Many a conservative Mormon lawyer that I know is fond of those scriptures in the Doctrine & Covenants the exalt the place of the U.S. Constitution. Let me suggest, however, that this is less important for constitutional law than many of them assume.<\/p>\n
Many Mormon lawyers make a link from scriptural statements about the Constitution to originalism. Originalism is a particular interpretive approach to the constitution that comes in basically two flavors. Intentionalists seek to resolve questions of constitutional interpretation by divining what \u00e2\u20ac\u0153the founders\u00e2\u20ac? intended. Who exactly the founders are is often kept vague. The whose who of American politics in the 1780s? This includes, for example, Jefferson, who, luckily for the republic, had virtually nothing to do with the writing of the constitution. Those at the constitutional convention? Those in the ratifying conventions? The second flavor of originalism harks back to \u00e2\u20ac\u0153original meaning.\u00e2\u20ac? The idea is that rather than looking at authorial intention, we look at how particular phrases would have been understood in the 1780s or 1790s. For example, if \u00e2\u20ac\u0153freedom of the press\u00e2\u20ac? in the 1790s meant only that there were no prior restraints on publication but post-publication punishment was fine (and this is about what freedom of the press meant in the 1790s), then that is how the Free Speech Clause ought to be interpreted.<\/p>\n
The extent to which these are good interpretive methodologies is contested. Frankly, no one follows them completely consistently (the closest is Justice Thomas, but he fudges). Furthermore, no one really thinks they are irrelevant, however much Antonin Scalia makes their blood pressure rise. The question is whether Mormon theology commits us to either of these approaches.<\/p>\n
The D&C does refer to \u00e2\u20ac\u0153wise men\u00e2\u20ac? that God raised up to author the constitution, which might be a basis for intentionalism (although not original meaning). However, it seems to me that this won\u00e2\u20ac\u2122t really get the argument off the ground. The virtue of its drafters might be one reason to interpret a law in light of their intentions, but it seems that we need more than this. We need a theory of law and adjudication rather than a judgment about concrete individuals in the past. Furthermore, the passages in the D&C were given in the 1830s. It seems unlikely that they can be taken to warrant originalism in the interpretation of amendments passed later. This leaves would-be Mormon originalists in the awkward position, for example, of having an justification for an originalist approach to the due process clause of the Fifth Amendment but not the due process clause of the Fourteenth Amendment.<\/p>\n
My point here is not to attack originalism. I am actually pretty sympathetic to a lot of it, and I certainly find some of the proffered alternatives distasteful. I don\u00e2\u20ac\u2122t really want to be ruled by Dworkin cum Hercules for example. However, I think that the link from originalism to Mormon theology is weak, or at least it is weak if it rests purely on the D&C\u00e2\u20ac\u2122s endorsement in passing of certain aspects of the constitution and the \u00e2\u20ac\u0153wise men\u00e2\u20ac? who authored it. I leave open the possibility that Mormon theology might generate some theory of law in general that could then point us toward originalism, but that would be a lot of work, and it is work that has not yet been done.<\/p>\n","protected":false},"excerpt":{"rendered":"
Many a conservative Mormon lawyer that I know is fond of those scriptures in the Doctrine & Covenants the exalt the place of the U.S. Constitution. Let me suggest, however, that this is less important for constitutional law than many of them assume.<\/p>\n","protected":false},"author":10,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[1],"tags":[],"class_list":["post-1819","post","type-post","status-publish","format-standard","hentry","category-corn"],"jetpack_sharing_enabled":true,"jetpack_featured_media_url":"","_links":{"self":[{"href":"https:\/\/timesandseasons.org\/index.php\/wp-json\/wp\/v2\/posts\/1819","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=1819"}],"version-history":[{"count":0,"href":"https:\/\/timesandseasons.org\/index.php\/wp-json\/wp\/v2\/posts\/1819\/revisions"}],"wp:attachment":[{"href":"https:\/\/timesandseasons.org\/index.php\/wp-json\/wp\/v2\/media?parent=1819"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/timesandseasons.org\/index.php\/wp-json\/wp\/v2\/categories?post=1819"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/timesandseasons.org\/index.php\/wp-json\/wp\/v2\/tags?post=1819"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}