Natural law and the rhetoric of empire: Reynolds v. United States, polygamy, and imperialism.

• Author: Oman, Nathan B.

TABLE OF CONTENTS INTRODUCTION I. MORMON POLYGAMY AND NATURAL LAW AT THE SUPREME COURT A. The Origins of the Reynolds Litigation B. The Natural Law Argument in Reynolds II. IMPERIALISM AND THE REJECTION OF NATURAL LAW IN REYNOLDS. III. THE AFTERLIFE OF THE IMPERIAL RHETORIC IN REYNOLDS A. Imperialism and the Anti-Polygamy Crusade of the 1880s B. Reynolds and Fin de Siecle American Imperialism CONCLUSION INTRODUCTION

On January 6, 1879, the U.S. Supreme Court handed down its decision in Reynolds v. United States. (1) The decision affirmed the bigamy conviction of George Reynolds, a Mormon polygamist. In doing so, the Court for the first time construed the meaning of the Free Exercise Clause of the First Amendment, (2) earning Reynolds a place in the constitutional law canon. (3) Reading the case in historical context, however, reveals it as far more than a hoary chestnut from the birth of Free Exercise jurisprudence. Legal historians have tended to place Reynolds in the context of what came immediately before it. (4) Sarah Barringer Gordon, for example, has persuasively demonstrated the deep affinities between the anti-polygamy jurisprudence (5) midwifed by Reynolds and the anti-slavery movement. (6) In her telling, Reynolds is an extension of the constitutional debates sparked by abolitionism, debates dominated by domestic narratives of federal versus local power and the social preconditions for American democracy. (7) The decision in Reynolds, however, also drew on international narratives, using analogies to British imperial law to interpret the scope of the First Amendment. This Article unravels the work done by these international analogies, revealing how the legal debates in Reynolds reached back to natural law theorists of the seventeenth century, such as Samuel Pufendorf and Hugo Grotius, and forward to fin de siecle imperialists, such as Henry Cabot Lodge and Theodore Roosevelt. At the center of this debate lay the Mormons, who were defined by nineteenth-century Americans as not only religious but also racial--and thus imperial--outsiders.

The Court heard oral arguments in Reynolds in November 1878. (8) Reconstructing the now-forgotten theory of the First Amendment advanced by the Mormons' lawyers shows that the Mormons had a nuanced account of religious freedom quite different than the caricature attributed to them by the Court's opinion. Contrary to the common perception, they did not claim that the Free Exercise Clause was a trump card exempting any religiously motivated action--regardless of its nature--from the criminal law. Rather, they sought to provide a workable theory of religious freedom that defined those religious actions entitled to constitutional protection and those acts that could be criminalized regardless of their religious motivation. (9) Their argument hinged on the distinction between actions that are mala in se versus merely mala prohibita. (10) The First Amendment, they claimed, protected only criminalized religious acts that were mala prohibita but did not extend to acts that were mala in se. (11) Acts could be sorted into one category rather than the other by appeal to a series of arguments drawn from the natural law tradition, arguments that depended on analogies to non-western legal systems. (12)

The Court's implicit response to the natural law reasoning of the Mormons' lawyers in Reynolds was an appeal to the nineteenth-century ideals of progress and imperialism that were displacing the earlier, eighteenth-century ideals of universal reason and natural law. (13) The Justices analogized Mormons to "the Asiatic and African races" (14) that, at the time, were being subjected to the supposedly benign and progressive influence of imperial legal systems. They went on to implicitly liken the federal government to the British Raj, bringing civilization through law to a benighted race. (15) It is well known that in the wake of the Spanish-American War in 1898, American legal thinkers turned to imperial models abroad for analogies with which to interpret the U.S. Constitution, culminating in the Supreme Court's 1901 decisions in the Insular Cases. (16) Historians have also increasingly rejected an exceptionalist interpretation of the United States' expansion across North America, seeing it instead as a local manifestation of the international spread of imperial ambitions in the nineteenth century. (17) A fuller understanding of Reynolds reveals how the apparently domestic battles over polygamy from the 1860s to the 1880s were also part of this international story of American imperial expansion, forming a legal prelude to its constitutional denouement in the Insular Cases.

