republican ascendancy marked a significant turning point in moral reform (74–78).

Like Compton, the architects of twentieth-century jurisprudence also set antislavery aside. As Holmes's bemused comments to Laski illustrate, adherents of pragmatism, sociological jurisprudence, and legal realism pointed specifically to liquor and lotteries as a singular type of moral and legal revolution. For some, like Holmes, the eradication of slavery was within living memory, yet they cited “rum and the lottery” as the important precedents that changed the course of constitutional development. In adopting the outlook of his subjects, Compton's narrow focus allows us a keen view of a world that has become lost to us, a world where the eradication of notorious vice seemed within reach, if only the troubling textual strictures of a bygone era could be set aside.

Nevertheless, the question remains as to why some reforms could be accommodated with constitutional interpretation but the abolition of slavery could not. After further examining Compton's narrative and the tenets of evangelical constitutionalism, I shall return to this question.

The People's Welfare, and the People's Constitution

Compton shows a strong appreciation for the work of William Novak and Bruce Ackerman, two scholars he adopts as his conversation partners throughout. Like them, Compton portrays an American tradition of flexible, discretionary constitutionalism that served the needs of a regulatory state (Novak Reference Novak1996; Ackerman 2000). However, Compton's originalism—premised on the erection of a commercial republic that would protect fixed categories of property, contract, and commerce—selects a different point of departure and argues that the regulatory tradition had to be worked out over time from tools not readily available at the American founding. Compton thus asks us to rethink two of the most influential histories of US constitutionalism of the last generation.

Novak's The People's Welfare made the case that if any theory qualified as the original understanding of government powers in the United States, it was the principle salus populi suprema lex est—the welfare of the people is the supreme law. Novak documented an impressive array of nineteenth-century regulations of public health, safety, and, especially, morality, that all trumped rights of private property when challenged in the courts.

It was only after mid-century, Novak argued, that the inviolability of private property gained greater recognition, and the Maine Laws marked a key turning point after which judges more zealously protected a private sphere of rights from public invasion.Footnote ²⁰ Uneasy about summary and ex parte procedures to seize and destroy alcohol, mid-nineteenth-century judges declared certain protections of private property to be, as a matter of law, beyond the reach of legislation in the public's interest (“substantive” due process). Judges had long been comfortable with similar abatement of nuisances in the public interest, but what was novel about the Maine Laws was the level of government at which reformers pursued their ends. Rather than seeking local, discretionary standards, prohibitionists achieved stringent statewide legislation. This new kind of public power triggered an equal and opposite reaction among the judiciary, which set out to expand protections for private rights. Modern liberalism, founded on “new ideas about privacy and personal freedom,” became an unintended consequence of reforming communal morality (188–89).

Compton agrees with Novak's principle but reconsiders which were the “new ideas” in the antebellum era. He contends that absolute protections for private property did not arise in the 1850s but at the drafting of the commercial republic's Constitution. Longstanding local police regulations were not necessarily overruled—even as they were subsumed under a federal government that protected property and contract rights—but novel prohibitions of formerly acceptable practices squarely confronted constitutional prohibitions with no recourse to arguments from history or tradition.Footnote ²¹ Compton's survey shows that in liquor and lottery cases, arguments for the police power accordingly lost most of the time—until they won, reformulated not on the basis of historical fidelity but on the principle that a majority of citizens had become morally enlightened. Compton thus focuses our attention on an aberration within the universe Novak compellingly illustrated. The triumph of morals regulation over private property rights might usually have been “the easy case” that Novak described (Novak Reference Novak1996, 149), but the easy case became a hard one when the morality of popular majorities overwrote older definitions of property.

Attending to popular majorities, Ackerman argued that in reviewing any legislation, the Supreme Court had to distinguish between periods of “normal” lawmaking and “higher” lawmaking, the two patterns of what he called “dualist democracy” (Ackerman 2000). As the legislative results of normal lawmaking tended to be horse-trading compromises that barely satisfied any majority, the Court should not hesitate to strike them down when they ran afoul of the considered judgment of the American people enshrined in the Constitution and landmark interpretations. When, however, a statute was the product of longstanding and widespread deliberation, evidenced by multiple electoral victories—a “constitutional moment”—then the Court should abandon its normal law-making functions and accommodate interpretation to new realities envisioned by the deliberative majority. Such a constitutional moment occurred during the New Deal when the Court rightly resisted early transformative legislation, testing the seriousness of Roosevelt's new electoral coalitions, but then legitimately changed course, accepting those same transformations without forcing a formal Article V amendment.

