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The Mormons and Constitutional Federalism:

Over at Prawfsblawg, Paul Horwitz has an interesting post on the usefulness of the 19th century Mormon cases for teaching law and religion. In Reynolds v. United States 98 U.S. 145 (1879), the Supreme Court upheld the constitutionality of Congress' statute forcing Utah to outlaw polygamy (a practice then sanctioned by the Mormon faith) ; later cases dealt with other legal sanctions imposed on the Mormon church as a result of its support for polygamy.

In my view, the Mormon cases also have an underappreciated usefulness for teaching the history of American constitutional federalism. For example, under the 1894 Utah Enabling Act, Utah was forced to ban polygamy "forever" as a condition of getting statehood and was thereby denied the power to control its marriage law, a field that was then generally held to be outside the authority of the federal government and subject to exclusive state control.

Americans tend to think of federalism as antithetical to minority rights because of the history of local minorities (such as African-Americans in the Jim Crow South) being oppressed by local majorities. Utah, however, represents an important case where a minority at the national level achieved majority status within one would-be state (Utah was still a territory when the Mormons first settled there) and tried to protect its values by controlling that state government. Their experiment was, of course, cut short by federal intervention that undercut the state's autonomy.

Although relatively uncommon in American history, situations where minorities at the national level are majorities within a particular state or province are frequent in other federal systems. To take just one case, Iraqi Kurds are a historically oppressed minority in the nation as a whole, but a majority in the three northern provinces. Not surprisingly, they favor a high degree of decentralized federalism in the new Iraq. The history of the Mormons in Utah is the best example of a similar phenomenon in American history.

The Mormon migration to Utah in order to establish a state under their own control is also an important example of voting with your feet, a crucial advantage of federalism that I have often emphasized (e.g. here and here). There is, however, an interesting twist to the Mormon case, in that they were not trying to migrate to a preexisting jurisdiction that was relatively more tolerant of their religious practices, but seeking to create a whole new jurisdiction where they would be in the majority.

Kevin L. Connors (mail) (www):
This doesn't bode well for the Free State Project. :)
1.31.2007 12:22am
go vols (mail):
A thought: isn't a minority becoming a majority within a single state and "taking it over" the very thing that concerned Madison in Federalist #10?
1.31.2007 12:24am
Ilya Somin:
This doesn't bode well for the Free State Project. :)

Agreed. I actually cautioned Jason Sorens, the organizer of the Free State Project, about the danger of federal interference with his plans. He didn't listen to me....
1.31.2007 12:27am
Respondent (mail):
I find Judge McConnell's arguments about the wrong-headedness of those Supreme Court decisions persuasive; many of our early founders came to the colonies for the right to engage in religious practices unhindered by the government- many of which hinderances could have been justifiedon supposedly neutral grounds (think of an oath taking requirement for example). It is against this backdrop that the free exercise clause was adopted into the constitution. I have no doubt that Smith would have come out the other way (at least on its most important point of changing the standard of review, not the holding in the specific case) if it wasn't for the fact that the justices all pretty much belonged to religions that rarely impose substantive requirements of a non-ceremonial nature. (When I say substantive, I mean requirements that aren't typically included in a generic code of secular ethics. I say ceremonial to include practices such as praying, studying scripture, going to a religious leader for sacraments such as confession and marriage, etc., acts that are anyways largely within the confines of current day free speech jurisprudence.) One notable exception to this would be a Catholic ban on pharmacists dispensing birth control. A state requirement to do so would presumably pass Smith because it has a rational basis, neutral purpose, and isn't meant to target Catholics in particular. I highly doubt that Justice Scalia would have issued Smith if he seriously envisioned what it could entail against a very highly practiced religion. I can only wonder if he will have some way to distinguish it should this case ever come up before the Supreme Court in the future.
1.31.2007 12:37am
BobNSF (mail):
I was struck by the professor's framing of the issue as one pitting religion vs. secular interests. Is monogamy a "core value" of secularists? I can see that there really are secular concerns with polygamy -- at least as practiced by modern day "orthodox" Mormons (Arizona's "lost boys", for example) -- but the Mormon struggle to survive was more religion vs. majority religion, no?

