Okay, it is time for another post on Mormon legal history. This one is on the state of the field and where we go from here. As I see it there have been basically three generations of Mormon legal history. The first generation came with the rise of the New Mormon history and basically consists of the recognition that Mormonism has an interesting legal past. A classic example of this is Arrington’s Great Basin Kingdom, that discusses the economic effects of the antipolygamy crusade on Mormondom. These first generation treatments of Mormon legal history were written by non-lawyers and while frequently well-researched and insightful made no pretext of legal sophistication.
The second generation of Mormon legal history is best exemplified by the work of Gordon Madsen. Madsen is a trained lawyer and an indefatigable rumager around in old legal texts. In contrast to first generation Mormon legal history, Madsen’s work seeks to understand that nature of the legal claims and issues at work in various episodes of Mormon history. Hence, rather than simply noting that Joseph Smith was prosecuted for treasure hunting in the 1820s, Madsen seeks to discover what laws he was prosecuted under, what were the issues in his trial, and whether or not the outcome was legally correct. His recent article on Joseph Smith’s Missouri treason trial is second generation Mormon legal history par excellence. He reviews the case in light of then existing law, setting forth procedural and substantive irregularities to conclude that as a legal matter Joseph Smith was improperly tried. The striking thing about Madsen’s work is that his theoretical framework is essentially doctrinal in the legal sense. He uses substantive legal arguments as his interpretive framework to reach essentially legal conclusions. Hence, Madsen’s work is “law office” history in the best sense of the term: well researched, informed by the importance of legal detail, and doctrinally sophisticated. In many ways Ed Firmage and Collin Mangrum’s Zion in the Courts is also a work of second generation Mormon legal history. Although its interpretive framework is not strictly doctrinal, it falls back repeatedly on legal conclusions and struggles to find an alternative interpretive framework.
The third generation of Mormon legal history is best exemplified by Sarah Barringer Gordon’s book The Mormon Question. Unlike Madsen’s work, Gordon does not use legal doctrine as her primary theoretical tool. In contrast to the first generation of Mormon legal history, however, she share’s Madsen’s legal expertise and his attention to legal detail. Her arguments, however, do not ultimately terminate in conclusions as to legal validity or invalidity. Rather, she uses Mormon legal experience as a vehicle for discussing general issues of constitutional development and constitutional history. Gordon is ultimately a historian, and hence her book is not explicitly jurisprudential. She does not use Mormon legal experience to articulate or defend a particular theoretical position on the nature of law in general or constitutional law in particular, other, of course, from the general post-realist thesis that law is a reflection of culture and historical particularity. In other words, she has a historians basic commitment to nominalism. Hence, her work is ultimately concerned with understanding the law, but doing so using tools beyond those of traditional doctrinal analysis.
The language of generations creates an impression of hierarchy or progression that is misleading. Temporally, Mormon historiography has moved from first to second to third generations. However, each is a necessary component for understanding the nature and significance of Mormon legal history. It would be a mistake to think that non-lawyers have no business studying the legal past, or to pooh-pooh “law office” history as naive or unilluminating. Consider the example of the Reynolds case that the Church took to the Supreme Court in the 1870s to test the constitutionality of antipolygamy laws. First generation Mormon legal history would note that the Reynolds case came at a time of increasing federal pressure on the Saints and straddled the end of Brigham Young’s administration. Second generation Mormon legal history would note that Reynolds attacked the both the constitutionality of the Morrill Anti-Bigamy Act, but also quarreled with the proper application of the Poland Act to grand juries and the criminal jurisdiction of the territorial courts. Third generation Mormon legal history would note that Reynolds forms part of the emergence of the idea of the Supreme Court as a protector of individual rights and the beginning of the post-Civil War reconstruction of American constitutional law, as well as raising universal issues of how the concept of religious freedom should be embodied in law.