{"id":11771,"date":"2010-03-02T10:33:15","date_gmt":"2010-03-02T15:33:15","guid":{"rendered":"http:\/\/timesandseasons.org\/?p=11771"},"modified":"2010-03-02T10:33:15","modified_gmt":"2010-03-02T15:33:15","slug":"polygamy-natural-law-and-imperialism","status":"publish","type":"post","link":"https:\/\/timesandseasons.org\/index.php\/2010\/03\/polygamy-natural-law-and-imperialism\/","title":{"rendered":"Polygamy, Natural Law, and Imperialism"},"content":{"rendered":"

I have been researching Reynolds v. United States (1879), the Supreme Court’s first polygamy case, on and off for several years. \u00a0For those who are interested, my paper on the topic is now available for download at SSRN<\/a>. \u00a0Reynolds 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. \u00a0Historians have generally situated the case within the context of the post-Civil War politics of Reconstruction. \u00a0The anti-polygamy crusade kicked off by Reynolds is seen as an extension of Reconstruction into the West. \u00a0 I offer a new interpretation.<\/p>\n

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. \u00a0The Court — following the arguments of the Attorney General — characterized the Mormons as claiming that all religiously motivated action was exempt from the criminal law. \u00a0This 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. \u00a0The Court, however, is knocking down a straw man. \u00a0The Mormons never in fact made this claim. \u00a0Rather, 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). \u00a0Actions could be judges as malum in se, they went on to argue, by appeal to a set of well-established natural law arguments. \u00a0These arguments were based in part by a series of more-or-less positive analogies to non-Western legal systems. \u00a0The Court responded implicitly to this argument by analogizing Mormons to Indians and the federal government to the British Raj. \u00a0In other words, the Court in effect looked at “The Mormon Question” through the lens of imperialism.<\/p>\n

This imperial analogy was more than a one-off rhetorical fillip in the Court’s opinion. \u00a0It 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. \u00a0It also gets picked up on in the first generation of cases that invoke Reynolds and its progeny as precedent. \u00a0These cases, known as The Insular Cases, \u00a0arose in the context of the United States’ conquest of the\u00a0Philippines\u00a0in the Spanish American War of 1898 addressed the question of the federal government’s authority to engage in imperialism and colonialism abroad. \u00a0In 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. \u00a0My 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. \u00a0 Rather, Reynolds and its heirs must also be seen as a prelude to the international debates over imperialism that followed the Spanish American War.<\/p>\n

For those interested, here is an abstract of the paper:<\/p>\n

\n

“Natural Law and the Rhetoric of Empire: Reynolds v. United States, Polygamy, and Imperialism”<\/a><\/strong><\/p>\n

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 si\u00e8cle 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 d\u00e9nouement 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\u2019s engagement with Great Power imperialism and the ideologies that sustained it.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

I have been researching Reynolds v. United States (1879), the Supreme Court’s first polygamy case, on and off for several years. \u00a0For those who are interested, my paper on the topic is now available for download at SSRN. \u00a0Reynolds 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. \u00a0Historians have generally situated the case within the context of the post-Civil War politics of Reconstruction. \u00a0The anti-polygamy crusade kicked off by Reynolds is seen as an extension of Reconstruction into the West. \u00a0 I offer a new interpretation.<\/p>\n","protected":false},"author":10,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[17,26],"tags":[],"class_list":["post-11771","post","type-post","status-publish","format-standard","hentry","category-church-history","category-law"],"jetpack_sharing_enabled":true,"jetpack_featured_media_url":"","_links":{"self":[{"href":"https:\/\/timesandseasons.org\/index.php\/wp-json\/wp\/v2\/posts\/11771","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/timesandseasons.org\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/timesandseasons.org\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/timesandseasons.org\/index.php\/wp-json\/wp\/v2\/users\/10"}],"replies":[{"embeddable":true,"href":"https:\/\/timesandseasons.org\/index.php\/wp-json\/wp\/v2\/comments?post=11771"}],"version-history":[{"count":1,"href":"https:\/\/timesandseasons.org\/index.php\/wp-json\/wp\/v2\/posts\/11771\/revisions"}],"predecessor-version":[{"id":11773,"href":"https:\/\/timesandseasons.org\/index.php\/wp-json\/wp\/v2\/posts\/11771\/revisions\/11773"}],"wp:attachment":[{"href":"https:\/\/timesandseasons.org\/index.php\/wp-json\/wp\/v2\/media?parent=11771"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/timesandseasons.org\/index.php\/wp-json\/wp\/v2\/categories?post=11771"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/timesandseasons.org\/index.php\/wp-json\/wp\/v2\/tags?post=11771"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}