LUTHER v. BORDEN 7 Howard (48 U.S.) 1 (1849)

inLuther v. Borden, a case arising from the aftermath of the Dorr Rebellion (1842), Chief Justice roger b. taney enunciated the doctrine of political questions and provided the first judicial exposition of the clause of the Constitution guaranteeing republican forms of government (Article IV, section 4).

Though Rhode Island was in the forefront of the Industrial Revolution, its constitutional system, derived from the royal charter of 1663 (which was retained with slight modifications as the state's organic act after the Revolution), was an archaic and peculiar blend of democratic and regressive features. Malapportionment and disfranchisement grew intolerably severe as the industrial cities and mill villages filled with propertyless native and immigrant workers. (Perhaps as many as ninety percent of the adult males of Providence were voteless in 1840.) Reform efforts through the 1820s and 1830s were unsuccessful. In 1841–1842, suffragist reformers adopted more radical tactics derived from the theory of the declaration of independence, asserting that the people had a right to reform or replace their government, outside the forms of law if need be. They therefore drafted a new state constitution (the "People's Constitution") and submitted it to ratification by a vote open to all adult white male citizens of the state. The regular government, meanwhile, also submitted a revised constitution (the "Freeholders' Constitution") to ratification, but only by those entitled to vote under the Charter. The people's Constitution was ratified, the Freeholders' rejected. Reform leaders then organized elections for a new state government, in which Thomas Wilson Dorr was elected governor. The two governments organized, each claiming exclusive legitimacy. The Freeholders' government declared martial law and, with the tacit support of President John Tyler, used state militia to suppress the Dorrites in an almost bloodless confrontation. It then submitted another revised constitution, ratified in late 1842, that alleviated the problems arising under the Charter.

Dorrites dissatisfied with this outcome created a test case from an incident of militia harassment and requested the Supreme Court to determine that the Freeholders' government and the subsequent 1842 constitution were illegitimate, on the grounds that the Freeholders' government was not republican and that the people of the state had a right to replace it, without legal sanction if necessary. Taney, for a unanimous Court (Justice levi woodbury dissenting in part on a martial law point), declined to issue any such ruling. After noting the insuperable practical difficulties of declaring the previous seven years of Rhode Island's government illegitimate, Taney stated that "the courts uniformly held that the inquiry proposed to be made belonged to the political power and not to the judicial." He went on to explain that Dorrite contentions "turned upon political rights and political questions, upon which the court has been urged to express an opinion. We decline doing so." Taney thus amplified a distinction, earlier suggested by Chief Justice john marshall, between judicial questions (which a court can resolve), and political ones, which can be resolved only by the political branches of government (executive and legislative).

Taney further held that the guarantee clause committed the question of the legitimacy of a state government to Congress for resolution, and that Congress's decision was binding on the courts, a point later reiterated by Chief Justice salmon p. chase in cases involving the legitimacy of congressional Reconstruction policies. Taney concluded his opinion with an empty concession to the political theory of the Dorrites: "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 pleasure. But whether they have changed it or not," Taney repeated, "is a question to be settled by the political power," not the courts.

Though the political question doctrine thereby created has never been explained by a definitive rationale, it has proved useful in enabling the courts to avoid involvement in controversies that are not justiciable, that is, not suitable for resolution by judges.

(See baker v. carr.)

William W. Wiecek
(1986)