Initially, Compton seems to identify another hitherto unappreciated constitutional moment when judges first struck down legislation that ran contrary to accepted constitutional understandings, then accommodated democratic majorities who endorsed the morals revolution. However, Compton finds his story troubling for the dualist democracy model because if liquor and lottery regulation marked a constitutional moment, it was a “moment” that lasted from the 1830s to the 1930s, converging and overlapping with other moments during Reconstruction and the New Deal (Compton 2004, 181–82).

A leading virtue of Ackerman's model was its answer to the common charge against a living constitution that, unmoored from a fixed textual meaning, it could mean whatever a judge wanted it to mean, mocking the rule of law.Footnote ²² Ackerman's formal requirements for higher lawmaking offered a principle of limitation so that the universe of legitimate meanings behind a text was relatively bounded and clear. However, if Compton's narrative raises the implication that the “constitutional moment” itself is in the eye of the beholder, these boundaries erode—normal lawmaking and higher lawmaking become historically indistinguishable. The New Deal transformation, after all, formed a discrete 1930s moment only if one distinguishes moral regulations from economic ones—drinking is one thing, child labor quite another. However, to many evangelicals—and then to many Progressives—that distinction was neither clear nor clearly implied by the Constitution. Many New Dealers, Compton shows, essentially argued that there was no need for higher lawmaking, since that work had already been achieved. When the Court's accommodation to child labor reform arrived, the justices agreed that liquor and lottery cases had already accomplished the doctrinal revolution.

Compton thus embraces Ackerman's version of living constitutionalism as a useful description of the aims and means of evangelical reform, but in the final lines of the book, Compton praises recent theories of “popular constitutionalism” for offering better explanations of how constitutional meaning changes over time. A contemporary variant of the living constitutionalism project, popular constitutionalism tends to downplay the importance of judicial doctrine and instead gives serious attention to the worldviews of broad social movements whose arguments come before the courts only after being developed and articulated elsewhere. Judges affirm democratic values not by requiring political formalities, but by recognizing and employing broad-based popular understandings of the Constitution on their own terms. Once again, meaning is not entirely indeterminate, as boundaries are set by the assumptions and appeals ordinary Americans make in their public arguments (Kramer Reference Kramer2006).

The Evangelical Origins of the Living Constitution successfully holds together both a commitment to popular constitutionalism and a careful analysis of legal doctrine. One could object here and there to Compton's doctrinal interpretations—a number of liquor and lottery decisions did not necessarily contradict the “original” Constitution so much as early Marshall Court jurisprudence, which may not be the same thingFootnote ²³ —but Compton's overall interpretation is compelling, illustrating in case after case how explicit arguments from democratic majoritarianism shifted judicial doctrine away from a longstanding tradition of protecting vested rights of property. The work adds important dimensions to some of the most influential scholarly conversations about US constitutionalism from the last generation. If a constitutional revolution occurred during the New Deal, Compton helps us see that it was not the origination of a new theory of interpretation, but the triumph of one longstanding American tradition over another.

Evangelical Constitutionalism

We can begin this alternate narrative of law and religion where Compton ends, with the value of popular constitutionalism as a method for legal history. Paradoxically, Compton's commitment to the popular constitutionalism model leads him to miss some of that method's potential advantages. As a method, popular constitutionalism invites unconventional or deviant voices to weigh in on constitutional meaning undisciplined by formal judicial discourse and precedent (which is, after all, only a narrow genre of US rhetoric). The danger, however, is that popular constitutionalism might become just as formal (and formulaic) a method as those it seeks to replace—that is, social movement plus mobilization over time yields constitutional change, with judicial accommodation as a catalyst. The reduction of weird or multivalent discourses to “social movement” may, in fact, lop off the interesting and relevant features of alternative constitutionalisms and obscure important questions.

Such is the tendency of Compton's treatment of evangelicals.Footnote ²⁴ Compton relies heavily on Michael Young's important sociological study Bearing Witness Against Sin, which argues that sociologists should take seriously antebellum evangelical reform as America's first national social movement (2006). By labeling evangelicals a social movement Young sought to raise their significance and relevance for sociological study. Transferred to the legal context, however, Young's thesis diminishes evangelicals to the opening term of the popular constitutionalism formula. Having declared evangelicals a social movement, Compton's narrative quickly leaves them behind and proceeds to the study of confrontation and accommodation of evangelical reform in the courts. In the only chapter that makes evangelicalism its main topic, secondary works like Young's largely frame and describe this world. Only a few evangelicals speak through primary sources: Lyman Beecher, Charles Finney, Justin Edwards, and Albert Barnes—all New School Presbyterians, a marvelously narrow segment of nineteenth-century evangelicalism.Footnote ²⁵

Nevertheless, by emphasizing evangelicals' role in reframing the Constitution of America's commercial republic, Compton has provided valuable tools and an intriguing direction for the study of evangelical constitutionalism. To take Compton's methodological commitments further, what might more sustained attention to evangelical constitutionalism reveal about alternative approaches to constitutional law? What is left out when we too quickly reduce evangelicalism to a “social movement” whose function in constitutional politics we think we already understand?

