Luther v. Borden and the Guarantee Clause

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Article III, Section 2, Clause 1:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State, between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In 1849, in the case Luther v. Borden,1 the Court expanded the political question doctrine and took another step toward the modern judicial approach to political questions. Luther arose out of a rebellion against the government of Rhode Island due to the state constitution, which significantly limited the right to vote.2 Rhode Island citizens who had become dissatisfied with the existing regime held a constitutional convention, called elections, and declared the winners the valid government of Rhode Island.3 When the existing “charter government” opposed these efforts and declared the conduct illegal, the newly elected governor of the rebel government, Thomas Dorr, gathered an armed force to assert the legitimacy of his government and its constitution.4 In response, the charter government called the militia and declared martial law.5 In the course of events, charter government agents broke into plaintiff Luther’s house in order to arrest him for his support of Dorr.6 Luther then sued for trespass.7 The question of the legitimacy of the home break-in necessarily gave rise to the question of which government—the charter government or the rebel government—was the legitimate government of the state at the time of the break-in.

Luther alleged that the charter government that authorized the break-in was unconstitutional, in part because the voting restrictions in the Rhode Island constitution violated the U.S. Constitution’s Guarantee Clause,8 which states that “[t]he United States shall guarantee to every State in this Union a Republican Form of Government.” 9 The Supreme Court refused to reach the question, instead concluding that the question of which government was lawful, and whether a government was a “republican” one, was a political question for Congress to decide and entirely outside the purview of the Judiciary.10 In an opinion by Chief Justice Roger Taney, the Court held that courts were not institutionally competent to judge republicanism or governmental legitimacy because judicial standards were lacking.11 Further, an attempt to judge whether a government was legitimate could undermine other branches and ultimately cast all the acts of the questioned government into doubt: as the Court explained, “[i]f the judicial power extends so far, the guarantee contained in the Constitution of the United States is a guarantee of anarchy, not of order.” 12 The Court concluded that while a court should “always be ready to meet any question confided to it by the Constitution, it is equally its duty not to pass beyond its appropriate sphere of action.” 13 In the years following Luther to the present, the Court has routinely held that cases involving the Guarantee Clause present nonjusticiable political questions.14

1: 48 U.S. (7 How.) 1 (1849).
2: William M. Wiecek, The Guarantee Clause of the U.S. Constitution 86–97 (1972); see also Luther, 48 U.S. (7 How.) at 35–36 ( “For some years previous to the disturbances of which we are now speaking, many of the citizens became dissatisfied with the charter government, and particularly with the restriction upon the right of suffrage.” ).
3: Luther, 48 U.S. (7 How.) at 35–36.
4: Id.
5: Id. at 36–37.
6: Id. at 37.
7: Id. at 34.
8: The Supreme Court’s opinion seems to assume that Luther had argued that the charter government was unconstitutional, at least in part, because of the Guarantee Clause. See id. at 35–36 (discussing the Guarantee clause). However, scholars have argued that Luther never raised the Guarantee Clause issue and that the Court’s discussion on this issue was dicta. See e.g., Tara Leigh Grove, The Lost History of the Political Question Doctrine, 90 N.Y.U. L. Rev. 1908, 1927–29 & n.108 (2015) (noting that “review of the record indicates that the plaintiff did not raise [a Guarantee Clause] claim” and suggesting that Chief Justice Roger B. Taney may have chosen to mention the Guarantee Clause to influence debates over slavery).
9: U.S. Const. art. IV, § 4.
10: Luther, 48 U.S. (7 How.) at 35–36 ( “Under this article of the Constitution it rests with Congress to decide what government is the established one in a State. . . . Yet the right to decide is placed there, and not in the courts.” ).
11: Id.
12: Id. at 36.
13: Id. at 39.
14: See, e.g., Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 576 U.S 787, 795 n.3 (2015) (noting that the question of whether the Guarantee Clause was violated by way of referendum process was a nonjusticiable political question); City of Rome v. United States, 446 U.S. 156, 182 n.17 (1980) (refusing to reach merits of Guarantee Clause challenge to preclearance requirements of Voting Rights Act, as such challenge was nonjusticiable); Baker v. Carr, 369 U.S. 186, 223–24 (1962) (citing many cases holding Guarantee Clause challenges nonjusticiable, but holding that this had no effect on Equal Protection challenge to malapportionment in Tennessee); Pac. States Tel. & Tel. Co. v. Oregon, 223 U.S. 118, 133–36, 151 (1912) (concluding that the question of whether amendment to Oregon constitution adding initiative and referendum procedures was nonjusticiable political question; concluding that “[a]s the issues presented, in their very essence, are, and have long since by this court been, definitely determined to be political and governmental, and embraced within the scope of the powers conferred upon Congress, and not, therefore, within the reach of judicial power” ); Taylor v. Beckham, 178 U.S. 548, 578–80 (1900) (holding that court had no jurisdiction over challenge to gubernatorial election in Kentucky based on Guarantee Clause; “enforcement of this guaranty belong[s] to the political department” ). But see New York v. United States, 505 U.S. 144, 184–85 (1992) (noting that “perhaps not all claims under the Guarantee Clause present nonjusticiable political questions” ).