The long-standing practice in nineteenth-century US territorial policy was predicated on the ultimate goal of admission to statehood. Territories were acquired and managed, at times with a heavy hand, but with an eye toward eventual inclusion as equal components in the American union of states.Footnote 1 This paradigm was replaced by political decisions following the conclusion of the Spanish-American War in 1898, culminating in the judicial doctrine arising out of a set of Supreme Court cases collectively titled the Insular Cases. Footnote 2 Scholars have predominantly labeled the Insular Cases the creation of a genuine American empire, featuring permanent colonial possessions.Footnote 3 This contrasts with the view of the earlier territorial system, which saw the Northwest Ordinance as having “spared Americans from moving immediately and directly into a structure of imperialism.”Footnote 4
The narrative charted by these scholarly efforts is that the Insular Cases were a dramatic change from what came before. That description focuses primarily on the shift toward indefinite status rather than eventual statehood. Certainly, this is an important distinction. Yet, the Insular Cases were also the product of a pattern that had long been practiced by the US government, whereby territories were not only secondary political units within the American federal system but also were under the clear control of the national government. Particularly when all the national branches worked in concert, rather than against one another, territorial policy during the nineteenth century was far more reflective of colonial imperialism than it was of republican equality. While the political outcomes (e.g., statehood) were perceived as preordained for earlier territories, this didn’t preclude the national government from treating territorial governments and the people living within territories as unworthy of equal political rights. In this article, I examine the experiences of the Mormons in Utah Territory to demonstrate that rather than being an abrupt shift in territorial policy, the Insular Cases were consistent with previous practices.
In making this argument, I acknowledge that the Insular Cases generated changes in the territorial system, but these were much more in line with what occurred in territorial policy in the latter half of the nineteenth century than the dominant narrative recognizes. To establish this claim, I focus on the treatment of the Mormons in Utah Territory between the 1850s and the end of the 1890s.Footnote 5 During this time the national government used undemocratic means to punish both territorial residents and their government decades prior to the acquisitions of Puerto Rico, Cuba, and the Philippines. I argue that scholars have exaggerated the shift in territorial policy brought about by the Insular Cases, and in doing so they have overlooked the ways in which those decisions and the policies they upheld were continuations on previous territorial practices. While the American empire was different in 1915 than it had been 1897, these distinctions rested on top of an existing structure that had been used to repress the Mormons in Utah Territory for decades.
The Territorial System and Mormon Polygamy
The Church of Jesus Christ of the Latter-Day Saints (LDS) and its congregants, colloquially referred to as Mormons or Saints, have been a dominant political and social force in a large region of the Western United States since they relocated to what became Salt Lake City in the late 1840s. Utah Territory, which was established in 1850,Footnote 6 and lasted until Utah was granted statehood in 1896,Footnote 7 became the principal arena for an increasingly nationalized conflict between the Christian leaders of the federal government and LDS leaders.
There were two primary sources of antagonism toward Mormons. The first was over the practice of polygamy, which fueled most of the rhetorical and political attacks on the LDS. The second was the prominent authority that LDS leaders exercised over their members. Like anti-Catholic fears of papal primacy, the concern among many non-Mormons was that Mormon obedience to federal laws and the Constitution were completely reliant on whether their religious leaders told them to comply.Footnote 8
Anxiety over Mormon theocracy drove repeated attempts to repress the political and economic power of the LDS Church and its leaders. In the following sections, I argue that conflict between the Mormons and the national government built upon already existing authority that created a framework for an increasingly strong use of national power in the territories. Examining the conflict through the lens of territorial policy can demonstrate how this created the foundation for an expanded version of American imperialism with the additions of insular territories such as Guam and Puerto Rico. Despite never being threatened with permanent colonial status, Utah Territory was treated as a belligerent subject and was only granted statehood after demonstrating its obedience to the national government. The compelling use of national authority over the Mormons in Utah Territory made it much easier to argue that farflung insular territories populated by non-English-speaking and nonwhite peoples should not automatically be granted full incorporation into the American constitutional and political system.
This argument adds to the understanding of territorial politics in two ways. First, it situates the Mormon conflict in the nineteenth century within a longer history of territorial policy, demonstrating how the use of national authority in Utah Territory reflected shifting expectations of American expansion and empire. From the outset, territories were to be treated as secondary political units within the American system, but the assumption throughout the nineteenth century had been that eventual statehood was the obvious and only goal for these territories. While the “system of colonial government was decidedly more authoritarian” than the British system it had replaced in North America, it was designed to be temporary with a goal of exposing settlers to the ideals of republicanism.Footnote 9 Between the 1850s and 1900, these assumptions were increasingly challenged, culminating in a robust imposition of colonial authority when the US expanded far beyond its contiguous borders.
Second, it adds to the revival in attention to the Insular Cases by analyzing how actions of all three national branches promoted the idea that territories could be forced to reflect American political and cultural norms or face indefinite territorial status. Although the political and legal clashes with the LDS Church were only infrequently cited directly within the imperialist arguments over what to do with Puerto Rico, Cuba, and the Philippines, the breadth of national efforts to subdue the Mormons indicated that norms had shifted.