Property and the Religious Foundations of Legal Pluralism

As Compton's story illustrates, one can begin with a first principle of evangelical constitutionalism that religion and property were not separate domains of human concern. J. Willard Hurst, a pioneer of US legal history, set a new path for analysis by making it his aim “to understand the law not so much as it may appear to philosophers, but more as it had meaning for workaday people and was shaped by them to their wants and visions” (1956, 5). Frequently, observers have assumed that legal concerns of workaday religion involve quintessentially church-going activities or the display of scriptures in contested public squares (Gordon Reference Gordon2010; Green Reference Green2010).

Breaking with this assumption, Compton's study reveals how a leading concern of workaday religion among US evangelicals was the definition, possession, and deployment of property. For them, criticizing the dominant property regime was a not an argument from the religious sphere trotted out to some secular public square; to suggest as much would, in evangelical framing, have been a category mistake. “There are moral nuisances as well as physical,” wrote the Presbyterian Albert Barnes. “A man has no more right to employ his property so that, in all probability … it will scatter discord and woe through a community, than he has to set up a tannery or a tallow-chandlery in a neighborhood” (1852, 13). As all property, government, and standards of morality ultimately belonged to the Christian God, no distinction could be drawn between religion (a word originally meaning “obligation”) and property law.

Scholars of religion have long become comfortable with the observation that “lived religion” frequently extends beyond institutionalized rituals and official theologies, crisscrossing the various domains that Enlightenment (and even Protestant) thought attempts to separate into private religion and secular commerce (Hall Reference Hamburger2009). However, this insight has yet to penetrate deeply into legal scholarship or jurisprudence. Even as recently as the litigation over religious rights of for-profit corporations, judges and justices have assumed the separation of these domains as a matter of natural logic. “General business corporations,” held the Third Circuit, “do not pray, worship, observe sacraments or take other religiously-motivated actions,” and therefore do not “exercise religion” (Conestoga Wood 2013). Justice Ginsburg wrote in a widely noted dissent that “religious organizations exist to serve a community of believers. For-profit corporations do not fit that bill” (Burwell v. Hobby Lobby Stores 2014). Of course, the movement from an individual to a corporate level of analysis is a slippery problem, but the strict dichotomy between the pursuit of profit and the pursuit of religion in these official pronouncements would be jarring to contemporary scholars of religion and, more important to our purpose, would have been unthinkable to many nineteenth-century Americans (Sullivan Reference Sullivan2007).

Historians have sometimes adopted similar theological assumptions. In a work arguing that nineteenth-century moral regulation gave rise to a de facto Protestant establishment, David Sehat concludes that “[p]roponents of the moral establishment yoked religion to morals and enshrined them in law” (2010, 285). Such a summary makes sense only if one assumes religion is inherently unyoked from morals or law in the first place, a view that might have appealed to some elite founders but that very few contemporaries believed, especially not evangelicals. Recently, historians of religion and law have paid greater attention to the way nineteenth-century churches thought about—and litigated over—property. They have found that in numerous cases, especially in the antebellum period, the theological identity of various churches was hopelessly intertwined with “legal” notions of corporate identity and proprietorship, so much so that state courts frequently had to pick a winning theology as they granted a church's property to its most “orthodox” faction (Gordon Reference Gordon2014; Perry Reference Perry2015). Distinguishing between categories of law and religion, private and public, establishment and exercise would be hopeless in these cases, as it would be with the materials Compton presents.

