I put up a link earlier this week on the sideblog to an article by Nate Oman* entitled “Natural Law and the Rhetoric of Empire: Reynolds v. United States, Polygamy, and Imperialism” (available at SSRN here). Because Nate is shopping the article around to law journals and it thus might not catch the attention of historians (attention it definitely deserves), I thought I’d post the abstract here for anyone who missed the sideblog link and/or the discussion on it over at Times & Seasons).
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.
I was lucky enough to read a slightly-earlier version of the paper, and Nate’s argument is both provocative and convincing. Nate builds on Sally Gordon’s research that situates Reynolds within the context of what immediately proceeded it (abolitionism and Reconstruction) by exploring how the decision handed down in the case “also drew on international narratives, using analogies to British imperial law to interpret the scope of the first amendment” (p. 4). As part of this budding imperialist reasoning, Mormons, along with Catholics, Jews, and Italians, were racialized as something other than white. As Nate notes, though, “The logic of Mormon racial identity, however, was slightly different. According to the standard racial logic, behavior resulted from racial identity. … For Mormons, however, the logic moved in the opposite direction. A new race arose precisely because of the unnatural behaviors of the Latter-day Saints” (p. 22). Nate’s exploration of the legal implications of the racialization of Mormons dovetails nicely with Paul Reeve’s current research (as well as JI’s own Ed Jeter). Collectively, these scholars are taking Mormon history in new, exciting, and important directions.
So take the time to download the article and give it a read.
* In addition to being a well-known bloggernacle veteran, Nate is currently Visiting Professor at Cornell Law School, Associate Professor at William & Mary Law School, Mormon legal historian, and all-around thoughtful guy (as well as my home teaching companion).