Redefining Principles: Progressivism
and the New Deal
Artemus Ward
Dept. of Political Science
Northern Illinois University
aeward@niu.edu
http://www.niu.edu/polisci/faculty/profiles/ward/
Evangelical Origins of Progressivism
• The progressive critique of the Constitution in the
early 20th century that led to the New Deal was
presaged and to some extent made possible by
earlier social movements of evangelical Christians in
the 19th century who sought to ban alcohol and
lotteries.
• The idea that the Constitution’s practical meaning
must adjust to changing social conditions is called
the “living constitution” theory of constitutional
interpretation. It is often associated with the
progressive critique of the 1920s and 1930s. But
research shows that evangelicals made similar moves
decades before in order to reshape constitutional
understandings and justify government power to ban
alcohol and lottery sales.
• When modern progressives used the living
constitution theory to—among other things—allow
broad government regulation of the economy and
protect privacy rights involving abortion and intimate
relationships, evangelicals abandoned their initial
positions and instead espoused a strictconstructionist philosophy of originalism. Why?
The Transformation
of the Religious
Sphere
• America’s religious sphere was fractured during the founding era as
embodied by the Constitution’s prohibition of a national church.
• Yet from 1800-1830, a “Second Great Awakening”—or “Great Revival” as
it is also known—took place. A wave of popular religious revival swept
the nation signified by increased rates of church membership, changes in
theological orthodoxy, popular movements to legally enforce Protestant
mores, and cross-denominational cooperation among American
Protestants.
• By 1850, a majority of the nation’s religious adherents belonged to the
two most evangelical sects of Protestants: Methodists and Baptists.
• They spurred the progressive movements of the 19th century at both the
state and national levels.
The Battle Against Sinful Activities:
From Slavery to Gambling and Alcohol
• Late 19th century Evangelical reformers had organizational
and activist roots in the pre-Civil War abolitionist
movement. In 1843, for example, abolitionist William Lloyd
Garrison said that the Constitution’s Fugitive Slave Clause
was evidence that the founding generation had entered
into “a covenant with death and an agreement with hell.”
• Following the War, they turned their moral furor from
slavery to other sinful activities and forms of property that
the founding generation had tolerated, or even actively
promoted.
• In particular, evangelicals aimed to rid the nation of the
social evils that came from lotteries and liquor
consumption.
• The U.S. Constitution was an obstacle to these reform
movements.
• As a result, evangelical moral reformers soon broke with
the traditional constitutional categories that had long
governed the Supreme Court’s jurisprudence respecting
contracts, interstate commercial regulation, and the
protection of private property rights—thus paving the way
for later progressive reforms.
Lotteries and the
Contracts Clause
• In the early 19th century, three different features of constitutional doctrine stood
in the way of evangelical efforts at reform. We will discuss each of these in turn:
the Contracts Clause, Due Process Clause, and Commerce Clause.
• First, reformers sought to quash lotteries at the state level. Between 1830-1890
the movement steadily succeeded from zero state bans to 80% of the states.
• But standing in the way were federal courts and the doctrine of vested rights,
protected by the Contracts Clause, which prohibits states from “impairing the
obligation of contracts.”
• In a series of cases, such as Dartmouth College v. Woodward (1819), the Supreme
Court held that the state could not impair a contract or charter that it had
previously entered into.
• Federal judges applied this principle to the legislative victories that evangelicals
had won at the state level and struck them down. Specifically, federal courts
prevented states from abolishing lotteries once legislatures had granted lottery
companies corporate charters.
• Eventually courts agreed that the Contracts Clause did not bar states’ attempts to
ban lotteries, because state legislatures could not contract away their power to
protect the health, safety and welfare of their citizens.
“Alcohol, Death, and
the Devil” by George
Cruikshank, ca. 1830.
-- Drawing shows a
macabre Medusa
with a skeletal head,
dressed in a tunic,
holding aloft a goblet
of wine and
exhorting a crowd of
people. Behind her
stands a devil who
joins in the
exhortation.
-- Cruikshank was a
popular illustrator and
satirist who began
campaigning against
alcohol, especially gin,
in the 1830s. In 1847,
he renounced alcohol
and became an
enthusiastic supporter
of the Temperance
Movement in Great
Britain.
-- Prints and Photographs
Division, Library of
Congress.
The Ohio whiskey war - the ladies of Logan singing hymns in front of barrooms in aid of the temperance movement.
Illus. in: Frank Leslie's illustrated newspaper, 1874 Feb. 21, p. 392. Prints and Photographs Division, Library of Congress.
The Temperance
Movement: Prohibition
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The American Temperance Society (ATS) and later the Woman’s Christian Temperance
Union (WCTU) and the Anti-Saloon League (ASL) led the movement for prohibition.
Reformers sought to prohibit the sale of liquor at the state and national levels, but they
faced two major obstacles.
First, they faced a complex system of statutory and common law rules that had remained
in operation, with only minor alterations, since the early colonial period.
Second, the Due Process Clause—which prohibits states from denying life, liberty, or
property without due process of law—(or its equivalent in state constitutions) allowed
alcohol producers to challenge state attempts at prohibition on the ground that this
would destroy their investment in business.
As late as the 1820s, the granting of liquor licenses remained a relatively routine
administrative mater, as it had been since the late colonial period. Beginning in the early
1830s, ATS and its allies succeeded first in persuading states to allow local governments
to prohibit the granting of licenses (14 states had done so by 1847) and then to enact
statewide prohibition (12 northern states by 1856).
