Let’s read the Book of Mormon as a commentary on American constitutional law and vice versa. Alma 30:7-10 reads:
Now there was no law against a man’s belief; for it was strictly contrary to the commands of God that there should be a law which should bring men on to unequal grounds. For thus saith the scripture: Choose ye this day, whom ye will serve. Now if a man desired to serve God, it was his privilege; or rather, if he believed in God it was his privilege to serve him; but if he did not believe in him there was no law to punish him. But if he murdered he was punished unto death; and if he robbed he was also punished; and if he stole he was also punished; and if he committed adultery he was also punished; yea, for all this wickedness they were punished.
The regime of religious freedom here draws a stark contrast between belief — against which there is no law — and the privilege to serve God on one hand, and the wickedness for which a man could be punished, “unto death” even, on the other. It is a dicotomy that will be familiar to students of American constitutional law. In 1879, the Supreme Court issued its decision in Reynolds v. United States, upholding the Morrill Anti-Bigamy Act of 1862, which was designed to criminalize Mormon polygamy. Writing for the Court, Chief Justice Waite stated:
Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice? (98 U.S. 145, 166 (1879))
Nineteenth-century Mormons were none too pleased with the Court’s decision in Reynolds. For example, in a lengthy pamphlet that he penned in response to the Court’s decision, George Q, Cannon wrote:
Whenever religion has been denounced, persecuted, and its believers punished, their heresies have always been described in very much the same way that the plural marriages of the Latter-day Saints have been. The ground for punishment has always been that the religious observances of the victims were violative of social duties or subversive of good order. History teaches us that it is not a difficult thing to obtain pretexts for imprisoning and killing people of an unpopular religion. Catholic and Protestant, Episcopalian and Presbyterian, Quaker and Baptist, Infidel and Jew, have each in their turn suffered for carrying their opinions into practice.
As far as I know, however, no Mormon ever noted the similarity between the approach announced by the Court in Reynolds and the rule put forward in Alma 30.
This rule is given in the context of the story of Korihor, where it is offered as an explanation of why the law does not prohibit his blasphemous speech. Indeed, the story itself can be thought of as a kind of extended meditation on the relationship between law and impiety. In many ways, the Korihor story resemebles the story of Sharem told in Jacob 7. Both stories involve Anti-Christs who, after successfully preaching their false doctrines have a confrontation with the leading Nephite prophet, from whom they seek a sign. In response God smites the Anti-Christ, who then meets an ignominious end after confessing his sins. The Korihor story, however, departs from the earlier model given in the Sharem narrative in that there are actually three confrontations between Korihor and Nephite leaders. Furthermore, these confrontations — unlike those in the Sharem story — take the form, at least in part, of a legal trial. Indeed, the successive confrontations between Korihor and the Nephite leaders seem to be the rise of Korihor’s “case” through the appellate system of the Nephite judges.
Strikingly, while Korihor is extremely verbose in the story until he confronts Alma at its climax, all of the judges are mute before him. Indeed, by this point in the Book of Mormon Alma is no longer the chief judge and when Korihor is brought before Alma and the unnamed judge the judge remains mute. The law is thus literally rendered silent in the face of Korihor’s impiety. He is, however, ultimately punished for his wickedness but it is only after he himself asks for a sign. One way of thinking about this is that Korihor is punished only after consenting to that punishment.
Where does this leave the belief action distinction memorialized in Alma 30:7 and Reynolds v. United States? I am not quite sure, but it strikes me as worth while to think about these two texts in tandem. In Alma 30, the rule ultimately renders the law impotent in the face of impiety. In Reynolds, by contrast, it serves to empower the law to punish religious behavior. (Which, of course, is what the Court did with a vengeance in the Raid of the 1880s.) Of course, the Book of Mormon doesn’t necessarily condemn the impotence of the Nephite law. (Although, there is a faint hint of this. Korihor begins his legal odyssey when he is seized not by the Nephites, but by the people of Ammon, who we are told “were more wise than many of the Nephites; for they took him, and bound him, and carried him before Ammon, who as a high priest over that people.” Ammon, however, is not clearly a judge, and he too remains mute.) Ironically, it is also not clear that Mormon theology ultimately condemns Reynolds. On the Mormon view, God intervened in the Saints’ struggle with the federal government not by smiting their enemies — as many of them expected in the dark times of the 1880s — but rather by surrendering to the force of the law. In the end, the desirability of the belief-action distinction in Mormon texts remains ambiguous, but there is a sense in which Korihor and Reynolds provide mirror images of one another, showing how the legal conceptualization of religion as belief both empowers and limits the state.
