Sunday, July 12, 2020


Render unto Caesar the things that are Caesar's, and unto God the things that are God’s.[1]

Congress shall make no law . . . prohibiting the free exercise [of religion. . . .

Reynolds v. United States involved polygamy in the then-territory of Utah. 

The Mormon Church — officially the Church of Jesus Christ of Latter-day Saints — was founded in the United States of America in 1830, and many of its adherents settled in the then-territory of Utah.

Congress had enacted a statute criminalizing polygamy. That meant the Free Exercise Clause of the First Amendment of the federal Constitution was involved, not “due process” of the Fourteenth Amendment, because there was no state involvement. 

The federal felony statute provided that “Every person having a husband or wife living who marries another whether married or single in the territory or other place over which the federal government has jurisdiction is guilty of bigamy and shall be punished by a fine of not more than $500 and by imprisonment for a term of not more than five years.”[3]

Set squarely against this federal anti-bigamy statute was the scriptural duty of male Mormons to practice polygamy. Even the Supreme Court unanimous decision/opinion in Reynolds would acknowledge that

this duty was enjoined, required by different books which Mormons believe to be of divine origin, that the members of the church believe that the practice of polygamy was directly enjoined upon the male members thereof by the Almighty God, that the failing or refusing to practice polygamy by such male members would be punished and that the penalty would be damnation in the life to come.[4]
It is easy for non-Mormons and non-believers to scoff at that religious requirement, but it was real to Mormons and impaled them on the horns of a dilemma: renounce and be damned, or render unto God and go to prison.

If a Mormon rendered unto Caesar that which was Caesar’s by obeying the federal law, he affronted God and thus believed himself damned. But if he rendered unto God that which was God’s and thus broke the law by practicing polygamy, Caesar was going to throw him into prison for five years and fine him $500. Then, once Reynolds did the five years, was released, and continued to practice polygamy as his God demanded, he would probably go back to prison. A cruel, repetitive, seemingly unconstitutional choice. 

God won the first round. In accordance with the rituals and dictates of the Mormon religion, Reynolds took a second bride while married to his first wife.

Caesar was not amused. 

The federal government indicted Reynolds for violation of the anti-bigamy statute. 

Predictably, and naively, he defended on the ground that the First Amendment guaranteed him the right freely to exercise his religion. 

He was convicted in the territorial court, sentenced to prison, and eventually the case reached the Supreme Court of the United States.

The Supreme Court affirmed Reynolds’s conviction. That was bad enough. But the reasons given by the Court were worse.

Chief Justice Waite, writing for the unanimous Court, invoked English history. England, a country with its own national church, had never enjoyed a “free exercise” religious guarantee, nor even a written constitution. 

Moreover, Reynolds was an American citizen, accused of violating American law, being judged by American courts, defending himself with the Free Exercise Clause of the First Amendment to the Constitution of the United States of America.

The Court even resorted to nose-counting with a clear racist implication, to buttress its conclusion that

Polygamy has always been odious among the northern and western nations of Europe, and until the establishment of the Mormon Church was almost exclusively a feature of the life of Asiatic and of African people. 

Translation: “Our civilized tribe here in the good-old of USA doesn’t engage in such uncivilized practices.” 

The nations of northern and western Europe before and at that time had hardly been paragons of religious toleration, nor had they possessed political and legal systems that protected individual rights and fostered limited government.[5] Ask, for example, the Catholics in England.

Moreover, it was the height of intellectual condescension for the Court to distain out-of-hand a practice accepted by many religions. For example, the highly respected Roman law recognized concubinage, a practice akin to polygamy. Throughout history, there have been accepted relationships between married men and their mistresses, and men and women who maintain simultaneous romantic and/or sexual relationships.

Well, if the Supreme Court’s conclusion could not legitimately rest on English history, on abhorrence of savage practices, and the many years of accepted multiple relationships, what was it based on? 

The altruist-collectivist-statist meter will tell us. 

The Court’s unanimous opinion observed that Congress was “free to reach [i.e., to criminalize] actions which were in violation of social duties” and “there has never been a time in any State of the Union when polygamy has not been an offense against society. . . .”  (My italics.)

