 Last week was Liberty Chronicles' one-year anniversary, and to mark the occasion, we have something special for you. Fans of Cato Institute podcasts will need no introduction to him, especially if you also have long been awaiting a Free Thoughts Liberty Chronicles crossover. But for everyone else, here goes. Trevor Burris is a research fellow at the Cato Institute's Robert A. Levy Center for Constitutional Studies. He has written for a wide array of the country's top law reviews and newspapers. He has a law degree from the University of Denver, and of course, he is the co-host of Libertarianism.org's flagship podcast, Free Thoughts. He joins me on our birthday episode to talk about the door war, its outcome in the Supreme Court, and the sudden death of American Republicanism. Welcome to Liberty Chronicles, a project of Libertarianism.org. I'm Anthony Comegna. At this point in my career, I'm very well used to it when nobody's ever heard of the thing, whatever it is, that I'm researching. I was very familiar with going to the library and checking out a book that nobody had checked out for 40 years, and I was delighted to hear it then when I asked you for an interview on the door war and its Supreme Court case, Luther V. Borden, and you said it was one of your favorite cases. So I was shocked at that and delighted to hear it. So I absolutely wanted to have you on to talk about it. So why is this one of your favorite cases and how did you come about discovering it? It's a case that you do read in law school. You read it for what's called the political question doctrine, which is something that you learn when you take constitutional law. It's usually the first one you read, and you'll read it excerpted. It will say, this sort of thing happened, and then you get to the heart of the matter, and that's all you get. But when I read the summary of that there was a coup in Rhode Island, I said, this is really bizarre, and so I went and looked into it more and just found the entire question itself interesting, the question of what does it mean to be acting under lawful authority and the background, and then of course just the whole question that happened with the door rebellion of which government was the legitimate government of Rhode Island and whether or not that's a question that can be figured out constitutionally, and that led me to the guarantee clause and researching that history and whether or not the court has ever used it to enforce a Republican form of government. Now I had never heard anything about the door war until I was doing dissertation research on the Locofocos, and I read this book called American Mobbing by David Grimstead, which is all about sort of popular rebellions and violence of one kind or another during the antebellum era, and he had a section about the door war, and he mentioned that Locofocos were involved in it, so I thought, whoa, that's definitely something worth researching. I'd never heard about this before at any point. I was, you know, six years into researching this subject going back to undergrad, and it was crazy to me that this had never come up before, and I'm really interested to know how much time did you spend actually talking about it in class in law school, and what was that discussion like? I don't think the term door war or door rebellion even came up in the discussion of it in class. It's the legal principle in the board and that you're trying to go for. Law school is not a history class, unfortunately, and you have to find that yourself if you want to find what, wow, this case came about and what sort of situations made it a ride, so you kind of have to look for that yourself. Most people are there just to figure out what the rule is and then move on to the next case. Getting into the door war itself, I had heard of the door war before because of my interest in Rhode Island and particularly Roger Williams, and it's part of that because of what Roger Williams did to secure particular freedoms in Rhode Island in their charter of 1663 and how much they enjoyed that charter and thought it was exceptional governing document and how unique Rhode Island is and constitutional history itself because they did not go to the constitutional convention. They consistently, when the articles of confederation were in place, they consistently were the only dissenting voice on trying to pass tariffs because it required unanimous consent of all 13 colonies. They were heavily into their history as a bastion of religious freedom, even to the point taking out any mention of God whatsoever in the state moda, which was Roger Williams move. So this was why they did not create a new constitution when everyone else did. Every other state did as soon as they were all operating under royal charters of various sorts and as soon as the revolution happened, they said, okay, we need a constitution. And so you have things like the Constitution of Massachusetts, which was largely written by John Adams, for example, all passed very shortly after independence. But Rhode Island said, no, we're Rhode Island as they tend to do and we don't need a new constitution. So in my reading about Roger Williams and the history of Constitution of Rhode Island, I found it to be very interesting that they didn't adopt a different governing document when everyone else did and that eventually led to the door war. Yeah, historians like to point to it as an example, sort of that the exception that proves the rule that throughout this period, we're getting this great extension of democracy more and more and more throughout the country. But then there's this weird case of Rhode Island where it takes us somewhat of a more serious shake up. But now let's let's get into the details of the case here. If in law school, you really just learn the rule and move on. Let's let's dig into the historical details a little bit that inform this case. So what exactly is the background of the case at hand here, Luther v. Borden? In in during