This post is sexy.
That is all.
For the non-lawyers: The United States Reports are the official bound volumes containing US Supreme Court decisions.
All I know is Sally Barringer Gordon has stated that Reynolds v USA is a very important law that is still used today, including in the FLDS issue now at hand.
I’m sure that the verdict handed down on Korihor had an impact on future anti-Christs as well. ;-)
Oh, this is GOOD, Nate! Thanks.
D&C 134:4 also seems to support a Reynolds-esque distinction between restrictions on belief and conduct:
“We believe that religion is instituted of God; and that men are amenable to him, and to him only, for the exercise of it, unless their religious opinions prompt them to infringe upon the rights and liberties of others; but we do not believe that human law has a right to interfere in prescribing rules of worship to bind the consciences of men, nor dictate forms for public or private devotion; that the civil magistrate should restrain crime, but never control conscience; should punish guilt, but never suppress the freedom of the soul.”
Religious conduct can be limited by government when the religious practices “infringe upon the rights and liberties of others,” but the government may not “bind the consciences of men.”
I tried posting this a moment ago, I’ll try again –
I noticed a similar Reynolds-esque flavor in D&C 134:4:
“We believe that religion is instituted of God; and that men are amenable to him, and to him only, for the exercise of it, unless their religious opinions prompt them to infringe upon the rights and liberties of others; but we do not believe that human law has a right to interfere in prescribing rules of aworship to bind the consciences of men, nor dictate forms for public or private devotion; that the civil magistrate should restrain crime, but never control conscience; should punish guilt, but never suppress the freedom of the soul.”
This seems to support the action-belief framework – if a religious practice “infringes upon the rights and liberties of others” then it seems okay for the exercise to be limited; but the government can “never control conscience” or “bind the consciences of men.”
I would offer a more cynical characterization of the judgment of Korihor. I would word it like this:
In Joseph Smith’s world, atheism could disqualify a witness’s testimony in a court of law. Even a Universalist’s testimony might be questioned by some individuals who failed to make proper distinctions of belief, which could be debated between the prosecution and the defense when arguing whether or not to allow important evidence from a possible atheist. Incredible as this judicial ambiguity about religious freedom must sound to most Americans today, so it was in the days of the Book of Mormon.
We see this same mixed feeling in the account of the antichrist Korihor (Alma 30), who was in fact an outright atheist. The text states repeatedly that Nephite law during the reign of the judges stipulated absolute freedom of religious belief, in order to ensure the equality of all citizens (verses 7, 9, 11, 12). Yet the text is not absolutely happy about this equanimity: “And this Anti-Christ, whose name was Korihor, (and the law could have no hold upon him) began to preach unto the people that there should be no Christ.” (Alma 30:12)
Korihor enjoys his right to be bad until he makes the mistake of going over to the land of Jershon to corrupt some former Lamanites who, if converted Christians, are not so liberal with freedom of conscience. Notably, like many Americans of Joseph Smith’s day, the narrator does not really like the law which protects the freedom not to believe: “But behold they were more wise than many of the Nephites; for they took him, and bound him, and carried him before Ammon, who was a high priest over that people.” (v. 20) From there, Korihor’s civil rights go downhill as he is bounced from one authority to the next, and finally sent back bound before Alma, who was backed by an unnamed “chief judge who was governor over all the land,” v. 29. Alma does not suggest releasing Korihor in conformity with the previously-emphasized law of religious freedom, but goads the prisoner until he demands a supernatural sign, just like Nehor had done centuries earlier. The pesky law is no longer a problem: Korihor is stricken miraculously dumb, and finally trampled to death by apostates who have seceded from the Nephites (verses 50-59).
