The "Embarrassing" Section 134

Some years ago Sanford Levinson published an essay entitled, The Embarrassing Second Amendment.1 A well-known scholar of the left, Levinson regretfully concluded that the Framers understood the Second Amendment to protect precisely what the National Rifle Association has long maintained-an individual right to own weapons for the purpose of resisting violations of liberty by the federal government.2 This is "embarrassing" to gun-control liberals and others who argue that the Second Amendment protects a collective right that applies only in the context of state-controlled armed forces like the National Guard.3 It is in this spirit that I have entitled my comments "The 'Embarrassing' Section 134." I agree with Professor Smith that section 134 seems to reflect much of the thought of James Madison and the general spirit of his time,4 which is precisely the problem. There appear to be serious discontinuities between the Madisonian understanding of conscience, which Professor Smith argues is evident in section 134, and the status of conscience among contemporary members of the Church of Jesus Christ of Latter-day Saints. I will briefly discuss three: the contemporary church's teaching that Latter-day Saints owe an unqualified allegiance to the law of the land, the general antipathy of Latter-day Saint (or "LDS") lawyers toward the use of natural law and natural rights reasoning in interpreting the Constitution, and the contemporary church's insistence that individual religious conscience be subordinated to the church's institutional interests. Given the un-Madisonian view of individual conscience apparently reflected in the practices and attitudes of the contemporary church, Professor Smith's demonstration of Madisonian influence on section 134 may be more cause for chagrin than celebration. 1. The Twelfth Article of Faith declares that Latter-day Saints "believe in being subject to kings, presidents, rulers, and magistrates, in obeying, honoring and sustaining the law."5 Section 58 of the Doctrine and Covenants is even more emphatic: "Let no man break the laws of the land, for he that keepeth the laws of God hath no need to break the laws of the land. Wherefore, be subject to the powers that be . . . ."6 At least since World War II, these scriptures have been understood to encourage, if not to command, an unqualified obedience to the law by Latter-day Saints, even when the law is deeply unjust. Helmuth Hubener, for example, was a Latter-day Saint teenager who was both executed by the Gestapo and excommunicated by German LDS authorities for anti-Nazi resistance activities.7 More than a half century later, Hubener is celebrated in Germany as a hero of the resistance,8 while LDS church leaders remain ambivalent about his actions.9 Similarly, during the 1960s, the civil disobedience of antiwar and civil rights activists was criticized by LDS leaders and members because it entailed conscious lawbreaking, although leaders did not disapprove of reform efforts undertaken through legal channels.10 Before the Berlin Wall fell in 1989, Latter-day Saints trapped behind the Iron Curtain were counseled to obey the laws of the totalitarian regimes under which they lived, and similar counsel is given today to those who live under dictatorships and other authoritarian regimes that do not respect basic human rights.11 All this is in stark contrast to Madisonian political thought and, indeed, to some readings of section 134 itself. Latter-day Saints honor Madison and the other Founders as patriots-among the Saints the Constitution is equivalent to scripture, and the Founders enjoy a close-to-prophetic status.12 Like all revolutionaries, however, Madison and the Founders were traitors to their country. They justified rebellion against Great Britain because its king had failed to respect the "inalienable" or natural rights of the colonists, as the Declaration of Independence clearly sets forth. Section 134 endorses this same justification. …