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The Mormon Question
by Prof. Sarah Barringer Gordon
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The U.S. Supreme Court at the time of the decision in Reynolds v. United States. Photo courtesy of the Library of Congress

And the Supreme Court itself was at something of a jurisprudential (and institutional) turning point. By the late 1870s, the Court had reined in the applicability of the Reconstruction Amendments to the daily lives of those who claimed that the federal government should now protect their rights. Therefore, one category of potentially transformative rights — the “privileges and immunities” clause of the Fourteenth Amendment invoked by African Americans and white women — had recently been rejected and the conflict receded in constitutional interpretation. The development of an alternative body of limitations on affirmative government power lay in the future. The blossoming of the constitutional doctrine of substantive due process, or the theory that the protection of “due process of law” included in the Fourteenth Amendment meant that there were substantive limits on what state and federal legislatures could regulate or proscribe, did not occur until the end of the nineteenth century. Reynolds v. United States lies on this fault line between constitutional interpretations. The opinion in the case provides insight into the rejection of the new constitutional claims at issue in earlier cases. Reynolds also exemplifies the development of constitutional doctrines drawn from common-law concepts of contract and property that eventually were subsumed under the label of substantive due process at the turn of the twentieth century.5

Equally important, the opinion in Reynolds immediately and irrevocably raised the pitch of antipolygamy activism. The Supreme Court’s power to make history (and to interpret it) was nowhere more evident than in this first polygamy case, which gave constitutional texture to the long-standing theories of antipolygamists. The opinion reassured congressmen, lobbyists, newspaper editors, and husbands and wives in the states that the marital structure they inhabited was indeed the very marrow of the Constitution, the highest expression of civilization, and the essential building block of democracy. An entire generation of activists gained new confidence that true human happiness and sacred meaning found expression in monogamy. In Reynolds, the Supreme Court connected constitutional law to increased federal power and Protestant humanism.

 
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