Luther v. Borden (1849)


Luther v. Borden (1849), was a U.S. Supreme Court case where the Guarantee Clause was declared non-justiciable. This Guarantee Clause under Article IV, Section 4 of the United States Constitution said that it “shall guarantee to every State in this Union, a Republican Form of Government.”

In Rhode Island, this case was created out of conflict between the Royal Charter of 1663 and a new established government, both claiming that each was the legitimate one. The charter government limited voting rights of the people while the new government provided for the suffrage of white manhood. During Dorr’s rebellious fight for this new government,  the existing charter government took immediate action and declared martial law within the state of Rhode Island. Martin Luther, who was a participant in the rebellion, filed a suit against Luther Borden who broke into his house, damaging his property. Dorden’s reasoning was because Luther had violated the existing charter government. Luther stated that under the Federal Constitution, a republican form of government was in mandate and that the new constitution was the new form of government. State courts ruled in favor of Borden and the existing charter government, which at that time, was the only government that had been declared by the Supreme Court the legitimate one. Luther then appealed his case to the United States Supreme Court.

The Supreme Court declared they had no authority since the case was formed around the Political Question Doctrine. Because this case raised that issue, it was a non-justiciable matter. Therefore, under this doctrine, the authority to decide the legitimate government in Rhode Island is in the hands of Congress and the President.

First Timeline


In 1841, Rhode Island was operating under the government established by their Royal Charter of 1663. Rhode Island’s existing government, under the Royal Charter of 1663, had been challenged by a new constitution which because of conflict, created Dorr’s Rebellion.This system of government was very archaic and suppressed the right to vote to almost half of their population. Parts of the population held meetings and voted on a new constitution to be ratified by the existing Charter government. Instead, the charter government held Rhode Island under martial law. The courts of Rhode Island upheld the Charter’s decision and the authority of the Charter’s government (Luther). Martin Luther, of Massachusetts, brought a subsequent case forth regarding the Charter government entering his home. The Charter government replied that they entered his home under martial law and used appropriate force to enter the house of a suspected person involved in insurrection. Martin Luther’s argument was that the Charter government was not a Republican government and, therefore, all of their actions were invalid (Chicago- Kent).

Procedural History

Martin Luther filed a suit against Luther M. Borden in which Luther claimed Borden trespassed on his property. In 1841 the state of Rhode Island operated on a form of government that was previously established, based on a charter from 1663. Protestors in Rhode Island who protested against the government, claimed that at the time, Rhode Island’s government was not a republic and formed a group known as Dorr’s rebellion. Dorr’s Rebellion wanted to establish a new form of government, and began holding conventions around Rhode Island in order to gather supporters for their cause. Martin Luther, who was a prominent leader for Dorr’s rebellion was accused of insertion and was ordered by the State of Rhode Island to be arrested. Under orders from his superior commander, Borden along with other entered Luther’s home in order to arrest him. Luther claimed that defendant unlawfully entered his home against his will damaging his personal belongings. He claimed that their acts were unlawful because the old government was not a republican form of government and therefore could not enforce martial law. Borden justified his actions claiming that Luther intended to overthrow Rhode Island’s state government and that under martial laws his actions were justified.


As an independent state, did the voluntary convention, that was created by associations in Rhode Island, have the authority to change the way the government operated?

Did the Charter of Charles government in Rhode Island have the authority to create a martial law so that the voluntary conventions constitution would not uphold?

Did the Supreme Court have the authority to decide the legitimate government in Rhode Island?

Arguments by Petitioner

Arguments by Respondent


The Supreme Court, with a 5-1 opinion, declared that under the Political Question Doctrine it was not in their judicial power to decide which form of government in Rhode Island was the legitimate one. Therefore, it should be deferred to Congress and the President.

Majority Opinion (Taney)

The majority opinion was delivered by Chief Justice Taney. The court established the political question doctrine in which the Supreme court stated that the Courts do not have the authority to declare whether or not a state government has been lawfully established, rather that power was permitted and reserved to Congress and the President.

“Undoubtedly the courts of the United States have certain powers under the Constitution and laws of the United States which do not belong to the State courts. But the power of determining that a State government has been lawfully established, which the courts of the State disown and repudiate, is not one of them.”

