Guest Post: Strange Constitutional Bedfellows: The First and Third Amendments in the Mormon Quest for Religious Liberty

Today’s guest post comes from Spencer W. McBride, who has blogged with us before. Dr. McBride received his PhD at Louisiana State University in 2014 and is now a historian and documentary editor at the Joseph Smith Papers. His research examines the politicization of clergymen during the American Revolution and in the early American republic.

JS LegionOf the ten amendments that comprise the United States Bill of Rights, the third amendment is arguably the least controversial. Go ahead, think back to your high school civics class and try to remember what rights are protected by the third amendment. Can’t remember? Don’t feel too bad. It is rarely invoked by politicians and political activists, it does not often spark heated debates in the media, and the U.S. Supreme Court has never heard a case in which it was the primary basis. Let’s face it, since the adoption of the first ten amendments to the Constitution, Americans have not been overly concerned that the government will quarter troops in the homes of private citizens without their consent.

Yet, one peculiar instance stands out in the otherwise quiet history of the third amendment, and it pertains to the efforts of a religious minority to obtain religious liberty. This instance occurred in 1839 when Joseph Smith, the founder of Mormonism, appealed for redress from the federal government for the persecution members of his church experienced in Missouri in the 1830s. Though Smith made the bulk of his case against Missouri under the umbrella of the first amendment’s protection of religious liberty, there was a brief moment in which he considered adding the unconstitutional quartering of troops in Mormon homes to their list of charges against the 24th state. Though this would have been a hard sell to President Martin Van Buren and Congress, the Mormon contemplation of their third amendment rights—and the way in which they related them to what they perceived as their violated religious liberties—deserves consideration.

During the 1830s, thousands of members of the Church of Jesus Christ of Latter-day Saints immigrated to Missouri, spurred by the church’s teachings that God had appointed that land for the establishment of the “New Jerusalem” prophesied in the book of Revelation. This group initially centered its community in Jackson County, and by 1833 numbered over 1,000. This rapid influx of a religious “other” made the county’s non-Mormon residents anxious. They feared that their new neighbors would vote as a bloc and thereby wield too much political power in the frontier county. These concerns were exacerbated by unfounded accusations circulating in print that the Mormons aimed to unite with free blacks to undermine the influence of Missouri’s slaveholders or that they were in league with Native Americans to overthrow the established government. Rather than wait to see how the demographic shift would unfold, hundreds of the county’s non-Mormons resorted to mob violence as a means of driving out the Mormon threat before it could loom any larger. They stole their property, burned their houses, and lynched their men until the Mormons fled Jackson County to more accommodating counties in the northwest region of the state.

The Mormons’ reprieve, however, was short-lived. The long and complex story of what happened to this religious community in northwestern Missouri has been retold many times in early American history books.[1] In order to understand the connection Smith made between his followers’ first and third amendment rights, a quick summary will do. So here is the “Mormon War” in a nutshell. As the Mormon population in Missouri continued to swell, the tension between Smith’s followers and their neighbors increased. After an election-day brawl at a Gallatin, Missouri polling place in August, 1838, conflict quickly escalated between these feuding Missourians. The Mormons took up arms to defend themselves and their property from their neighbors, a group they collectively (and impersonally) termed “the Mob.” Shots were fired. Men on both sides fell dead. The Governor sent the militia to stand between the two armed bodies, but because many of the militiamen’s sympathies lay with “the Mob,” the presence of the militia brought the Mormons little comfort. Hearing reports of Mormons burning the homes of their non-Mormon neighbors and viewing them as the instigators of the violence, Missouri Governor Lilburn W. Boggs issued Executive Order 44, which deemed the Mormons enemies of the state and instructed the militia that this religious minority “must be exterminated or driven from the state if necessary for the public peace.”[2] With the state’s chief executive behind them, “the Mob” and the militia marched on the Mormons and ordered them to leave their homes at the onset of a brutally cold winter. They fled to Illinois and Iowa while several members of “the Mob” and the militia remained in Missouri and retained possession of Mormon lands and buildings.[3]

Now, back to the part about the third amendment. Utterly convinced that Mormons would never obtain just redress in Missouri for their state-sanctioned expulsion, the church appointed Joseph Smith and other church leaders as delegates to Washington, D.C., tasked with lobbying the federal government for the restoration of their property and citizenship rights. The church’s plan was to “impeach” the state of Missouri, which here meant convincing Congress to deny the state’s delegates their seats in the Senate and House of Representatives until the state paid reparations to the Church and its aggrieved members for the way it had treated them. They planned to accomplish this by convincing other states in the Union that Missouri had acted in a manner entirely unacceptable in a republic.[4] They gathered letters of recommendation from prominent government officials in Iowa and Illinois who were sympathetic to the Mormons’ plight, as well as petitions and affidavits from many of the victims of the Missouri mobs and militia. They instigated a letter-writing campaign in which church members and their sympathizers wrote to their congressmen in support of the church’s case. All this in preparation for a memorial Smith and company composed and introduced in the Senate.

