Luther v. Borden: Justiciability and Martial Law

Declaration of martial law. Contained in Arthur Mowry's Dorr War: or, The Consitutional Conflict in Rhode Island (1901), p. 225

In Lincoln’s Constitution (2003) Daniel Farber prefaces his discussion of martial (or military) law and its use during the Civil War with the Supreme Court case that assured its legitimacy – Luther v. Borden (1849) (148-9). (The case documents are available through Cornell University’s Law School Legal Information Institute.) Luther raised several questions about how the Constitution evaluated the governments of individual states and the ability of those governments to interfere with civil liberties in times of crisis.

Much of the historiography, described below, places the case as the starting point for later decisions on the subject. In order to understand discussion of the case, many analyses discussed only one of the two main questions it addresses. The first dealt primarily with the “Guarantee Clause” of the Constitution (Article IV, Section 4) and the Supreme Court’s ability to review its guarantee for “a Republican Form of Government” in every state. The second revolved around the evolution of martial law and the Court’s ruling on its legitimacy. These questions, and the case itself, developed out of escalating political turmoil developing among Rhode Island’s citizens.

In 1841, a group of nearly four thousand individuals in Rhode Island led by Thomas Dorr moved to establish a “People’s Constitution” that addressed several grievances held against the state government. Their position pointed specifically to the charter’s provisions granting suffrage only to land-owning classes and contained no process for ratifying amendments. Their new government soon clashed with the charter government, led by Governor Samuel Ward King, who responded to the armed members of the “Dorr War” or rebellion with a call for martial law. Three days after declaring martial law, state officials broke into the home of Martin Luther, one of Dorr’s supporters, and arrested him without a warrant. By October 1842, Luther had filed an “action of trespass” in the circuit court of Rhode Island (Case Syllabus, 2). The circuit court ruled that the defendants were justified in their actions, as they occurred after and fit within the declaration of martial law. When the parties presented their case before the Supreme Court in 1848, it became immediately apparent to Chief Justice Roger Brooke Taney that this case sought answers to questions that were “not such as commonly arise in an action of trespass” (35).

The first of these questions pertained to justiciability, or the ability for the Court to rule on the case. This became applicable, as Taney elaborated in the Court’s opinion, to the decision to rule that “the charter government [of Rhode Island] had no legal existence” during the breaking and entering of Luther’s home (38). Dorr’s supporters grounded their arguments on this basis, for since their new government replaced the charter government, the latter had no legal right to call for martial law. Taney avoided the issue of giving credence or dismissing Dorr’s popularly supported government (which “must remain unsettled and open to dispute”) and instead reinforced that determining the validity of one government over another “rests with Congress” (42).

Luther and this opinion composed by Taney established much of the thesis presented by William Wiecek, now a law professor at Syracuse University, in The Guarantee Clause Of The U.S. Constitution (1972). Though some believe he offered “little instruction” in the work, many others found his approach to the subject useful and especially mindful of the implications embedded in the Luther case as it broadly applied to interpretations of the Constitution.

Second, Luther’s support of martial law remains pertinent to Farber’s argument that it set the “basic rule” for future decisions on the subject (151). This occurred despite the clear tension between Taney’s leading opinion of the Court and the dissent presented by Justice Levi Woodbury. The disagreement on martial law came down to the preservation of individual rights guaranteed by the Constitution. Taney remained resolute in that martial law provided a necessary and temporary protection against insurrections without reducing “order and free institutions” to a “mere parade” that encouraged instability (46). Woodbury agreed with Taney that the issue of governance better suited Congress, but he offered firm opposition against the “unusual course” of martial law (59). The violence in Rhode Island at the hand of Dorr’s new government failed to convince Woodbury that state officials could rightly claim such “tremendous power” over the inherent rights of citizens (70). The majority opinion did not agree, and the Court thus upheld the circuit court’s ruling that the defendant’s properly justified their actions against Luther with a 5-3 vote (with one abstention).

Analyses of Luther v. Borden dedicate much time to the Dorr rebellion as context for the case. In the early publications including Arthur Mowry’s The Dorr War, or The Constitutional Struggle in Rhode Island (1901) (available to view on Google Books), the case acted as part of the narrative for Dorr’s failed rebellion but lasting impact on the nature of future Supreme Court decisions. The case did not receive any more or less coverage later on. The two oft-cited publications on the subject remain George Dennison’s The Dorr War: Republicanism on Trial, 1831–1861 (1976) and Marvin Gettleman’s The Door Rebellion: A Study in American Radicalism, 1833-1849 (1973) (The latter is available in the Dickinson College library.) While not without criticisms, both publications provide an appropriate background to the case as it fit within the narrative of events in Rhode Island.

Farber offers a more recent approach to the case which, though not comprehensive or detailed, noted its application in the evolution of martial law as shaped by the Supreme Court. In his concluding paragraphs, Farber added another interesting perspective on Luther as it reflected broadly on the changing views of Chief Justice Taney from legitimizing martial law to resisting its implementation by Abraham Lincoln (199). The nation felt the ramifications of the decision after it assured this executive power, and it still does today, albeit in different forms.


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