Four ‘Cousins-in-Law’: (1) Substantive Due Process & State-Based Prohibition; (2) Slavery in the Federal Territory; (3) Polygamy and the Fight over Mormon Statehood; & (4) Public School Prayer & Bible Reading Decisions. Who Knew They Were ‘Related’?"

  •  Peter Karsten    


This essay compares four religious, political, and legal controversies in 19th and early 20th century America. Each was grounded in the sharp division between the Republican and Democratic Parties’ perspectives on public policy, and all four were fired by religious differences involving the active use of “positive” law and judicial fiat. Several scholars have addressed the emergence in the state courts of substantive due process, as well as the fight in those courts over the use of the bible and school prayer in the public schools. But no one has noted the similar political division there, nor has anyone examined the political or religious affiliations of the state court justices who decided tests of the constitutionality of the early substantive due process cases, or those involving bible reading and school prayer. Two other related issues - the first regarding slavery in the territories; the second, regarding Mormon polygamy and Statehood - will receive briefer attention. The four issues constitute what this essay offers to our understanding of how religiously inspired party politics determined the outcome of these controversies in both state and federal legislatures and state and federal courts.

I begin with a well-known judicial controversy, set in the 1840s & ‘50s: the emergence of substantive due process, and I relate it to state efforts to prohibit the sale of alcohol.


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