Luther v. Borden

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7 How. (48 U.S.) 1 (1849), argued 24–28 Jan. 1848, decided 3 Jan. 1849 by vote of 8 to 1; Taney for the Court, Woodbury concurring in part and dissenting in part. The Constitution provides that the federal government shall guarantee to each state a “Republican Form of Government” (Art. IV, sec. 4), but does not specify how much popular participation in state government is required to retain the republican character, nor does it identify which branch of the federal government, if any, is responsible for enforcing the guarantee. Until the 1840s, this imprecision was of no practical significance. In the federal system, each state was as republican as its enfranchised citizens wanted it to be in matters of suffrage qualifications, apportionment, and tax burdens. But in 1842, the Dorr Rebellion implicated the Guarantee Clause as a remedy for disfranchised Rhode Islanders, whose state officials ignored reformist demands to democratize the ossified state constitution.

Though foremost among American states in the Industrial Revolution, Rhode Island suffered from an unusually backward constitutional order derived from the 1663 royal charter, which continued to serve as the state constitution. Severe disfranchisement of the urban population, composed largely of displaced Yankees and recent immigrants drawn to Rhode Island's cities to work in textile mills, was compounded by malapportionment that preserved dominant political power in rural districts. This produced a political anomaly in the period of Jacksonian democracy.

The so-called Dorr Rebellion was precipitated when suffrage reformers, despairing of remedies for disfranchisement and malaportionment from the extant state government, invoked the principles of the Declaration of Independence and attempted, in its words, to “alter or abolish” the oppressive government and “to institute [a] new government.”

The reformers called an extralegal constitutional convention, drafted a new state constitution that substantially ameliorated disfranchisement and malapportionment, submitted the document for popular ratification, and held elections under it. A draft constitution submitted by the extant government failed of ratification, but the government refused to cede power, so for a few months in 1842, two opposing governments contended for legitimacy and possession of state offices.

The incumbent governor and legislators, covertly encouraged by President John Tyler's promise of federal military aid should violence occur, declared martial law. State judges convicted the reform governor, Thomas Wilson Dorr, of treason. The U.S. Supreme Court refused Dorr's 1845 appeal (Ex parte Dorr) for release on habeas corpus, because the federal writ did not reach state constitutions.

The Dorr supporter Martin Luther brought suit against a militiaman, Luther Borden, who had entered and searched Luther's home under authority of martial law. For Borden and the state, Daniel Webster denied that the Rhode Island situation justified invoking the Constitution's Guarantee Clause. Luther's counsel claimed that the state's archaic constitutional arrangements prevented fair and peaceful redress of grievances through democratic procedures. Rhode Islanders had therefore exercised Americans’ ultimate right inherent in popular sovereignty, that of replacing an oppressive government.

Luther v. Borden posed basic questions about the American constitutional order. Was the Supreme Court the appropriate institution to define the substantive content of republicanism? If frustrated in demands for orderly constitutional change, had Americans no alternatives to revolutionary violence? What was essential to a republican form of government?


Subjects: Law.

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