Is it still called "voting with your feet" if you're running for your life?
1.31.2007 12:53am
BobNSF (mail):
If I had to choose, I'd certainly pick New Hampshire (despite the presence of John Stossel's face on their webpage) over these folks:

http://christianexodus.org/

It's a shame, really. I much prefer the weather in South Carolina...
1.31.2007 12:57am
BobNSF (mail):
I'd never really paid attention to the Google ads over there, at the side of the page >>>>>

Online personals for Mormon singles under the header "Mormon Polygamy", Mormon ringtones (whatever those might be), and my favorite: "Out of Mormonism, tools for reaching LDS (Mormons) with the True Christian Gospel".

The ringtone one strikes me as the only "secular" one. Seems more accommodating than adversarial...
1.31.2007 1:02am
Ilya Somin:
I was struck by the professor's framing of the issue as one pitting religion vs. secular interests.

I don't think I did frame it in that way.
1.31.2007 1:43am
Ilya Somin:
Is it still called "voting with your feet" if you're running for your life?

Yes, as a matter of fact it would be. It's not a good situation to be in, of course, but better than having nowhere to run to.
1.31.2007 1:44am
dearieme:
The Pilgrim Fathers left England because they and their fellow Puritans couldn't get control of the Church of England, to bully everyone else. No surprise, then, if their descendants seized a chance to bully the Mormons.
1.31.2007 2:45am
non-native speaker:
polygamy (a practice then sanctioned by the Mormon faith) ; later cases dealt with other legal sanctions imposed on the Mormon church as a result of its support for polygamy


So close in the text, while having opposite meanings—approval and punishment.
1.31.2007 4:51am
Just a Nut (mail):
The Supreme Court was wrong in upholding the ban on polygamy because it imposed its religion on the Mormons in an abuse of power. The definition or description of religion picked from the writings of Jefferson clearly disfavored presumptive results. Yet, the Court blithley proceeded to assume that polygamy was unknown to Europe and solely a feature of Asiatic and African people. First the presumption is wrong. Europe has a rich history of concubines and even free marriage, selling of women, children, you name it. Second, even if the presumption were to be true, the Constitution did not limit its freedom of religion to 'already revealed to Europeans' type of religions. Third, the admitted facts established that Mormons were of European stock and taming them was no more than limiting the types of religions Europeans could have revelations of. Finally, the accepted (by Europeans) 'Word of God,' the Bible, is replete with polygamy.

The Court was inventing a fairyland world that somehow qualified and improved upon the Bible itself as it implicitly disciplined the various Kings and prophets in the Bible. The Mormons at least had good reason for their belief in the commonly accepted historical reliability of the Bible. Whether their belief is wrong is still not settled at an empirical basis. Monogamy, is subscribed by many, but practised by few.

At the heart of this is the fact that Christianity and Judaism are Asiatic and African faiths, having their origins entirely in that part of the world. This is what is being distinguished in the opinion that appears to be driven by multiple layers of prejudice and plain wrong facts.

That said, it is interesting how few, probably none, of the law professors teach that easier fixing of wrong decisions by the Supreme Court is a desirable institutional reform. Indeed, many of these decisions foster more cases and controversies than they settle. And, they are plain wrong. If polygamy were not hammered, then gay marriage would hardly be an issue today. Moreover, welfare of the children would be the most important factor, a trend that started only slowly due to such pigheadedness. Even now, it will do everyone a lot of good if such old cases were reviewed and discarded as wrongly decided.

Such introspection has served science well. Frequent revisions to dogma are found there. Even social sciences, the hotbed of nuts, have shaped up somewhat. But the Court, it makes glorious errors in its majesty unruffled by reality.
1.31.2007 5:17am
Just a Nut (mail):
An interesting perspective on sexual reality is provided in an article in the Washington Post here. It discusses the legalized prostitution of all places in Syria and the ill effects of making it illegal. Freedom to contract — maybe that is the principle on which to focus with some moderate if not strict scrutiny.
1.31.2007 5:50am
Bruce F. Webster (mail) (www):

The Mormon migration to Utah in order to establish a state under their own control....



