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The Mormon Question
by Prof. Sarah Barringer Gordon
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Such arguments were by definition dangerous; Biddle was more cautious than Chief Justice Taney had been on the same question of territorial sovereignty two decades earlier. Much had changed in the intervening years, especially in the desire to find moral limitations on the powers of local majorities. Biddle borrowed from religious tradition to tame the radical import of his constitutional claims. Congress, he maintained, was empowered only to establish such political and judicial structures as would ensure the vitality and integrity of local self-governance. When necessary, the central government might act positively to prohibit things that were clearly contrary to the law everywhere — only those things “mala in se” (“law Latin” for “evil in themselves” rather than as a result of some positive declaration) such as murder, false swearing (perjury), and like offenses affecting the rights of others that would undermine republican government. The Ten Commandments, Biddle stressed, provided the catalog of such offenses, and polygamy (like slavery, it is worth noting here) fell outside this “general moral code” that described and circumscribed the legislative power of Congress.13

Biddle conceded that while the “teachings of the New Testament” might be construed to prohibit polygamy, such an interpretation was a matter of theological rather than legal dispute. “[A] majority of the people of this particular Territory deny that the Christian law makes any such prohibition,” he stressed. Thus, Biddle concluded, the statute criminalizing polygamy constituted an abuse of power by the center against the periphery, an exercise of tyranny over the inhabitants of Utah: the national government acted without express constitutional or biblical authority, and against the manifest wishes of the majority of those same inhabitants.14

For the government, Charles Devens defended the Morrill Act by focusing on humanitarianism, on the perception of the essential foreignness of polygamy (and, by implication, of Mormons themselves) – on everything, that is, but the central question of federal power to outlaw polygamy. Devens evaded explicit constitutional analysis, both in his brief and at oral argument. Instead, he played relentlessly on the public perception of the human costs of polygamy. He dredged up a series of analogies that had played to good effect for decades and that would eventually appear in only slightly altered form in the Reynolds opinion itself.

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