Luther v. Borden

7 HOW. 1

Case Year: 1849

Case Ruling: 8-1, Affirmed

Opinion Justice: Taney

More Information

Concurring Opinions

Dissenting Opinions

Court Opinion Joiner(s):

Catron, Daniel, Grier, McKinley, McLean, Nelson, Wayne


1st Concurring Opinion



1st Dissenting Opinion

Author: Woodbury


2nd Concurring Opinion



2nd Dissenting Opinion



3rd Concurring Opinion



3rd Dissenting Opinion



Other Concurring Opinions:


Through the 1840s the state of Rhode Island had no formal constitution, but instead continued under its royal charter from King Charles II. Although the state enacted occasional legislation to alter suffrage requirements, it never changed those laws mandating property ownership as a criterion for voting. Eventually, this qualification became "obnoxious"; "it excluded so many adult males of personal worth and possessed of intelligence and wealth, though not of land, and as it made the ancient apportionment of the number of representatives, founded on real estate, very disproportionate to the present population and personal property in different portions and towns of the State."1

As a result, some Rhode Island citizens sought to convince the legislature either to change suffrage requirements or to hold a convention for the purpose of writing a constitution. When the government rejected these proposals, attorney Thomas Dorr organized "voluntary societies," which in 1842 drafted, wrote, and ratified a Constitution--all outside of the existing government structure. With Dorr as their governor, the societies set up their own political and judicial apparatus.

The existing government refused to acknowledge the Dorrites or accede to their requests to surrender public documents. Dorr then "made some attempt to get possession of the public arsenal"--a rebellion of sorts--so that he and his followers could take over. When this failed, he disbanded the "military" he had assembled, asserting, "that the majority of the friends of the people's constitution disapprove of any further forcible measures for its support." In the meantime, the existing government issued a proclamation placing the entire state under martial law, and the governor warned citizens not to support the new constitution. He even contacted President John Tyler for help in suppressing the rebellion. While Tyler did not send in federal troops, he agreed to do so if war broke out.

Eventually, the existing government managed to suppress the rebels, and later it tried and convicted Thomas Dorr of treason. Other followers, including Martin Luther, also were arrested. Martial law gave authorities a great deal of leeway in "investigating" offenses against the state; for example, it enabled police to enter and search homes without warrants.

In an effort to publicize his cause and his belief that the existing Rhode Island government was illegitimate, Luther sued officials for trespass. He argued that the Rhode Island Charter, which the Dorrites sought to replace with their constitution, denied citizens of the state the republican form of government guaranteed in Article IV of the U.S. Constitution. Because the Dorr constitution met that requirement, Luther asserted that it was actually in force at the time he was arrested. He asked the Court to declare the charter government illegitimate and supplant it with the Dorr constitution.



... The fourth section of the fourth article of the Constitution of the United States provides that the United States shall guarantee to every State in the Union a republican form of government, and shall protect each of them against invasion; and on the application of the Legislature or of the executive (when the Legislature cannot be convened) against domestic violence.

Under this article of the Constitution it rests with Congress to decide what government is the established one in a State. For as the United States guarantee to each State a republican government, Congress must necessarily decide what government is established in the State before it can determine whether it is republican or not. And when the senators and representatives of a State are admitted into the councils of the Union, the authority of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority. And its decision is binding on every other department of the government, and could not be questioned in a judicial tribunal. It is true that the contest in this case did not last long enough to bring the matter to this issue; and as no senators or representatives were elected under the authority of the government of which Mr. Dorr was the head, Congress was not called upon to decide the controversy. Yet the right to decide is placed there, and not in the courts.

So, too, as relates to the clause in the above mentioned article of the Constitution, providing for cases of domestic violence. It rested with Congress, too, to determine upon the means proper to be adopted to fulfill this guarantee. They might, if they had deemed it most advisable to do so, have placed it in the power of a court to decide when a contingency had happened which required the federal government to interfere. But Congress thought otherwise, and no doubt wisely; and by the Act of February 28, 1795, provided, that, "in case of an insurrection in any State against the government thereof it shall be lawful for the President of the United States, on application of the Legislature of such State or of the executive (when the Legislature cannot be convened), to call forth such number of the militia of any other State or States, as may be applied for, as he may judge sufficient to suppress such insurrection."

