The Evangelical Origins of the Living Constitution


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I. Principles of the Free Society

Attempts to curtail the sale of liquor also diverged from traditional means of regulating vice in ways that raised troubling constitutional issues. The goal of early American liquor regulation was not to minimize liquor consumption, but to ensure that taverns and inns remained safe and unthreatening to the social order for instance, by prohibiting sales to servants and slaves without the permission of their masters.

Once granted, a license to sell liquor was taken to be a form of private property that could not be revoked except in cases of egregious misuse. By demanding that their states revoke liquor licenses, temperance reformers risked denying individuals their constitutional right to due process. Aside from a few cases in which state courts upheld prohibition laws decisions which Compton attributes to the reformist pressures applied in these states by a newly organized Republican party , antebellum courts rejected on constitutional grounds all legislative efforts to prohibit the sale of liquor or to alter lottery grants.

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In Stone v. In Mugler v. By the end of the nineteenth century, lottery and liquor reform movements were applying increasing pressure to the federal system of governance. Basically, the states lacked the power to interfere with interstate commerce in liquor, while the federal government lacked the power to outlaw lotteries or liquor. As a result, even if just one state permitted these moral evils, no state could effectually outlaw liquor or gambling within its borders. I n the s, Congress addressed this impasse by passing laws permitting the states to ban imported liquor and making it a federal offense to transport lottery tickets across state lines.

Departing entirely from tradition and precedent, the Supreme Court upheld both pieces of legislation.

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Ames , to deem lottery tickets, traditionally not considered a commodity, commercial items subject to regulation by the federal government. The court had proved willing to adjust the boundaries of the federal system to accommodate demands for regulation.

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Fuller was spot-on, but the process took a few decades. By the early s, Compton notes, a significant portion of the legal community had decided that traditional constitutional protections of economic rights were legal relics. In the context of the economic crisis of the Great Depression, the moral reform precedents lent credibility to a radical understanding of the Constitution. The New Deal—era decisions made official a process that had already been completed.

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