1. See Edwin B. Firmage and R. Collin Mangrum, Zion in the Courts: A Legal History of The Church of Jesus Christ of Latter-day Saints, 1830–1900, forthcoming.

2. United States vs. Reynolds, 49 U.S. (Otto) 145, 164 (1878).

3. Roe vs. Wade, 410 U.S. 113 (1973).

4. I have borrowed the terms and concept of “world-maintaining” and “world-creating” normative universes from Robert Cover, “The Supreme Court 1982 Term, Forward: Nomos and Narrative,” Harvard Law Review 97 (November 1983): 4. Cover builds on the terms used by Chief Justice Burger in his opinion in Bob Jones University vs. United States, 102 S. Ct. 2017 (1983). Cover is concerned with the same normative problem of allowing distinctive worldviews to coexist peacefully within a pluralistic society.

For an account of liberalism that confuses the roles of these two normative universes, see Hyrum Andrus, Descriptions of Zion: Liberalism, Conservativism, and Mormonism (Salt Lake City: Hawkes Publications, 1972).

5. Karl Barth, “The Christian Community and the Civil Community,” in Community, State, and Church (Garden City, N.Y.: Anchor Books, 1960), 151.

6. Quentin Skinner, The Foundations of Modern Political Thought, 2 vols. (New York: Cambridge University Press, 1978), 1:50.

7. See Guido de Ruggiero, The History of European Liberalism, trans. Robin George Collingwood (Boston: Beacon Press, 1967), 17.

8. See George L. Haskins, Law and Authority in Early Massachusetts (Hamdon, Conn.: Archon Books, 1960), 47–51.

9. For an account of the separatist controversy between Roger Williams and John Cotton as expressed in their published responses to one another and resulting in Williams’s forced exile from Massachusetts, see William Lee Miller, The First Liberty (New York: Alfred A. Knopf, 1986), 161–64.

10. Mark Antony de Wolfe Howe, The Garden and the Wilderness: Religion and Government in American Constitutional History (Chicago: University of Chicago Press, 1965), 7–8.

11. Bernard Bailyn observes, “In pamphlet after pamphlet the American writers cited Locke on the social and governmental contract” (The Ideological Origins of the American Revolution [Cambridge: Belknap Press, 1967], 27). For an argument that American liberalism is Lockean in nature, see Louis Hartz, The Liberal Tradition in America (New York: Harcourt Brace, 1955), 3–14.

12. Seventeenth-century English Whig history generally stood for parliamentary power against royal prerogative. The Whigs during this century were radicals, as evidenced by their part in the English Civil War and the Glorious Revolution. Most Whigs were placated by the Act of Settlement, which firmly established parliamentary supremacy in England. In subsequent centuries, the majority of Whigs became more conservative. Radical Whigs, nonetheless, continued to express their concerns over political despotism (even parliamentary absolutism) in favor of English liberties. These radical Whigs inspired the American revolutionaries who believed that their English (natural) rights were being trampled by parliamentary fiat. For a discussion of seventeenth-century English Whig radicalism and its contribution to American revolutionary thought, see Bailyn, Ideological Origins, 34–54.

13. Hanz argues that the “master assumption of American political thought” is “the reality of” the Lockeian notion of “atomistic social freedom” in this country. He suggests that it is “instinctive to the American mind, as in a sense the concept of the polis was instinctive to Platonic Athens or the concept of the church to the mind of the middle ages” (Hartz, Liberal Tradition, 62).

14. Whereas Locke grounds his social contract theory on the laws of nature and inalienable rights bestowed on man by God, Kant appeals to idealist metaphysics. According to Kant’s deontological ethics, the principle of the right comes not from nature but from pure reason. Thus Locke’s natural law liberalism is often characterized as a precursor of Kant’s deontological liberalism. For a historical account of the liberal tradition that is largely unfavorable to the possibility or desirability of rationally ordering society along liberal principles, see Michael J. Sandel, Liberalism and the Principles of Justice (Cambridge: Cambridge University Press, 1982), 117–19.

15. Immanuel Kant, “The Metaphysical Elements of Justice,” pt. 1 of Metaphysics of Morals [1797], trans. John Ladd (Indianapolis: Bobbs-Merrill, 1965), 43. Kant is concerned with moral, not political, freedom, but his deontological ethics have become the foundation of liberal political arguments.