Based on this first principle, it would be entirely appropriate to construct—as Compton has—a religious history of the Constitution in the nineteenth century that said nothing about the First Amendment and barely referenced its core concerns with establishment or free exercise. Instead, the most far-reaching religious controversies (in terms of broad-based public awareness and long-term doctrinal influence) centered on the Contracts Clause, the Commerce Clause, and even the Postal Clause (more on that below); that is, the defining features of a national market economy.Footnote ²⁶

Thus, not only was workaday religion deeply involved with property, it was deeply involved with the workaday law of property, the distinctions between vested rights and expected interests, property taken for public use or uncompensated abatable nuisances. In all these choices, evangelical theology proffered determinate answers, and the First Amendment's concerns with the institutional divisions between church and state seemed irrelevant to evangelical concerns over the use and abuse of property.Footnote ²⁷ Instead, the vested rights of property and a police power to promote public welfare provided the language in which “religious,” “moral,” and “legal” concerns commingled and found practical, if temporary, resolutions.Footnote ²⁸

Operating through a paradigm of private property and public order, in which theology and law intertwined, antebellum evangelicals exhibited a striking penchant for operating their own self-contained legal orders. “Legal pluralism,” a condition in which multiple normative domains—churches, guilds, cities, states, or more nebulous communities—exercise overlapping law-like jurisdiction alongside and in spite of the presence of “official” institutions has most often been seen as a key attribute of early modern Europe or colonial America (Berman Reference Berman1983; Tomlins and Mann Reference Tomlins and Mann2001). One of the foremost theorists of legal pluralism in the early American republic, Christopher Tomlins, suggested but did not pursue the notion that “evangelical Christianity” formed one of the major political discourses competing with “law” and “police” (Tomlins Reference Tomlins1993, 25). More recently, scholars have begun to explore the ways evangelical institutions operated as relatively autonomous legal orders.

The most striking evidence comes from antebellum Baptists. Jeffrey Perry and Curtis Johnson have shown how monthly Baptist discipline sessions functioned like civil courts: presiding elders resolved claims between members—including contract and property disputes—assessed fines for petty crimes, and mediated reconciliation (Johnson Reference Johnson2014; Perry Reference Perry2015). In a number of communities, even nonmembers preferred to have their claims heard by a local Baptist church rather than the territorial courts of the federal government. Baptist associations published and circulated their own precedents, creating their own version of common law. Perry concludes that “although legal historians have argued that by the time of American Independence law became rooted in state institutions, multiple legal systems continued to operate in … Baptist Churches” (2015, 130).

Though records of disciplinary proceedings are most extensive for Baptists, there is evidence that Presbyterians and Methodists—especially in frontier regions—could be just as autonomous and juridical (Perry Reference Perry2015, 136). The Methodist Book of Discipline—as ubiquitous within that denomination as the Bible itself—functioned as a quasi-statute book, complete with a procedure code regulating trials and appeals. As with the Baptists, Methodist discipline showed no discernable distinction between spiritual and temporal regulation. Gossip was a triable offense, but so to was trading goods for which federal duties had not been paid (Book of Discipline 1816, 65, 96, 100–03).

Congregationalists and eastern Presbyterians, descendants of a Puritanism that expected local magistrates to enforce church-defined norms, did not develop their own juridical structures and discipline to the same extent. Nevertheless, as the leaders of the “benevolent empire,” which boasted the largest corporations in the United States, these evangelicals operated administrative bureaucracies that rivaled the size and revenues of local governments yet operated with little state oversight (Nord Reference Nord and Noll2001).

Given their robust legal autonomy, many antebellum evangelicals argued that church discipline was the only legitimate mechanism for most kinds of social regulation and reform. Evangelicals not only maintained their own juridical systems, they expected members to grant exclusive allegiance to these systems. Thus, case studies show how churches frequently sanctioned members for “going to law” against one another instead of arbitrating within the church; in one instance, the Baptists even disciplined a member for becoming a lawyer! (Johnson Reference Johnson2014). In many communities, for all but the most serious crimes, the common law was supposed to be off-limits to those following the law of Christ.

The most famous Baptist defense of this ideal was the 1830 US Senate Report on Post Office Memorials. Under its plenary power to regulate post offices, Congress ordered post offices to open on Sunday for at least an hour, though post masters could accommodate local worship schedules. The availability of the post office for social gatherings where liquor could be distributed or purchased provoked the ire of many temperance reformers, who petitioned Congress to close the post offices on Sunday. Senator Richard Mentor Johnson responded with a classic statement of Baptist political theory: the federal government would take no theological position on the holiness of any particular day.Footnote ²⁹ If temperance reformers wished to sanctify a Sabbath, their best means would be to evangelize those they wanted the law to punish and bring them instead under the discipline of the church; then “the evil of which they complain will cease of itself, without any exertion of the strong arm of civil power” (Sunday Mails 1830, 231).