the door rebellion when you had the People's Constitution, you had two different ostensibly two different governments of Rhode Island. Some people during the who participated in their members, they were people who were voted into the assembly of the second assembly of the People's Constitution. There are people who took ballots and did voting and helped create the new constitution. And so the the plaintiff in this case was Martin Luther and he had he had worked with the government and after the door rebellion was subsided and there was a lot of anger on behalf of Rhode Islanders, particularly when they were just sort of arresting people randomly and in jailing people sometimes for quite a long time. They were they were told that anyone who participated in this rogue government was someone who was going to be arrested. And so Borden, whose name is Luther Borden, was it was a member of some sort of military group. I'm pretty sure it was a militia group and went into Martin Luther's house, threatened his mother, pulled a servant out from under a bed and Martin Luther wasn't there and eventually was found and he later brought suit against him for trespass, criminal trespass. Now, of course, those rules are different if you are a member of a government in its own way, whether or not you're acting under color of law or not. And so the question in Luther Borden was was whether or not someone was who was a member of the government at the time. What was the government of the state? And that meant that the Supreme Court was asked to decide whether or not someone acting under color of law in official capacity. But if you're a member of a rogue government or not, then you have to decide that question. And so that's what John Marshall looked at. And sorry, Roger Taney. That's what Roger Taney looked at and decided that he wasn't going to make that decision. It was quite a few years after the door rebellion had subsided. Actually, it seems that Thomas Dorr when he was in prison for about a year after he returned to Rhode Island was helping direct the case in because he was a lawyer who is helping direct the case from prison, which is kind of odd because he was in solitary confinement and was supposed to have no writing materials and no communication with the outside world. But somehow he was able to contribute his legal reasoning to the case and he was very interested. Of course, it was argued in 1848 and decided in 1849. And what the Supreme Court decided was essentially we can't decide this question because it's not something that courts are good at doing deciding which was the real government of Rhode Island. Yeah. And for listeners who are wondering, well, what happened to Thomas Wilson door after the door rebellion? We left the story off at the clam bakes for now. He stayed in exile through the year 1842 and he returned to Rhode Island only after the landholders passed a new constitution that did reform the land holding requirement and gave African Americans the vote right in another one of the grand bargains here to cut out the suffragists support. Naturally, then he was arrested and as Trevor said, he was tried for treason against the state and he was put in prison for some time. And fortunately for him, the whole way through there were suffrage women activists forming various door liberation societies throughout New England, trying to get him removed from prison, trying to get his case revisited, trying to get other case test cases to the Supreme Court. And he was released from prison in 1845, but he was sort of a broken man from then on physically and sort of his his radicalism was very much stunted and he lived for about another decade in relative obscurity. He did pop up to some national prominence again during the Pierce campaign in 1852. But that was about it. He lived in a house that still stands in Providence that was his parents house. And interestingly, his parents were on the other side of the door war when they approached the armory and the sort of failed fizzled cannons incident. His brother and father were inside the armory arming themselves as members of the other Rhode Island government. Yeah, yeah, great. This is just full of great stories. This this whole affair. Now let's look at the other cast of or the rest of the cast of characters here. Chief Justice Tony decides the majority opinion and Levi Woodbury is the sole dissenter. Can you tell us a bit about their backgrounds? Chief Justice Tony was succeeded Justice Chief Justice John Marshall to the court. Of course, he's most famous probably for writing the Dred Scott decision. He was from Maryland, very pro slavery guy. He didn't invent the political question doctrine as we call it from whole cloth in the case of Luther Reborn. It's the first one in general you read in law school, but Justice Chief Justice Marshall had decided some cases before where in it it might have involved him trying to decide for example whether some pieces of land were part of Spain or France after the Louisiana purchase or different lines of sovereign control. And in those cases Chief Justice Marshall had said this is not for the court to decide the the lines of sovereignty that in that view that Chief Justice Marshall had was first the government has created they define their territory and then the judiciary comes after it and it doesn't have a business and sort of undercutting the defining redefining the limits of the government's forehands. That's where Luther V. Borden sits in. Levi Woodbury was very well known in the 19th century. He had been members of three administrations. He was Treasury Secretary under Jackson and Van Buren. He was a Jacksonian and you could call the door rebellion Jacksonian in some sense. And I think that's probably why he voted on the other side. Now we can't read too much into that dissenting vote because generally in the 19th century dissenting justice did not write opinions. It was just it was just recorded that they dissented from the