Luther v. Borden

Appellant
Martin Luther
Appellee
Luther M. Borden
Appellant's Claim
Luther M. Borden, acting under the martial law that had been declared by thestate of Rhode Island, had invaded and searched Martin Luther's home. MartinLuther claimed that the government, under which Borden had acted, was not thelegitimate government of Rhode Island. Therefore, Borden was guilty of trespass.
Chief Lawyers for Appellant
Benjamin F. Hallett; Nathan Clifford, U.S. Attorney General
Chief Lawyers for Appellee
John Whipple, Daniel Webster
Justices for the Court
Robert Cooper Grier, John McLean, Samuel Nelson, Roger Brooke Taney (writingfor the Court), James Moore Wayne
Justices Dissenting
Levi Woodbury (John Catron, Peter Vivian Daniel, and John McKinley did not participate)
Place
Washington, D.C.
Date of Decision
3 January 1849
Decision
That the Court did not have the power to decide that a state government was not legitimate.
Significance
Since its inception, the Supreme Court has had to distinguish between interpreting the law--which is its duty--and creating law or policy--which are the duties of the legislative and executive branches. Luther v. Borden wasan important step in the Court's defining "political questions," about whichit could have no opinion.
The story of Luther v. Borden goes back to a tumultuous period in Rhode Island history, the time of the so-called Dorr Wars. Unlike the other original states, Rhode Island did not adopt a new constitution when the colonies separated from Great Britain. Instead, it treated as its constitution the charter granted by King Charles II in 1663. This charter limited the right to vote to "freeholders"--men who owned property. Men who did not own property wanted to see their state adopt a new constitution, or at least to change the laws that concerned voting.
Large landowners and other powerful people in Rhode Island fought to keep theold charter and its voting laws in place. As late as the legislative sessions in January and June of 1841, suffrage reform was defeated. So a new reformorganization was created, under the leadership of Thomas W. Dorr.
Dorr and his colleagues called a convention for 6 October 1841, at which theydrafted a new constitution. Although this convention was completely outsidethe boundaries of Rhode Island law, it was approved by a referendum held thatDecember. Many people without property, who would not have been allowed to vote under existing Rhode Island law, did vote in the referendum. The following year, on 18 April of 1842, a new group of state officers, with Dorr as governor, was elected under the new constitution. The old charter government continued to operate, however, and its legislature passed severe penalties against anyone who voted in any election under the Dorr government.
Insurrection in Providence
Dorr decided to take more decisive action. On 14 May 1842, he and his party tried to seize the arsenal in Providence, the state capital. The insurrectionfailed and Dorr fled from the state. Although there had been no actual violence during the insurrection, rumors flew that Dorr was going to invade the state. Fearful of invasion, the charter government declared martial law on 24 June 1842.
Dorr's movement soon collapsed, but not before it had helped to discredit thecharter government. Finally, the old government called a constitutional convention, at which suffrage was broadened to some extent, though not to the extent that the Dorr forces had wanted. Meanwhile, across the nation, Dorr's ownstanding became a source of controversy. People questioned whether he was apatriot who wanted to expand democracy or a traitor who had threatened the lives, liberty, and property of his fellow citizens.
Eventually, Dorr was convicted of treason against the state of Rhode Island and sentenced to life imprisonment at hard labor. Another pro-Dorr movement petitioned the Supreme Court to free Dorr, claiming that he had only been acting as the lawful governor of Rhode Island. The Supreme Court denied the petition, but Dorr was finally freed on 27 June 1845, under amnesty granted by theRhode Island legislature.
Which Was the Rightful Government?
Meanwhile, Martin Luther, a Dorr supporter from the town of Warren, decided to sue Luther M. Borden and others for trespass. During the period of martiallaw, Borden had entered and searched Luther's home without a warrant. Luther's mother, Rachel Luther, also brought an action against Borden for his allegedly high-handed procedures during the search.
Luther's case started out in circuit court, under Supreme Court Justice Storyand District Judge John Pitman. Luther's argument was simple: since the people had a right to change their government, and since they had changed from the charter government to Dorr's regime, Borden had represented an illegitimategovernment. As a private citizen, he had had no right to enter Luther's home.
Borden's counter-argument was equally simple. He contended that the charter government, which he represented, was the legitimate government of Rhode Island at the time he had entered Luther's home. Therefore, he had had the right to carry out the official business of that government, just as any police officer might do.
Political vs. Natural Rights
The circuit court jury found in Borden's favor, and the case went on to the Supreme Court. For various reasons, however, the case was not argued for several more years.
Meanwhile, in 1843, the state of Rhode Island adopted a new constitution, andthe government that operated under it was widely recognized as the state's legitimate government. Martin Luther was fined $500 and had to serve six months in jail for having helped the Dorr government. Justice Story died and was succeeded by Justice Woodbury, who had not taken part in the earlier court battles. By 1849, when the Supreme Court handed down its decision in Luther v. Borden, the whole question of which Rhode Island government was legitimate seemed rather like ancient history.
Nevertheless, the lawyers for each side argued over the political principlesinvolved. Luther's lawyers contended that the people of Rhode Island, faced with an exclusionary, minority government, had had the right to adopt their own constitution and establish their own government.
Borden's lawyers countered that the right to vote was not a "natural right,"but rather a political one; that is, that men were not born with the right tovote, but rather were granted that right on the basis of the rules their government made. (Life, liberty, property, and the pursuit of happiness, by contrast, were all considered natural rights with which no government could legitimately interfere.) After all, said Borden's lawyers, even the Dorr government had refused the right to vote to men under the age of 21 and to men who hadnot lived in Rhode Island for more than a year. The question remained as towhy then limiting suffrage to property holders made the charter government illegitimate.
Where Does the Court Get Its Power?
In effect, the Supreme Court decided not to decide. It argued that it had nojurisdiction in this matter, because to decide would be to decide which RhodeIsland government was the legitimate one. But, said the Court, the very nature of a court's power derives from the power of the government that sets it up. If courts could then turn around and invalidate the very governments thatempowered them, the whole nature of political power would be in question.
Chief Justice Taney, writing the Court's majority opinion, explained that nocourt should take up what he called "political questions"--questions about who should be in power or what laws should be made. Rather, the Supreme Court and all other courts should take a narrower role, merely interpreting the lawsmade by the legislature and evaluating in that light the actions taken by the executive.
Taney's ruling was not particularly crucial in deciding the affairs of Luther, Dorr, or Rhode Island, which, as we have seen, were already settled by thetime his decision was handed down. However, issues of the legitimacy of government were to become extremely important in the period that followed the Civil War. During Reconstruction, Congress passed many laws restricting who mightvote or hold office in the former Confederate states--laws that were bitterly opposed by many people in those states. Because of the precedent set in Luther v. Borden, the Court was able to stay out of those conflicts.
Related Cases

