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The Mormon Question
by Prof. Sarah Barringer Gordon
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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.

As George Biddle put it on behalf of the Mormon defendant, the power to create a territory did not confer upon the federal government the power to rule the inhabitants as “mere colonists, dependent upon the will” of the center. Migration to a territory, Biddle stressed, citing Dred Scott as his authority, did not strip citizens of the United States of their political rights to self-governance. Instead, like the residents of states, the residents of territories were “most competent to determine what was best for their interests.” They were protected in such self-determination by the very “genius of the Constitution.” The American Revolution, indeed, had been fought in part to establish the rights of the periphery against the central government of the British empire. Biddle’s arguments aligned this powerful, insurrectionary tradition with the Mormon claim to local self-determination.12

 

 
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