Luther v. Borden

So, to continue from my last post, the brief armed rebellion against the government of Rhode Island ended up in a case before the US Supreme Court, the case of Luther v. Borden, in which the rebel forces sought to be declared the lawful government of Rhode Island.  They did not make this claim under any supposed Second Amendment right of armed rebellion, but perhaps that could be excused on the grounds that at the time the Federal Bill of Rights did not apply to the states.  Instead, they sought recognition under the Guarantee Clause of Article IV, 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."  Note that two portions of this Section are relevant, both that the Federal Government is to guarantee each state a republican government, and that it is authorized to intervene on behalf of state governments to suppress rebellions.  Taken seriously, this clause appears to allow the people of a state to appeal to the Federal Government if their state government is not a republic, and the state government to appeal to the feds if the people violently revolt.  What is to happen if these two provisions come into conflict, i.e., if the people violently revolt against a government that is not republican, is not addressed in the Constitution.  It was this issue that was brought before the Supreme Court in Luther v. Borden.  It was this issue that the Supreme Court evaded.

The plaintiffs in the case had attempted to prove in the lower court that theirs was the legitimate, republican government of Rhode Island.  The lower court ruled against the, so the plaintiffs appealed.  The Supreme Court held that the lower court had been mistaken in even addressing the issue at all.  Chief Justice Roger Taney (of Dred Scott infamy) wrote the majority opinion, which is revealing.  In effect, he says that the courts are without authority to decide which government is or is not the true and legitimate government.  Instead, courts must accept the de facto government as legitimate and lawful because the overthrow of the government necessarily means the overthrow of the courts along with it.

Judicial power presupposes an established government capable of enacting laws and enforcing their execution, and of appointing judges to expound and administer them. The acceptance of the judicial office is a recognition of the authority of the government from which it is derived. And if the authority of that government is annulled and overthrown, the power of its courts and other officers is annulled with it. And if a State court should enter upon the inquiry proposed in this case, and should come to the conclusion that the government under which it acted had been put aside and displaced by an opposing government, it would cease to be a court, and be incapable of pronouncing a judicial decision upon the question it undertook to try. If it decides at all as a court, it necessarily affirms the existence and authority of the government under which it is exercising judicial power.  (48 US 40).

In other words, if you want to overturn an existing government, peaceably or violently, don't count on the courts to find your actions legal; to do so would be contrary to their nature and function.

The opinion then turned to the Guarantee Clause and the issue of whether a government that disenfranchises some 60% of adult white males can be considered "republican."

The fourth section of the fourth article of the Constitution of the United States provides that the United States shall guarantee to every State in the Union a republican form of government, and shall protect each of them against invasion, and on the application of the legislature or of the executive (when the legislature cannot be convened) against domestic violence.  

Under this article of the Constitution, it rests with Congress to decide what government is the established one in a State. For as the United States guarantee to each State a republican government, Congress must necessarily decide what government is established in the State before it can determine whether it is republican or not. And when the senators and representatives of a State are admitted into the councils of the Union, the authority of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority. And its decision is binding on every other department of the government, and could not be questioned in a judicial tribunal.

In other words, by allowing a state to send representatives to Congress, Congress is recognizing its government as "republican" and is beyond the authority of the courts to question.  Another matter beyond the authority of the courts is whether or not the Federal Government chooses to intervene in a rebellion against a state government.

If there is an armed conflict like the one of which we are speaking, it is a case of domestic violence, and one of the parties must be in insurrection against the lawful government. And the President must, of necessity, decide which is the government and which party is unlawfully arrayed against it before he can perform the duty imposed upon him by the act of Congress.

After the President has acted and called out the militia, is a Circuit Court of the United States authorized to inquire whether his decision was right? Could the court, while the parties were actually contending in arms for the possession of the government, call witnesses before it and inquire which party represented a majority of the people? If it could, then it would become the duty of the court (provided it came to the conclusion that the President had decided incorrectly) to discharge those who were arrested or detained by the troops in the service of the United States or the government which the President was endeavouring to maintain. If the judicial power extends so far, the guarantee contained in the Constitution of the United States is a guarantee of anarchy, and not of order. Yet if this right does not reside in the courts when the conflict is raging, if the judicial power is at that time bound to follow the decision of the political, it must be equally bound when the contest is over. It cannot, when peace is restored, punish as offences and crimes the acts which it before recognized, and was bound to recognize, as lawful.

So, once again, the Supreme Court emphasizes that the Federal Government may legitimately suppress a rebellion against a state government -- or, presumably, legitimately side with a rebellion and overthrow a state government.  But either way, the courts may  not second guess its actions, but must accept them as legitimate.  Also note, once again, the assumption that the militia is an organization called into force to suppress rebellions, not an organization whose whole purpose is to engage in rebellion.  Taney goes on to say that, although the President did not, in fact, call out the militia to suppress the rebellion, he did recognize the Charter government as legitimate, and the courts may therefore not second-guess him.

