Polygamy, Natural Law, and Imperialism

March 2, 2010 | 18 comments
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I have been researching Reynolds v. United States (1879), the Supreme Court’s first polygamy case, on and off for several years.  For those who are interested, my paper on the topic is now available for download at SSRN.  Reynolds is an important case in American constitutional history, because was the first time the U.S. Supreme Court ever passed on the meaning of the First Amendment’s protections for freedom of religion.  Historians have generally situated the case within the context of the post-Civil War politics of Reconstruction.  The anti-polygamy crusade kicked off by Reynolds is seen as an extension of Reconstruction into the West.   I offer a new interpretation.

I began my research by asking myself the question of what the theory of the First Amendment put before the Court by the Mormons’ lawyers looked like.  The Court — following the arguments of the Attorney General — characterized the Mormons as claiming that all religiously motivated action was exempt from the criminal law.  This sort of absolutist position, the Court and the government pointed out, would allow to absurd results, such as the inability to criminalize religiously motivated murders.  The Court, however, is knocking down a straw man.  The Mormons never in fact made this claim.  Rather, they argued that the First Amendment only protected religiously motivated conduct that was no malum in se, that is wrong in and of itself as opposed to being wrong merely because of the law (malum prohibitum).  Actions could be judges as malum in se, they went on to argue, by appeal to a set of well-established natural law arguments.  These arguments were based in part by a series of more-or-less positive analogies to non-Western legal systems.  The Court responded implicitly to this argument by analogizing Mormons to Indians and the federal government to the British Raj.  In other words, the Court in effect looked at “The Mormon Question” through the lens of imperialism.

This imperial analogy was more than a one-off rhetorical fillip in the Court’s opinion.  It shows up all over the anti-polygamy battles, where it is important for distinguishing the situation in Utah from the situation in the Reconstruction and post-Reconstruction South.  It also gets picked up on in the first generation of cases that invoke Reynolds and its progeny as precedent.  These cases, known as The Insular Cases,  arose in the context of the United States’ conquest of the Philippines in the Spanish American War of 1898 addressed the question of the federal government’s authority to engage in imperialism and colonialism abroad.  In these cases Reynolds was seen not as a First Amendment case as much as a case about the scope of Congressional power over a conquered people.  My paper thus suggests that Reynolds and the anti-polygamy battles need to be seen not only in the context of the domestic debates over Reconstruction that proceeded them.   Rather, Reynolds and its heirs must also be seen as a prelude to the international debates over imperialism that followed the Spanish American War.

For those interested, here is an abstract of the paper:

“Natural Law and the Rhetoric of Empire: Reynolds v. United States, Polygamy, and Imperialism”

In 1879, the U.S. Supreme Court construed the Free Exercise Clause for the first time, holding in Reynolds v. United States that Congress could punish Mormon polygamy. Historians have interpreted Reynolds and the massive wave of anti-polygamy legislation and litigation that it midwifed as an extension of Reconstruction into the American West. This Article offers a new historical interpretation, one that places the birth of Free Exercise jurisprudence in Reynolds within an international context of Great Power imperialism and American international expansion at the end of the nineteenth century. It does this by recovering the lost theory of religious freedom that the Mormons offered in Reynolds, a theory grounded in the natural law tradition. It then shows how the Court rejected this theory by using British imperial law to interpret the scope of the first amendment. Unraveling the work done by these international analogies reveals how the legal debates in Reynolds reached back to natural law theorists of the seventeenth-century such as Hugo Grotius and forward to fin de siècle imperialists such as Theodore Roosevelt. By analogizing the federal government to the British Raj, Reynolds provided a framework for national politicians in the 1880s to employ the supposedly discredited tactics of Reconstruction against the Mormons. Embedded in imperialist analogies, Reynolds and its progeny thus formed a prelude to the constitutional battles over American imperialism in the wake of the Spanish-American War. These constitutional debates reached their dénouement in The Insular Cases, where Reynolds and its progeny appeared not as Free Exercise cases but as precedents on the scope of American imperial power. This Article thus remaps key events in late nineteenth-century constitutional history, showing how the birth of Free Exercise jurisprudence in Reynolds must be understood as part of America’s engagement with Great Power imperialism and the ideologies that sustained it.

18 Responses to Polygamy, Natural Law, and Imperialism

  1. Steve H on March 2, 2010 at 11:02 am

    Was this because Utah was a Territory instead of a State? Would the arguments have changed if Utah was already a State?

  2. Nate Oman on March 2, 2010 at 11:10 am

    Yes but not in the way that we tend to think. We tend to have a hindsight bias in our thinking about territories, assuming that there was a neat and well defined two-part categorization of state and territories. The reality is that in the 19th century the status of territories was hotly contested and not all territories were treated equally. Historians notion of what the territorial relationship looked like in its paradigmatic case is based on the Northwest Ordinance, but this Ordinance enjoyed no formal constitutional status. The imperial arguments in Reynolds are interesting precisely because of the current of thinking about territorial status that the reveal. Ultimately, Utah gets admitted as a state, a kind of delayed application of the Northwest Territory model. On the other hand, the Philippines and Cuba never become states. Their constitutional status was what was at work in the Insular Cases and the participants in those debates clearly saw Reynolds and the broader experience of Utah and “The Mormon Question” as a prelude to the explicit international imperialism of the Spanish American War.

  3. Hunter on March 2, 2010 at 11:36 am

    Thanks for this.

