U.S. in a ‘perilous moment’ — Legal experts debate LDS leader Dallin Oaks’ talk on the Constitution

We have to examine “our prior political biases,” says a former federal judge; “blind loyalty to any political party can reap frightening consequences,” warns BYU scholar.

(The Church of Jesus Christ of Latter-day Saints) President Dallin H. Oaks, first counselor in the governing First Presidency, speaks at General Conference about the U.S. Constitution on Easter Sunday, April 4, 2021.

On Easter Sunday, Dallin H. Oaks — first counselor in the governing First Presidency of The Church of Jesus Christ of Latter-day Saints — opted to discuss “Defending Our Divinely Inspired U.S. Constitution” at the faith’s annual General Conference, rather than celebrating Jesus’ resurrection.

Many listeners were astonished by the choice, including several Latter-day Saint legal scholars, who respect Oaks’ legal acumen (he was a Utah Supreme Court justice before being called into full-time church service) but look to him primarily for religious guidance.

“Easter should be a time reserved for us to bear a powerful witness of the risen Lord,” said Latter-day Saint Thomas B. Griffith, a recently retired federal appellate court judge. But the fact that it was “out of tune with what an Easter Sunday is expected to be only highlights its importance — its timing.”

He detected, Griffith said, “a sense of urgency...in it — that this needs to be heard and understood now.”

Others who joined the former judge Wednesday in an online panel on Oaks’ sermon agreed about the speech’s timing.

“It is quite remarkable that an apostle would choose to devote this time and place at conference to talk about the issue of constitutional literacy,” said Christine Durham, who retired from the Utah Supreme Court in 2017 after serving as chief justice for 10 years (she overlapped with Oaks for two or three years), “and of the importance of the kind of principles, particularly moral agency, that is embedded in our national Constitution.”

The panel was part of an annual program on religious freedom sponsored by Brigham Young University’s International Center for Law and Religious Studies.

The discussion was moderated by the center’s founder, Cole Durham, and also included Paul Kerry, an associate director for the center and a professor of history at BYU. The final panelist was Jane Wise, also an associate director for the center who has taught legal writing at BYU’s law school for more than 20 years.

All the speakers felt Oaks was addressing the country’s “perilous moment,” as Griffith put it, summoning Latter-day Saints to “be better people than we have been and to do so with regard to the toxic political atmosphere that predominates” the nation.

Members have a “special obligation to help lead the country out of it,” Griffith said. “If we’re going to do that, we’re not going to do it by doubling down on our prior political biases.”

An evolving understanding

(Scott Sommerdorf | The Salt Lake Tribune) Christine Durham, a former Utah Supreme Court justice shown in 2017, says the U.S. Constitution "is not something that was written merely to govern our people in the 18th century."

Oaks began his exploration of the Constitution by noting that, while Latter-day Saints believe the founding U.S. document is “divinely inspired,” that does not mean that God “dictated every word and phrase.”

He pointed, for example, to the need for “inspired amendments [that] abolished slavery and gave women the right to vote.”

Christine Durham saw that message as one of Oaks’ most important points.

“In 1987, Thurgood Marshall at the bicentennial of the federal Constitution, gave a really strong analysis of the sense in which the original Constitution failed so many members of our citizenry,” Durham said, “and, of course, he was specifically referring to the vote, and to slavery, and to the other real depredations that took place and were made available under and upheld under the Constitution before a number of amendments came into being.”

For her part, Durham appreciated the reminder “that the Constitution is not something that was written merely to govern our people in the 18th century,” she said, “but is a document by which we must live in which we must honor and implement in our century as well.”

Popular sovereignty

(Manuel Balce Ceneta, The Associated Press) In this Wednesday, Jan. 6, 2021, photo, supporters of President Donald Trump are confronted by U.S. Capitol Police on Jan. 6. Latter-day Saint apostle Dallin H. Oaks has said that popular sovereignty "does not mean that mobs or other groups of people can intervene to intimidate or force government action.”

The source of government power “is the people,” Oaks emphasized. “In a time when sovereign power was universally assumed to come from the divine right of kings or from military power, attributing sovereign power to the people was revolutionary. Philosophers had advocated this, but the United States Constitution was the first to apply it.”

Then Oaks pointedly said — possibly alluding to the Jan. 6 Capitol siege to oppose the results of the 2020 election — giving power to the people rather than a sovereign “does not mean that mobs or other groups of people can intervene to intimidate or force government action.”

The idea of popular sovereignty is really “at the heart of the American founding, that governments … derive their just powers from the consent of the governed,” said Kerry, the BYU historian. The Constitution “needs to honor the principle of popular representation and that the people in ‘we the people’ may curb our lawful representatives.”

The sermon also had implications for Oaks’ global audience, more than half of whom live outside the U.S.

According to the Pew Research Center, “84% of the world’s population identifies with religion, [but] 87% of the world’s population live in countries with very high restrictions on religious freedom,” Kerry said. “So we see … how these principles can apply internationally. And by working cooperatively, we can... as a church help to support other people of faith.”