Rick: A couple of quick points. The rule announced in Alma 30 is the only place in the Book of Mormon where a legal rule is explicitly derived from a scriptural text — in this case Joshua 24 — and elsewhere in the Book of Mormon the narrator is pretty explicit about condemning unrighteous or wicked laws. Hence, I think that it is a hard sell exegetically to see this as a condemnation of the rule of religious leniency. Also, the reference to the people of Ammon is unclear. Are they more wise because they silenced Korihor, or because unlike the Nephites in verse 18 they are not led into whoredoms. (As I pointed out above, Korihor is pointedly NOT silenced by the law in the story.) If the binding of Korihor was a violation of the law, why doesn’t he complain of the fact? In particular, he seems eager to point up Nephite hypcrisy. If I am supposed to read him as a kind of stand in for Tom Paine, why isn’t he thundering about civil liberties? Incidentally, I think that you are getting Sharem and Nehor confused. Nehor appears in Alma 1, which would put him within the lifetime of both Alma and presumeably Korihor. Nehor is actually interesting in comparison to the Korihor story because Nehor is the anti-Christ who actually does propogate religious teachings in order to get wealth. He ultimately murders a man — Gideon — and is brought up for trial before Alma — who is still chief judge at that point. Interestingly, however, the trial narrative starts with a condemnation of priestcraft rather than murder. Priestcraft is seen as the evil and murder is the natural consequence of it. The law then executes Nehor. If we understand the Nehor story as being about the execution of somone for the sin priestcraft, then the Korihor story becomes interesting for two reasons. First, it problematizes the attempt to read the rule in Alma 30 as being a straight forward endorsement of religious freedom. Second, Korihor accuses Alma and other religious leaders of preistcraft, which is exactly what the law DOES prohibit. My point is not to get into a debate about Book of Mormon historicity, but rather to get at the meaning of the text itself. It seems to me that it is quite a bit more complicated than your reading suggests.
Good stuff.
Wow, great, thought-provoking post.
Nate: I certainly agree with you that your post need not involve issues of historicity. And I believe all such explorations are valid and interesting. Yet, just as in literature classes where involved discussion sometimes infuses more meaning into various modern works than the writers ever could have intended consciously, I believe it is possible to work any text to death. And I suppose if I were not heading out of town soon for the holiday, I might take each of your sentences and formulate my individual reactions (possibly even agreeing or conceding in some parts). However, I will say that something just does not feel quite right to me here, and my sense is that we are betraying more “plain and precious” interpretations which I feel would spring from the Book of Mormon accounts in question for most readers who were not seeking to make certain things fit. I think the narrator of the Book of Mormon did not really like the idea of religious liberty for atheists. And that fits perfectly into 1820s Northeastern American issues of the time.
It says later in Alma that Korihor was “run upon and trodden down, even until he was dead”.
Chariot accident? Wilding teenagers? Bull running festival? Ritual punishment? Marching army? Frenzied mob? Fire in a disco?
Any thoughts?
Joseph taught “the things men believe in are the things they do.”. Is it possible to restrain action without impeding belief?
A couple of quick points to which Rick, alas cannot respond. First, I don’t assume that the meaning of a text is fixed by the intentions of its author. This argument could get very deep and very technical very fast. In addition to disagreements about the way that meaning gets fixed, however, I suspect that what counts as over-reading is influenced decisively by one’s assumptions about how the text was created. If you think that it was a laborious redaction of several ancient authors of underlying source materials, you are likely to entertain more complex readings of the text. If you think that it is a bit of frontier fiction dashed off by an unschooled but gifted young man at breakneck speed, you are likely to be less sympathetic to elaborate close readings of the text. I don’t see that there is much one can do about such perceptions other than engage in debates about historicity, which I am not all that eager to wade into. (Been there; done that.)
Second, I agree that the attitude of the Book of Mormon narrator toward the Nephite law in Alma 30 is complex. It is certainly not overtly celebratory, but it also does not condemn this law, and it at the very least puts it in the context of religious and political legitimacy. I think that the story is about the impotence of the law rather than the dangers of toleration. The narrator is clearly completely unsympathetic to Korihor’s atheism (or agnosticiism; Korihor equivocates on the issue.) Hence, I suspect that Rick and I are actually pretty close on this issue, although I think that I am willing to grant the text greater subtlety in its construction.
As for reading the text in light of early 19th century law, Rick actually doesn’t go far enough. In particular, early 19th century law did more than simply not allow atheists to testify. In many states it also made blasphemy — that is speech attacking religion — a crime. In addition, sedition and slader provided further legal sanctions for certain kinds of speech. Hence, I suspect — it has been a while since I looked at this stuff — that the law in the Northeast of the 1820s was actually more repressive in some sense than the rule announced in Alma 30.
