Ronald Reagan’s Unappreciated Gift to Mormon History

April 20, 2004 | 8 comments
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Love him or hate him, Ronald Reagan has given a great boon to Mormon historians, one which they have yet to really appreciate. I am talking, of course, about the legions of conservative judges that Reagan appointed to the federal bench.

Reagan’s appointments are important because they decisively reshaped the research agenda of constitutional law scholars in the United States, pushing them into research that is potentially illuminating for Mormon history. Prior to the advent of Reagan and his conservative judges the name of the game in constitutional law scholarship was to provide a justification for the next Roe v. Wade. What I mean by this is that the dominant paradigm was for the overwhelmingly left-leaning constitutional law professoriate to pick some preferred policy outcome ? the favorite ones had to do with various government provided welfare benefits ? and then write articles showing that this policy outcome was required by the constitution. The dream of these con law professors was that someday a Supreme Court justice would read their article and adopt it as the law of the United States.

Reagan’s appointments made this entire paradigm passe and rather pointless. O’Connor, Scalia, and Kennedy ? along with a host of like minded appointments to the lower federal courts ? made the ambitions of the con law professors increasingly irrelevant. By the mid to late 1980s they had realized this and a new research agenda emerged: justifying decreased deference to judicial interpretations of the constitution. The reason for this shift is obvious. The courts were now conservative and the law professoriate felt duty bound to do what they could to limit the damage.

The conservatives were, by and large, originalists and hence they cared ? at least in theory ? about history. For a while the law professors spilled a huge amount of ink attacking originalism in all its forms. When this proved ineffective (and boring), the law profs basically decided “If you can’t beat ‘em, join ‘em,” and turned their attention to history. The first wave of this scholarship appeared in the late 1980s and early 1990s, and largely focused on the idea of “civic republicanism.” This movement lasted just long enough for some otherwise unproductive scholars to secure tenure at prestigious institutions.

The second wave of anti-court constitutionalism is now in full swing and it focuses on “popular constitutionalism.” The basic gist of the argument is that courts are not the only ? or even the most important ? interpreters of constitutions. The ideas, arguments, and narratives created by legal outsiders are at least as important as a source for constitutional doctrine. Of course when the law profs talk about legal outsiders in their heart of hearts they are thinking of themselves, but fortunately for Mormon history liberal con law profs are a relatively recent class of legal outcasts. Accordingly, the law profs have labored mightily to understand and elevate the importance of non-judicial constitutional interpreters. Hence, rather than looking at something like ante-bellum abolitionist constitutional theorizing as simply bad law, it has been reinterpreted as a form of powerful constitutional counter text to the “official” constitution of the courts.

And this is where it gets interesting for Mormon historians. Nineteenth century Mormons made tons and tons of constitutional arguments in their sermons, newspapers, political speeches, etc. The “problem” is that these constitutional arguments were “wrong” in the sense that they frequently bore little relationship to the constitution as it was actually interpreted by the courts of the time. The conclusion has been to label 19th-century constitutional theorizing as (1) hopelessly ignorant; (2) a bit nuts; or, (3) both. Thanks to Ronald Reagan and his reformation of the American con law professoriate’s research agenda, however, we now have a fourth option. We can think about 19th century Mormon constitutional rhetoric as an instance of a now well recognized phenomena: “popular constitutionalism.”

With the exception of some of Sarah Barringer Gordon’s work, no one publishing in Mormon history of whom I am aware has yet made the connection between nineteenth century Mormon history and the post-Reagan constitutional law theorizing. (If I am wrong about this, please send me the citations so that I can read the articles.) What we have are two rich bodies of research that have potentially interesting things to say to one other but which have not yet been connected.

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8 Responses to Ronald Reagan’s Unappreciated Gift to Mormon History

  1. Kaimi on April 20, 2004 at 6:54 pm

    So, they’re just lacking a law-trained, law-clerking, living-in-the-South Mormon to connect them. Right?

  2. Nate Oman on April 20, 2004 at 6:57 pm

    Nope! They need someone with time and tenure, neither of which any law trained, law clerking, living in the south Mormons of which I am aware has.

  3. Adam Greenwood on April 20, 2004 at 7:05 pm

    Then I think I speak for everyone when I suggest that you get off your law-trained, law-clerking, living in the South, Mormon hindquarters and go get some time and tenure.

  4. Jim F. on April 20, 2004 at 11:58 pm

    If we are waiting for Nate to have tenure before we see this work, we ought not to hold our breath. I’ve not doubt that Nate will get tenure when he applies for it, but first he has to have an academic job and then he has to put in the requisite 6-7 years–unless the rules for lawyers are different than they are for other academics–which they well might be. There is no more powerful “union” than the American Bar Association.

  5. victor garza on April 21, 2004 at 12:19 am

    I love to read posts by lawyers who have never argued before a judge or jury. Their words always say nothing and take a long time to do so. A tenured lawyer is a not a lawyer; he or she is a spectator, a commentator, a sports writer. Yet, Nate, I do admit that the research idea you suggest is intriguing. I’ll leave it up to you to connect the dots on the historical map while I fight the battles in the present fox holes–before judges appointed by many Presidents and Governors alike.

  6. Kaimi on April 21, 2004 at 9:01 am

    Victor,

    And yet here you are, reading words that “say nothing and take a long time to do so,” and commenting on them. What might that say about you?

    Seriously, are you faulting Nate — who, as his bio here states, earned his J.D. last year, and then began a clerkship for a federal judge — for not already having argued a bunch of cases before judges and juries?

    Way to go, Victor. Nate surely should have had at least one jury trial lined up the day he graduated from law school (forget discovery, forget pre-trial motions, even voir dire — Nate should have been talking to an actual jury within 72 hours). And he should be arguing cases in front of juries during his clerkship — conflicts be damned. What kind of lawyer does he think he is, anyway?

  7. Lyle on April 21, 2004 at 9:26 am

    So…Victor compliments Nate specifically & swipes at attorneys with no litigation experience in general. Hm…

  8. Nate Oman on April 21, 2004 at 11:08 am

    Victor: I will take your comments as a compliment, since despite an absence of trial experience I have still managed to say something interesting about the law. Thanks!

    BTW, as a person who spends his days reading appellate briefs, many of which are written by trial lawyers who spend their lives in front of juries, I can assure you that the problem of words saying nothing at great length exist amongst the trial bar as well! I also get to read transcripts of trials in which dithering trial lawyers spend hundreds of pages establishing redundent and legally irrelavant facts.

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