There has been recent scholarly attention to the context of Mormonism in the United States and the struggle over local authority during the territorial era in the last half of the nineteenth century. Most of the accounts focus on the religious and social aspects of the conflict.Footnote 10 Politics is clearly a part of these discussions, but it has not been the primary focus. Yet, as Sarah Gordon argued, debates about what to do with the Mormon Question “were not about a ‘place’ for faith in law and government; rather, they revealed the fact that differing faiths, vital and hotly contested, involved the very cornerstones of government in nineteenth-century America.”Footnote 11 The Mormons had been violently opposed in the states and moved to Utah with optimism that the First Amendment would serve to protect them from the national government in ways that it could not from the states.Footnote 12
There has also been a resurgence in scholarly attention to the Insular Cases as they relate directly to territorial policy and management. The volume Foreign in a Domestic Sense contained a call to scholars to include the cases as part of the canon of constitutional law,Footnote 13 and an examination of how the idea of an “unincorporated territory” is the American version of European colonialism,Footnote 14 among others. A similar collection of essays published in 2015, Reconsidering the Insular Cases, further added to these discussions.Footnote 15
While most of the scholarship on the Insular Cases has focused on its long-term impact going forward, there has been some attention to how it connected back to earlier territorial policy. Sarah Cleveland examined the breadth of nineteenth-century constitutional questions regarding territories (as well as Native Americans and immigration). She argued that throughout the 1800s the Supreme Court was indecisive in outlining the relationship between the territories and the national government. By the end of the century, however, the Court landed on an “inherent powers doctrine” to create an extraconstitutional authority for managing territories. This doctrine grew out of earlier precedents and the social and economic environment of the late 1800s and left territories without a clear promise of future statehood.Footnote 16
Sparrow’s The Insular Cases and the Emergence of American Empire also ties those decisions back to earlier territorial policy. He argued that “the new constitutional doctrine establishing Congressional plenary authority over offshore and distant possessions was consistent with the United States’ exercise of empire as a great power.”Footnote 17 He also pointed toward the conflicts in Utah Territory, which had lasted well into the 1890s, as providing an important backdrop to the discussion of territories in the Insular Cases, noting that “throughout the history of anti-Mormon legislation, … the US Supreme Court supported Congress and its policies destructive of polygamy” and that “the Supreme Court repeatedly upheld the plenary power of Congress to regulate the territories as needed.”Footnote 18
Despite these examples, the policy connections between the Mormon case and the insular territories remains underdeveloped. While recognizing the importance of the conflict with the Saints over polygamy and theocracy to long-standing norms of territorial policy, there is a gap in scholarship in examining how the Mormon question influenced the potential outcomes of imperialism debates after the Spanish-American War. The following sections bridge these two existing areas of literature by analyzing how the fifty-year struggle over Utah Territory reflected changing norms in territorial policy that presaged the important shifts scholars have argued occurred in the Insular Cases.
Territorial Policy During the Nineteenth-Century
Up to the 1850s, territorial policy in the United States had followed a pattern of gradual standardization of territorial government administration, a broadly hands-off approach from congressional and executive oversight, and a relatively rapid transition to statehood.Footnote 19 For territories that were admitted as states by 1861, the average period spent in territorial status was 12.8 years.Footnote 20 National legislators and executive branch officials learned lessons during this period in how to manage territorial governments. They took on more of the responsibilities of paying for territorial legislatures to operate, but by doing so, also placed more definite restrictions on their activities.Footnote 21 Despite this, Congress largely stayed out of territorial affairs, tending to respond when necessary to protect territorial residents or to rein in territorial mismanagement.Footnote 22
There was also a broadly shared assumption that territories would become states. Jefferson’s first plan in 1784 outlined how the western lands would be divided into territories that would progress toward statehood. This was then enshrined in the more comprehensive Northwest Ordinance.Footnote 23 Enabling legislation reflected the theory that territories were basically nascent states that just needed time to grow in terms of (white) settlement and to learn the basics of republican self-government. In 1900, Max Farrand asserted the maxim: “That the Territories are to be regarded as inchoate States, as future members of the Union … is the fundamental basis of our Territorial system.”Footnote 24
An early test of this arrangement came after the Louisiana Purchase added thousands of new residents, mostly French or Spanish, in and around New Orleans. The governmental system chosen for the Orleans Territory by Congress was despotic in nature, even compared to other territories of the time. Territorial residents had no choice over their legislators or governor and were not immediately granted citizenship.Footnote 25 This system was intended to be temporary in nature and “the question seemed to be largely a matter of time and training.”Footnote 26 The people in Louisiana Territory were provided with a representative legislature and granted citizenship just a year later, and Louisiana was added as a state by 1812.Footnote 27
Despite the rapid grant of self-governance to the people of Louisiana, this was predicated on the belief that these (mostly European) settlers deserved it, not that it was required to be given by the Constitution. Congress debated the extent that the Constitution was in operation in the territories,Footnote 28 but the chosen legislative path did not definitively provide an answer. According to Neuman, they served only “to set a precedent for the triumph of expediency over principle in the initial stages of territorial governance.”Footnote 29 Similarly, Cleveland interpreted this as an early argument for the existence of inherent powers in US sovereignty that allowed Congress to “exercise its delegated powers in the territory, at least temporarily, without constitutional constraint.”Footnote 30
