Strengthening Constitutional Self-Government

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Polygamy and Government

Peter noted this Krauthammer piece on polygamy. Whether we want it or not, we are likely to hear a lot more about this subject. Krauthammer concludes that it is critical “that any such fundamental changes in the very definition of marriage (as is implied by gay marriage and polygamy) be enacted democratically and not (as in the disastrous case of abortion) by judicial fiat.” Let’s start with that reference to democracy. It is worth remembering that whenever polygamy has predominated in a society it has always been linked with patriarchal or monarchical politics, never with republican forms of government. I’m sure the “Big Love” folks aren’t thinking of giving up their democratic rights and freedoms, but will the logic of their choice not point down that road? Or is modern or post-modern polygamy somehow so different that it will escape the normal tendency of polygamy?

Discussions - 9 Comments

The most philosophical and learned of Supreme Court Justices, Joseph Story, published an (anonymous) essay on “Natural Law” in 1836. The whole essay deserves word by word study as a profound statement of the principles underlying the Constitution as Story believed. He addresses the issue of marriage and polygamy in some of the most thoughtful sentences ever written by a US Justice, as follows:

“Marriage is an institution, which may properly be deemed to arise from the law of nature. It promotes the private comfort of both parties, and especially of the female sex. It tends to the procreation of the greatest number of healthy citizens, and to their proper maintenance and education. It secures the peace of society, by cutting off a great source of contention, by assigning to one man the exclusive right to one woman. It promotes the cause of sound morals, by cultivating domestic affections and virtues. It distributes the whole of society into families, and creates a permanent union of interests, and a mutual guardianship of the same. It binds children together by indissoluble ties, and adds new securities to the good order of society, by connecting the happiness of the whole family with the good behaviour of all. It furnishes additional motives for honest industry and economy in private life, and for a deeper love of the country of our birth. It has, in short, a deep foundation in all our best interests, feelings, sentiments, and even sensual propensities; and in whatever country it has been introduced, it has always been adhered to with an unfailing and increasing attachment.

“Polygamy, on the other hand, seems utterly repugnant to the law of nature. It necessarily weakens, and in most cases, destroys the principal benefits and good influences resulting from marriage. It generates contests and jealousies among wives; divides the affections of parents; introduces and perpetuates a voluptuous caprice. It has a tendency to dissolve the vigor of the intellectual faculties, and to produce languor and indolence. It stimulates the sensual appetites to an undue extent, and thus impairs the strength and healthiness of the physical functions. It debases the female sex. It retards, rather than advances, a healthy and numerous population. It weakens the motives to female chastity and to exclusive devotion to one husband. Besides; the very equality in point of numbers of the sexes seems to point out the law of God to be, that one woman shall be assigned to one man. And in point of fact, the countries, where polygamy has been allowed, have been uniformly debased, indolent and enervate, having neither great physical, nor great intellectual ability.

“If marriage be an institution derived from the law of nature, then, whatever has a natural tendency to discourage it, or to destroy its value, is by the same law prohibited. Hence we may deduce the criminality of fornication incest, adultery, seduction, and other lewdness [presumably including sodomy?]; although there are many independent grounds, on which such criminality may be rested.”

Thank you, Dennis - excellent source regarding natural law and marriage. Krauthammer must realize that democratic majorities cannot re-order and re-define nature.

Is polygamy wide spread and actually avocated for or is this just another veilled attack on the state of Utah, and the sensibilities of the LDS church?

Dennis, thanks for bringing Story’s essay to our attention and providing the ample quotation. Can you provide a link, perchance, or a further reference? Thanks.

Story is very eloquent and most of what he says about polygamy would easily gain the assent of the majority, even today. But we still face the two questions:

1. Given the thrust of Story’s argument and common sense, polygamy may not really be worse than same-sex marriage. Same-sex marriage is on the cusp of becoming a const. right. Nobody has explained adequately why polygamy wouldn’t be next. Jonathan Rauch argues, in a way similar to a part of Story’s case, that polygamy is incompatible with freedom and equality, with republican institutions. But that rather abstract argument surely can’t trump the freedom of the consenting polygamist, whose rights, say, as a woman would be protected by numerous statutes and an activist court. And the libertarian can argue that the "natural law" arguments that Story gives against polygamy and would, of course, have given against same-sex marriage had anyone cared in his time aren’t actually found in the texf the Constitution.

2. And would anyone want to argue that the Courts could declare laws allowing polygamy unconstitutional as contrary to natural law, as some argue that the Courts should declare laws allowing abortion as contrary to natural law?

Likewise, if the institution of marriage has no limits, why couldn’t a Father marry his Daughter? Assume they are both consenting adults. Assume they plan to adopt children rather than risk mutation.

If society allows same-sex marriage, how can it argue against polygamy or incest?

You asked about the essay on Natural Law by Justice Joseph Story. It was reprinted in an appendix in James McClellan’s book, Joseph Story and the American Constitution. It was originally published (anonymously since he was then on the Court) in the 1836 ed. of the Encyclopedia Americana.

Peter Lawler has it quite right certainly. I was struck by Story’s circumlocution in referring to the criminality of "other lewdness" and thus added "sodomy" in brackets. Anyone reading legal writers before almost the current generation will not that they almost never expressly referred to homosexuality and left it as "the crime against nature" or something even more vague. In other words, they almost could not conceive that any civilized human being would argue for the legitimization of sodomy, and I believe would literally never have imagined same-sex marriage any more than they might have imagined, say, three-sided squares.

Referring to the question whether polygamy could be overruled as contrary to the natural law basis of the Constitution, in the penultimate paragraph of the Story essay on "Natural Law," he says the following (my emphasis here): "EVERY GOVERNMENT is bound to establish courts of justice, to provide for the punishment of crimes, to enforce the obligation of legal contracts, TO ENCOURAGE MARRIAGES, TO PROHIBIT IMMORALITY,to cultivate a sense of religious obligation, to allow a free exercise of religious worship, and a free expression of religious opinion, so far as it is not inconsistent with the public peace and safety." The natural law of course is what binds "every government," including the US Constitution, to take these actions. Whatever difficulties our present day right wing and left wing positivists may have, there is no doubt at all that Justice Story would have no problem in treating polygamy (and same-sex marriage) as unconstitutional, and I am almost as certain that abortion would fall for the identical reason.

To Dennis: This is a fascinating question. Am I a legal positivist because I believe that same-sex marriage is just nuts and destructive of the family but still believe that the Const. allows for if it is enacted by correct legal procedure? Polygamy?
Abortion? Well, no: Legal positivism means there’s no higher law that the positive law of your country. But even if I know there is such a law, I might still think that our Courts are limited to the text of the Constitution and compelled most of the time to give the benefit of the doubt to laws enacted by legislatures. Or: I could not be a legal positivist and still think that "natural law" untethered from specific constitutional texts can’t be a foundation for judicial review, because the Court is composed of judges, not philosophers etc. But if the Supreme Court allows Mass. its gay marriages, it seems to me it would have to reverse the reigning precedent and allow Utah its polygamy (if the dissident Mormons win control of the legislature or if the twelve apostles get another revelation).

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