Sarah Barringer Gordon.
The Mormon Question: Polygamy and Constitutional Conflict in
Studies in Legal History. Chapel Hill and London: University of North
Carolina Press, 2002. xiv + 337 pp. Illustrations, bibliography, index.
$49.95 (cloth), ISBN 0-8078-4987-1 ISBN 0-8078-2661-8; $19.95 (paper),
Christopher L. Eisgruber , Princeton University.
Over Sex and Religion that Shaped the American Nation
The Mormon conflict is a neglected episode in American
constitutional development. Many constitutional historians, if they think
about "the Mormon Question" at all, remember it only as the provocation
for the Supreme Court's first Free Exercise decision, Reynolds v.
United States. Others recall it as a curious nineteenth-century
morality play provoked by the eccentric sexual practices of a limited sect
that later renounced polygamy and evolved into a flourishing, worldwide
There was more to it, as is ably demonstrated in this
superb book by Sarah Barringer Gordon, a professor of law and history at
the University of Pennsylvania. The Mormon Question makes clear
that America's battles over Mormonism and polygamy shook the nation to its
constitutional foundations. Anti-polygamists viewed the practice and the
Mormon church as threats to civilization. In zealous pursuit of their
target, they pushed the limits of national legislative and executive
power. They developed new doctrines about the territories, statehood, and
individual liberties. Rhetoric of the day linked polygamy and slavery as
the "twin relics of barbarism" (p. 55). The pairing communicates the
intensity of the battle: though it stopped short of full-fledged civil
war, this was a violent sectional conflict, drenched with moral fervor and
fought with guns as well as words and laws.
Gordon's narrative gracefully integrates a wide range of
sources. The first chapter, "The Power of the Word(s)," culls novels and
other popular literature for images of Mormonism and polygamy. In later
chapters, Gordon continues to pursue cultural themes, but shifts her
attention in the direction of law and politics. She describes the
innovative, and sometimes radical, policies the national government used
to attack polygamy; the strategies the Mormons used to resist successfully
for many years; and the developments and counterstrikes that eventually
rendered Mormon resistance futile.
Few authors could deal so adeptly with such diverse
cultural, legal, and political materials. There is accordingly much to
praise about Gordon's book. From my standpoint as a constitutional
theorist, one measure of the book's success is its capacity to enrich our
thinking about major constitutional problems. Remarkably, the book
illuminates at least four such issues. The first is the constitutional
status of the territories. The Utah Mormons insisted that the federal
government's power to govern the territories was limited. They also
demanded the right to enter the Union as a state on their own terms. (See,
e.g., pp. 9-10, 109-111.) The debate over what to do in Utah accordingly
can deepen our comprehension of what is at stake in arguments about the
constitutional status of American territories.
In this regard, Gordon's book makes a valuable contribution
indeed: constitutional theorists have more or less ignored the
territories, but that is a mistake. As is evident from the excellent
recent collection of essays edited by Christina Burnett and Burke
Marshall, constitutional questions about Puerto Rico and other territories
are theoretically vexing and practically important. Gordon's book will
be a valuable resource for those who want to begin thinking seriously
about the territories in historical context.
The second issue is polygamy itself. In many ways, the
moral context for the nineteenth-century polygamy debate seems dated.
Supreme Court doctrine and liberal political theory now allow for rights
of sexual autonomy that would have been unthinkable not only to the
opponents of polygamy but also (perhaps especially!) to its Mormon
defenders. Yet even today there is no constitutional right to polygamous
marriage, and very liberal political theorists are reluctant to say
anything good about it. Why is that so? Should not competent adults be
free to choose whether to enter plural marriages? The assumption seems to
be that such marriages would be bad for the women who entered them. But
then why not permit women to be judges of their own interests (as we do
with regard to, say, abortion)? The Utah episode puts the question
especially starkly, since, as Gordon points out, the Mormons allowed women
to vote, unlike other states that (according to anti-Mormon and
anti-polygamy rhetoric) supposedly were more solicitous of state's rights
(pp. 97, 167-171).
