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|The Mormon Question: Polygamy and Constitutional Conflict in the Nineteenth Century|
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An Excerpt from Chapter Four:“Law and Patriarchy at the Supreme Court”
George Reynolds recorded in his diary that territorial delegate George Q. Cannon had assured the Mormon leadership that the first conviction for polygamy “will be overturned in any event.”1 As it turned out, Cannon’s optimism was misplaced; yet in the 1870s the turn to jurisprudence instead of political argument offered promise. At best, Mormons felt, the judicial branch would rescue their embattled constitutional rights from the clutches of federal tyrants and the political hacks sent to govern the territory.
Like many litigants before and since, however, George Reynolds and the Saints saw the Supreme Court simplify and reconstruct their constitutional claims in ways that channeled their arguments into long-established grooves. The freshness and power of the New Dispensation shriveled on the pages of the Supreme Court Reports; Supreme Court justices used the power of judicial review not to protect the practitioners of the Principle but in the service of its enemies.
Reynolds v. United States was argued at the United States Supreme Court in November of 1878. Mormon leaders, notwithstanding confident public statements, were far from sanguine.2 The church hired George Washington Biddle, dean of the Philadelphia bar and lifelong Democrat, to counteract the “excitement and agitat[ion of ] the public mind” that the case would be sure to provoke. Attorney General Charles Devens, a native of Massachusetts and highly partisan Republican, argued for the government personally, a clear indication of the importance the Hayes administration attached to the case.3
There was good reason to take seriously the first polygamy prosecution to reach the Supreme Court. First, the penalties and reforms imposed on the former Confederacy after the end of the Civil War, known as Reconstruction, crumbled in the 1870s. With the departure of federal forces and federal support, the “reclamation” of the South by white former slaveholders began in earnest at the end of the decade. The erosion of a national commitment to reform in the South actually increased the attention paid to Utah, and to polygamy. Growing doubts about Republicans’ commitment to humanitarian principles highlighted the potential value of decisive action on the “twin relic of barbarism.”4
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