vote and he might have just been dissenting that he thought the court could decide the question. That was the holding of the case that the court was able to figure out which one was the real government of Rhode Island. It maybe after that he would have decided that the door government was not the real government of Rhode Island for example. So we can't really read whether or not his Jacksonian sympathies really informed that vote but we might be able to infer it to some degree. He served for a long time in various capacities. He served for governors and served in all three branches of government. He was a senator I believe in the 1820s and 30s and very famous guy at the time. He was on the court until 1851 and not much remembered today. Yeah you know it strikes me that these are both in their way hatchet men for Andrew Jackson who rose to prominence because they were willing to do the bidding of the administration in a sort of middling role you know and do it with with with you know Roger Stone like tenacity and flair and you know Taney's the guy who comes in as Treasury Secretary and goes along with Jackson's probably unconstitutional scheme to remove deposits from the bank and he's like fine after two Treasury secretaries quit because they refused to do it. He says yeah I'll do it and then gets he gets rewarded with a Supreme Court chair. Woodbury is the guy who goes ahead and basically manages the government deposits thereafter putting them into different pet banks you know it's interesting that the Jacksonians have their they have sharp limitations to their radicalism and you know I wonder if you could kind of infer for us how much is Taney's position as a slave holder versus Woodbury's position as basically a northern loco-foco radical you know from New Hampshire and he very much reflects their politics though he is willing to compromise with the South. Taney seems very much informed by his slave holding. Oh absolutely Taney is not should not be held up as a great Supreme Court justice obviously in the Dred Scott case he went even above and beyond the decision of the case to make comments on the nature of African Americans and how he believed about slave holding. Again it's hard to infer and as a lawyer this is this may be seem like a cheat in its own way. I'm always admonishing other people though to not infer too much from a Supreme Court vote of the time because the question was decided in a specific way that that that he was dissenting Woodbury was dissenting and I said Taney's opinion is not radical within the Supreme Court jurisprudence of the time and it wouldn't be it's still that that rule in that case is still true if from current Supreme Court precedent that the guarantee clause is not justiciable and that's the first case that held it but it but I don't I think that the fact that it's persisted as I mean you have to be a slave holder or hold particular views the time to think that it's not justiciable and Woodbury again could have been just dissenting because he thought it was justiciable but he might have at the end of the day decided that the door government was illegitimate. I doubt he would have because of his politics and there was a definitely a good argument. I think that the door government was illegitimate and that's what door of course said it is trial. He said if you vote against me you might as well vote against the rebels of 1776 who invoked the people in the power of the people to change their government without asking the government that's in place to let them do it and that's I think one reason why he was rehabilitated in the minds of Rhode Islanders after he got out of prison and that actually legally rehabilitated by the General Assembly of Rhode Island that sort of washing away his felony conviction because that's a part argument to match that yes that he did the same thing that the Declaration of Independence did and then the Constitution but the current government and the people who have power there especially the landholders with the $134 requirement didn't like it and that's kind of revolts that America was built on. But in Woodbury's dissent he says that he basically agrees with Tony this is this is not a matter for the courts but the charter government overstepped in their declaration of martial law because there was no real threat there was no state of war in Rhode Island and you know peace was not disturbed in any way until they declared martial law and made all these people criminals and it's only then that Dore thinking he has the support of thousands of New Yorkers and that he's going to get a coalition in Washington together that's when he goes ahead and tries to start seizing state property and you know making his stamp as the legitimate government and you know Woodbury says basically look you guys pushed it to the point where normal politics went out the window by making this a situation of martial law. And they did they after they went to Acots Hill and the rebellion petered off and walked away of the probably two to 300 people that were there with with Thomas Dore they just started arresting the whole town. I think it's around a thousand people that they brought back to Providence and put in jail for different of just people who ran ends and restaurants and things like that who were they wanted to fight and that's sort of a thing about militia when you get a bunch of men together and you get them all amped up to maybe shoot some guns at people. They they and then they're not allowed to they may look for other people to raid. There's one instance in that where a soldier shoots through a keyhole into an end when they're trying to rate it and that and all of that was was uncalled for an interesting I guess reaction to to Dore and his his original militancy I guess with the cannons and around the armory and those things but it was definitely an overreaction. So and you mentioned before the guarantee clause factors in here too could you tell us first what the