In Mugler v. Kansas (1887), the Supreme Court interpreted the Due Process Clause to
allow a total ban on alcohol sales in the state of Kansas under its police power, even
though this effectively destroyed the value of the owners' investments in alcohol.
Ultimately, the 18th Amendment was ratified and prohibition was the law of the land
from 1920-1933 until it was repealed by the 21st Amendment.
• Political cartoon
criticizing the alliance
between the
prohibition and
women's suffrage
movements. The genii
of Prohibition emerges
from a bottle labelled
"intolerance".
• Cartoon by Oscar
Edward Cesare,
published in Puck
magazine, Sept. 25,
1915.
http://www.loc.gov/pictures/ite
m/98502832/ Library of
Congress Prints and Photographs
Division Washington, D.C.
Federal Action under the Commerce Clause
• Reformers sought to ban the interstate shipment and sale of immoral
forms of property such as alcohol and lottery tickets, but this goal
threatened to transform the American federal system by allowing
Congress to use the Commerce Clause for national cultural and moral
reform instead of encouraging national economic activity.
• The federal government was widely believed to lack the power to enact
police regulations through the Commerce Clause.
• Although the states did have police power, because of the Dormant
Commerce Clause, it was assumed that they could not ban or tax the
interstate shipment of goods moving through their borders because it was
the exclusive purview of the federal government to solely regulate
interstate commerce.
• In the Lottery Case, Champion v. Ames (1903), the Supreme Court took a
significant step toward erasing the distinction between commerce and
police by allowing the federal government to completely ban the
interstate shipment of lottery tickets, even though its reasons for doing so
were essentially no different than police power rationales.
Champion v. Ames (1903)
• The case dealt with the constitutionality of the 1895 Federal Lottery
Act. Congress had prohibited the movement of lottery tickets in
interstate commerce, and Charles Champion was arrested for violating
the act. Constitutionally, the question was whether Congress had the
authority under the Commerce Clause to pass this act at all.
• Writing for a divided court, Justice John Marshall Harlan I affirmed
Congress’ authority to ban lottery tickets from interstate commerce,
reminding his colleagues that the “the power of Congress to regulate
commerce among the states is plenary, is complete in itself, and is
subject to no limitations except such as may be found in the
Constitution.” “We should,” Harlan warned, “hesitate before adjudging
that an evil of such appalling character [as lotteries], carried on through
interstate commerce, cannot be met and crushed by the only power
competent to that end.”
• If that is true, however – if Congress is the only power competent to
meet and crush the appalling evil of lotteries – would this not lead
“necessarily to the conclusion that Congress may arbitrarily exclude
from commerce among the states any article, commodity, or thing, of
whatever kind or nature or however useful or valuable, which it may
choose, no matter with that motive, to declare it shall not be carried
from one state to another”? In other words, how slippery is this slope?
Harlan did not say. “It will be time enough,” he insisted, “to consider
the constitutionality of such legislation when we must do so.”
From Progressivism to the New Deal
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If Congress may use the Commerce Clause to combat the evil of
lotteries, why may Congress not also use the Commerce Clause to
combat the evil of child labor? Or liquor consumption? Or low wages,
long working hours, low commodity prices, racial discrimination,
marijuana possession, partial-birth abortion, or any other social or
economic evil Congress desires to legislate against?
During the 19th and early 20th centuries, judges sometimes tried to
treat these cases narrowly as exceptions that did not alter basic
constitutional principles protecting common law rights and the system
of dual federalism.
Eventually, however, progressives pointed to these earlier decisions
about alcohol and lotteries to justify state police power to protect
workers' rights, and federal power to regulate the economy generally.
Thus, in his famous dissent in Lochner v. New York, Justice Holmes used
"the prohibition of lotteries" to justify his argument that "state
constitutions and state laws may regulate life in many ways which we as
legislators might think as injudicious, or if you like as tyrannical, as this,
and which, equally with this, interfere with the liberty to contract."
It became increasingly difficult to distinguish these examples as special
regulations of contraband; they seemed to stand for the broader
authority of both federal and state governments to modify property and
contract rights in the interests of public health, safety and welfare.
Since 1937, of course, Congress has enacted national regulations in
each of these areas under an expansive interpretation of the Commerce
Clause and the Supreme Court sustained every Act until recently.
The Future of Progressivism
• In recent decades, the Supreme Court has scaled back the ability of congress to
enact legislation under the Commerce Clause. For example, the Court ruled that
the Affordable Care Act—“Obamacare”—could not be passed under this
authority (although they did uphold it under the taxing power).
• Will future Courts scale back commerce authority to where it was prior to 1937?
• Does it matter that contemporary conservatives have abandoned the “living
constitution” theory and espoused a strict-constructionist philosophy that seeks
to divine the intent of the framers and the original meaning of the constitution
through history and textual analysis?
Bibliography
• Balkin, Jack M., Living Originalism (Belknap Press,
2011).
• Compton, John W., The Evangelical Origins of the
Living Constitution (Harvard University Press,
2014).
• Strauss, David A., The Living Constitution (Oxford
University Press, 2010).
• Whittington, Keith E., Constitutional
Interpretation: Textual Meaning, Original Intent,
and Judicial Review (University Press of Kansas,
1999).