While the assumption of statehood remained, by the 1850s the rapidity of that process was decelerating. The large Western territories saw slower settlement patterns because of the difficulty of travel and a lack of suitable intensive farmland.Footnote 31 New Mexico, with most of its residents Spanish-speaking Roman Catholics (or Native Americans), was one example and serves as a contemporaneous case alongside Utah Territory of the slow, but important, shifts in territorial policy. Between the dominant use of Spanish in everyday (including government) interactions, the reliance on the Catholic Church for education, and the use of the system of peonage, which was technically slightly less rigid than slavery, there was ample evidence to deny statehood to New Mexicans for decades.Footnote 32 As late as 1902, leading senators used exaggerated claims of illiteracy in the territory to withhold admission, although they tempered these criticisms by noting that “this mass of people, unlike us in race, language, and social customs, will finally come to form a creditable portion of American citizenship.”Footnote 33
New Mexico, occupied by US forces first in the late 1840s, would not become a state until 1912. Although it was never suggested with any seriousness that the area would never be ready for statehood, New Mexico was kept in second-class status by the United States government through fifteen presidential administrations. For all practical purposes, it was an indefinite colony of the United States, neglected or treated with disdain by those who controlled its political destiny. While New Mexico was the longest tenured of the contiguous organized territories, other Western territories remained in that status for long periods of time as well. The average time spent as a territory for the twelve continental territories that gained statehood between 1867 and 1912 was 28.7 years.Footnote 34
The shift toward longer periods of territorial status continued into the 1900s. Of the territories acquired since 1898, only Hawaii has become a state. Cuba and the Philippines were granted independence. Guam, Puerto Rico, and American Samoa have remained territories for well over one hundred years. The difference between waiting for statehood for a few decades and waiting, without a clear presumption of statehood, for a century, is substantively important. The shift toward longer periods of territorial existence during the latter half of the nineteenth century and the reasons behind that shift, however, reveal declining interest in the rapid expansion of the Union and a growing concern with who would become part of that Union.
Effective Local Resistance by the Saints (1850s–1870s)
Mormon founder Joseph Smith led his followers to a sparsely populated section of western Illinois in the 1830s where they set up the town of Nauvoo. This theocratic society allowed them to control the local government, the police force, and a militia to protect them from external violence.Footnote 35 Church leaders desired control so that they could create solidarity in the community, faithfully enforce religious doctrine, and keep their adherents safe from violent oppression. The fear that Mormons would flout state and federal laws and the US Constitution led non-Mormons in Illinois to become increasingly hostile. In 1844, these tensions exploded, leading to Joseph Smith’s assassination.Footnote 36 After a contentious succession debate, Brigham Young assumed leadership over the Mormons and prepared to move out to a remote desert location, far from existing settlements by European Americans. They left Illinois arriving in 1847 in what is now Salt Lake City.
Congress refused to admit the state of Deseret as requested by the Mormon refugees, instead creating Utah Territory in 1850.Footnote 37 President Millard Fillmore successfully lobbied to have Brigham Young confirmed as the first territorial governor, however, and the Mormons looked toward the future with hope. This relative calm would not last long. Utah Territory became an expanded version of the theocracy that had been briefly established in Nauvoo. In late 1851 most of the federally appointed territorial officials fled Utah, abandoning their duties. They wrote to President Fillmore describing the LDS Church as “usurping and exercising the functions of legislation and the judicial business of the Territory … and requiring as an article of religious faith, implicit obedience to the counsels of ‘the Church,’ as paramount to all the obligations of morality, society, allegiance, and of law.”Footnote 38 These accusations fit with existing anxiety over Mormon beliefs and practice. There was also growing alarm over polygamy, which the LDS officially recognized as a religious doctrine in August 1852.Footnote 39 Polygamy at that time was outlawed in all states and morally repugnant to Christians generally. The Saints’ endorsement of it only reinforced the fear that Mormons would defy the norms of American society.
The leaders of the LDS Church sought refuge in the political traditions that had kept them from federal assistance in the states earlier. Prior to the Civil War, federalism in the United States was strongly skewed in favor of the states and the concept of local sovereignty. This “resonated with powerful strands of constitutional theory, as well as with the language of faith.”Footnote 40 The political environment was shifting, however, as reflected by the declaration in the Republican Party’s platform in 1856, that “it is both the right and the imperative duty of Congress to prohibit in the Territories those twin relics of barbarism—Polygamy, and Slavery.”Footnote 41
This challenged American constitutionalism, calling for federal intervention in domestic social customs. While few non-Mormons were willing to tolerate polygamy as a practice, “To Democrats, the restructuring of government contemplated by Republicans was far more dangerous than the practice of polygamy by Mormons in Utah.”Footnote 42 If the national government could interfere with marital practice in Utah Territory, it could prohibit slavery, a far less intimate relationship. Slavery was protected by the Fifth Amendment, but marriage was one of the clearest rights reserved to the states by the Tenth Amendment.
