I am the greatest advocate of the Constitution of the United States there is on the earth. In my feelings I am always ready to die for the protection of the weak and oppressed in their just rights. The only fault I find with the Constitution is, it is not broad enough to cover the whole ground.
Although it provides that all men shall enjoy religious freedom, yet it does not provide the manner by which that freedom can be preserved, nor for the punishment of Government officers who refuse to protect the people in their religious rights, or punish those mobs, states, or communities who interfere with the rights of the people on account of their religion. Its sentiments are good, but it provides no means of enforcing them. It has but this one fault. Under its provision, a man or a people who are able to protect themselves can get along well enough; but those who have the misfortune to be weak or unpopular are left to the merciless rage of popular fury.
The Constitution should contain a provision that every officer of the Government who should neglect or refuse to extend the protection guaranteed in the Constitution should be subject to capital punishment; and then the president of the United States would not say, “Your cause is just, but I can do nothing for you.”
( Source: Teachings of the Prophet Joseph Smith 326-27 )
It is important to understand Joseph Smith’s perspective. The U.S. Constitution promises Americans that they will have freedom to worship as they please, but nevertheless the prophet was persecuted for his religion all of his adult life.
Because of this persecution, Joseph Smith traveled to Washington, DC in November 1839 to appeal directly to President Martin Van Buren and the U.S. Congress. And he was told that for political reasons very little could be done for the early Latter-day Saints. President Van Buren told Joseph Smith that his cause was just but nothing could be done without losing the votes of the state of Missouri, where a lot of the persecution took place.
The prophet was expressing the frustration of a people who had suffered near non-stop persecution for nine years, but I would like to point out that his statement above ignores some political realities that are unfortunate but unavoidable in a fallen, pre-Millennium world.
In a perfect world, all people would express tolerance for other viewpoints and other religions and all government officers would protect minority groups. He was obviously correct that the spirit of the U.S. Constitution intended that people should be free to follow whatever religion they wanted. In a perfect world, the early Latter-day Saints would have been left alone, much like the Amish are mostly left alone today, to worship as they pleased.
But the reality is that a government that does what Joseph Smith is calling for, ie kill people who fail to follow the Constitution, creates a whole set of new problems.
The first problem is obvious: who decides what it means not to follow the Constitution? The Constitutional interpretation since early in the republic has been that the Supreme Court does this. But the Supreme Court moves slowly. And whenever the court has taken some drastic political step like this, later courts have expressed regret. I am thinking of the most controversial decisions like the Dred Scott decision, which said that African American slaves were not given constitutional protections, Plessy vs. Ferguson, which found segregation legal, and the Korematsu decision allowing the internment of Japanese during WWII. All of these politicized decisions were later overturned, and in fact the Supreme Court apologized for the Korematsu decision.
The point is that a Supreme Court that calls for government leaders to be killed who don’t support the Constitution is a Supreme Court that will obviously be politicized in ways that will create chaos.
And imagine if the executive branch, ie, the president and the attorney general, decided to start killing people who didn’t support the Constitution. In today’s environment, with Democrats mostly in control, we would see constant assassinations of Republican leaders, and then when Republicans took power we would see constant assassinations of Democrat leaders.
So, Joseph Smith’s frustrations, while completely understandable, are not applicable in today’s political environment.
So, what caused the change where the Amish are mostly left alone today but the early Latter-day Saints were mobbed and killed and had their land stolen wherever they went?
From a spiritual standpoint, it should be apparent to believing Latter-day Saints that the Lord’s church always suffers severe persecution. It is difficult to imagine a law or a series of laws that would have overcome this issue.
From a temporal standpoint, the federal government was tiny in the 1830s and 1840s. Almost all power was contained in individual state governments. Many people believed that the Bill of Rights only applied to the national government and that individual states were governed by their own state constitutions. In fact, an 1833 Supreme Court decision reaffirmed this view.
It was only after the 14th amendment was ratified in 1868 that people began to believe that the U.S. Constitution should, in effect, trump state governments. But this battle over states’ rights continues today, and many states still to refuse to honor federal laws on issues such as immigration and marijuana, among others.
So, when Joseph Smith appealed to the federal government to protect Latter-day Saints in 1839 he was attempting to overcome a political environment in which national forces were extremely hesitant to get involved in local issues. That has changed, and today the U.S. Justice Department constantly projects power locally.
We can see that this federal projection into local issues has had some positive effects (such as during the civil rights era) but in my opinion a whole host of negative effects. Today, the U.S. Justice Department has become so politicized that its increase in power and authority is causing a lot more oppression than salvation.
The 10th amendment to the Constitution assures that state laws, not federal laws, should take precedence on issues that are not covered by the Constitution itself. (I should note that many scholars disagree with this view, but sorry it is right there in the document). So, for example, if the Constitution does not call for a national pension plan (which it does not), a national pension plan is not constitutional unless an amendment is passed. In my opinion, most of what the federal government has done since at least the 1930s is unconstitutional.
But the Constitution clear protects religious freedom. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” This could not be more clear, and it is true that early Latter-day Saints were not afforded the protections they deserved.
So, Joseph Smith was quite right that the Constitution has a flaw in that it was difficult to enforce people actually following the Constitution. This will always be a problem in a large democratic republic like ours. This problem is much worse today than it was in 1839, and it affects all of our lives. The reason that taxes are so high is that the Constitution is not being followed. The reason that people do not feel that justice prevails these days is that the Constitution is not being followed. And, unfortunately, the reason that early latter-day Saints were persecuted and hounded and killed is because the spirit of the U.S. Constitution was not being followed.
What was the solution? Joseph Smith was correct to feel extreme frustration at the injustice of it all. I don’t believe it can be solved without a change in peoples’ attitudes towards following the law, and that probably will not happen until the Millennium.