guarantee clause is and then you take us through how how people actually apply that to this case and what is the outcome with the guarantee clause because of Luther v. Gordon the guarantee clause is part of the Constitution that says that the federal government shall guarantee a Republican form of government in the States. It is another also in that clause it says that they'll protect states from domestic violence and invasion in the question of what does that mean and what what does that mean you get from the federal government what what obligations does that put on the federal government is one question the other one is what is a Republican form of government that's a difficult question by itself. This has been there's a few cases that deal with this there's another case from the teens where ask the question of whether or not the referendum process is a violation of the Republican form of government and the court in that one said said again it's not in its own way the states have a lot of autonomy to decide how they're going to do things that because the clause is so weird and vague as it does it have to be representatives can you can you have majority majority rule seems to be at least part of this I mean I would say a talk or see military dictatorship would probably not be a Republican form of government but when the court has been asked to decide these things it generally says a few things that says that there are no judicial standards to really decide this and the other thing that they say is that this is committed to other branches of government namely Congress or the executive to decide this question and do this in a few in a few instances where they sort of punt on the issue and it's it's a little bit out of two things I would say one is it a true concern for the lack of meaningful standards that judges can employ to figure out the answers to these questions. The other one is a respect for other branches of government the Supreme Court is always concerned that it's going to overstep and do something Congress is supposed to do or the president is supposed to do and since they're all co-equal branches of government the Supreme Court shouldn't be doing that I guess there's a third consideration too which is the possible unenforceability of its own decisions so if the Supreme Court were to decide for example that one government was the real government of Rhode Island or another the next question is how does it actually enforce that decision something the Supreme Court is always concerned with the Supreme Court does not have an army it has to ask anyone else to enforce its decisions we saw that for example after Brown v. Board of Education and so they do not want to make a decision about it's fundamentally political questions like what is a Republican form of government that they may be ignored by people in the future which would undercut the legitimacy of the Supreme Court so that that still stands today that if you asked the Supreme Court to decide this questions or any court they're generally going to dismiss the case it has recently come up in a case that came out of Colorado for example and this one this one changed a little bit and it's still ongoing Colorado has a thing called the taxpayer bill of rights which which requires tax increases to go through a referendum process and after they there was a failed to pass a substantial tax increase for education funding a suit was brought that said that the Tiber amendment itself violates the Republican form of government clause the guarantee clause because that what that means in their interpretation were that taxes and questions about tax need to go through representatives who talk about whether or not to raise taxes and putting tax raises through the popular vote is not Republican form of government that's a good example of it's sort of a strange argument but if you opened up the Republican form of government question the kind of things that would be brought to the court based on momentary political dissatisfaction the the this case was brought by teachers unions funded by by teachers unions upset with the education funding so at this point they don't like Tiber but you know at another time maybe they would like it in a in a different way so that's the kind of question the courts generally do not want to get involved in adjudicating between so the Dorites were arguing and the Dorites and their broad allies across the country were arguing that because pretty much everybody agreed the citizens in this Republic were white males at least fifty percent of them should be able to vote and because the state Charter forbade that or precluded it is probably more accurate this was not a Republic anymore and they went back to sort of the time tested methods of the revolution to form their own spontaneous convention and legal documents to accompany it and they submitted it to vote they got most of the people even most of the landholders to support it isn't doesn't that sound pretty simple it does I I think that the the door government was legitimate I mean Tom Storrs it was sort of a personal hero of mine in that way is they're so persistent to but the I think that it'd be hard to argue on that that that that that if there's an example of something that may not be a Republican form of government it could be that that does not answer though the question whether or not the Supreme Court should be deciding that question if let's say they didn't get that case after the rebellion had worked itself out let's say they got that case in 1842 or 1843 and they were asked to adjudicate this dispute while the two governments were active again you have this problem of that they decided that the door government was the real government then how does that resolve itself would they be contributing to a civil war in Rhode Island for those who supported the Rhode Island Constitution and that's why they step back in those situations and there and that's prudence there are ways for these