Since there is no such thing as “society,” just lots of other people who weren’t Mormon Reynolds, the Court was saying that his, and the rest of the Mormons’, religious duty would be sacrificed to the societal tribe’s moral standards, backed by the coercive power of the federal government.

An “offense” against whom? Against the morally puritanical Americans whose moral prejudices had caused Congress to enact the anti-polygamy law in the first place, the president to approve it, the prosecutors to enforce it, the jurors to apply it, and the various courts to uphold its constitutionality?

“Society — the lots-of-other-people-but-not-the-Mormons — opposed polygamy, so society’s values prevailed. No matter the cost to Mr. Reynolds personally, and all Mormons generally.

Yet there was another argument that Reynolds could and should have made but did not. Apart from his religious duty, Reynolds like all Americans was a free American who should have been able to engage in any constitutionally-protected conduct until his actions violated another’s properly understood rights.

Reynolds’s polygamous relationships did not violate anyone else’s rights, yet his were violated by other Americans—by “society.”

Once the door of sacrificing of individuals to the collective is opened even slightly, effectuated by statist laws such as the one that sent Reynolds to prison, it is a slippery slope into the abyss. 


[1] According to Wikipedia, this is the beginning of a phrase attributed to Jesus in the synoptic gospels, which reads in full, “Render unto Caesar the things that are Caesar's, and unto God the things that are God’s. [Matthew 22:21]

[2] First Amendment, Constitution of the United States of America.

[3] Presumably, the statute would apply not only to any male (Mormon or not) marrying more than one female, and vice versa. 

[4] To whatever extent the Mormon religion requires or countenances male practitioners marrying, or outside of marriage having sexual relations with, underage girls, that conduct should be condemned as immoral and prosecuted as a serious crime. Statutory rape is statutory rape, no matter if its motive is religious. Whatever sympathy one might have for Mormon religious practices should be reserved for consenting adults exercising a religious duty imposed under threat of eternal damnation, a duty one would think was protected by the express language of the First Amendment’s “free exercise” Clause.

[5] See, for example, the Spanish Inquisition.

Monday, July 6, 2020


“Miserable merchants of unwanted ideas, their wares remain unsold”

Contrary to popular belief, the free speech guarantee of the First Amendment — Congress shall make no law . . . abridging the freedom of speech, or of the press. . . . — was never intended to be, nor ever was, absolutely “free.” Even some of the most illustrious Founders — including the major author of the Declaration of Independence, Thomas Jefferson — believed speech could be limited, even suppressed, “in a good cause.”

And it has been. Defamation is actionable civilly, hard-core and child pornography is a crime, “fighting words” or a “hostile audience” situation can provoke an arrest, “commercial speech” is second-hand speech, and more.

Of the various categories of speech, the suppression of one in particular exposes the altruist-collectivism-statism axis better than most others: Subversive advocacy.[1]
Regarding the former, I want to turn back the clock about a century.  

Eugene V. Debs was twice a rabble-rousing Socialist candidate for President of the United States. He was indicted for ranting against the government in general and the draft in particular. Convicted, he went to prison. The Supreme Court affirmed his conviction. Debs was imprisoned for pure speech.

About the same time, Whitney v. California was a case brought in that state under the California Criminal Syndicalism Act. The charge was that Anita Whitney organized, assisted in organizing, and became a member of a group that would later advocate overthrow of the U.S. government. Although she did not actually do anything, Whitney met the same fate as Debs.

During World War I, an antiwar activist named Schenck and others produced an antidraft handbill. One side argued that the draft law constituted slavery and involuntary servitude in violation of the Thirteen Amendment to the Constitution of the United States of America.

According to the Supreme Court opinion, 

In impassioned language it intimated that conscription was despotism in its worst form and a monstrous wrong against humanity in the interest of Wall Street’s chosen few. It said, “do not submit to intimidation,” but in form at least confined itself to peaceful measures such as a petition for repeal of the act. The other . . . side of the sheet was headed “Assert your rights.” It [claimed that the Constitution was violated by anyone who] refused to recognize “your right to assert your opposition to the draft,” and went on, “if you do not assert and support your rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain. (My italics.)

