Luther v. Borden

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 was an important step in the Court's defining "political questions," about which it 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 the old 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 reform organization was created, under the leadership of Thomas W. Dorr.

Dorr and his colleagues called a convention for 6 October 1841, at which they drafted a new constitution. Although this convention was completely outside the boundaries of Rhode Island law, it was approved by a referendum held that December. 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.