American Baptists are well known for being early and articulate defenders of “the separation of church and state” (a principle reaffirmed several times in Johnson's short report). On this point of moral reform, however, Baptists were not unique among their evangelical contemporaries. The Congregationalist minister Parsons Cooke advocated that “the word of life held forth by the ministry … is the instrument of reform.” Democratically enacted legislation could not compel any reform worthy of the name, and even parachurch moral societies were dissatisfying, “as if it were forgotten that the church is a moral society, capable of doing all the duties proposed by such societies, and that if she were what she should be, she would need no other, and could devise no better” (1839, 29). Even the Presbyterian Lyman Beecher, perhaps the most politically active evangelical of his time, prioritized church discipline over legislative action in his temperance lectures (as Compton notes, 52). A hallmark of evangelical constitutionalism, then, was its priority of the local church constitution over the federal document calling itself the capital-c Constitution.

In the search for an evangelical “social movement,” one can easily miss the significance of these evangelical social structures that constituted alternative legalities. Recall Sehat's formulation that “[p]roponents of the moral establishment yoked religion to morals and enshrined them in law” (2010, 285). Sehat captures the social movement model well: something begins in the realm of “the social,” then mobilizes politically with hopes of one day altering “the law.” However, the presupposition that federal and state regulation mediated by state-licensed lawyers is “the law” with which social actors are most concerned leads us astray in the case of antebellum evangelical Christianity.

Refocusing on evangelical legality gives central importance to a question social movement literature tends to brush aside. Why did many evangelicals ultimately abandon their alternate legalities exclusively to pursue national politics? In a well-known episode of antislavery fervor, William Lloyd Garrison—an evangelical BaptistFootnote ³⁰ —publicly burned the Constitution, declaring it “a covenant with death and an agreement with hell” (Howe Reference Howe2007, 651). Given evangelicals' ardent commitment to operating alternative legal orders to the Constitution, why, over time, did Garrison's action come to be seen as eccentric rather than the normal and obvious action for evangelicals to take against a Constitution that obstructed moral reformation? Why did they instead choose to work within America's constitutional order, making a living constitution out of dry bones?Footnote ³¹

The problem is often framed as a turn from moral suasion to legal coercion, with the reasons for the turn a matter of obvious convenience. “Despite an early commitment to moral suasion,” Novak wrote, reformers soon turned instead to legislation (153). “Beecher's efforts to attack the demand side of the liquor traffic [through moral suasion and church discipline] were, to put it mildly, less than successful,” Compton quips (52). Both say nothing further about the abandonment of “moral suasion.” Their logic relies on a narrative compellingly articulated by Sehat, who argues that Protestants lost their formal, constitutional state establishments but used morals legislation to regain “religious control over U.S. society through law” (2010, 290). Thus, political expediency explains the turn: legislation could reach further and operate more effectively than could moral suasion, so evangelicals embraced national legislation despite their lip service to American liberal values.

By revealing just how successful evangelicals were at legislative politics, however, Compton challenges us to give a more sophisticated account of the fortunes of moral suasion in the United States. After all, democratic politics, in many instances no less than moral suasion, required people to persuade one another either to compromise short-term interests for the sake of other interests, or to reimagine their own interests entirely. As Compton notes, the vast majorities that passed this legislation were constructed by many who had dissented against formal religious establishments. Why then did these particular regulations find acceptance among evangelical dissenters while other “moral” concerns did not? Following Compton's intuition that evangelicals were centrally concerned with the definition and possession of property can help untangle these questions, though it squarely raises a problem Compton wished to set aside—the problem of slavery.

Moral Suasion and Moral Enslavement

Already it should be apparent than in antebellum evangelicalism, legal coercion and moral suasion were not conceptually distinct opposites. It would be simplistic to read the frequent appeals to evangelization as mere moral suasion. Membership in a church entailed community surveillance and extensive disciplinary regulations designed to rid one (or one's household) of sinful habits and restore one's place in the community. Moreover, the varieties of Calvinist theology descending from eighteenth-century theologians insisted that membership in a church was not itself a matter of moral suasion. Divine sovereign grace moved in mysterious fashion to bring the elect into a holy community notwithstanding the impulses of an individual's depraved will. The conviction of the majority of Revolution-era evangelicals, Calvinism had to decline or be transformed for a category of “moral suasion” even to make sense.