One possible minor correction: at the time the Mormon migration to the Rocky Mountains started, the Utah region was part of Mexico. So their initial intent wasn't to set up a US Territory/State, it was to leave to US altogether, due to the on-going violence and persecutions, first in Missouri and then in Illinois, and the refusal of both state and Federal government officials to provide protection (e.g., Pres. Van Buren: "Gentlemen, your cause is just, but I can do nothing for you.")

Of course, before the Mormons got much farther than Iowa, the US Government approached the LDS leadership and asked, Gee, think you could spare us 500 men for our war with Mexico? Overlooking the irony of this request, Brigham Young negotiated terms (probably recognizing that the Rocky Mountain region would soon be US territory rather than Mexican territory), then encouraged men to enlist; thus was formed the Mormon Battalion, which marched some 2000 miles from Iowa to San Diego, California.

Of course, this didn't solve the problems between the Mormons and the US Government. Brigham Young is alleged to have said, "I love the Constitution of this land, but I hate the damned rascals that administer the government." :-) ..bruce..
1.31.2007 7:52am
dew:
dearieme: "The Pilgrim Fathers left England because they and their fellow Puritans couldn't get control of the Church of England, to bully everyone else. No surprise, then, if their descendants seized a chance to bully the Mormons."

I think this might be a bit garbled -- if, by "Pilgrim Fathers", you mean the founders of Plymouth colony in current Massachusetts, I don't think they tried too hard to "get control" of the Church of England. They were separatists who didn't really want much connection with the Church of England. I think you might mean the larger group of mostly congregationalist puritans that founded Massachusetts Bay colony, Salem, New Haven, etc., who were a branch close to the puritans who did get control of the Church of England during Cromwell's commonwealth reign. The two groups didn't always get along well, but their leaders (if not all members) did share a hypocritical strain of religious intolerance.

Sorry for the interruption; back to your regularly scheduled program.
1.31.2007 9:28am
margate (mail):
Ilya:

The Court's members deciding Reynolds were: C.J. Morrison Waite, and A.J.'s Nathan Clifford, Noah Swayne, Samuel Miller, Stephen Field, Wm. Strong, Jos. Bradley, Ward Hunt, and John Harlan.

Clifford was appointed by Buchanan. Swayne, Miller, and Field were appointed by Lincoln. Grant tapped Strong, Bradley, Hunt, and Waite. And Harrison picked Harlan.

Would you breakdown these 9 justices into "conservative" and "liberal" blocks, like you did for the current Court when discussing JCGreenburg's new book.

I'd love to see how you split them up and why.
1.31.2007 9:42am
Don Miller (mail) (www):
I was going to mention the same thing Bruce did.

The Mormons were settling on lands that belonged to Mexico. Utah was captured as part of the peace treaty that ended the Mexican War.

As a side note. One of my ancestors was part of the Mormon Battallion. His official title was Battallion Musician, but his real job was, as a member of the First Quorum of Seventies, to be the represenative of the LDS Church leadership.

For many many years, the Mormon Battallion held the US Army record for the longest infantry march (Iowa to San Diego).
1.31.2007 10:17am
Sarah (mail) (www):
Ditto what several other people said. The flight to the West was a result of desperation following a series of "well, gee, they really hated us there, I hate being tarred and feathered, let's try going farther away" maneuvers. If essentially starting a whole new town (Nauvoo) on the edge of the American frontier had worked, there wouldn't have been a need to leave the US altogether. If going to an existing small town halfway to the American frontier (Kirtland, Independence) had worked, there wouldn't have been a need to move to Illinois. And so on, all the way back to Harmony, PA and Palmyra, NY.

I always thought the Mormon experience was further evidence that federalism's principles never even came close to making it to the 20th century. I doubt any newly formed group of people could successfully establish autonomy without interference (probably from the US government, and if by some miracle we left them alone, I'm sure there's someone who'd pick up the slack) within this solar system, let alone on this continent. The only kind of self-determination available is the kind where you don't do anything to annoy people in power; that's been true for the better part of the last 300 years. Or, in other words, the Puritans ruined it for everyone else. ^_^
1.31.2007 10:23am
Matt Glassman (mail):
Having just complete a Ph.D. in political science that deals with the creation of the western states in the U.S., I can add a few facts about the Mormons/Utah that you may have gotten mixed up, Ilya.