Sheldon: D&C 134 is an interesting text as well. The history suggests that it was authored by Oliver Cowdrey and may have actually been added to the canon at a conference that Joseph didn’t attend and done without his knowledge. If one contrasts it to Alma 30 it seems to be a lot more ideologically simple. The Korihor narrative does leave the read scratching their head as it were as to the desireability of the belief-action distiction for the narrator. The voice in 134 is a much more confident.
I have thought that the muteness of the judges was likely due more to space and time which restricted the story down to its pertinent points. It is possible that Korihor’s glib tongue was able to dance circles around the judges, rendering them not mute, but unable to counter his argument effectively. Part of the purpose of the text would be to show that even the most honeyed of words cannot persist against one who is guided by the Spirit of the Lord, even when others are at a loss.
Also, Korihor did commit crimes worthy of punishment. In Alma 30:31-32, he made some rather slanderous claims that stepped out of the bounds of belief and into direct accusation. These accusations were easily refuted, proving that he was lying, which under their law was punishable. In this way, the showdown between Alma and Korihor becomes more of a prosecution/defense situation taking place before the judge which would explain why the judge’s words take such small part in the proceedings. He is mostly listening. When the final result comes in, the judge speaks in (relative) neutrality and upholds the natural punishment which resulted from the confrontation, rather than applying an additional punishment as dictated by the law.
I’m not sure how accurate this take is, but it does cast the encounter in a slightly different light. I also think George Cannon’s passage was not so much contradicting the rights of the State to apply law to actions springing from belief, but was pointing out the potential for abuse.
Re: #12 – I told my Primary class that they kicked him to death. Incidentally, the shortness of the Book of Mormon means I spend a lot more time on violence than I ever had to with the Old Testament. Nothing like telling eight-year-olds “they threw stones at him till he was dead.” I assume it was a frenzied mob, though it probably resembled that whole “let’s stone her” moment in the New Testament.
Curiosity: did any pre-seventh-century (BC) cultures have civil protections for atheism or blasphemy?
Perhaps the observation that the people of Ammon were more wise is a reference to the fact that they had a slightly different legal system. Just becasuse they shared a military alliance (and perhaps a political system too) doesn’t mean that their laws were the same. I live in a vary large political/military federation (USA) in which there are many different local legal systems. Perhaps the people of Ammon bound Korihor because their law allowed them to do so. It reminds us how important it is to maintain our laws.
It is not that I “alas cannot respond” to each of your many points, Nate, as that I do not have the energy or time at the moment to engage in the level of research and analysis which I would demand of myself, except on those points which strike me as actually relevant and least distracting to my central perspective which I tried to express. As you say, these things can quickly “get very deep and very technical very fast . . .” It is not my purpose to threadjack your interesting post. My main reaction is not to your central discussion of comparison with later nineteenth-century issues, but to a hint of underlying suggestion that the way Korihor was treated by the Nephites was, in some measure, satisfactory.
You are surely correct when you allow that “Rick and I are actually pretty close on this issue . . .” I thank you for your generosity, and agree entirely with your extremely well phrased observation that “. . . what counts as over-reading is influenced decisively by one’s assumptions about how the text was created. If you think that it was a laborious redaction of several ancient authors of underlying source materials, you are likely to entertain more complex readings of the text. If you think that it is a bit of frontier fiction dashed off by an unschooled but gifted young man at breakneck speed, you are likely to be less sympathetic to elaborate close readings of the text.” And once again, like you, I do not mean, at the core of my comments, to descend into a debate over Book of Mormon historicity here, loom ever so large that 800 lb. gorilla at the back of this room. For my own peace of mind, however, let me conclude by reiterating my take on the story itself, and then I’ll shut up and start packing for vacation. Thank you for introducing this engaging topic.
Alma 30 is a strikingly didactic piece from beginning to end. Korihor rehearses the most prominent atheist arguments of Joseph Smith’s time and region. And as in Joseph Smith’s country, Korihor can hold such views with impunity, protected by laws designed to assure that no state-supported church will abuse the status of certain less privileged – but most righteous Christians. But Alma’s more idealized culture grants less freedom of speech to the wicked man than would be the case in nineteenth-century America. The Book of Mormon’s judges could not punish Korihor for preaching atheism, but they were happy to tolerate kidnapping and forced hearings before ecclesiastical authorities.