The Supreme Court ruled in favor of Borden. The court ruled that Rhode Island’s use of a martial law to refrain Luther from an insertion was justified and lawful.

“And unquestionably a State may use its military power to put down an armed insurrection too strong to be controlled by the civil authority. The power is essential to the existence of every government, essential to the preservation of order and free institutions, and is as necessary to the States of this Union as to any other government”

Dissenting Opinion (Woodbury)

Woodbury, writer of the dissenting opinion, agreed in part with the Courts majority. He sided that the court did not have the right to determine the legitimacy of the government and that those rights were reserved to the legislative and executive branches of the United States government. He argued however, under what grounds was Rhode Islands charted government legitimate?

Justice Woodbury acknowledged that the citizens of Rhode Island exercised their political rights to establish a new form of government, partly because they believed the old chartered government was not feasible. However, Justice Woodbury did not declare that the new government had legitimacy. Instead, he argued the government had no lawful right to declare martial law since Rhode Island’s chartered government was in question. He claimed that Rhode Island’s use of martial law to forcibly break into Luther’s home was unjust.

Full Text of Opinions

Decision Analysis

Significance / Impact

The existing charter government had been legally recognized as the legitimate form of government by the Supreme Court. Under this government, which restricted rights to vote, people had less of an incentive to want to vote, believing their vote would not have much of an impact.

However, in 1868, after the Luther v. Borden case was decided, the Fourteenth Amendment was added to the constitution. Included in this amendment was the Equal Protection Clause, which provided that each individual in a state cannot be denied “equal protection of the laws.”

The Colegrove v. Green case of 1946, which ruled the Supreme Courts non-justiciability of apportionment requirements because of the Political Question Doctrine, had a significant impact on Baker v. Carr in 1962. Without abandoning the idea that the Guarantee Clause is a non-justiciable political question,the Court was able to make apportionment cases justiciable starting with Baker v. Carr by making these issues under the Equal Protection clause.

Second Timeline

Scholarly Commentary and Debate

Constitutional Provisions

Article 4, Section 4

“The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence.”

Government Action Under Review

Luther v. Borden brought forth two forms of government that attempted to exercise control in Rhode Island. The Courts needed to decide which form of government was legitimate.

Important Precedents

Luther v. Borden was the first case to address Article 4, Section 4 of the Constitution and had no precedents.

Important Subsequent Cases

Colegrove v. Green (1946)

Baker v. Carr (1962)

Web Resources

  • LII / Legal Information Institute. “Luther v. Borden.”  Available here.
  • Chicago-Kent College of Law at Illinois Tech. “Luther v. Borden.” Available here.
  • “Luther v. Borden.” Available here.
  • Rhode Island Department of State. Available here.

Academic Books, Articles and Law Reviews

Chemerinsky, Erwin. “Cases Under the Guarantee Clause Should be Justiciable.” University of Colorado Law Review. 65: (1994): 849-80. Available here.

Conron, Michael A. “Law, Politics, and Chief Justice Taney: A Reconsideration of the Luther v. Borden Decision.” The American Journal of Legal History 11, no. 4 (1967): 377-88.

“Political Rights as Political Questions: The Paradox of Luther v. Borden.” Harvard Law Review 100, no. 5 (1987): 1125-145

Lerche, Charles O. “The Guarantee Clause in Constitutional Law.” The Western Political Quarterly 2, no. 3 (1949): 358-74.

Bonfield, Arthur Earl. “Baker v. Carr: New Light on the Constitutional Guarantee of Republican Government.” California Law Review (1962): 245-263.

Savitzky, Ari J. 2011. “The Law of Democracy and the Two Luther v. Bordens: A Counterhistory.” New York University Law Review 86, no. 6: 2028-2069.


Summer 2016: Rachel Oliver, Mikaela Mizell, Hannah Bohannon, Bomkapr Kanu

Tasks for Future Contributors

Future contributors can look for Luther v. Borden influence in new Supreme Court cases. The second timeline can then be updated to reflect these new changes. The “issues” section, while well written and informative, could be format in a different way (simply to increase ease of readability). It would be helpful for future contributors to access and reference more book sources. Our group were able to access most of the internet sources that were available but were unable to obtain book sources that contained a great deal information related to the case and could’ve been used to add more information about the case’s significance in U.S. history.