1)The Mormons got to Salt Lake prior to the formation of the Utah territory, in 1847-48. In fact, they got there just prior to the Cession Treaty, and were technically settling in Mexico. The Utah territory was formed in 1850, and consisted of most of present day Nevada, all of Utah, and part of Colorado,

2)Their initial petition to Congress was for the formation of a territory - called Deseret - that encompassed most of the Cession east of the Sierra Nevada mountains (present day Utah, Colorado, New Mexico, Arizona).

3) They were spurred to do this for two political reasons, both related. First, the gold rush in 48-49 to California had produced a non-Mormon wave of immigration to the Cession. Second, Congress was seriously considering the creation of one new state/territory - called California - that would encompass the entire southwest. (Additionally, the Spanish settlements in present-day New Mexico constituted a third distinct cultural group which the mormons wanted to be set apart from.)

4) The Mormons were not ultimately fueled by the creation of a state government - their provisional government was originally a theocracy, and they were seeking just the protection needed to create their civilization that could await a utopian kingdom of god. They chose to petition Congress for a territory/state explicitly to make sure they maintained majority control over their land, as opposed to being diluted by the spanish south of them or the miners in california.

So, yes, i think your federalism/minority rights stuff is interseteing. I hope my facts helped clear a bit up.
1.31.2007 11:35am
josh:
Were the Mormons really voiting with their feet by moving to Utah? I admit relative ignorance, but I thought they moved to Utah because it was religious dogma/prophesy. I thought the place itself was supposed to be holy or something like that. I understand they were persecuted along the way, but I thought Salt Lake was a religious destination, not a political one.
1.31.2007 11:47am
Jim Clay (mail):
Josh,
There is a long and a short answer to your question. The short answer is, no, they would not have gone to Utah if they hadn't been persecuted elsewhere. They spent years trying to establish themselves in Ohio, Missouri, and Illinois.
1.31.2007 12:27pm
Templeton:
Matt Glassman:

Thanks for the insight. Would you (or other posters) recommend any resources on the topic of the creation of the Western States, particularly the Rocky Mountain States?
1.31.2007 12:32pm
Jimmy S:
I have always thought it would be highly amusing to take a look at the personal lives of the justices who gave us Reynolds and see how many of them actually remained faithful to one woman for the duration of their lives.

Josh-- Mormons don't believe Utah to be inherently holy the way, say, Jerusalem is considered holy by Christians, Jews, and Muslims (and, for that matter, Mormons). Mormons do consider Jackson County, Missouri, to be holy in that sense, and if they'd had their druthers they would just as soon have stayed there. Indeed, the church still believes that at some future time it will build a "new Jerusalem" at that place.

The Mormons' efforts to stay together as a group were religiously motivated, but the decisions to leave Missouri, and later Illinois, were not. They were quite literally driven out--by official order of Governor Boggs in Missouri, and by Governor Ford's green-lighting the unofficial militias seeking to do the same thing in Illinois.
1.31.2007 12:46pm
gallileo (mail):
The book on this topic, Federalism and the Mormon flight to Utah, is Sarah Binger Gordon's The Mormon Question. It is insightful and discusses Polygamy and Federalism in the context of slavery. Abolishing polygamy was, in addition to the moral issues involved, an issue the anti-slavery groups were using to establish that the federal government had power to regulate the states in a certain way. "Everyone"--even the pro-slavery camps--agreed that polygamy should be sanctioned. So by allowing the feds to regulate that, they would be closer to having the power to regulate slavery.

This book is worth picking up just for the reproduced political cartoons from the mid-eighteenth century. There are a few on federalism too.

Here is some info copied from Amazon:

While numerous studies have examined life in plural marriage, this is the first to explore how the Mormon practice of polygamy transformed the U.S. legal system. Gordon, a professor of law and history at the University of Pennsylvania, deftly handles complicated issues of religion, states' rights, constitutional theory and the separation of church and state. When Mormons fled to Utah in the 1840s, they brought with them a deep suspicion of "local sovereignty," feeling that individual states had persecuted them terribly while a weak federal government did nothing to protect them.
1.31.2007 12:50pm
Matt Glassman (mail):


Thanks for the insight. Would you (or other posters) recommend any resources on the topic of the creation of the Western States, particularly the Rocky Mountain States?