The chief judge/governor himself stands by silently as Alma interrogates Korihor. This silence reflects no more judicial propriety, however, than frustrated powerlessness. If “the law could have no hold upon him” (Alma 30:12), the secular officials privately wished that it could. The judges are happy to stand by threateningly while priests provoke. I sense a chilling shadow here of sixteenth-century inquisition, wherein the church did the interrogation, then “released” the heretic to the secular arm for the burning. But this was not Spain, and the Book of Mormon is written for latter-day Americans whose laws will not condemn atheists. So there must be a more pragmatic solution, in which inconvenient legalities can be circumvented by divine contingency: “But behold, it is better that thy soul should be lost than that thou shouldst be the means of bringing many souls down to destruction, by thy lying and by thy flattering words; therefore if thou shalt deny again, behold God shall smite thee, . . .” (Alma 30:47; compare to 1 Nephi 4:13).
Does the highest leader of the land say, “Mr. Alma, this man has been abducted and brought before us without due cause, and we have no authority to detain him.” He does not, any more than did the chief judge of the land of Gideon, who not only allowed priest Giddonah to lecture and incite Korihor, but who actually dignified kidnapping by having his officers transport Korihor to be questioned by priest Alma who was morally and physically backed by the governor. And does Korihor protest that his civil rights have been violated? He must not, because such interruptions to the story, however logical and expected, would be counter-productive to the didactic narrative in which righteousness prevails, no matter the cost to its own stipulated legal procedure.
Silver Rain (#15) notices that in Alma 30:31, Korihor’s reviling goes so far as to accuse the priests and teachers of financial abuse, an accusation which if “easily refuted” would have been punishable by Nephite law, provided that it were a deliberate lie. But the only refuation in the text was Alma’s denial of the accusation. One man’s testimony against another. “The world is cheated into unquestioning submission to the arbitrary requisitions of those who profit by the despotic customs of priestcraft,” claimed an atheist publication printed in New York the year before Joseph Smith dictated the Book of Mormon. “. . . All occupations of utility must be suspended . . . Priests alone may make money on Sundays . . . The honest dealings of a man in things natural, to assist in supplying the means of supporting himself and family, must draw down . . . prosecution . . . incited by the arrogant and rapacious ministers of religion, to rob and impoverish him . . . while . . . priests of abominable imposture gain wealth by duping the ignorant with absolute falsehoods, terrifying them into awe and slavery by means of their lying representations of a power . . . able to do that which is not natural, to cause that water shall be wine, or any other impossibility!” (B[enjamin]. F. Powell, The Bible of Reason: Or, Scriptures of Modern Authors. Selected and Written by B. F. Powell. [New York: George H. Evans, 1828], 117-18).
Such invective could not go unanswered. In their hearts, the more righteous Book of Mormon citizens and their narrator privately believed that it was the less legally punctilious people of Ammon who had grabbed the right end of the stick in silencing Korihor by taking the first initiative of seizing and deporting him, for “behold they were more wise than many of the Nephites; . . .” (Alma 30:20; why were they more wise? “. . . for they took him, and bound him, and carried him before Ammon . . .”). The cynicism of this story is not mine. It comes from the narrator himself, who winks at the law and wants things to run more his way than would be possible in modern America.
“It is not that I “alas cannot respond†to each of your many points, Nate, as that I do not have the energy or time at the moment”
That is what I meant. I didn’t mean to imply that my arguments were somehow unanswerable.
#18 seems to be saying that we know the narrator was kicking against the limits of 19th century law and we know this because the narration doesn’t follow the conventions of 19th century law. Which is circular.
A slight correction or clarification to some of the comments above: the people of Ammon, after carrying Korihor before Ammon, simply escorted him to their borders and set him free, without harm or punishment. Korihor then took up his preaching again in the land of Gideon, which is how he ended up before Alma[2].
It’s also worth noting that the Nephites were far from being monolithic religiously. The Order of Nehor was well-established and at times appears to have been dominant among the Nephite population; other groups were around as well, such as the Zoramites and the people at Ammonihah. It’s also unclear how many of those Nephites who were following the law of Moses accepted Alma[1]’s “Church of God”; while he and his successors had lots of baptisms, they were far from universal, and Alma[1], Alma[2], Helaman[1], Helaman[2], and Nephi[2] spend a lot of time “setting the [Church of God] in order”.
