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The Mormon Question
by Prof. Sarah Barringer Gordon
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Biddle’s argument for the church addressed a number of technical issues, including a claim that the trial judge’s charge to the jury, which referred to “innocent women” and children whose lives were blighted by polygamy, was unfairly prejudicial (see later discussion). The meat of Biddle’s argument, however, was a classic restatement of the theory of popular sovereignty so dear to Democrats before and after the Civil War: “[T]here is always an excess of power, when any attempt is made by the Federal Legislature to provide for more than the assertion and preservation of the right of the General Government over a Territory, leaving necessarily the enactment of all laws relating to the social and domestic life of its inhabitants, as well as its internal police, to the people dwelling in the Territory.”7

Biddle claimed that the Morrill Act of 1862 was unconstitutional on its face because it violated Article 4, Section 3, giving Congress “power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.” Article 4, Biddle argued, conferred only the power to make “needful” rules and regulations to protect the national interest, not the authority to intervene in local concerns. This was the constitutional provision on which the Missouri Compromise, which limited slavery to land below the famous “Mason-Dixon line,” was based. The Supreme Court, however, held that such interference with local decision-making was unconstitutional in 1857 in Scott v. Sandford, known popularly as Dred Scott. In that case, the majority opinion also held that Article 4 did not confer upon Congress “powers over person and property” in the territories but limited the reach of the national government there as in the states. The prohibition against national action contained in the Bill of Rights, wrote Chief Justice Roger Brooke Taney, “is not confined to [protecting the sovereignty of states], but the words are general, and extend to the whole territory over which the Constitution gives it power to legislate, including those portions of it remaining under Territorial Government, as well as that covered by States.” Thus the “citizens of a Territory” were on the “same footing with citizens of the States,” protected by the Bill of Rights against tyranny from the center. Any other position, Taney insisted, would be to treat the territories as “colonies ... to be ruled and governed that the [federal government’s] own pleasure.” Thus any attempt by Congress to prohibit slavery, interfering in the territories’ sovereignty “over person and property,” would be unconstitutional. Slavery’s “twin,” considered from the perspective of the Dred Scott case, would be equally protected against congressional interference.8

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