Sure. My dissertation aside (email me if you really want to see it - matthew.glassman "at" yale.edu), I would recommend the following items:

For regional overviews:

Pomeroy, The Pacific Slope
Pomeroy, The Territories and the U.S., 1861-1890
Lamar, The Far Southwest
Lamar, Dakota Territory
Bancroft, History of Washington, Idaho, and Montana

For national overviews:

Shearer, the Uniting States (three volumes, with individual chapters on each state; a bit encyclopediaic, but very infomrative)
Meinig, The Shaping of America (a geographic history of wetsern development, in 3 volumes)
Smith, State and national boundaries of the United States (more of a reference book, but has some good info)

For national politics of admission in mountain west:

Stewart, Charles "Stacking the Senate..." In the journal, Studies in American Political Development (1992)

For individual mountain west territories/states

Utah

Lyman, Political Deliverance: The Mormon Quest for Statehood
Morgan, The State of Deseret

Idaho

Beal, History of Idaho
Limbaugh, Rocky Mountain Carpetbaggers
http://www.idahohistory.net/Reference%20Series/0264.pdf

Montana (and Idaho, Washington)

Bancroft really is best. see above.
Hamilton, History of Montana

Colorado

(on boundary): http://www.kshs.org/publicat/khq/1967/67_1_gower.htm
Baker, History of Colorado

Nevada

Koontz, Political History of Nevada
Pomeroy, Lincoln, the 13th amendemnt, and the admission of NEvada. Pacific History Review (1943)

Email me if you want more info on anything specific. I've left off the primary source stuff, such as congressional reports and western petitions, etc.

hope that is what you are looking for
matt
1.31.2007 12:54pm
Ilya Somin:
The Court's members deciding Reynolds were: C.J. Morrison Waite, and A.J.'s Nathan Clifford, Noah Swayne, Samuel Miller, Stephen Field, Wm. Strong, Jos. Bradley, Ward Hunt, and John Harlan.

Clifford was appointed by Buchanan. Swayne, Miller, and Field were appointed by Lincoln. Grant tapped Strong, Bradley, Hunt, and Waite. And Harrison picked Harlan.

Would you breakdown these 9 justices into "conservative" and "liberal" blocks, like you did for the current Court when discussing JCGreenburg's new book.


I don't think it would make much sense to do a "liberal-conservative" breakdown. The issues of the 1860s and 70s don't map on to today's political divisions very closely. Also, most of the justices had been appointed by Lincoln or Grant, who came from very similar political orientations. But I think there were some internal divisions on key legal issues of the day, such as the constitutionality of paper money (which led to two close decisions on the court).
1.31.2007 3:34pm
Ilya Somin:
The Court's members deciding Reynolds were: C.J. Morrison Waite, and A.J.'s Nathan Clifford, Noah Swayne, Samuel Miller, Stephen Field, Wm. Strong, Jos. Bradley, Ward Hunt, and John Harlan.

Clifford was appointed by Buchanan. Swayne, Miller, and Field were appointed by Lincoln. Grant tapped Strong, Bradley, Hunt, and Waite. And Harrison picked Harlan.

Would you breakdown these 9 justices into "conservative" and "liberal" blocks, like you did for the current Court when discussing JCGreenburg's new book.


I don't think it would make much sense to do a "liberal-conservative" breakdown. The issues of the 1860s and 70s don't map on to today's political divisions very closely. Also, most of the justices had been appointed by Lincoln or Grant, who came from very similar political orientations. But I think there were some internal divisions on key legal issues of the day, such as the constitutionality of paper money (which led to two close decisions on the court).
1.31.2007 3:34pm
BobNSF (mail):
Ilya Somin:

I don't think I did frame it in that way.


Sorry, I meant the other professor. :-)

I was referring to Paul Horowitz at the link you provided.
1.31.2007 4:52pm
markm (mail):
This doesn't bode well for the Free State Project. :)

Thw Free State Project will fail because they can't achiever a majority; it's impossible to bring libertarians in as fast as those who fled to New Hampshire from Massachusetts forget why they fled and revert to voting for statist politicians.