One of the first acts of the Utah Territorial Legislature had been to incorporate the LDS Church as an official entity. There were no limits placed upon what it could acquire in terms of property or wealth, restrictions that were typical in the States at that time. It even prohibited any dispute of the authority of the church over marriage in Utah Territory.Footnote 43 Given Mormon beliefs in a theocratic society, this was not surprising, but it served as another example of the “otherness” of the Saints. The LDS Church had several methods to gather wealth, including tithing and creating and owning businesses.Footnote 44 Estimates are that hundreds of such businesses existed in Utah Territory and the surrounding region during the nineteenth century.Footnote 45 Additionally, the territorial legislature “granted valuable tracts of land, including water courses, grazing tracts, timber stands, and so on.”Footnote 46
President Buchanan, already dealing with the bloodshed over slavery in Kansas, needed a strong show of national force in 1856. He saw aggressively confronting Brigham Young and the LDS Church’s dominance in Utah Territory as a relatively easy way to bolster the power of the national government and demonstrate to states that the national government could deal with rebellious subordinate entities.Footnote 47 Buchanan responded by deploying one-sixth of all federal troops, the largest force deployed against a domestic population at that time in US history.Footnote 48 The president outlined his arguments in December 1857, noting that Utahans believe “with a fanatical spirit, that [Young] is Governor of the territory by divine appointment.”Footnote 49
The Saints once again saw a non-Mormon effort to violently persecute them for their religious doctrine and practices. Mormon militia harassed US army supply trains, destroying dozens of wagons, and burned grasslands to keep the army from approaching.Footnote 50 In the meantime, a truce was negotiated between Young and President Buchanan, with Young surrendering the governorship and agreeing to the stationing of US troops in Utah, in exchange for amnesty.Footnote 51
Despite the conflict, very little changed. The LDS and Brigham Young continued to exert enormous influence over Utahans. To avoid dealing with federal appointees, the Mormon territorial legislature provided greater jurisdiction to lower territorial courts that were Mormon-controlled and were the primary source of not only judicial but also legislative and executive authority within each county.Footnote 52 The prevalent use of jury trials meant that most Mormons faced a jury entirely made up of their religious peers. Mormons, with few exceptions, controlled their own political system in the territory.
The military campaign waged by Buchanan occurred just months after the Supreme Court announced its controversial opinion in Dred Scott v. Sandford (1857).Footnote 53 Dismissing the case on a lack of standing Chief Justice Taney found that Congress had no power to prohibit slavery in the territories. He argued that the Constitution’s “Territorial Clause” applied only to those lands that were under US control when the Constitution was originally ratified, and that “there is certainly no power given by the Constitution to the Federal Government to establish or maintain colonies bordering on the United States or at a distance, to be ruled and governed at its own pleasure.”Footnote 54
This decision became the clearest nineteenth-century judicial decree limiting national authority in the territories. It also further enflamed the potential for national civil unrest and was largely ignored by Republicans. The decision has been rightfully derided for its racist views, but as Neuman argued, “None of the justices,” including those in dissent, “indicated any disagreement with Taney’s statement that the Constitution in general, and the Bill of Rights in particular, bound Congress in the territories.”Footnote 55 Abiding by that principle did not mean that the Mormons would be protected against federal legislation directly impacting their religious freedoms.
In 1862, after the departure of numerous Southern legislators whose states had seceded,Footnote 56 the Republican Congressional majority was finally able to get an antibigamy bill enacted.Footnote 57 Named after its sponsor, Representative Justin Morrill (R-VT), the legislation repealed territorial acts that “establish, maintain, protect, or countenance the practice of polygamy, evasively called spiritual marriage, however disguised by legal or ecclesiastical solemnities.”Footnote 58 Morrill argued that there were limits to religious freedom, specifically those provided by common law, which defined marriage as monogamous and heterosexual.Footnote 59 The Morrill Act, however, lacked any mechanism for enforcement because a person accused of polygamy or bigamy would face trial in a court staffed entirely by Mormon judges and dominated by Mormon juries. Despite a major show of military force and the passage of antipolygamy legislation issue, LDS leaders remained in control of Utah Territory.
Reynolds and Effective Anti-Mormon Policy (1874–1896)
In the summer of 1873, one of Brigham Young’s wives left him, sued for divorce, and went on a successful national speaking tour. President Grant and several congressmen saw her talk in the spring of 1874.Footnote 60The New York Times ran 498 front-page articles between 1870 and 1891 that mentioned the “Mormons” as well as an additional 282 editorials.Footnote 61 The Saints had become a national concern, even if they were remote from most Americans’ daily lives.
