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The Mormon Question
by Prof. Sarah Barringer Gordon
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By invoking Article 4 and relying upon the majority decision in the Dred Scott case, however, George Biddle touched nerves still raw after the Civil War. Dred Scott stands out as among the most controversial decisions in the history of the Supreme Court. The Court, and especially Chief Justice Taney, were also controversial at the time. Many contemporaries blamed the onset of the Civil War on the decision. Historians generally agree that Dred Scott did not single-handedly precipitate the war, but that it did drastically undermine the prestige (even the power) of the Court. Yet the opinion also had many supporters and was relied upon in congressional debates and Supreme Court argument, especially by Democrats, into the 1870s and 1880s, and beyond. Slavery may have been removed from the powers of local majorities by the Thirteenth Amendment, but considerable doubt lingered about the effect of the Fourteenth Amendment on the basic tissue of the federal system. Questions of domestic relations, which traditionally had been the centerpiece of localism, were among the most troubling and contentious of the areas of law potentially unsettled after the Civil War.9

The Fourteenth Amendment, despite the imprecision of its language protecting of the “privileges and immunities”of citizens against state deprivations, nonetheless provided a plausible and hotly contested basis for the claim that the entire power structure of the country had been changed by the war and its constitutional aftermath. According to its more nationalistic interpreters, basic civil rights, including the rights to life, liberty and property, were secured against state infringement by the new amendment. Such a restructuring of power over the lives and fortunes of citizens in areas that were by definition “local” and “domestic” (especially marriage) would spell the demise of all state government, replied opponents of Reconstruction and its attendant constitutional amendments. To illustrate the potentially catastrophic consequences of a broad interpretation of federal power after the war, traditionalists harped on the absurdity of removing any of the “domestic relations” from state control. Opponents of the federal Civil Rights Act of 1866, for example, argued that its inevitable result would be interference in the private relations between husband and wife.10

Republicans assured themselves and their colleagues across the aisle that no such control of the marital bed was contemplated, but the nature and power of state sovereignty was nonetheless clouded. There can be little doubt that most legislators were committed to an interpretation of the Fourteenth Amendment (and civil rights legislation) that did not affect the law of husband and wife, or remove its enforcement to the federal courts. Instead, as one scholar put it, “Congressional Republicans recast the achievement of emancipation as a question simply of race.” In this sense, the Civil War was memorialized as a war over slavery, however vehemently it was denied as the fighting raged.11 In the early 1870s, the Supreme Court’s decisions reassured many conservatives and moderates. As the Court closed the door to radical reinterpretations of federal power through the postwar amendments in case after case, the power of federal courts in the South declined, Reconstruction atrophied, and the rhetoric of states’ rights revived. In other words, the power of local majorities to challenge the authority of the central government waxed as Reconstruction waned. The reinvigoration of pre-war localism affected lawyers’ arguments at the Supreme Court, as well as at the more overtly political arenas of the capitol.

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