One of the many peculiarities of 21^st Century American politics is how the judiciary, and especially the Supreme Court, plays such a rhetorically important role in national elections. This is especially peculiar given that most Americans cannot reliably explain what the judiciary actually does, never mind grasp the often hotly contested philosophical and jurisprudential frameworks that every presidential candidate promises to impose should he or she win office. Of course, the court’s outsized role in adjudicating our most contentious issues helps explain why it features so prominently in national elections, but still, it is a strange thing to hear candidates denounce (or fervidly affirm) some judicial philosophy that only a tiny sliver of Americans have any serious knowledge of. Among legal scholars, however, things are a bit different. Inasmuch as the 20^th century was largely dominated by various strands of progressive scholarship that deemphasized the text of the Constitution and the founding era’s own views of the same, the rise of originalism (in all its forms) over the past 40 years or so has invigorated scholarly debates that some, no doubt, had thought long settled.

What is fascinating about this excellent new book by John Compton is how it gives the reader an ironic eye with which to view the contemporary electoral landscape. This is especially true with regards to how some of our most popularly committed judicial conservatives, evangelical Christians, played a significant, if rather unintended role, in making possible the 20^th century’s legal revolutions. The typical story told about the emergence of progressive legal theories in the early 20^th century and their triumph in the New Deal era is either, depending on one’s perspective, the needed dismantling of legal structures that were incongruent with a changed society, or a judicial coup enacted by scholars and jurists besotted with philosophical commitments at odds with basic American principles. What Compton does with great skill is show that in fact the progressive legal revolution emerged from a set of late 19^th and early 20^th century court cases whose main protagonists were actually evangelical Christians.

The story is, in some ways, really quite simple. The presumption among legal scholars and jurists well into the 19^th century was that the Constitution protected property rights rather robustly, enough so that the courts repeatedly frustrated evangelical temperance and anti-lottery campaigns on the grounds that they often required revoking lottery and alcohol licenses, e.g. forms of property. Eventually, though, the courts began to give in to popular political pressure and found creative ways to distinguish alcohol and lotteries from other forms of property, usually by classifying them as threats to public morals. This had the quite unintended effect of undermining the idea that “property” as a concept could be legally defined independent of its historical context. That is, in order to satisfy evangelical efforts to curtail the sale of alcohol and lotteries, they induced courts into making property a thing that might or might not be protected by the constitution, depending, it seemed, on popular inclinations.

Into this breach stepped Oliver Wendell Holmes and his affiliated progressive legal scholars, asking why it should be the case that courts would allow political interference in one sort of property right—liquor and lotteries—but not others. Why could states forbid the sale of liquor but not regulate working hours? Compton shows in great detail how the New Deal legal shift relied precisely on that sort of critique to do away with the Lochner-era’s fairly stringent protection of economic liberties. It is surely too simple—and Compton to his credit goes nowhere near this—to say that absent evangelical political activity, we would not have a “Living Constitution,” but it does seem fair to say that they are an integral, if deeply ironic, part of its history.

Compton’s argument raises two further questions. The first involves how we should think about the causal lines here, especially with regard to progressive legal theories and their related philosophical milieu. Compton suggests, if indirectly, that Holmes and his compatriots found the various intellectual trends of the early 20^th century appealing in some measure because of the incongruities they encountered in the extant case law dealing with property rights (p 179). This does not matter so much for the argument of the book, but I wonder how realistic it is? It seems much more plausible to say that Holmes and others, already committed (in some fashion) to the extant philosophies of the day, took advantage of those incongruities. I don’t imagine that Oliver Wendell Holmes became a moral skeptic out of an encounter with some strained Supreme Court reasoning, though to be fair, that is pedagogical risk we run when teaching some court cases.

The second question involves what implications we might draw from Compton’s account about the stability of our legal concepts. If our legal understanding of property rights can be dramatically altered in the interaction between new moral or legal philosophies and creaky precedents, how sure can we be that what we take to be altogether given won’t also give way under popular political pressure? Compton’s very good book not only illuminates well some of the inner workings of an important legal revolution, but also should leave us to ponder whence the next one.