The ineffectiveness of punishing Mormons for violating federal laws led to additional congressional efforts. The Poland Act of 1874 sought to disrupt the absolute control that Mormons held over the judicial system in the Territory of Utah, particularly through the selection of juries. Poland (R-VT), as chair of the House Judiciary Committee, received incendiary reports that US soldiers had been beaten by municipal police under the protection of the LDS Church and the Mormon-controlled courts refused to prosecute.Footnote 62 The Poland Act’s most effective provision was removing jurisdiction from the Mormon-controlled probate courts.Footnote 63 The House passed the bill by a 159–55 vote. It faced more opposition in the Senate, where it narrowly passed 26–23. The votes were heavily partisan, with most Democrats opposed.Footnote 64
While this added teeth to existing antipolygamy efforts, it was still not clear that the original Morrill Act was constitutional. Federal officials informally colluded with the LDS Church to test the boundaries of the law. George Reynolds, the secretary to Brigham Young, was convicted and his appeal reached the Supreme Court in 1878.Footnote 65 In Reynolds v. US, the Supreme Court upheld the Morrill Act, arguing that while Congress could not violate free exercise in the territories, it could regulate religious actions. Footnote 66 Polygamy could be prohibited because it went against common law.Footnote 67
There was also obvious hostility to the Mormon practice of polygamy as immoral and repugnant. Chief Justice Waite, in the majority opinion, asked rhetorically if government was prohibited from interfering with human sacrifice or self-immolation if they were done for religious reasons.Footnote 68 The decision also directly linked the Mormons and their polygamous practices with “barbaric” rituals. The Supreme Court conceptualized the Mormons “as a foreign race,” and compared territorial rule to “the British Raj in India, bringing civilization through law to the benighted masses over whom it ruled.”Footnote 69
Reynolds dealt a blow to the Mormon Church, created a strong, albeit controversial, precedent on the question of legislative restrictions on the “free exercise” of religion, and emboldened federal authorities. There was no question now that Congress could restrict the power of the LDS Church even if it struck directly at religious practices. In 1882, Senator George Edmunds (R-VT) introduced a bill that would be the first impactful national legislative effort to break the Mormon resistance to federal authority. Like the Poland Act, the bill easily passed in the House (199–42), while narrowly passing the Senate (26–24). In both chambers, only Democrats opposed the bill.Footnote 70
Reaffirming the felony charge for polygamy in marriage, the Edmunds Act also made it a misdemeanor for cohabitation with more than one woman. This was important since Mormon polygamists would record only one civil marriage, while living with multiple religious wives. It also vacated election officials in Utah Territory to be replaced by a board of nominees, known as the Utah Commission.Footnote 71 The Commission worked to ensure that polygamists could neither vote nor gain elected office within the Territory. Edmunds argued that the Commission’s purpose was “to redeem the Territory from the absolute domination that 2,000 polygamists there have over everything that is done by law and without law in the Territory.”Footnote 72
During the 1880s, federal officials clamped down on polygamy in an increasingly repressive manner.Footnote 73 They focused on arresting low-ranking polygamists, who had less authority in the Church and fewer resources to hide themselves. Despite this, Young and other LDS superiors continued to run Church operations and the growing numbers of federal criminal cases remained frustratingly ineffective at breaking the LDS Church. Between 1871 and 1896, Gordon found, there were more than two thousand federal criminal cases in Utah Territory and over 95 percent of these were for sex crimes.Footnote 74
In Murphy v. Ramsey (1885),Footnote 75 the Supreme Court took up the question of whether the Utah Commission, and the Edmunds Act of 1882, could constitutionally deny voting rights to polygamists and require a test oath to that effect. The Court struck down the oath requirement because they argued the Commission lacked explicit authority to enact one, but it upheld the Edmunds Act itself. Justice Matthews argued that punishing polygamists for preexisting marriages was not retrospective because it was not the initial polygamy that was punished, but the status at the time of voter registration.Footnote 76
Through the mid-1880s, the Supreme Court largely upheld legislative efforts to strip polygamists of their civil and political rights. It was becoming clear, however, that polygamy would only die out if legislation struck at the formal institution of the LDS Church. This was done through the Edmunds-Tucker Act of 1887. Responding to the opinion in Murphy, it prescribed a test oath for voters, jurors, and office holders, but it went further by removing spousal privilege in polygamy trials and requiring all certificates of marriage to be officially filed.Footnote 77 It also annuled the territorial law that had enfranchised women, striking at the power of the LDS Church in elections. Most drastically though, it dissolved the Church itself, forfeiting its extensive property.Footnote 78
Unlike earlier bills, the Edmunds-Tucker Act also had broad bipartisan support. In the House, 88 Democrats joined 113 Republicans in support of the bill against just 40 in opposition. The Senate vote was closer, but 9 Democrats joined 27 Republicans, against just 13 opposed. In both chambers, only one Republican voted against the legislation.Footnote 79 With passage of the Edmunds-Tucker Act, Congress had gone from timidly imposing restrictions on the practice of polygamy during the 1860s to dismantling the structural foundation of Mormon society in Utah Territory by the mid-1880s.Footnote 80
A divided Supreme Court upheld the Edmunds-Tucker Act in 1890 in Late Church of Jesus Christ of Latter-Day Saints v. US. Footnote 81 The case challenged the authority of Congress to dissolve the LDS Church and seize its property. In his opinion for the Court, Justice Bradley outlined one of the strongest legal arguments for congressional control over territorial policy, best known for declaring that “the power of Congress over the territories of the United States is general and plenary.”Footnote 82 The national government could exercise such authority because it operated its authority over territories with the power of both the federal government and the state governments.Footnote 83 This did not mean that the Constitution failed to operate automatically in the territories, but plainly congressional authority had very few limits.
Writing for the majority, Bradley argued that “the state has a perfect right to prohibit polygamy and all other open offenses against the enlightened sentiment of mankind, notwithstanding the pretense of religious conviction by which they may be advocated and practiced.”Footnote 84 In the end, the LDS Church was “wielding by its resources an immense power in the territory of Utah, and employing … that power in constantly attempting to oppose, thwart, and subvert … the will of the government of the United States.”Footnote 85 The Court relied on rhetoric labeling Mormons as belligerent and immoral theocrats.