In the course of the Great Revival, Calvinism did indeed decline and change. Compton's search for a theological explanation of change in the “religious sphere” is laudable, but his emphasis on perfectionism somewhat confuses the situation. The doctrine of Christian perfection had many formulations in the antebellum era, from perfect love for God to (the most relevant, for Compton's purposes) Charles Finney's formulation of perfect obedience to all moral laws. Even accounting for this diversity, historians of theology such as Brooks Holifield have shown how perfection was not a widely accepted doctrine, nor, importantly, did any theologian believe that perfection was possible outside the Christian community. Even Finney, who supposed that unredeemed sinners could obey moral laws, argued that they never would until evangelized for Christ (2003, 269–72, 366–67). Allowing for the ways popular usage can amend official theologies, it remains difficult to see how perfectionism, premised as it was on evangelization, could become the controlling motive for large majorities to enact society-wide legislation. Compton's focus on Finney and co-Presbyterian Lyman Beecher is valuable, however, because these self-professed Calvinists were among the most influential to declare that “the doctrine of the entire depravity of man is not inconsistent with free-agency” (Beecher Reference Beecher1827, 30). The rising number of non-Calvinists, Methodists in particular, agreed that “free-agency” deserved more esteem than eighteenth-century Calvinists like Jonathan Edwards had granted it. As historian of US religion Mark Noll summarizes: “The most common traditional position [of the eighteenth-century] emphasized the power of God and his lordship over all humanity exercised directly … for his providential purpose. The more American tendency was to depict God as a benevolent, reasonable facilitator of human happiness who ruled the universe by creating moral structures, establishing moral laws, and ordaining moral consequences to govern the lives of God's human subjects” (2002, 266). It was within this universe of theology that moral suasion became a real possibility.Footnote ³²

That possibility, however, raised for antebellum evangelicals the question of which conditions might override a person's moral agency. What were the limits of free-agency and, thus, of moral suasion? Protestants from Calvin to Edwards would have found the question wrongheaded. The bondage of the will (a title of numerous Protestant tracts on the subject) was a universal human condition, as true of the saintliest church deacon as of the most refractory town drunk. Sin was pervasive; humans could not overcome any particular class of sins by their own agency, and no particular sin created more bondage than another. But under the new revivalistic paradigm of free-agency, even ardent Calvinists supposed that if by internal agency humans could normally respond to revival preaching, there might exist external conditions that hindered this moral response.

For leading evangelicals, especially in the North, slavery was the paradigmatic opposite of moral free-agency. As evangelicals could not even reach slaves without slaveholders' permission, nothing more starkly illustrated the external conditions that could inhibit the moral transformation of the soul. An 1835 report of the Presbyterian Synod of Kentucky succinctly moved through the logic of property and moral bondage: a slave “has no right to himself. His flesh is bought and sold. He is subject to the will of an absolute master. The rights of conscience are ever destroyed. The master may prevent his slaves from worshipping God” (Robinson Reference Robinson1852, 55). Their different constitutional histories notwithstanding, the logic of evangelical antislavery undergirded other reforms.

Indeed, antislavery helps make sense of which other evangelical reforms succeeded through national legislation. Lacking our modern vocabulary of addiction, evangelicals mobilized most successfully against vices that seemed evocative of slavery. For Beecher, the chief of these vices was drunkenness. Moral suasion did not apply to intemperance, because free-agency did not obtain. “[I]t may be as certain that an intemperate man will drink to excess, when he has opportunity,” Beecher proclaimed, “as if the liquid were poured down his throat by irresistible power” (1827, 6). With close readings of evangelical reform literature, Michael Young and Richard Hamm show repeatedly how evangelicals understood intemperance, gambling, and prostitution to be moral equivalents of chattel slavery (Hamm Reference Hamm1995, 30–31, 124; Young Reference Young2006). In Young's summary of evangelical reform, “chattel slavery and intemperance equally robbed individuals of that freedom [to willingly respond to God]. It enslaved them to the desires of man, placing an obstacle between man and God” (2006, 167).

To the antislavery evangelical, adultery and blasphemy were no less evil than intemperance, but these sins seemed to be a perversion of moral agency, not an absence of it: poor choices, but proof at least of the possibility of choosing. Accordingly, legislative regulation of these sins lapsed across the nineteenth century, their jurisdiction transferred to the realm of moral suasion (Green Reference Green2010). The paradigmatic importance of slavery may also indicate why abolitionism followed a different constitutional path from temperance. Bruce Dorsey notes that evangelicals recognized that intemperance—unlike chattel slavery—was a type of slavery to which free white men might succumb. By defining temperance as the opposite of slavery, reformers made temperance a marker of freedom, whiteness, and manliness (2006, 121–24). These were the same qualities demanded of voters, making prohibition an easy fit for democratic majoritarianism, while abolition required military compulsion and textual amendment.