If there is a connection between polygamy and the
oppression of women, the connection must be empirical and contingent,
rather than logical and necessary. The Utah example is therefore an
interesting source of relevant evidence. Gordon's treatment of polygamy in
The Mormon Question explores the issue but does not put it to rest.
Gordon gives us portrayals of polygamy from both sides of the
nineteenth-century divide. Some of the anti-polygamy rhetoric, about the
importance of marital monogamy to civilization, now seems bombastic and
unpersuasive. Nineteenth-century outrage over polygamy seems to have been
fueled at least partly by religious intolerance and personal distaste, and
it is natural to wonder whether our own, contemporary doubts about
polygamy might flow from similar sources.
But not all nineteenth-century anti-polygamy arguments ring
hollow today. Some critics of the practice offered evidence that Mormon
women were, in fact, being treated badly in plural marriages. There is a
lingering question about the truth of these claims--and about whether,
even if the claims are true, monogamous marriage was any better.
The third issue pertains to the complexities of religious
conflict. The nineteenth-century Mormon conflict bears some surprising
resemblances to the confrontation between the United States and radical
Islamic groups (including the coincidence that Islam recognizes plural
marriages). That may seem utterly implausible to anybody familiar with
Mormonism today. After all, as Gordon points out, conservative columnist
George Will has hailed Mormonism as the "'most American' of religions" (p.
234). How could anybody compare Mormonism to radical Islam?
Matters were different in the nineteenth century. Brigham
Young prophesied that the North and South would destroy each other during
the Civil War. He welcomed this possibility because "[t]he Latter-Day
Saints, whose existence outside the Union would protect them from the
coming implosion, would fill the vacuum" (p. 90). Some extreme Mormon
sermons during 1856 and 1857 seemed to endorse the killing of non-Mormons
(pp. 58-59). In the 1840s, before leaving for
Mormons had flexed their political muscle in Illinois through bloc voting
and the formation of a private militia (p. 24). The government they
substantial theocratic elements (p. 196).
Today many Americans are trying to figure out whether Islam
is a "great religion that has been hijacked by terrorists" or whether it
is (in some forms) genuinely antagonistic and threatening to the American
way of life. Gordon's readers may thus be able to sympathize with
nineteenth-century Christians, who had to ask similar questions about the
Mormon settlement on their western border. And Americans today may be able
to learn something about the possibilities for religious understanding and
misunderstanding by reading Gordon's book.
The fourth issue pertains to the constitutional structure
of religious freedom in the United States. I have already mentioned that,
among constitutional lawyers, the Mormon controversy is remembered almost
exclusively in terms of the Reynolds decision, which held that the
Free Exercise Clause of the First Amendment did not preclude Congress from
criminalizing religiously motivated polygamy. Reynolds gets plenty
of criticism from modern lawyers, but the result is hardly surprising. As
the recent events in New York City make tragically clear, religion cannot
be a blanket excuse for non-compliance with the law. Nineteenth-century
Americans believed that polygamy threatened the very foundations of their
civilization, and, if one believed (rightly or wrongly) that polygamy was
so dangerous, it would be unimaginable that religiously motivated
instances of it should be exempt from the criminal law.
Yet judicial enforcement of the Free Exercise Clause has
never been the only, or the most important, source for religious freedom
in the American constitutional system. Religious freedom draws strength
from individual rights not specific to religion--rights such as property
rights, speech rights, and procedural rights, which enhance the autonomy
of all Americans, including religious Americans. Religious freedom also
benefits from the dispersion of power among multiple branches of the
federal government and state and local communities. This dispersion of
power both makes it more difficult for the federal government to bring the
full force of its power to bear against any religious group, and enables
such groups to move from one jurisdiction to another more favorable
one--which is exactly what the Mormons tried to do when they moved west to
Of course, if the federal government gets sufficiently
excited, its power is awesome, and it has resources sufficient to suppress
religious activity it dislikes. The war on Mormon polygamy is one
important instance in which the federal government mobilized its power to
transform a faith, and succeeded. In that regard, it is the exception that
proves the rule.