By this act, the power of deciding whether the exigency had arisen upon which the government of the United States is bound to interfere, is given to the President. He is to act upon the application of the Legislature or of the executive, and consequently he must determine what body of men constitute the Legislature, and who is the governor, before he can act. The fact that both parties claim the right to the government cannot alter the case, for both cannot be entitled to it. If there is an armed conflict, like the one of which we are speaking, it is a case of domestic violence, and one of the parties must be in insurrection against the lawful government. And the President must, of necessity, decide which is the government, and which party is unlawfully arrayed against it, before he can perform the duty imposed upon him by the act of Congress.

After the President has acted and called out the militia, is a circuit court of the United States authorized to inquire whether his decision was right? Could the court, while the parties were actually contending in arms for the possession of the government, call witnesses before it and inquire which party represented a majority of the people? If it could, then it would become the duty of the court (provided it came to the conclusion that the President had decided incorrectly) to discharge those who were arrested or detained by the troops in the service of the United States or the government, which the President was endeavoring to maintain. If the judicial power extends so far, the guarantee contained in the Constitution of the United States is a guarantee of anarchy, and not of order. Yet if this right does not reside in the courts when the conflict is raging, if the judicial power is at that time bound to follow the decision of the political, it must be equally bound when the contest is over. It cannot, when peace is restored, punish as offenses and crimes the acts which it before recognized, and was bound to recognize, as lawful.

It is true that in this case the militia were not called out by the President. But upon the application of the governor under the charter government, the President recognized him as the executive power of the State, and took measures to call out the militia to support his authority if it should be found necessary for the general government to interfere; and it is admitted in the argument, that it was the knowledge of this decision that put an end to the armed opposition to the charter government, and prevented any further efforts to establish by force the proposed constitution. The interference of the President, therefore, by announcing his determination, was as effectual as if the militia had been assembled under his orders. And it should be equally authoritative. For certainly no court of the United States, with a knowledge of this decision, would have been justified in recognizing the opposing party as the lawful government; or in treating as wrong-doers or insurgents the officers of the government which the President had recognized, and was prepared to support by an armed force. In the case of foreign nations, the government acknowledged by the President is always recognized in the courts of justice. And this principle has been applied by the act of Congress to the sovereign States of the Union.

It is said that this power in the President is dangerous to liberty, and may be abused. All power may be abused if placed in unworthy hands. But it would be difficult, we think, to point out any other hands in which this power would be more safe, and at the same time equally effectual. When citizens of the same State are in arms against each other, and the constituted authorities unable to execute the laws, the interposition of the United States must be prompt, or it is of little value. The ordinary course of proceedings in courts of justice would be utterly unfit for the crisis. And the elevated office of the President, chosen as he is by the people of the United States, and the high responsibility he could not fail to feel when acting in a case of so much moment, appear to furnish as strong safeguards against a willful abuse of power as human prudence and foresight could well provide. At all events, it is conferred upon him by the Constitution and laws of the United States, and must therefore be respected and enforced in its judicial tribunals....

Much of the argument on the part of the plaintiff turned upon political rights and political questions, upon which the court has been urged to express an opinion. We decline doing so. The high power has been conferred on this court of passing judgment upon the acts of the State sovereignties, and of the legislative and executive branches of the federal government, and of determining whether they are beyond the limits of power marked out for them respectively by the Constitution of the United States. This tribunal, therefore, should be the last to overstep the boundaries which limit its own jurisdiction. And while it should always be ready to meet any question confided to it by the Constitution, it is equally its duty not to pass beyond its appropriate sphere of action, and to take care not to involve itself in discussions which properly belong to other forums. No one, we believe, has ever doubted the proposition, that, according to the institutions of this country, the sovereignty in every State resides in the people of the State, and that they may alter and change their form of government at their own pleasure. But whether they have changed it or not by abolishing an old government, and establishing a new one in its place, is a question to be settled by the political power. And when that power has decided, the courts are bound to take notice of its decision, and to follow it.

The judgment of the Circuit Court must therefore be affirmed.

1. Dissenting opinion of Justice Levi Woodbury, Luther v. Borden (1849).