If the “deny or disparage” and “rights retained” language sounds familiar it is because it is taken from the Ninth Amendment: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

The Supreme Court opinion continued:

[The handbill] described the arguments on the other side as coming from cunning politicians and a mercenary capitalist press, and even silent consent to the conscription law as helping to support an infamous conspiracy. It denied the power to send our citizens away to foreign shores to shoot up the people of other lands, and added that words could not express the condemnation such cold-blooded ruthlessness deserves . . . winding up “You must do your share to maintain, support and uphold the rights of the people of this country.

Even though the anti-draft handbill was “pure speech,” and even though Schenck’s defense was the First Amendment, he and others were convicted of violating the Espionage Act, causing insubordination in the military forces, and obstructing the government’s recruitment and enlistment efforts.

Associate Justice O. W. Holmes (a wounded combat veteran of the Civil War) wrote for a unanimous Court that “[w]hen a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight . . . .” (My italics.)

Speech as a hindrance—in a war against slavery and secession, defending the principles of the Declaration of Independence, the Constitution, and the Bill of Rights’ First, Ninth, Thirteenth Fourteenth and Fifteenth Amendments.

A hindrance, like Fred Korematsu and other Japanese-Americans, during the next war!

Schenck was an important Supreme Court decision not only because it held that in wartime even pure political speech could be suppressed to aid the war effort, but also because it lay the foundation for the Supreme Court’s decision/opinion some three decades later in the infamous “Smith Act” case. Debs, Whitney and Schenck cases a were prologue to Dennis v. United States. [2]
Dennis involved the Communist Party of the United States. Dennis and others were indicted for having conspired

to organize as the Communist Party of the United States of America a society . . . of persons who . . . advocate the overthrow and destruction of . . . the United States by force and violence, and knowingly and willfully to advocate . . . the duty and necessity of overthrowing and destroying . . . the United States by force and violence. (My italics.)

Note that they were indicted under a federal statute for organizing an entity, which once organized would then advocate. 

Now, a slight digression. In criminal law, a conspiracy is (1) an agreement (which can be oral) to do an illegal act, (2) coupled with an overt act (even a legal act) in furtherance of the agreement. Two people agree to rob a bank and realize they need a getaway car. One of them buys a Chevy. That is a consummated, prosecutable conspiracy.

The defendants made a free speech defense. In upholding their convictions, Supreme Court Chief Justice Fred Vinson stated categorically that

Speech is not an absolute, above and beyond control by the legislature, when its judgment, subject to its review here [of course!], is that certain kinds of speech are so undesirable as to warrant criminal sanction. Nothing is more certain in modern society than the principle that there are no absolutes. [I wonder if the Chief Justice was absolutely certain of that.] To those who would paralyze our Government in the face of impending threat by encasing it in a semantic straitjacket we must reply that all concepts are relative. (My italics.)

Based on this judicial babble, American citizens (albeit, Communists) went to jail for organizing to advocate concerning an impending threat. The Congress and the Court were protecting us from “a semantic straitjacket” because “all concepts are relative.”

If, from the very first days of this nation, restraints on speech were not uncommon, if no less a patriot than Founder Thomas Jefferson believed that states could (and sometimes should!) censor speech and that a selective prosecution now and then of an unpopular speaker or newspaper editor was desirable, if during World War I anti-draft activists could be sent to jail for quoting the Ninth and Thirteenth Amendments, if American Communists could be sent to prison for merely agreeing to organize and advocate, if there are no absolutes and all concepts (such as liberty, freedom, individual rights and limited government) are relative, no one should be surprised that truly free speech has never existed in the United States.

For the benefit of the many, at the expense of the few. 

In a few words, Associate Justice William O. Douglas’s dissent made a point so well expressed that I always wished I had written them. He wrote of the Dennis communists that “[i]n America they are miserable merchants of unwanted ideas; their wares remain unsold.”

But, sadly, that was not enough to keep them out of prison.
[1] Another, pornography, will be discussed in a subsequent blog.

[2] I dedicated an earlier book—Speaking Freely: The Case Against Speech Codes—to “Jacob Abrams, Joseph Beauharnais, Walter Chaplinsky, F. J. Chrestensen, Eugene V. Debs, Ralph Ginzberg, Benjamin Gitlow, Charles T. Schenck, Charlotte Anita Whitney, and the too many others who offended merely by speaking words the authorities did not wish to hear. It matters not that some of those words may have been odious. Because the speakers were in America, they had a right to speak.”