Love him or hate him, Ronald Reagan has given a great boon to Mormon historians, one which they have yet to really appreciate. I am talking, of course, about the legions of conservative judges that Reagan appointed to the federal bench.
Reagan’s appointments are important because they decisively reshaped the research agenda of constitutional law scholars in the United States, pushing them into research that is potentially illuminating for Mormon history. Prior to the advent of Reagan and his conservative judges the name of the game in constitutional law scholarship was to provide a justification for the next Roe v. Wade. What I mean by this is that the dominant paradigm was for the overwhelmingly left-leaning constitutional law professoriate to pick some preferred policy outcome ? the favorite ones had to do with various government provided welfare benefits ? and then write articles showing that this policy outcome was required by the constitution. The dream of these con law professors was that someday a Supreme Court justice would read their article and adopt it as the law of the United States.
Reagan’s appointments made this entire paradigm passe and rather pointless. O’Connor, Scalia, and Kennedy ? along with a host of like minded appointments to the lower federal courts ? made the ambitions of the con law professors increasingly irrelevant. By the mid to late 1980s they had realized this and a new research agenda emerged: justifying decreased deference to judicial interpretations of the constitution. The reason for this shift is obvious. The courts were now conservative and the law professoriate felt duty bound to do what they could to limit the damage.
The conservatives were, by and large, originalists and hence they cared ? at least in theory ? about history. For a while the law professors spilled a huge amount of ink attacking originalism in all its forms. When this proved ineffective (and boring), the law profs basically decided “If you can’t beat ’em, join ’em,” and turned their attention to history. The first wave of this scholarship appeared in the late 1980s and early 1990s, and largely focused on the idea of “civic republicanism.” This movement lasted just long enough for some otherwise unproductive scholars to secure tenure at prestigious institutions.
The second wave of anti-court constitutionalism is now in full swing and it focuses on “popular constitutionalism.” The basic gist of the argument is that courts are not the only ? or even the most important ? interpreters of constitutions. The ideas, arguments, and narratives created by legal outsiders are at least as important as a source for constitutional doctrine. Of course when the law profs talk about legal outsiders in their heart of hearts they are thinking of themselves, but fortunately for Mormon history liberal con law profs are a relatively recent class of legal outcasts. Accordingly, the law profs have labored mightily to understand and elevate the importance of non-judicial constitutional interpreters. Hence, rather than looking at something like ante-bellum abolitionist constitutional theorizing as simply bad law, it has been reinterpreted as a form of powerful constitutional counter text to the “official” constitution of the courts.
And this is where it gets interesting for Mormon historians. Nineteenth century Mormons made tons and tons of constitutional arguments in their sermons, newspapers, political speeches, etc. The “problem” is that these constitutional arguments were “wrong” in the sense that they frequently bore little relationship to the constitution as it was actually interpreted by the courts of the time. The conclusion has been to label 19th-century constitutional theorizing as (1) hopelessly ignorant; (2) a bit nuts; or, (3) both. Thanks to Ronald Reagan and his reformation of the American con law professoriate’s research agenda, however, we now have a fourth option. We can think about 19th century Mormon constitutional rhetoric as an instance of a now well recognized phenomena: “popular constitutionalism.”
With the exception of some of Sarah Barringer Gordon’s work, no one publishing in Mormon history of whom I am aware has yet made the connection between nineteenth century Mormon history and the post-Reagan constitutional law theorizing. (If I am wrong about this, please send me the citations so that I can read the articles.) What we have are two rich bodies of research that have potentially interesting things to say to one other but which have not yet been connected.