The Mormons failed because instead of an existing state, they fled to what became a territory, subject to direct federal control. If they had had the chance to become a majority in an existing state, federalism should have protected them, but in Utah territory they were ruled by Congress, and Congress also set the terms for Utah to achieve self-rule...
1.31.2007 5:25pm
Frank_B:
markm: They could not have captured a state this way. As it was, they formed a non-trivial fraction of Illinois and Missouri at the time--approaching 10% and at one time a valued voting block in Illinois--yet these relatively unpopulated states weren't terribly interested in protecting their rights.

And it should be noted that they applied for statehood more than a half dozen times under many configuration. They watched as adjacent and virtually unsettled territories were granted statehood, while their mature outpost on the Great Basin was perrenially deemed unfit.

It's also worth noting that the language in today's marriage statues traces its roots to Reynolds. "One man and one woman," has a different emphasis these days.
1.31.2007 11:48pm
ReaderY:
As the Supreme Court noted in Atlanta Hotel, the federal government has the same power to legislate morality in interstate commerce as the States have in domestic relationships, so I don't consider a ban on polygamy any more controversial than a ban on racial discrimination. Howerver, just as the federal govenrment can regulate . However, the federal government no more has power to specify Utah's marriage laws than it does to specify Oklahoma's capitol.
2.1.2007 1:21am
J. F. Thomas (mail):
Whether their belief is wrong is still not settled at an empirical basis.

Well of course it has. The book of Mormon is a heresy created whole cloth out of the quite impressive imagination of a New England Charlatan. Every historical claim in it is laughable and recent efforts to demonstrate its veracity (e.g., through DNA mapping of Native Americans to prove they are the "lost" tribe of Israel) have apparently failed--but of course the Church refuses to reveal the results.

The Mormons failed because instead of an existing state, they fled to what became a territory, subject to direct federal control.

Failed? Apparently you have never lived in Utah. For all intents and purposes, it is still a Mormon theocracy in spite of recent influxes of west coast liberals, ski bums and river rats.
2.1.2007 10:04am
Jimmy S:
This isn't really the place to get into a discussion of the veracity of a religion's historical claims. I'll just point out that there are a lot of smart people who would disagree with J.F. Thomas' claims. See, for example, http://fairlds.org/ and http://jefflindsay.com/LDSFAQ/index.html. The church also has a semi-official site (via BYU) at http://maxwellinstitute.byu.edu/browseresearch.php.
2.1.2007 12:57pm
dearieme:
dew: I stand corrected.
2.1.2007 1:00pm
markm (mail):
J.F. Thomas: They failed to preserve their polygamy custom (or religious requirement?), aside from marginal groups trying to live below the official radar. Other than that, Mormon "theocracy" isn't far out of touch with the 19th &20th century American movement that produced federal laws against pornography, state and local laws against gambling and prostitution, blue laws, Prohibition, and the war on some drugs. The Mormons just went further.
2.1.2007 5:25pm
J. F. Thomas (mail):
Other than that, Mormon "theocracy" isn't far out of touch with the 19th &20th century American movement that produced federal laws against pornography, state and local laws against gambling and prostitution, blue laws, Prohibition, and the war on some drugs. The Mormons just went further.

Oh come on, you're not serious are you? The Mormons created a whole new religion loosely based on Christianity. They might have been left alone if their religion didn't hold that all followers of traditional Christianity (especially Roman Catholicism) were apostates. Sure in later years they toned down the rhetoric and pretended that they were just "another" Christian Church. But the central tenet of the Church is that they are the one true Christian Church.

They failed to preserve their polygamy custom (or religious requirement?)

They didn't fail to preserve anything. They leaders of the church simply had a revelation that polygamy was never an official part of church custom and that any teachings to the contrary were simply misunderstood. Problem solved. The Mormon Church never practiced polygamy and we have always been at war with East Asia.
2.1.2007 8:08pm
Jimmy S:
They leaders of the church simply had a revelation that polygamy was never an official part of church custom and that any teachings to the contrary were simply misunderstood.

The Mormon church now denies that polygamy was ever practiced? Hmm. They should update their official website.
2.2.2007 11:49am