Thus, dividing nineteenth-century Americans into camps of “liberals” and “moral establishmentarians” (Sehat Reference Sehat2010), or “liberals” and “communitarians” (McGarvie Reference McGarvie2005), may help illuminate, as Sehat says, America's coercive “preference given to Christianity in the past” though at the cost of overlooking the varieties of thought about what liberalism required. If, as Sehat defines it, liberalism fundamentally stands for “the self-determination of the individual” (2010, 287), Sehat's most notorious moral establishmentarians and McGarvie's communitarians imagined they were pursuing almost exactly that.

Sabbatarism provides a useful example of the shift from eighteenth-century establishment to nineteenth-century moral reformation. In the heyday of Puritanism, sabbatarian regulations required monetary support of a local church, mandated church attendance, and penalized various forms of recreational activity on Sunday. But by the late nineteenth century, sabbatarian regulations typically required only the cessation of commerce (Green Reference Green2010). How one observed the Sabbath became a matter of moral suasion. Nevertheless, as a precondition of that moral choice, workers and businessmen alike had to have the day free. A coercive economic regulation from the perspective of employers, Sunday closing laws appeared to evangelicals as a necessary freedom.Footnote ³³

Compton adopts the latest law and religion studies as his point of departure into a study of property rights and constitutional law. That very focus, however, if given sustained attention within antebellum evangelical thought, invites reconsideration of common premises in law and religion scholarship. At the level of popular constitutionalism, many evangelicals did not conceive of separate categories of private religion and public laws of property. By understanding a variety of vices in terms of chattel slavery, their views on individual liberty and moral suasion were not so obviously contradictory and opposed to a monolithic American liberalism as often supposed. If certain evangelicals seemed to be leading liberals in their antislavery thought, one should be cautious about dismissing them as “establishmentarians” for their views on drinking, gambling, and prostitution. Freedom and coercion mixed in both domains, and on the same reasoning.

From Legal Pluralism to Religious Pluralism

With the decline and marginalization of traditional Calvinism, many evangelicals came to view freedom from chattel slavery, alcohol, gambling, and sexual addiction as a requirement of American liberty. That development alone, however, does not fully explain why these evangelicals turned so ardently toward legislative reform. Granted that evangelizing the enslaved had become nearly impossible, one option remained open outside of official legal mechanisms: the conversion of slave owners and traders.

Parsons Cooke promoted this strategy in an 1839 lecture delivered at Andover. Prior to any Maine Laws, Cooke believed evangelization of moderate drinkers (those not yet subject to liquor's enslavement) and traffickers of liquor (the moral equivalent of slave traders) reformed “men's practice, [by] converting the sinners at our doors.” But he thought antislavery societies were taking the wrong approach by intentionally provoking distant slaveholders rather than moving among them and seeking to graciously convert them to the gospel, which would ultimately result in the emancipation and evangelization of their slaves. Thus, even among those most concerned about the reality of moral enslavement, evangelization and the “action and discipline of the churches” remained the major means of reform (1839, 29).

Even as he lectured, Cooke realized his position was becoming less popular, and his exemplar of voluntary temperance morphed into the Maine Laws a decade later. What turned the evangelical appeal from church discipline toward social legislation and common law enforcement? Why, that is, did evangelical legal pluralism decline?

One answer is that religious pluralism rose. In his study of Baptist discipline, Jeffrey Perry shows that increasing appeals from the Disciples of Christ, whose “no creed but the Bible” approach undercut Baptist disciplinary practices as so many man-made traditions, drew away enough members that Baptists stopped the practice in order to compete for survival in the West (Perry Reference Perry2015). Methodists made a similar calculation in the early days of the republic. On the brink of excommunicating all slaveholders in 1784, the church drew back for fear of losing too many members to rival denominations. Thenceforth, the Book of Discipline declared slavery a “great evil” but did not forbid it among the laity (Heyrman Reference Heyrman1997). Compton relates a similar Methodist capitulation to retailers of alcohol in 1790 (25).

