Law, Revelation, and the Power of Interpretation
I realize that this is antediluvian in blog time, but last Friday Paul Horwitz had a very interesting post at Prawfs about teaching the Mormon Cases in his Law & Religion class. The Mormon Cases, of course, are the series of the decisions issued by the U.S. Supreme Court at the end of the nineteenth century holding that various laws designed to punish Mormons for polygamy — criminal sanctions, disenfranchisment, and confiscation of property — did not violate the Free Exercise Clause. These cases hold a special place in my heart, in part because it was in first studying them that I became interested in law and second because of my family and religious history, I can’t help but think of these cases as my constitutional patrimony. (Paul’s post also reminds me that I really need to get my paper on the Reynolds case finished and sent off to the law reviews!)
His provocative suggestion is that profs who teach these cases ought to include in their materials the Revelation that Wilford Woodruff, then president of the Mormon Church, published in 1890 announcing the Church’s abandonment of polygamy. He writes:
What is striking about the Revelation is the extent to which the Revelation is an effort to grapple religiously with a set of secular facts. . . .
Surely our thoughts on [Free Exercise Doctrine] will be influenced by our sense of what it means for the state to wrong religion, whether we should speak in terms of a state altering religious practices, and so on; and from the other side, our sense of what religions should or should not seek from the state may depend on our sense of how doctrine is formed, what it means to have a “religious” as opposed to a “secular” response to events in the world, and more.
Indeed. In his post, Paul flags Fred Geddick’s essay, “The Integrity of Survival,” which seeks to problematize the claim that true religious integrity consists of going down in flames when one’s beliefs are attacked. His comments make me think of three other essays. The first is by my mother, who as it happens was the editor of the published version of Wilford Woodruff’s abridged diaries. In her introduction, she argues that Wilford Woodruff, on the run from law enforcement and facing increasingly punitive federal legislation, might have been David Koresh, taking himself and his people down in an apocalyptic blaze of religious integrity. Instead, what she finds powerful about Woodruff was his ability to adapt to events, to resist the temptation of martyrdom, and reinterpret his millennial expectations in ways that allowed both himself and his people to continue their wait upon God. The second essay is by my friend Elizabeth Harmer-Dionne — “Once a Peculiar People: Cognitive Dissonance and the Suppression of Mormon Polygamy As a Case Study Negating the Belief-Action Distinction,” 50 Stan. L. Rev. 1295 (1998). Her argument is that the suppression of religious practices by the state requires from believers a reinterpretation of their religious experience as a way of coping with the cognitive dissonance created by the victory of Caesar over God. Accordingly, the state cannot pretend under guise of formal neutrality that it’s actions do not touch religious belief.
Both of these essays point me toward Robert Cover’s “Nomos and Narrative.” For Cover the role of courts is essentially “jurispathetic.” They are in the business of killing off legal interpretations. Ultimately their ability to do so is sharply limited by the fact that the ability to reinterpret the law vastly exceeds the institutional capacity of courts to label particular interpretations as mistaken. The Mormon abandonment of polygamy is an excellent illustration of this process. The suppression of polygamy forced on Mormonism a theological crisis that required not simply a discrete revelation from Woodruff abandoning polygamy, but a reinterpretation of what it means to be a Mormon. (The persistence of polygamy among so-called “Mormon fundamentalists” bears testimony to the fact that thousands were unable to handle the hermeneutic reconstruction Woodruff and the law forced upon the Latter-day Saints.)
Indeed, the very text that Paul cites is evidence of the longevity of this process of reinterpretation. In 1890 Woodruff issued a letter later known as the “Manifesto” that announced that Mormons had ceased to contract polygamous marriages and that Mormon leaders would counsel their followers not to contract any marriage forbidden by the laws of the land. Ultimately, however, the Manifesto does not purport to be a revelatory text. Rather it is a press release describing an administrative action. It was the action itself that was supposed to have been inspired by God. The text of the Manifesto, however, neither describes nor interprets this revelation. For nearly a century, only the text of the Manifesto itself was included in the Mormon canon. What this meant is that the precise meaning of Woodfruff’s revelation was contested in his own lifetime and in the years after his death. As a result that abandonment of Mormon polygamy was quite a bit messier than traditional accounts suggest. For example, it wasn’t until shortly after 1900 that the Church moved decisively to suppress new plural marriages by excommunicating those who authorized or contracted them. Interestingly, the text that Paul quotes in his post is not from the Manifesto at all. Rather, it is from a text labeled “EXCERPTS FROM THREE ADDRESSES BY PRESIDENT WILFORD WOODRUFF REGARDING THE MANIFESTO,” which is now published along with the Manifesto in current editions of Mormon scripture. These addresses were given by Woodruff in 1890. However, they were not printed in Mormon scripture until 1979, and it is unclear whether or not they have been formally canonized. In short, nearly a century after the fact Mormons were still struggling with the interpretation of the events of 1890. Indeed, in some sense, they still are today and probably always will be.
Hence, looking at the Revelation spawned by the anti-polygamy battles reveals the extent to which legal interpretation (or at any rate the interpretation of legal events) occurs outside of the reports of appellate opinions. The Mormon example is probably useful precisely because of its strangeness to most students. Seeing the common place in an unfamiliar situation can tell you a lot about it. And there is a real sense in which the Mormon response to the polygamy cases was commonplace, despite the exotic notion of modern prophecy and continuing divine revelation. Citizens react to their laws and they tell stories about it to one another. Frequently this extra-legal myth making ends up being more powerful than the legal doctrine that spawns it. Think, for example, of the power that stories about civil rights and judicial desegregation have over our politics, even (and perhaps especially) when those stories wildly exceed the legal doctrine itself. This hermeneutic fecundity is part of the power of the law. In this sense, judicial decisions probably call forth revelation and prophecy more frequently than we suppose.