Principles over party

(Gerald Herbert, The Associated Press) President Donald Trump walks to board Marine One on the South Lawn of the White House on Jan. 12, 2021, in Washington. Latter-day Saint apostle Dallin H. Oaks has stated that Americans' loyalties should be to the U.S. Constitution above any particular politician or party.

Loyalty should be “to the Constitution and its principles and processes, not to any officeholder,” Oaks said. “...Each citizen must therefore decide which issues are most important to him or her at any particular time. Then, members should seek inspiration on how to exercise their influence according to their individual priorities. This process will not be easy. It may require changing party support or candidate choices, even from election to election.”

Members’ independent actions “will sometimes require voters to support candidates or political parties or platforms whose other positions they cannot approve,” Oaks added. “We should never assert that a faithful Latter-day Saint cannot belong to a particular party or vote for a particular candidate. ...There are many political issues, and no party, platform or individual candidate can satisfy all personal preferences.”

That is the reason, he said, “we encourage our members to refrain from judging one another in political matters.”

These were key points, Christine Durham said. “It seems to me that he’s very careful to outline the fact that we are Latter-day Saints and that we answer to moral agency — as we understand its meaning in the doctrine we receive from [God]. And that we should not make our allegiances to party and to partisan activities. And I think that that has become, in some parts of the church, a real issue.”

Durham herself appeared with other influential Latter-day Saint women in a video last year encouraging fellow members not to vote for Donald Trump’s reelection.

Constitutional literacy

(National Archives via AP) This photo made available by the U.S. National Archives shows a portion of the first page of the United States Constitution.

Repeated studies have shown how little Americans know about or understand the Constitution.

“You can find dozens of these studies by reputable pollsters and so on, where they send out free-standing copies of the Bill of Rights and ask people to respond to what they are,” Durham said, “and you get back answers like it’s a constitutional plot, or, you know, some communist wrote these.”

Americans, she said, have “come to a point of, I think, near failure on our willingness and ability to train informed citizens.”

Oaks was imploring Latter-day Saints to become more deeply engaged with the founding document, to fully grasp its guiding ideas, Durham said, and “to cease...undermining trust in American government and in constitutional principles.”

She has “encountered a great many Latter-day Saints who identify their faith with the effort to undermine, for example, the legitimacy of our last election again, on no legitimate basis whatsoever.”

The retired justice believes Oaks was addressing such people, while also issuing a call to those on all sides of these issues to seek compromise and amity.

But Latter-day Saints heard what they wanted to hear, Wise said. Right after General Conference, she asked two female Relief Society leaders what talks resonated with them.

“Oaks’ talk was brought up both times and caused some confrontation in both meetings, with people thinking, ‘This is what it said,’ ‘No, this is what it said,’” Wise said. “So without careful study, it is being used to just buttress bias that’s already there.”

‘Moderate and unify’

Faithful Latter-day Saints around the world should “exercise our influence civilly and peacefully within the framework of our constitutions and applicable laws,” Oaks said. “On contested issues, we should seek to moderate and unify.”

That last phrase cut Griffith to the heart. “He was speaking to the obligations of Latter-day Saints, who enter into the public square. I thought that was a stirring call to repentance to many of us.”

The retired federal judge had a conversation within the past months with “a senior church leader who said his assessment was that too many of our people have replaced their religion with their politics,” Griffith said. “There needs to be a certain humility. ...I’m a political conservative; I might be wrong.”

When the effort to write the Constitution was on the verge of dissolution, 11 moderates “got together and decided they were not going to let the convention fail. And so they did something truly remarkable,” Griffith said. “They convinced their fellow delegates to enter into a compromise for the sake of unity before they knew the terms of the compromise.”

That’s what Oaks is talking about, Griffith said, when he urges members “to moderate and to unify.”

Wise also noted the apostle’s wording on moderation. She pointed out that Americans of the 1950s really did “like Ike,” as the slogan about Dwight D. Eisenhower proclaimed. “Eisenhower had an 88% approval rating from the Republicans as well as a 49% approval rating from the Democrats,” Wise said. “But now, just before the 2020 presidential election, 95% of Republicans, according to Gallup, said they approved of the way that Donald Trump was running the country and only 3% of Democrats.”

Divisiveness, she said, is “a danger to our country as well as to our souls.”

Americans today are “as polarized as we have ever been,” Wise said. “... Blind loyalty to any political party can reap frightening consequences.”

Oaks is “asking us to act differently,” Griffith concluded, and his speech has “caused me to reassess the way I vote and the way I think about things. That’s what he’s calling all of us to do.”

On contested issues, “we should seek to moderate and to unify,” the judge said. “That’s the question I asked myself: ‘Am I doing that?’ And if I’m not, [I should] change.”

Latter-day Saints are being challenged to lead in this way, he said, or miss this moment.