A liberal theocracy: philosophy, theology, and Utah constitutional law.

• Author: McHugh, James T.
• Position: State Constitutional Commentary: An Interdisciplinary Examination of State Courts, State Constitutional Law, and State Constitutional Adjudication

1. INTRODUCTION

   The territory, and later the state, that became known as Utah was dominated by a religious community that had been persecuted for its beliefs and practices. Many observers understandably might expect that the Utah Constitution, as well as other legal and political institutions, might reflect both that experience and the unique religious and cultural beliefs of that community.(1) In particular, the. fact that this community is the Church of Jesus Christ of Latter Day Saints, which originated in the northeastern United States, migrated to the American Midwest, made a unique mass exodus to the basin of the Great Salt Lake, and which adheres to a religious tradition and set of theological beliefs that are unknown to the rest of Christendom, adds to the fascination with which jurists, scholars, and many other people have regarded this aspect of Utah's political, social, economic, legal, and constitutional history.(2)

   However, the Utah Constitution does not reflect practices and beliefs such as tithing, abstention from all stimulants (including caffeine), patriarchal rule, or the moral certainty in a particular vision of human redemption. It is, in many respects, a conventional American state constitution that reflects a particular history of political persecution and isolation more than it reflects obvious theological influences. Nonetheless, the fact that Mormons conspicuously and strongly have dominated, demographically, culturally, economically, and politically, Utah's modern history must not be disregarded.(3) There are institutional, and even theological, influences present here, but they are not, necessarily, obvious. A closer examination reveals both the conventionality and uniqueness of the Utah constitutional tradition in this, and other, respects.

2. The Relationship of Mormon Theology and Liberal Humanism

   The express political and religious price of statehood for Utah was the abandonment of both the practice of polygamy and the theocratic system of government within that territory that had been established there by the Church of Jesus Christ of Latter Day Saints -- whose members are conventionally known as Mormons. The more profound, and more subtle, price was a de jure acceptance of the basic value system that had been embraced by American society, and is reflected within its economic, political, and legal (especially constitutional) institutions. That price proved to be less onerous to the residents of that new state than might have been anticipated.

   There are two explanations that may account for the relative ease of transition between the theocratic community of Deseret(4) and the American state of Utah. The first explanation is derived from the American value system, especially in relation to the constitutional norms that it has produced. It has been well established that American society and its constitutional tradition participate in the broader liberal democratic tradition that has embraced most of the industrialized world.(5) That ideological tradition is, however, a very flexible one; beyond its core principles there is great scope for variation regarding the precise interpretation and application of those principles, which include liberty, individualism, autonomy, property, and (as a part of a later and continuing process of ideological evolution) equality. The malleability of liberalism lies in its adaptability to social, cultural, economic, and political change and the corresponding institutional developments.(6) The different regions of the United States have provided an excellent example of this variety; state constitutions provide the basis for the exhibition of liberal values that are specific to a particular community and the competing beliefs that have shaped it and made it unique.(7)

   These beliefs are so varied that it has proven to be difficult to find an American consensus regarding their precise parameters at the federal level. This search for consensus has tended to lead to a basic interpretation of liberalism among jurists and scholars. It has resulted in the adoption of a minimalist frame of libertarian values within which a broad consensus can be juridically asserted.(8) That consensus prevailed within the context of the eighteenth century Enlightenment that also influenced the emerging American society.(9) The belief of Enlightenment scholars and political leaders in rationality and the scientific method provided a basis for articulating a secular morality that rejected the traditional sources of conventional religious and social institutions.(10) Despite the presence of seventeenth century republican ideals that advocated the replacement of patriarchal governmental authority with the practice of "civic virtue" by the members of society, the Lockean vision of libertarian values emerged as the dominant philosophical force that shaped the creation and evolution of the American constitutional tradition.(11)

   This vision does not mandate a particular type of public behavior among the members of society; it is flexible in its interpretation and tolerant of the practice of other beliefs. That tolerance extends only so far as these practices do not undermine the basic tenets of the liberal value system and do not pose a demonstrable harm to society and its members.(12) Otherwise, all activities and beliefs that have the purpose of assisting persons in their personal goals, either individually or as a community, can be included within the broad parameters of a liberal political and legal system. This "harm principle" has provided a fundamental basis for the system of civil liberties that is an integral part of the American constitutional tradition.(13)

   The second explanation for Utah's relatively smooth transition from a theocratic community to American statehood can be related to similarities that appear to exist between Mormon beliefs and the general spirit of eighteenth century humanism. The Mormon faith resembles many Protestant denominations (including the "dissenting" denominations of the Protestant Reformation) in its focus upon the central place and role of humans within God's morally certain, but ambiguously structured, universe.(14) Mormons can be sharply contrasted with Roman Catholics for the same reason. Roman Catholicism dominated both the theological and the political value systems of medieval Europe, especially in terms of its emphasis upon God's hierarchically structured universe and the deontological law that guided it, of which humans and their secular law merely formed an imperfectly reflective part.(15)

   Meanwhile, Protestants (including those descendants of English Calvinism who came to dominate much of the early colonial history of the United States) generally emphasized many values that were not inconsistent with the emergence of liberal society: the individual relationships between God and humans; the private nature of that relationship, as opposed to the public relationship between people and government; the freedom to define that relationship and one's place within the world; and the desire to resist the unwarranted and coercive interference of temporal authority, especially regarding matters of fundamental property interests.(16) Protestants were not uniformly enamored of the secularism of eighteenth century humanism, but they were not hostile to many of its underlying assumptions in the manner with which Roman Catholicism, even following the Catholic Reformation, became conspicuously associated.(17) The tenets of Mormon faith clearly are comfortable (as will be demonstrated) with this human-centric vision of both the Protestant Reformation and the liberal Enlightenment, especially in terms of a belief in human perfectibility, personal development through work and other activities, and fulfillment through the exploitation of one's talent and other potential -- including the potential that is derived from the theoretically broad notion of "property."(18)

   However, the Mormons differ from traditional Protestants in terms of the way in which they define the relationship between humanity and divinity. Those differences may appear to be subtle or superficial, but they provide important clues regarding the unique approach to secular issues (including law, politics, and economics) that the Mormons of Utah have embraced and practiced. Three of those differences are especially significant: (1) the special relationship of the community to the individual member, and the protection of the spiritual freedom of both from unnecessary interference; (2) the pivotal status of history and ancestry to the community; (3) the emphasis upon hierarchical, but non-authoritarian, structure, organization, and leadership that includes, most significantly, a special deference to secular civil authority.(19) These principles have contributed to certain unique aspects of Utah's constitutional development, especially in ways that may differ (though, often, subtly) from the libertarian approach of the federal constitutional tradition and even the republican constitutional approach of certain other American states.

3. Institutional Manifestations of Mormon Values

   Mormons do not conceive of God in terms of a being who is omnipotently distinct from humans. Instead, they believe that God evolved from an imperfect, human state and achieved perfection and dominion over the universe. Furthermore, they believe that each human person is capable of achieving a similar transition and, literally, evolving into a divine being.(20) They reject the traditional Protestant emphasis upon faith as the sole, or the primary, source of salvation; one's actions (especially in terms of obedience to the ordinances of the Mormon community) are essential to the process of perfectibility that will achieve personal divinity. This belief is based upon a profound conviction that humans possess an infinite capacity for personal development and that each individual person is inherently good.(21)...