While making these preparations, Smith wrote a letter to a church council that was overseeing the resettlement of Mormon refugees in Nauvoo, Illinois. In asking for the council’s help in orchestrating this grass-roots political campaign against Missouri, Smith proposed a creative approach to their problem. He asked the council to send him “affidavits to prove that Soldiers were quartered on us and in our houses without our consent or any special act of the Legislature for that purpose, contrary to the constitution of the United States.”[5] This was an atypical example of unlawful quartering. The classic case of intrusive quartering implemented by government—and the case that became the impetus for the third amendment in the first place—was the Quartering Act of 1776 in which Parliament decreed that the citizens of Boston must provide housing and provisions for British troops who were then stationed in Boston to quell local protests. During the “Mormon War” of 1838, however, Missouri had not forced the Mormons to take in and support its militiamen while remaining in their houses. Smith posited that the state had violated the third amendment by ordering the militia to drive Mormons from their homes and then allowing militiamen to take possession of the abandoned residences. In this unique and fascinating interpretation of the Constitution’s protection against unlawful quartering, Smith made the first and third amendments strange, yet reasonable, bedfellows.

However, for reasons we have not yet fully recovered, Smith and the rest of the church’s delegation to Washington, D.C. made no mention of the third amendment in the memorial they submitted to Congress. They mentioned the confiscation of property and occupation of their homes by a mob of Missouri citizens and militiamen in the narrative list of grievances at the heart of their petition for reparations, a petition that called for the restoration of their property and the payment of $120,000 in reparations. But they hung all this on the principle of their first amendment rights as citizens of the United States. Perhaps someone advised Smith that seeking redress under the third amendment would be too much of a stretch and could thereby weaken the church’s case. It could be that in a time when the Bill of Rights was inconsistently applied to the states, it was unclear whether the prohibition against the quartering of troops applied to state militias the same way it would a federal army.

We may never know why Smith abandoned the “quartering” aspect of his attempts to obtain reparations from the federal government. Nevertheless, the fact that Smith considered including an appeal to the Mormons’ third amendment rights demonstrates the frustration he experienced trying to end the inhumane treatment of his followers because of their religious beliefs and the desperation with which he sought to restore what he felt had been unlawfully taken from them. Having fastidiously documented the persecutions of its members, the Church of Jesus Christ of Latter-day Saints had sufficient evidence to make their case. The challenge they faced was finding the best way to frame their petition in constitutional terms and finding a branch of the federal government willing and able enough to consider their situation seriously. In the nineteenth-century United States, when the country’s religious freedom was celebrated by patriotic Americans but unapologetically denied to citizens outside mainstream Protestantism, sometimes all a religious minority could do was throw whatever legal challenges they could at the metaphorical wall and see what stuck.


[1] For a contemporary summary of these events, see “A History, of the Persecution of the Church of Jesus Christ, of Latter Day Saints in Missouri,” in The Joseph Smith Papers, Histories Series, 2 vols., ed. Dean C. Jessee, et al. (Salt Lake City: Church Historians Press, 2012), 2: 203-286.

[2] Lilburn W. Boggs to John Clark, October 27, 1838, The Missouri Mormon War Collection, Missouri State Archives, Jefferson City, Missouri.

[3] See “A History, of the Persecution of the Church of Jesus Christ, of Latter Day Saints in Missouri,” 2: 203-286.

[4] Sidney Rigdon to Joseph Smith, April 10, 1839, Joseph Smith Collection, Church History Library, Salt Lake City, Utah.

[5] Joseph Smith to Seymour Brunson and High Council, December 7, 1839, Joseph Smith Collection, Church History Library.

4 responses

  1. This is fascinating, but I’m not fully sure I understand it. Was he making a legal argument that the First and Third Amendments prohibited Missouri’s treatment of the Mormons? Because that wouldn’t have been correct in the 1830s, right? The Bill of Rights would not have applied to the States until after the Civil War. Or was Smith just using it as a kind of moral text, essentially saying, “This kind of treatment is an outrage, which is why the Constitution doesn’t allow the federal government to do it!”

    • Thanks for reading, thehandsomecamel. Sorry for my delayed response. For the most part, Smith was using his proposed appeal to the first and third amendments, as you suggest, as a moral exclamation that they were being denied their constitutional rights. But the appeal to the federal government of which this mention of the third amendment was a part advocated for a federal government that was strong enough — and willing enough — to enforce the Bill of Rights upon the individual states. Hence, when Smith ran for president in 1844, this was a key tenet of his political platform.

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