Religion among the Lamanites is a bit fuzzier. I suspect the order of Nehor was established (and possibly common) there, due to the flow of ‘dissenters’ from Nephite lands. The “priests of Noah” also established a religious community of some kind among the Lamanites as well. You have a reference to what may well have been some form of licentious religious conduct with “the harlot Isabel” who is in “the land of Siron among the borders of the Lamanites” (on the other hand, she may just have been a really hot babe). Reference is made to “temples”, “synagogues”, and “sanctuaries” as Lamanite religious buildings.
When the king over all the Lamanites coverts to the Church of God, he issues a decree allowing their missionaries to preach throughout Lamanite lands; the end result is a civil war, largely forced by the Nephite dissenters, and the Church of God converts — staunch pacifists — must choose between death and fleeing into Nephite territory. They eventually choose the latter, and we end up with the incident that Nate cites — which also implies a certain degree of political autonomy for the people of Ammon even after they move into Nephite territory. ..bruce..
I have stayed out of this discussion until now, since my contribution would have been a simple, “Interesting thoughts in the post and comments, but they don’t reflect a comprehensive picture of the civilization in question.” Bruce said it well in #21. We tend to overgeneralize each of the societies in question into a coherency that gives us the chance to analyze them, but the record itself just doesn’t support that type of generalization.
I also think we tend to take everything and liken it unto ourselves. I am not opposed to that concept, at all, but I’m not sure Mormon had our specific institutions in mind when he picked and chose what to include. After all, he complied it for ALL who would read it, not just for all Americans.
Ray: I am not convinced that the best way to read the Book of Mormon is as a window for understanding a comprehensive picture of the civilization in question. If the point of the Book of Mormon were for us to understand Nephite civilization I think that it would be better adapted to that purpose. This is certainly not what the book itself announces as its purpose. There is a sense in which Mormon anxiety about the historicity of the text has systematically distorted how we read it, particularly in the last twenty or thirty years.
I think that we would be well-served by thinking about the Book of Mormon first and foremost as a carefully constructed text, and that our task should be to figure out what that text is saying. This a different project than using the text to understand Nephite society. Notice, it is an understanding of the text that ultimately carries assumptions about historicity, so it is not a stance that one adopts to dodge taking a position on that question. It simply says that we should read the Book of Mormon as a text first, and as evidence of Nephite civilization only as a secondary matter.
Nate (#14),
Until you wrote this, I hadn’t connected the permissiveness of belief in this context with the considerably stricter attitudes toward speech. Does this — either the Alma verses or the 19th century law — tell us something about the demise of the Expositor?
Of course, one could respond by pointing out we have greater religious freedom here in American than just about anywhere else, and therefore the stories would be applicable anywhere. (And before anyone jumps in with “Canada!”, I’ll simply point out the travesty at the British Columbia “Human Rights Tribunal”.) Freedom of religion includes the freedom to point out what’s wrong with other religions — which is what Korihor claimed he was doing.)
I’ll also second Nate’s comments that Mormon did not set out to produce a history of the Nephites (sigh). Compare, say, what we know of Jewish and Roman history from the New Testament vs. from Josephus and from Roman records, and in turn what we know about Christianity and the early Christian churches from Josephus and Roman records vs. from the New Testament. In the Book of Mormon, we get lots of tantalizing glimpses of an incredibly complex and diverse (and, yes, Dan, multi-polar!) set of societies, but that’s about it.
There was a fascinating article a few years back in JBMS in which the author (Steven L. Olsen) proposed that Mormon consciously patterned his abridgment after the small plates of Nephi. The article is “Prophecy and History: Structuring the Abridgment of the Nephite Record” (Journal of Book of Mormon Studies, Vol. 15, Issue 1 [2006]). Definitely worth a read. ..bruce..
I think that it is impossible to understand the Expositor incident outside of the context of 19th century law. Oaks makes a good case for the legality of the suppression of the paper — if not the destruction of the type — in his Utah Law Review article on the issue. I’ve seen folks dismiss it, but I’ve never seen anyone engage his substantive arguments. There was certainly a lot of legal suppression of speech in 18th and 19th century America. Indeed, going back to the Zenger cases freedom of the press was primarily conceived of as being about the absence of prior restraints rather than immunity from ex post legal consequences. When it comes to freedom of speech and religion it is dangerous to assume that the particular bundle of rights that we regard as natural somehow constitutes the necessary content of these concepts.
