Crime and Punishment in American History - Lawrence M. Friedman [63]
It was a constant theme of anti-Chinese agitation that the Chinese were impossibly different; that they were strange, alien, creatures; that they could eat less, work longer hours, survive in conditions that would kill a Caucasian. Above all, they could not be assimilated; they were simply too foreign. The blacks, too, were unassimilable, in racist theory; but there were many blacks, and they were needed, as we pointed out. There were only a few Chinese. Thus the goal of anti-Chinese policy was not suppression but expulsion. The keystone of black policy, in the South, was the criminal justice system: vagrancy laws, quasi-peonage, the chain gang. The keystone of Asian policy was immigration law, exclusion, and deportation.
Religious Minorities
The First Amendment, in the Bill of Rights, guarantees religious freedom; and independence brought in a period of (relative) religious tolerance. Nobody was hanged as a heretic in the new republic; and hardly a trace was left of the eagerness of the early colonies to punish dissenters. The law of blasphemy was one of the few surviving remnants. Blasphemy, the crime of ridiculing or defaming Christianity, had been a very serious offense in the colonial period, as we have seen. There were still some prosecutions for blasphemy in the nineteenth century. In a case from Delaware in 1837, Thomas Jefferson Chandler, “seduced by the instigation of the devil,” declared that “the virgin Mary was a whore and Jesus Christ was a bastard.” He was convicted, but the court was careful to explain that this was not a crime against religion; rather, it was a crime against public order. The law would protect the religion and sentiments of the majority, whatever that might be. Indeed, if the people of Delaware chose Islam, the blasphemy laws would protect that religion against blatant attack, said the judge (somewhat disingenuously), in the interests of preventing civil unrest.71
On the whole, blasphemy laws were withering away. Still, some minority religions remained outside the great American tent. These were religions that, for one reason or another, stretched public tolerance to the breaking point. The most important, perhaps, was the Mormon church. Their practice of polygamy evoked utter horror in the general population.72 The Mormons, persecuted wherever they settled, retreated across the wilderness and founded a new home for themselves in Utah Territory. If they thought they were safe there, they were wrong; Congress passed a law prohibiting polygamy in the territories. The Supreme Court upheld that law, in the celebrated case of George Reynolds.73
Reynolds had been convicted and sentenced to two years at hard labor; he appealed, claiming his (two) marriages were “a religious duty” “enjoined upon the male members of [his Church] by the Almighty God.” In its opinion, the Supreme Court refused to buy this argument. Polygamy, said the court, “has always been odious among the northern and western nations of Europe”; it was, rather, a “feature of the life of Asiatic and of African people.” Religious duty was no excuse: suppose “human sacrifices” were part of one’s religion, or the burning of widows. Of course, polygamy was if anything the opposite of burning widows, but the court was blind to this point. It also assumed, without discussion, that the standards of “Asiatic and ... African people” were unacceptable in the American motherland. The moral norms, and thus the norms of criminal justice,