With the Supreme Court upholding the dramatic penalties imposed by the Edmunds-Tucker Act, Mormon leaders were faced with a wholly unappealing choice. They could either divest themselves of a core religious tenet and retain their institution or continue to oppose federal authority and risk future statehood and the official existence of the LDS Church. It did not take long for them to determine their future. Less than six months after the Supreme Court’s decision, President Woodruff of the LDS handed down a manifesto on October 6, 1890, declaring that the church is no longer “teaching polygamy or plural marriage, nor permitting any person to enter into its practice.” Six years later Utah was admitted as the forty-fifth state. The state constitutional convention inserted, upon federal pressure, just one qualification to religious freedom: “That polygamous or plural marriages are forever prohibited.”Footnote 86 The Mormons’ hope that the national government would protect them as residents of a territory had been severely misplaced.
Most political efforts to punish the LDS Church were focused on polygamy. This practice operated as a powerful symbol of the underlying concern with the society that Saints created. In its communitarian and theocratic construction, LDS society was targeted because it was perceived as a threat to the American way of life. The capitalistic, individualized, and Protestant moralism at the core of American culture found the polygamy, collectivism, and religious obedience to authority frightening. The Court’s decisions in the late 1800s “suggest that the Court believed not only that the Constitution permitted Congress to suppress polygamy, but also that the ‘correct’ social policy required Congress to do so.”Footnote 87
In linking slavery with polygamy, policy leaders were clearly arguing for its destruction based upon foundational moral values. As a “relic of barbarism,” polygamy was not only archaic, but unsuitable for civilized societies. The LDS Church itself not only promoted this barbaric practice, but, as members of Congress argued, it created “an entire community of fanatica,”Footnote 88 that is, “one of the monstrosities of the age in which we live,”Footnote 89 and is “as directly hostile to the Government of the United States as was ever any portion of this country when it was in the very darkest hour of the rebellion.”Footnote 90 By the 1880s it had become clear to non-Mormons in the United States that the only effective way to repudiate Mormon society was to strike at its foundation, something they were only able to accomplish because Utah was a territory.
The Insular Cases and Shifting Territorial Policy
Less than a decade after the Mormons leadership denounced polygamy, the United States found itself in control of several islands across the Caribbean Sea and Pacific Ocean. Congress refused to treat these new possessions as traditional territories, which led to a variety of legal and constitutional challenges. Starting in 1901, the Supreme Court declared a new type of territorial relationship through the Insular Cases. Congress now had the choice to declare a territory as incorporated or unincorporated. For an unincorporated territory, such as Puerto Rico, this meant that at least some constitutional protections did not automatically apply. For some purposes these territories were to be considered “foreign in a domestic sense.”Footnote 91 These cases ultimately established the principle that territories of the United States could be held as such indefinitely without any promise of statehood. This was undoubtedly a distinction from earlier territorial practice, but it was not obvious how the insular territories would be treated differently from places such as Utah or New Mexico.
The Insular Cases were decided amid a national debate over the extent of imperialism that the United States could or should employ. Highlighted by a series of law articles,Footnote 92 three general propositions were outlined.Footnote 93 The first was that the United States consisted solely of the states, meaning that the Constitution did not automatically apply to nonstate (i.e., territorial) entities.Footnote 94 The second view was that the United States included both the states and the territories,Footnote 95 consonant with the view of Justice Taney in the Dred Scott case.Footnote 96 Under this interpretation, the sovereignty of the United States was bounded by the Constitution because it established the nation.Footnote 97
A third view was outlined by Abbott Lawrence Lowell. He argued that constitutional protections in the territories depended upon the explicit texts of legislation and treaties. It was Congress’s prerogative to decide to extend the Constitution to all places under US control.Footnote 98 The Court used this concept to construct the idea that the national government could choose to incorporate a territory, but it was not required to do so, and in doing so created a different kind of American empire.
Scholars have questioned the influence the antipolygamy battles had on the imperialist debates resolved through the Insular Cases. Although they clearly reflected the concept that Congress had plenary authority over the territories, an argument can be made that “Reynolds and the other cases … were not a major, let alone a causal, force in resolving constitutional debates precipitated by the Spanish-American War.”Footnote 99 The foundational cases of De Lima v. Bidwell and Downes v. Bidwell, for example, do not mention the Mormons directly at all and only Downes refers to Utah Territory, citing Thompson v. Utah, a case concerning the size of jury that was required in the territory.Footnote 100 That reference, ironically, was used as an example of how the Constitution did extend to Utah (and other territories). In the scholarly debate discussed above, there were limited references to the Mormons or Utah Territory, many of which also referenced the Thompson case as a reason to doubt that the Constitution did not mechanically apply in Puerto Rico in all facets.
In the most influential essay toward the view that it was up to Congress to choose to extend the Constitution to a territory (i.e., incorporate), Lowell argued that the Thompson case “pretty well destroyed” the notion that the federal government is not limited because Congress had explicitly incorporated Utah in its organic act.Footnote 101 While he did not think that the Constitution would apply in the absence of a treaty or congressional statute expressly indicating so, it was clear that once extended, the Constitution placed limits on the national government. In another essay, Langdell, who had been dean of Harvard Law School, argued that the Constitution must apply, and therefore limit, national authority in the territories. In his only reference to Utah Territory, he emphasized the fact that Congress had made this explicit in the organic act organizing Utah in 1850.Footnote 102 Since earlier organic acts and cession treaties were explicit about extending constitutional protections, there had not needed to be a precedent-setting national debate over the possibility that it would not be.