That said, one thing that Oaks’s article on the Nauvoo Expositor is insufficiently attentive to is the role of what is called “Popular Constitutionalism” by legal scholars today. There was a strong notion in 18th and 19th century America that the people could engage in legitimate, extra legal democratic violence to vindicate constitutional values if not the letter of legal doctrine. I think that it is pretty clear that many of the anti-Mormon “mobs” were actually examples of this sort of thing. (As were the Mormon mobs that ran off early federal appointees in Utah, I might add.)
Hence the Expositor affair must be understood within a context in which the contours of free speech, legal suppression of speech, and the legitimacy of extra legal violence were very different than they are now. This is one of the reasons why the two traditional narratives of the event — Joseph Smith as dictatorial and un-American tyrant and anti-Mormon mobs as wild-eyed religious bigots — are not quite right. Rather, you have a cocktail made up of competing strands of American thinking about freedom of the press and the vindication of constitutional values played out in the idiosyncratic context created by the Mormon restoration and the political theology of the later Joseph Smith.
bruce: Why the sigh? It seems to me that the proper response to this point is not lamentations over the absence of a Nephite Josephus but rather a closer engagement with the text of the Book of Mormon.
Thanks for the further thoughts, Nate.
If anyone is interested, I have an extended discussion of the Oaks article in a paper entitled “Three Generations of Mormon Legal History” that you can download from SSRN here:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=988178
Thanks for the thoughts, and the additional article, Nate.
“I am not convinced that the best way to read the Book of Mormon is as a window for understanding a comprehensive picture of the civilization in question.”
Nate, I agree. That’s what I was saying, even if I didn’t say it well. Since the Book of Mormon doesn’t give us that kind of window, I am very wary of extrapolating meanings from the text that appear to be presenting a comprehensive view. I said, “We tend to overgeneralize each of the societies in question into a coherency that gives us the chance to analyze them, but the record itself just doesn’t support that type of generalization.” What I meant is that there is no coherent, comprehensive presentation of how the civilization as a whole (or even the judicial system in general) worked in the Book of Mormon. It is a very limited view – a very, very, small and narrow slice of life.
Honestly, I personally think Mormon included Korihor simply to try to show that bad guys shouldn’t be supported and one way or another will come to a bad end. I don’t think he meant it to be dissected as a political foundation for future societies, so, even though I like efforts to dissect what it says about that society, I don’t like efforts to equate that to how ours should function – to equate it with the “correct” way to run a government or a judiciary. I would feel that way even if I thought if did present a comprehensive picture of that day; since I don’t, I’m even more hesitant. (I’m not saying your post tries to do that, but I got that vibe from a few comments.)
While I like what you wrote, and I really do find it and the comments interesting, I just hesitate to ascribe reasons for the binding of Korihor – or try to explain the relative silence of the judge – or comment on the legality of the actions of the players – or describe the possible differences between Nephite justice and Anti-Nephi-Lehite justice – or state whether or not some people ignored the law in order to deal with someone they didn’t like – or make any other assumptions that I don’t think are explained in the text or can’t be inferred only from it without using our own modern systems and biases as the interpretive base.
Other than that narrow concern, I really do like the post and most of the comments.
I have no problem with human sacrifice – given that the sacrificee is of sound mind, fully informed, and past the “age of consent”. Same with the funeral pyre. It’s when one forces another (against their will) where the problem arises.
I have no problem with human sacrifice – given that the sacrificee is willing, of sound mind, fully informed, and past the “age of consent”. Same with the funeral pyre. It’s when one forces another (against their will) where the problem arises.
Cool post. The phrase “unequal grounds” has always stood out to me in Alma 30:11. See also Mosiah 27:3 (“And there was a strict command throughout all the churches that there should be no persecutions among them, that there should be an equality among all men”) and Mosiah 29:32 (“And now I desire that this inequality should be no more in this land, especially among this my people; but I desire that this land be a land of liberty, and every man may enjoy his rights and privileges alike …”).
Just as Alma 30:7-10 endorses a belief-action distinction, these scriptures seem to understand “liberty” as something rather limited: the absence of persecution/compulsion. That is a more modest “liberty” than what my schooling in First Amendment jurisprudence tells me the “free exercise” half of the Religion Clause ought to guarantee. In other words, the tension between equality and liberty that has animated many Religion Clause battles is not apparent in the Book of Mormon.
Anyway, the narrative surrounding Mosiah 27:3 is interesting in light of this post. There the religious “equality” norm is protecting the Nephite believers from persecution. Perhaps the law remained silent in the face of a Korihor due to the pragmatic insight that persecutors can quickly become the persecuted as religious majorities wax and wane.