Although the Constitution did not require disestablishment in the states (the First Amendment applied only to the federal government), its protection of property and corporate status for any religious sect without regard to theology or morality allowed varieties of Christianity that legitimated slavery (or drinking, etc.) to compete with those that did not. Thus, evangelicals came to fear what most US politicians of the era also feared: that arguing the morality of a property regime too strongly might provoke a secession. Then all moral and political influence would be lost. That nightmare was realized across the antebellum era, and not just at the level of local schism. In 1844, the Baptist Convention divided into northern and southern institutions over the question of slavery. The Methodist Episcopal denomination did the same later that year. Presbyterians, already formally divided over questions of revival theology, divided and realigned again over slavery in 1857 (Noll Reference Noll2002). National schisms made it clear that evangelization would not emancipate slaves. The South, after all, had become evangelized, but by varieties of the gospel that combined major tenets of Christian orthodoxy with the legitimation of slavery.

Evangelicals thus encountered a recurring problem of US constitutionalism: in the context of a national economy where goods constantly circulated, crossing jurisdictional boundaries, a constitutional order fundamentally founded on the protection of property could not be neutral toward property pluralism. Compton eloquently observes that “with the emergence of evangelicalism as America's dominant religious persuasion, it became suddenly clear that the nation's fundamental law harbored substantive social commitments” belying its seeming procedural neutrality (42). James Oakes's recent study of emancipation illustrates this well. South Carolina law allowed people to hold other humans as property; Massachusetts law did not; the Constitution could protect the property rights and local sovereignty of both states, so long as slaves never crossed any borders. The robust transportation networks that supported a booming cotton and textile trade, however, meant that slaves inevitably crossed jurisdictional boundaries. Even apart from the Fugitive Slave Clause,Footnote ³⁴ the Constitution's Commerce Clause, Takings Clause, and Tenth Amendment principles of federalism required the federal government to take a position: the nationally regarded principle would either be slavery or antislavery; one state's law of property would be fully protected, another's curbed (Oakes Reference Oakes2014).

Accordingly, when the Supreme Court declared that one state's policy (whether that of Louisiana on lotteries or that of Illinois on liquor) created a national commodity that all other states had to respect, regardless of their own classifications of noxious property, postbellum evangelicals were not hallucinating when they saw Dred Scott arising from its grave. As with slavery, the national economy belied the claim that the federal government could neutrally tolerate property pluralism at the local level. If lottery tickets were good property somewhere, they were good property everywhere. Michael Young's sociological study shows that as the implications of a national commercial economy became clear to evangelicals, their politics increasingly hardened on the position that toleration of noxious property could mean nothing else but complicity with sin (2006). The Presbyterian revivalist Charles Finney argued that only after property pluralism emerged with northern emancipation did “men generally understand the relations of slavery to the national government. The startling fact is but too apparent that our Union is virtually a slaveholding state.” And now that the national principle of slavery was clear, Christians could not “go on in the same course of sustaining the system, without the greatest guilt” (1852, 1).

The evangelical entrance into national politics thus coincided with the decline of legal pluralism. Christopher Tomlins and Laura Edwards have written about northern and southern legal culture, finding in both instances the rise of a unified, professionalized legal order across the nineteenth century that integrated legal institutions into a smooth hierarchy and rested on a monolithic discourse of property rights (Tomlins Reference Tomlins1993; Edwards Reference Edwards2009). This survey of evangelical constitutionalism shows how the conditions of religious pluralism in the United States moved evangelicals in a similar direction. At the local level, religious competition threatened legally pluralist evangelicals with the loss of their property. Conversions often led to schisms, raising questions over which faction ultimately owned contested property. Increasingly, evangelicals turned to state tribunals to adjudicate these questions, abandoning the distinctive ways they had formerly operated shadow civil states (Gordon Reference Gordon2014; Perry Reference Perry2015). With the federal Constitution's assertion of a monopoly on the protection of property, contracts, and commerce, national politics became the site at which the actual definition of property would be decided, and increasingly evangelicals stopped contesting this presumption, accepting and navigating this federal claim on their own terms. Religious and legal pluralism in the United States thus exhibited a chiastic relationship: as one expanded, the other declined.

At the intersection of legal and religious pluralism lay the law of property, which sustained religious pluralism. In the era of establishment, only official churches held property securely in their own name under a corporate charter (Gordon Reference Gordon2014). As disestablishment granted corporate status to all religious societies, it gave them what Presbyterian Albert Barnes called a “protecting shield” of state legitimation and secure property rights. But, Barnes argued, “God never instituted a government on the earth with a view to its throwing a protecting shield over vice and immorality” (Barnes Reference Barnes1852, 9). When dram shops, gambling rings, brothels, and slave markets asserted property rights, they turned a virtuous instrument of religious freedom toward moral enslavement. At the national level, property pluralism forced the federal state to make moral choices, and evangelicals readily entered politics to ensure it made the right ones.