The Mormon case was also not necessarily the most direct example for the Insular Cases because the United States had been legislating on insular possessions as far back as the 1850s with the Guano Islands Act.Footnote 103 Burnett has argued that the Insular Cases are novel not just for the distinction between incorporated and unincorporated territories, but also because they sanctioned the concept of “deannexation,” whereby the United States can acquire and release territorial properties.Footnote 104 In the guano islands case, the national government had expressed the ambiguous constitutional position that those territorial entities were never officially acquired for permanent use and therefore were not constitutional territories.Footnote 105 After the Insular Cases, however, Burnett argued that there was now a “proposition that the acquisition of a territory by the United States could be followed by its separation from the United States.”Footnote 106 It was the combination of the possibility of permanent colonies and future deannexation that arguably created a pure colonial system within American constitutionalism.
Puerto Rican scholar Efrén Rivera Ramos has additionally argued that the Insular Cases were important because “they created a discursive universe within which all further discussion of the colonial problematic would have to be conducted.”Footnote 107 The distinction of incorporated versus unincorporated became, through a torturous and uncertain set of narrowly decided cases, the accepted norm by the end of the first decade of the twentieth century. By itself, incorporation was a compromise between articulating a territorial policy that was unabashedly imperial and one that required the Constitution to immediately, and fully, apply to any territory acquired by the United States.Footnote 108 What changed was that for the first time in US history a territory could be incontestably held as such indefinitely and that Congress had the right to decide what nonfundamental rights would be protected therein.Footnote 109
These shifts from earlier territorial policy are undeniably important and the creation and acceptance of the incorporation doctrine altered the long-term expectations of American empire. This was particularly true when viewed from a constitutional and legal perspective. Yet, from a policy perspective, these shifts were not as novel as they initially appeared to be. The outcome of the Insular Cases was just one of many possibilities, but as other scholars have argued, those decisions were actually compromises, as tortured as their legal logic may have been. These compromises were based upon the existing understanding that not all places and peoples ought to be directly into the American core. The Mormon question, along with the religious and racial “otherness” of New Mexicans, had already disrupted the idea that all territories had the right to statehood. In that sense, the Insular Cases built upon the authority that was granted to the national government in dealing with the Mormons in Utah Territory.
Conclusion: How the “Mormon Question” Influenced the Insular Cases
Earl Pomeroy, writing about the territorial system in the latter half of the nineteenth century, characterized it as “more of a lack of governance than actual misgovernment,” but he also noted that national authority “could represent quite positively oppression and assistance, foreign intervention and patriotic attachment.”Footnote 110 In the case of Utah Territory, the balance was far more oppressive and interventionist. It is evident from the experience of the Mormons that the national government had the constitutional authority and the political will to deny rights to territorial governments and territorial residents.
The Insular Cases delineated the possibility of permanent colonial status and set forth the doctrine that the Constitution’s protections did not necessarily apply automatically to places and people under US sovereignty. This did not, however, mean that territories where the Constitution did apply had a right to demand statehood be granted to them. The national government had collectively backed the ability of Congress to withhold statehood for political reasons, particularly in Utah and New Mexico. Thus, even if the Constitution applied to Puerto Rico, Guam, and the Philippines, it was not clear what restrictions that actually put upon Congress, the presidency, or the courts. In Utah Territory, political institutions had denied a core religious belief on the basis that it violated common law and Christian sensibilities of civilized behavior, despite the First Amendment’s clarity on religious freedom.
What the Insular Cases did do was to make it clear that when Congress wanted to impose its will upon the territories, as it had to suppress polygamy and the Mormon theocracy, it now had nearly unlimited ability to do so. This was a significant shift from early territorial administration in terms of legal and constitutional doctrines. Early territorial policy was haphazardly applied, and legislators were hardly unified in their concerns about territorial issues.Footnote 111 By focusing primarily on what changed, scholars have inadvertently overlooked the ways in which the Insular Cases reflected long-standing territorial practices that had been slowly, but substantively, changing throughout the nineteenth century.