16. John Stuart Mill, On Liberty [1859] (Indianapolis: Liberal Arts Press, 1956), 13.

17. Patrick Devlin, “Morals and the Criminal Law,” in The Enforcement of Morals (London: Oxford University Press, 1968), 1.

18. Herbert L. A. Hart, Law, Liberty, and Morality (Stanford: Stanford University Press, 1963), 22–23.

19. For a discussion of the debate in the context of the enforcement of morals generally, see Noel B. Reynolds, “The Enforcement of Morals and the Rule of Law,” in Perspectives in Mormon Ethics, ed. Donald G. Hill Jr. (Salt Lake City: Publishers Press, 1983), 113–44.

20. Ronald Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press, 1977), 206–22.

21. John Rawls, Theory of Justice (Cambridge: Harvard University Press, 1971), 364.

22. Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), 165–68.

23. Rawls, Theory of Justice, 550.

24. For a discussion of Mormon theological ideas on free will, see Sterling W. McMurrin, The Theological Foundations of the Mormon Religion (Salt Lake City: University of Utah Press, 1965), 77–82.

25. For an account of how Charles Grandison Finney’s revivalism of the Second Great Awakening contributed to transformation of Calvinistic pessimism into “the Arminianized Calvinism called evangelicalism” with an emphasis on human perfectibility, see Klaus Hansen, Mormonism and the American Experience (Chicago: University of Chicago Press, 1981), 54–68.

26. More than half of Hobbes’s Leviathan (1651) is devoted to justifying sovereign control over religious matters.

27. Journal of Discourses 10:57–58.

28. Thomas O’Dea argues that the Mormon position on church and state was Lockean in orientation even as it was theocratic internally. O’Dea claims that even though Mormon leaders were “permeated by the democratic notion of government characteristic of their time and place,” they “never worked out consistently the political implication of their religious philosophy” (The Mormons [Chicago: University of Chicago Press, 1957], 168–71). I believe O’Dea’s transferred confusion comes from the seeming paradox of reconciling a theocratic community within, with a liberal society without. If the reach and limits of these different normative systems is understood, apparent antinomies, although difficult, become resolvable. For a related discussion of the problem of congruity between utopian thinking and liberal traditions, with Joseph Smith viewed as an example of a leader faced with this dilemma, see Crane Brinton, “Utopia and Democracy,” Daedalus 94 (Spring 1965): 348–66.

29. See, for example, History of the Church 3:304, 5:289–90, 6:56–57 (Joseph Smith); and Journal of Discourses 3:71 (Orson Pratt), 24:67 (Erastus Snow), 21:31 (John Taylor). See also President Ezra Taft Benson, “The Constitution: A Glorious Standard,” Ensign 17 (September 1987): 6–11; and Jay M. Todd, “A Standard of Freedom for This Dispensation: An Appreciative View of the U.S. Constitution in Its 200th Anniversary Year,” Ensign 17 (September 1987): 12–19.

30. History of the Church 6:57.

31. Reynolds vs. United States, 98 U.S. (Otto) 145, 164, 165 (1878).

32. Lawrence Tribe, American Constitutional Law (Mineola, N.Y.: Foundation Press, 1978), 838 n. 13. See also Edwin B. Firmage, “The Judicial Campaign against Polygamy and the Enduring Legal Questions,” in this issue of BYU Studies, 91–117.

33. Wisconsin vs. Yoder, 406 U.S. 205, 220 (1977).

34. See R. Collin Mangrum, “Furthering the Cause of Zion: An Overview of the Mormon Ecclesiastical Court System in Early Utah,” Journal of Mormon History 10 (1983): 79; and Firmage and Mangrum, Zion in the Courts.

35. Journal of Discourses 22:186.

36. Ibid., 22:115.

37. See Wallace vs. Jaffree, 472 U.S. 381 (1985) as the most recent of a long line of school prayer (moment of silence) cases.

38. See Edwin B. Firmage, “Religion and Politics: The First Amendment and the Third Commandment” (Address delivered at Bryant College, Smithfield, Rhode Island, 29 March 1986).

Richard C. Mangrum

BYU Studies Publications