The final issue was whether a state may declare martial law.  Taney says that it may.  "Unquestionably a military government, established a the permanent government of the State, would not be a republican government, and it would be the duty of Congress to overthrow it."  But he argues that martial law in this case was simply a temporary expedient, appropriate to the emergency of an armed rebellion.  This is fairly unremarkable, except that it goes against the unstated assumption in much of the writings of insurrectionists and their fellow travelers, that the Federal Government is the sole danger to liberty, and that the states must be presumed to do no wrong.  Roger Taney, that champion of states rights, does not agree.  In fact, he is prepared to say that in some cases, it may even be the duty of the Federal Government to overthrow the government of a state!*

Associate Justice Levi Woodbury wrote a dissent that was considerably longer that the majority opinion.  He describes at greater length than the majority opinion the injustice that existed in Rhode Island under the Charter.  One gathers that he had some sympathy to the Dorrites.  Indeed, at one point his opinion does appear to affirm the right of revolution against unjust government:

If it be asked what redress have the people, if wronged in these matters, unless by resorting to the judiciary, the answer is, they have the same as in all other political matters. In those, they go to the ballot boxes, to the legislature or executive, for the redress of such grievances as are within the jurisdiction of each, and, for such as are not, to conventions and amendments of constitutions. And when the former fail, and these last are forbidden by statutes, all that is left in extreme cases, where the suffering is intolerable and the prospect is good of relief by action of the people without the forms of law, is to do as did Hampden and Washington, and venture action without those forms, and abide the consequences. Should strong majorities favor the change, it generally is completed without much violence. In most states, where representation is not unequal, or the right of suffrage is not greatly restricted, the popular will can be felt and triumph through the popular vote and the delegates of the people in the legislature, and will thus lead soon, and peacefully, to legislative measures ending in reform, pursuant to legislative countenance and without the necessity of any stronger collateral course. But when the representation is of a character which defeats this, the action of the people, even then, if by large majorities, will seldom be prosecuted with harsh pains and penalties, or resisted with arms.

Nonetheless, he ultimately says that it is not for the courts to decide whether a revolution is justified or not and agrees with the majority on all things except the issue of martial law.  Here he is in a bit of a quandary, because most of the protections of individual rights in the Constitution only protected them from the Federal Government and did not extend to the states.  Nonetheless, he cites various sources, including English common law, the US Constitution, and various bills of rights.  He includes three amendments to the U.S. Constitution -- the Fourth Amendment (no entering a private dwelling without a warrant), the Third Amendment (no quartering troops in a private house), and the Fifth Amendment, "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger."  In other words, no civilian may be tried by military courts.  But, once again, he does not say anything about a right to rebellion being protected by the Second Amendment.  He also concludes that the Federal Government has the sole authority to declare a true "war," including a civil war, as opposed to the mere suppression of a rebellion, which is something less than a war.  Only true "war" justifies martial law; anything less must be prosecuted as mere crime.  Woodbury sets forth what he considers justified in response to a rebellion at some length:

Congress omitted or declined to do anything, and that the President also declined to consider a civil violence or insurrection as existing so as to justify his ordering out troops to suppress it. The State, then, in and of itself, declared martial law, and the defendants attempted to enforce it. In such a condition of things, I am not prepared to say that the authorities of a State alone can exercise the rights of war against their own citizens; persons, too, who, it is to be remembered, were for many purposes at the same time under the laws and protection of the general government. On the contrary, it seems very obvious, as before suggested, that, in periods of civil commotion, the first and wisest and only legal measure to test the rights of parties and sustain the public peace under threatened violence is to appeal to the laws and the judicial tribunals. When these are obstructed or overawed, the militia is next to be ordered out, but only to strengthen the civil power in enforcing its processes and upholding the laws. Then, in extreme cases, another assistance is resorted to in the suspension of the writ of habeas corpus. And, finally, if actual force, exercised in the field against those in battle array and not able to be subdued in any other manner, becomes necessary, as quasi war, whether against a foreign foe or rebels, it must first, as to the former, be declared by Congress, or recognized and allowed by it as to the latter, under the duty of the United States "to protect each of them against invasion" and "against domestic violence."

Taken at his word, Woodbury appears to believe it is the sole authority of the Federal Government to declare martial law.  This is, when one gets down to it, something quite dangerous -- bringing the entire might of the Federal Government to bear in ruling through military force.  Presumably he declared this a sole power of the US Government because it was a state exercising the power in this case, and he believed it most unlikely that the Federal Government would actually do so.  But the Civil War proved a different matter altogether.

In short, we have a Supreme Court decision regarding an armed rebellion against an undoubtedly unjust and unrepresentative government which contains no reference whatever to the Second Amendment or a guaranteed right of revolution in the Constitution.  It also makes clear that the courts will not and cannot countenance a violent revolution against government, since their authority rests on the legitimacy of the government that formed them.

I am not clear whether insurrectionists believe that the Supreme Court will ever endorse their actions, but this sounds like a loud and clear, "NO."

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*This precedent proved useful, in ways Taney could not have foreseen, during Reconstruction.