The creation of the doctrine of incorporation, while novel, and not preordained by any legal tradition, did fit within the territorial policy decisions that had been made for decades before. Cleveland argued that there was support for several propositions within Supreme Court precedent regarding territorial policy that lend support toward the judicial doctrine set forth in the Insular Cases. For example, in the LDS case in 1890 (in dicta), the Court argued that the Constitution may not restrict Congress in the territories.Footnote 112 In addition, the presumption that not all aspects of the Constitution or federal laws automatically apply to the territories came from the 1828 case of American Insurance Company v Canter and the 1885 case of Murphy v. Ramsey. Footnote 113 Neither of these arguments enjoyed a majority, but they fit with the way in which both the American executive and legislative branches treated the Mormons in Utah Territory.Footnote 114
Scholars also point toward the impact that racial animosity played in the Insular Cases. Juan Torruella argued that the decisions “were strongly influenced by racially motivated biases and by colonial governance theories that were contrary to American territorial practice and experience.”Footnote 115 Thus, it was the indefinite future status of unincorporated territories that created a “de facto colonial status,” which “had to be validated by a legal regime that would de jure allow the United States to govern the new lands and their people with a free hand.”Footnote 116 Similarly, Rivera Ramos claimed that the Supreme Court in the Insular Cases conceptualized overseas territorial people to be “inferior, less capable, predestined to be governed, to be held in tutelage, to be ‘civilized’ or ‘protected,’ to be brought within the ideological world of the dominating power, but sufficiently at a distance so as not to confuse the respective communities they inhabit.”Footnote 117
For Torruella and Rivera Ramos, the incorporation doctrine made the overseas territories true colonies, while continental territories, because of their temporary secondary status, were not. This perspective, however, oversimplifies earlier territorial practice, denies the importance of racial and religious hostility that was leveled against Utah and New Mexico Territories for decades, and assumes a level of substantive constitutional protections for mainland territories that did not reflect actual practice. The Mormons, for example, were feared because of their religious fanaticism and their practice of polygamy. The American public and its Christian leaders framed the Mormons as barbaric and uncivilized and withheld the prize of statehood until they repented and were subdued. The permanence of racial hostility differs across these cases, but not the use of it to justify repressive policies denying political and civil rights.
What the Insular Cases did was to shift the ultimate purpose behind acquiring and holding territories in the United States system. Within that space it created the idea of a legal choice where none had been before. The choice was whether to grant “incorporation” to a territorial unit, a status that was akin to earlier territorial status, or leave the territory in a purgatory of American empire. Undeniably, that change had significant constitutional and practical consequences that explain, to some extent, why Alaska and Hawaii became states but Puerto Rico and Guam have not (and why the Philippines gained independence).
For the incorporated territories, however, there was no immediate or even intermediate guarantee of statehood. There is an intrinsic value that comes with the promise of eventual inclusion in the Union, which matters from an institutional perspective, and thus differentiates the mainland territories from places like Puerto Rico and Guam. For those people who lived most or all of their lives under a territorial government, however, it had little real impact. There have now been multiple generations born in Puerto Rico as an American colony, but there were also multiple generations born in both New Mexico and Utah while they were inferior political units.
For the Mormons in Utah Territory, they had been occupied by a military force sent by their own government, denied a core tenet of their religion despite the First Amendment’s protections, and lost their political and civil rights as well as a significant amount of their self-governing autonomy as a penalty for their resistance. If they had continued to resist after the LDS organization had been dismantled, it is not clear how long it might have taken to gain statehood or what the national government would have done to force them to yield. The Insular Cases, seen from this vantage, do not appear as a radical shift in treatment of territorial units. Instead, the incorporation doctrine becomes a compromise between pure colonization and pure equality that built upon imperious earlier practices.
There was also the racial and religious components of the imperialism debates. Many of the territories gained in 1898 were heavily populated with people who had darker skin tones than the predominant European population in the continental US. Yet Utah’s Mormons and New Mexico’s Hispanic Catholics were also treated as racial and religious “others.” While the plenary authority demonstrated in Utah Territory over the Mormons did not suggest that Congress had the inherent authority to leave the new insular territories indefinitely in a subjugated status, it also did not put obvious limits on their sovereignty.
The case of Utah Territory challenged the strength of the nineteenth-century assumption that territories were to become states. In 1892, Edmund Steele Joy examined the foundation of that assumption, arguing that it had been tradition, laws enacted by Congress, and treaties that stated the goals of eventual admission. It was not, however, a self-evident constitutional requirement.Footnote 118 Although territories were assumed to be “embryonic States,” admission was a cooperative process where the people in a territory requested a change in status and Congress assented under the proper conditions.Footnote 119 For the Mormons of Utah, there was national antagonism instead of cooperation, which left them in territorial status, and denied them of their political and civil rights, for decades.
The Insular Cases, building upon this framework, shifted the balance further toward congressional authority and away from the cooperative process that had provided some autonomy to territorial residents. Congressional consent for admission, less likely to be given than ever before, would be the defining feature. Congress could signal its intent by leaving territories unincorporated according to the legal principles outlined in the Incorporation Theory of the Insular Cases. While Utah would become a state, it was based not upon a cooperative process, but one driven by federal authority. The groundwork had been laid for a shift in territorial policy and a new version of American empire. Looking backward to the experiences of the Mormons in Utah, we see a de facto empire, one that allowed sweeping governmental authority, even if it were bound by the Constitution in theory.
The Insular Cases were and remain fundamental to the territorial experience, because territorial policy can touch upon the individual rights of residents living in the territories as well as the rights of the territories as political entities. Territorial residents have been provided additional constitutional rights since the Insular Cases, but these are granted on a case-by-case basis, leaving people at the mercy of federal judges. They are not provided the privileges and immunities of the states, because they are not residents of a state.Footnote 120 This continues to matter with recent issues arising such as the Supreme Court deciding whether Puerto Rico can constitutionally declare bankruptcy and lower federal courts in conflict over whether or not the island’s ban on same-sex marriage is affected by the precedent set in Obergefell v. Hodges (2015).Footnote 121 It is important to recognize the role that earlier territorial policy had in influencing the outcome of the Insular Cases for a more holistic understanding of American political history.