    So, what’s the next step? If Reynolds should be “seen not only in the context of the domestic debates over Reconstruction that proceeded them,” but also “as a prelude to the international debates over imperialism that followed the Spanish American War,” then what does that change about the soundness of its holding? It seems to me that in either case — whether analyzed through a Reconstruction lense or an imperial one — the Reynolds case would come out the same. I don’t understand why the distinction makes a difference in the larger context of Free Exercise cases.

    Or maybe I just need to go read your paper.

  4. Nate Oman on March 2, 2010 at 11:39 am

    Hunter: Read the paper. It is history not traditional con law. I don’t put forward any argument about the continuing vitality of Reynolds’s holding or its desirability. My goal is to understand 19th century constitutional politics.

  5. Christine on March 2, 2010 at 11:49 am

    Nate: Thanks. This is very interesting. It sounds to me as much due to condescending paternalism toward Mormons as much as imperialism. It is undoubtedly true that the Mormon Church was treated as an enemy and outlawed. Its assets were confiscated. Any arguments made were ignored and straw man arguments were placed in the mouths of those arguing for the Church at that time.

  6. Hunter on March 2, 2010 at 11:53 am

    OK, will do. Thanks.

  7. Nate Oman on March 2, 2010 at 11:56 am

    Hunter: FWIW, getting law professors to take legal history on its own terms rather than as a premise in some argument about current law is difficult. I work shopped this paper at a law school a couple of weeks ago, and one of the faculty members asked me a complex hypothetical question about the treatment of polygamy under current law had Reynolds never been decided. I responded by saying, “Well, if Reynolds had never been decided my paper would be a lot shorter than it is now…”

  8. Ben on March 2, 2010 at 12:08 pm

    Darn it, Nate. I already had a long list of things to read, and now I have another.

    Thanks for putting it up.

  9. Edje Jeter on March 2, 2010 at 12:20 pm

    This is great news. Thanks for sharing.

    Christine (5): I’m curious how you’re differentiating “condescending paternalism” and “imperialism.”

    OP: “Rather, Reynolds and its heirs must also be seen as a prelude to the international debates over imperialism that followed the Spanish American War.”

    And not just in US legal conversation: Brits, Boers, and Yanks cited Reynolds and the Mormon experience prior to, during, and after the fighting in South Africa. IIRC, some commentators even managed to get the Philippines, Cuba, South Africa, and the Mormons all in one sentence.

  10. Raymond Takashi Swenson on March 2, 2010 at 1:20 pm

    Nate: I will get to your article, but like any lazy student it is easier to ask the professor a question. I know that in much of the literature of the 19th Century attacking the Mormons (discussed in Givens’ Viper on the Hearth), Mormons were grouped with other outcast groups like blacks, Irish Catholics, Asians and American Indians. Mormons were characterized as immigrant foreigners of a different race (those pesky Swedes!). Indeed, it has always seemed to me that the attitude of the Federal government toward the Mormons was basically similar to the attitude toward the Indians and their religion and culture. The US Army that fought Philippine insurgents was the same Army that fought the Indians. Does your article compare the treatment of the Mormon religion to the treatment of Indian religions?

  11. Nate Oman on March 2, 2010 at 1:35 pm

    I talk briefly about how antebellum courts dealt with potentially polygamous native American marriages. I also talk extensively about the analogy between Mormons and Indians (as in the Asian inhabitants of the Indian subcontinent). I also have a section were I talk about the way Mormons got conceptualized as a distinct race and how that fed into legal arguments.

  12. Margaret Futerer on March 2, 2010 at 4:05 pm

    Thank you Nate for the insightful discussion on a topic that has touched me every day of my life. As a decendant of Reynolds I was born and raised in a small polygamist community and was unaware of my connection to him until recently. I am looking forward to reading your paper and gaining a deeper understanding of the issue from a political perspective.

  13. Steve H. on March 2, 2010 at 4:18 pm

    Hey Margaret: I am a Renolds decendant as well, although I did not experience polygamy directly as you did. I always find it odd to see his name come up since we have our own stories about him in our extended family in Utah, where I grew up.

  14. WJ on March 2, 2010 at 5:41 pm

    Nate, you can’t fool me, I know that courts are neutral arbiters of the law and are not influenced by the politics of the day ;)

    Interesting thesis, I look forward to reading it.

  15. Stephen M (Ethesis) on March 2, 2010 at 8:48 pm

    “Rather, Reynolds and its heirs must also be seen as a prelude to the international debates over imperialism that followed the Spanish American War.”

    That is a great insight. Thanks.

  16. Raymond Takashi Swenson on March 2, 2010 at 8:57 pm

    Nate: I have read your article. Bravo! It is not only an additional perspective on the reasoning of the Supreme Court in its devaluation of Mormon religious liberty, but also a poignant reminder that, after the Civil War, the United States entered a period when the belief that “all men are created equal”, which was cited by Lincoln as the principle being tested on the battlefield at Gettysburg, was modified by the triumphant belief that some men are more equal than others.

  17. S.P. Bailey on March 3, 2010 at 2:35 pm

    Interesting work, Nate. Thanks for sharing it.

  18. Super C on March 7, 2010 at 11:55 am

    Nate, with you are W&M and Givens over at Richmond, seems a shame there has been no symposium here in the Commonwealth on some LDS realted topic. Or maybe I missed it.