• Marbury v. Madison, 5 U.S. 137 (1803).
  
• Martin v. Hunter's Lessee, 1 Wheat. 316 (1819).
  
• Cohens v. Virginia, 6 Wheat. 264 (1821).
  
• Foster v. Neilson, 2 Pet. 253 (1829).
  
• United States v. Texas, 143 U.S. 621 (1892).

Martial Law
Martial law is implemented when constitutional law is suspended, and civil authority is replaced by military government. Usually this occurs in times of natural disaster, war, or other forms of unrest. During the twentieth century,nationwide martial law has been declared, and sustained for long periods oftime, in countries ranging from the Philippines to Poland.
Martial law has been imposed in the United States during the enforcement of civil rights or during urban rioting. One of the most notable uses of martiallaw occurred in Little Rock, Arkansas, in 1957, when President Eisenhower sent in federal troops to enforce integration of public schools. The CaliforniaNational Guard was activated in 1992 to deal with rioting in Los Angeles following the handing down of a "not guilty" verdict for four white police officers charged with beating black motorist Rodney King. Martial law was also proclaimed twice during the Civil War, when President Abraham Lincoln suspended the writ of habeas corpus, and in Hawaii following the bombing of PearlHarbor by the Japanese on 7 December 1941.
Sources
Bradley, David and Shelley Fisher Fishkin, eds. The Encyclopedia of CivilRights in America Armonk, NY: Sharpe, 1998.
Rodney King and the LAPD
In the early hours of 3 March 1991, motorist Rodney King was stopped by Los Angeles, California, police officers following a three-mile, high-speed chase.According to arrest reports filed later, King refused orders to exit the car, then put up such a struggle that officers had to use batons and stun-guns to subdue him. Unbeknownst to the officers, the entire incident had been captured on video by a nearby resident, and the resulting 81-second tape told a different story. In it, King seemed to offer little resistance to the officerswho kicked and beat him to the ground while others watched.
The highly publicized first trial of Theodore J. Briseno, Stacey C. Koon, Laurence M. Powell, and Timothy E. Wind for assault, excessive force by a policeofficer, and filing a false report resulted in not guilty verdicts, with a deadlocked jury on one charge against Powell. Within hours of the verdict on 29 April 1992, rioting erupted in LA, leaving 58 people dead and causing $1 billion in damages.
The landmark second trial for violations of civil rights was significant dueto the jury not only having to deal with a question of guilt or innocence, but also dealing with how best to assuage outraged civic sensibilities. On 4 August 1993, Koon and Powell were found guilty and sentenced to 30 months imprisonment. Briseno and Wind were acquitted.
Sources
Knappman, Edward W., ed. Great American Trials. Detroit, MI: Visible Ink Press, 1994.