A thought about “freedom of the press” in 19th century America.
The other day I came across a small 19th century pamphlet published in Baltimore. It was lauding how the folks in Jackson County took care of the Mormons. One thing in particular stood out to me. The folks in Jackson County held a meeting and voted that the Mormon press should be destroyed and any further publishing and printing by Mormons in Jackson County was declared illegal. Interesting legel action, especially considering what happened later in Nauvoo with the Expositor.
There was actually a pretty good article in Law & History Review recently on the suppression of presses by groups of citizens acting outside of formal legal challenges. What the author points out is that these “mobs” were not wild ad hoc crowds. They tended to be very formalized, legalistic (as opposed to strictly legal) affairs that enjoyed widespread legitimacy.
The most frightening fallout from Reynolds is the fact that a government now has the ability to exert control over religions. And one fear that the church has (and I think rightly so) is that if the people of the US do not protect themselves now by passing consitutional amendments in states and nations defining marriage as between one man and one woman, eventually the government can force the church to recognize gay marriage, just like the government punished the church (to dissolution) to not practice polygamy. Now only religious belief is allowed, not conduct. And if our conduct (e.i., decrying homosexuality and gay marriage) is viewed as discriminatory, the government would have the same legal right to prosecute us as they did in the 1880 raids. History has already proven this to be true, the government has never apologized, and the courts still hold this interpretation to be true. That’s why the brethren have led the church PROPHETICALLY, and that’s why members who DISOBEY are DISLOYAL to the church. Those disloyal to the church now are worse than Korihor, because they lead member’s of Christ’s church astray from the INSIDE OUT.
#37 – There’s nothing like hyperbole to make a point. Frankly, the last sentence is not worth addressing in any way other than to say it’s not worth addressing.
A couple of points worth mentioning. To the people of Ammon, the practice of capturing, binding, and delivering trespassers to the ruler was not new. Remember, they did the very same thing to Ammon himself, when they captured and brought him before Lamoni. Old habits don’t die easily. As we know, many converts bring with them traditions that are often contrary to the culture and even the practice of the church. I doubt that Ammon condoned it.
Just because the Book of Mormon doesn’t not describe Ammon’s encounter with Korihor, it does should not be interpreted that Korihor was deported in silence. BoM is not a history book, let alone a volume on Nephite “case law” or “civil procedure”. Besides, both Ammon and Alma were high priests, so while they deferred to civil authority for matters of secular law, they did have ecclesiastical jurisdiction and an applicable law. Verse 7 states that “it was strictly contrary to the commands of God that there should be a law which should bring men on to unequal grounds”. What commands of God are being referred to here? Back to verse 3: “Yea, and the people did observe to keep the commandments of the Lord; and they were strict in observing the ordinances of God, according to the law of Moses; for they were taught to keep the law of Moses until it should be fulfilled”. I believe that Ammon and Alma had an ecclesiastical power to enforce the law of Moses, while the judges had no civil law that applied.
So, what does the law of Moses have to do with this? There are specific restrictions proscribed for dealing with unbelievers (ones who did not submit to circumcision). I can’t go into details but segregation of Israel and the unbelievers is one of the prominent themes in the Torah. Long ago, the Lord forbade Israel to yoke two different animals together, such as an ox and a mule (Dt.22: 10). It was cruel to do so, for the weaker animal would work too hard, trying to keep up with the stronger animal. Neither would there have been any escape from the abusive treatment, the weaker animal being yoked to the stronger. Using this analogy, Paul told the saints to not be “unequally yoked” with unbelievers. The problem is not so much that the unbeliever intends to drive the believer away from God. In fact, many times unbelievers respect and seek to associate with believers (saints). The problem is that the natural man’s insensitivity and rebellion to the things of God will, in time, adversely affect some saints who associate with unbelievers day in and day out.
Anyway, in my humble opinion, although Korihor is not subject to the civil law (until later, as others mentions, when he accuses Alma and the church of priestcraft), there is a certain culpability under the law of Moses. I do not see any similarities between the account in Alma 30 and Reynolds v. United States. To the contrary, comparing the two is akin to comparing the American electoral system to the pattern of revelation in calling a new president of the church. The contrast is stark.
> [constitutional amendment] defining marriage as between one man and one woman
What if God decides to restore plural marriage?