But that is not merely a trite phrase: this exception
really does prove the rule, for it is telling how the federal government
managed to transform Mormonism and with what consequences. The
consequences are not really part of Gordon's book, but are common
knowledge. The American government transformed Mormonism but did not
abolish it. It is today among the fastest-growing religions in the United
States, and, although it accounts for only around 2 percent of the
national population, it still claims more than 70 percent of the
population of Utah among its adherents, and so has considerable political
Gordon has a great deal to say about how the transformation
took place, and that story is perhaps the most interesting part of a very
interesting book. The Morrill Act of 1862, which banned polygamy, was for
many years ineffective not because of the Free Exercise Clause, but
because Mormon defendants were entitled to a jury of their peers in
and "no grand jury of their peers would indict Mormon leaders" (p. 83).
Congress therefore had to supplement the Morrill Act with the Poland Act
of 1874, which gave federal marshals a role in selecting jury pools (pp.
111-112). That statute did not fully solve the problem, so in 1882
Congress passed the Edmunds Act, which disqualified prospective jurors who
supported polygamy (pp. 151-154). To transform the Mormon religion,
Congress had to restrict rights related to legal process and free speech.
The Edmunds Act led to "the Raid," federal prosecutorial
activity for polygamy-related crimes that Gordon describes as "unique in
American history" (p. 155). So, in other words, in addition to banning
polygamy, Congress had to muster the will to create and finance an
unprecedented law-enforcement campaign. Even this was not enough to bring
down the church or its commitment to polygamy. What finally did the trick,
it seems, was the dissolution of the church's corporate charter and the
consequent escheatment of church property to the state under the
Edmunds-Tucker Act of 1887 (pp. 185, 219-220). What finished the church
was a blunt and highly unusual (if not unconstitutional) violation of
Gordon's book thus makes a major contribution to four
significant constitutional issues and spins a good yarn to boot. Indeed,
her narrative has everything that you're not supposed to talk about in
polite society (sex, religion, and politics), mixed together in heady
proportion. Readers will delight in Gordon's renditions of courtroom
drama, military tactics, and a colorful cast of characters. There are
roughly fifty photographs and political cartoons accompanying her rich
prose. As a result, the book is not only an important contribution to the
scholarly literature, but a pleasure to read. Now that Gordon has given us
this superb book, constitutional thinkers no longer will have any excuse
for ignoring a conflict that played a crucial role in America's
. Reynolds v.
98 U.S. 145 (1879).
. Christina Duffy Burnett and Burke Marshall, eds.,
Foreign in a Domestic Sense:
Puerto Rico, American
Expansion, and the Constitution
and London: Duke University Press, 2002).
. The statistics are from Martin B. Bradley, et al.,
eds., Churches and Church Membership in the
States, 1990: An Enumeration by Region, State, and County, Based on Data
Reported for 133 Church Groupings
(Atlanta: Glenmary Research Center, 1992).
Library of Congress
Call Number: KF4783 .G67 2002
* Freedom of religion--United States--History.
* Church and state--United States--History.
Citation: Christopher L. Eisgruber . "Review of Sarah
Barringer Gordon, The Mormon Question: Polygamy and Constitutional
Conflict in Nineteenth-Century America," H-Law, H-Net Reviews, June, 2002.
“This is a fascinating
story, told compellingly and vividly by a scholar uniquely qualified for
the task… There can be no plausible denial of the relevance of the
antipolygamy crusade for the formative questions of American
constitutional development. Slavery, the women’s movement, antimonopoly,
and the New Deal all adorn the architecture of Gordon’s history of the
Mormon Church and its contested place in American legal culture.”
Victoria Saker Woeste,
review of The Mormon Question: Polygamy and Constitutional Conflict in
Nineteenth-Century America, by Sarah Barringer Gordon, Law and
History Review 22 (Spring 2004): 206-208.