The Court's racial analogy also foreshadowed the aggressive legal tactics employed against the Mormons in the wake of Reynolds. originally, anti-polygamy politics was associated with anti-slavery Republicanism. (18) By the late 1870s, however, the federal government had abandoned African Americans to the tender mercies of newly resurgent state governments in the South in return for national reconciliation and an end to the bitter sectional politics surrounding the Civil War. (19) In Reynolds, the Court adopted the rhetorical roadmap that allowed Republicans in the decade after the decision to employ the tactics of Reconstruction against the Mormons without reopening the bitter political battles of the late-1860s. (20) It did this by associating the suppression of polygamy with the control--rather than the liberation--of racial minorities, a stance that allowed the condemnation of polygamy without an implicit condemnation of the emerging system of postemancipation racial subordination in the South. (21) While historians rightly tend to interpret the federal government's anti-polygamy crusade in the 1880s as an extension of Reconstruction into the West, the interplay of natural law and imperialism in Reynolds reveals the way that crusade also acted as a prelude to imperial adventures at the turn of the century. (22) Indeed, the rhetorical association of anti-polygamy with imperialism abroad rather than Reconstruction at home was part of what made employing the unpopular legal tactics of Reconstruction in Utah palatable to national politicians in the 1880s. (23)

All of these rhetorical moves were part of a much deeper intellectual shift that occurred over the course of the nineteenth century. Writing a generation ago, Christopher Lasch captured that shift in terms of the fault line running through the debates over American expansion after the Spanish-American War of 1898:

[American imperialists] substituted for the Jeffersonian proposition that the right to liberty is "natural"--hence universal--the proposition that rights depend on environment: on "civilization," of which there were now seen to be many stages of development; on race; even on climate. A pseudo-Darwinian hierarchy of cultural stages, unequal in the capacity for enjoyment of the rights associated with self-government, replaced the simpler and more liberal theory of the Enlightenment, which recognized only the distinction between society and nature. "Rights," as absolutes, lost their meaning by becoming relative to time and place. Rights now depended on a people's "readiness" to enjoy them. (24) A recovery of the lost debates over natural law and imperialism in Reynolds shows this shift from Enlightenment reason to nineteenth-century progress playing out in the hard-fought anti-polygamy battles of the 1860s, 1870s, and 1880s.

This Article proceeds as follows. Part I recounts the birth of the Reynolds litigation and the natural law arguments that the Mormons' lawyers offered before the Supreme Court. Part II shows how the Court used the rhetoric of imperialism to reject those arguments, tapping into international narratives of racial hierarchy and the progress of civilization. Part III reconstructs the afterlife of the imperial analogies in Reynolds, showing first how they formed a bridge between the decline of Radical Reconstruction and the anti-polygamy crusade of the 1880s, and second how Reynolds prefigured the constitutional analogies to British imperialism in the debates over American expansion at the end of the 1890s that ultimately culminated in the 1901 Insular Cases.

1. MORMON POLYGAMY AND NATURAL LAW AT THE SUPREME COURT

   To see how a fuller understanding of Reynolds recasts standard narratives about the politics of polygamy and the role of imperialism in late-nineteenth-century constitutional interpretation, we must first reconstruct the litigation that led to the decision. This allows us to recover the now-forgotten theory of religious freedom put before the Court in 1878, a theory grounded in the natural law tradition and based on a series of analogies to non-Western legal systems.

   1. The Origins of the Reynolds Litigation

      In 1847, Mormon refugees under church leader Brigham Young arrived in the wastes of the Great Basin, fleeing more than a decade of intermittent mob violence in the East. (25) At the time, what would become Utah was beyond the borders of the United States in Mexico. In 1848, however, Mexico ceded the entire region to a victorious United States under the Treaty of Guadalupe Hidalgo, and, in 1850, Congress created the territory of Utah to govern the newly conquered community. (26) By 1852, Mormon leaders felt confident enough in their independence to publicly announce the doctrine of plural marriage, which had been practiced clandestinely by elite Mormons for over a decade, and went so far as to send a high church leader to Washington, D.C., to preach the doctrine. (27)

      Four years later, in the 1856 presidential election, the Republican Party burst on the national scene dedicated to the eradication of "the twin relics of barbarism" in the territories: slavery and polygamy. (28) By 1862, the Republicans were in control of Congress and passed their first anti-polygamy law, the Morrill Act. (29) The law, however...