things to resolve themselves it did resolve itself and and it did in an effective manner I would say even though the the door government I think was legitimate under any theory of legitimacy the complaints about suffrage and representation were eventually heard and as you men were and the Constitution was amended adopted after that to broaden it out and that's a resolution of the problem too and I think if that would have been on the Supreme Court's plate at the time it would have been wise for them to be like we're going to wait and see what happens and not foment a war and not use the Constitution and maybe heighten sort of any animosity towards the federal government coming in to the states and deciding these questions that the states felt obligated especially a state like Rhode Island felt that they had the duty and ability to figure out themselves but at least two historians writing in the 60s and 70s Marvin Gettleman who thanks Murray Rothbard in his introduction by the way they were both at Brooklyn Polytechnic at the same time so that's an interesting link Gettleman and George Denison both they argued that Luther v. Borden was the moment when might made right in America for for real and for all time that people basically embraced the idea that you had to have enough power concentrated under your control in order to be the legitimate authority in a particular area for them this is almost the moment when American exceptionalism ground to a harsh and immediate halt and we became just like the old governments of Europe based on some concentrated existing authority not the sovereignty of the people that's an interesting argument and and the the problem is that power would still matter if the federal government we're going to be the one to be the bigger power and enforce one way or the other at some point power matters and for something like the Supreme Court if they're if you're going to call the state militia to resist the federal government trying to impose something upon you and then the federal government is going to bring a bigger stick to that fight to resolve that issue you still have this question of you know who actually rules a territory and I think that often the one with the biggest guns do rule the territory there have been other complaints about the guarantee clause and this will put it into more you know understand the difficulty of enforcing something like this after the Civil War and during reconstruction and even up through the Jim Crow era there was there were some people who have said that the court should have been there people should have been willing to enforce the guarantee clause against Southern states that had disenfranchised majorities of their population in the form of African-American voting oppression after the war and that when you had a minority of people controlling the government then they should have come and said the Supreme Court should have said this is violates the Republican form of government clause but again imagine what that meant if you said okay Southern states I mean they just fought a war okay Southern states you can't do this anymore and we're going to enforce this with an army which of course they decided they didn't want to do anymore after 1876 in the end of reconstruction the limited attention and desire of the federal government to use force to force non-compliant states into obeying into obeying the Supreme Court rules there's a lot of times you can imagine that it seemed very clear that this was not a Republican form of government but that doesn't answer the entire question and I think to the doorites basically they would have said that ultimate responsibility rests with the people who else right so they chastised John Tyler for getting involved and committing federal troops if need be to quash a rebellion right they said he took sides even just by promising to do that not even actually sending troops he took sides and that stunted the rebellion in its in its tracks to some degree at least he did visit Rhode Island actually right advisors advisors yes he visited for and everyone sort of came out and of course he had achieved the presidency via the death of William Henry Harrison and so everyone had came out and sort of saw him and there's one journalist entry from a citizen at the time which is basically that's John Tyler what a what a weak presence and I guess that's the president of the United States and he didn't seem to impress anyone it's funny the doorites talk about him as though he's very much like Donald Trump they say he's he just goes with whoever talked to him last and says the most convincing thing with the most praise for him attached onto it and that's that's what he goes with but the Tyler administration said that Dorism was a vast abolition plot because the principles unleashed by Dorism would give liberty to the slave and it would make a place like South Carolina a black republic and we can't have that oh my God we cannot have that even even from John Tyler in Virginia you know it would mean like four states turn into black republics which for a good 20 years in reconstruction they were at least while maybe not 20 years but say 10 or 15 while the armies were there you know these were black republics can you can you talk a bit about maybe what has happened to this principle of spontaneous revolution at the will of the people actually putting in place a government that they want when they want it without consulting existing authorities does that idea really exist in any political pockets today? I think it's worth putting in you think of the door rebellion and so this is the 1840s and but for them the revolution and the declaration was very recent history and it was still part of the ethos of of that era and what the American Revolution and what they had done with the Declaration of Independence was incredibly radical as I think everyone is well aware and then there was a sort of fervent of of there was a view that this was a legitimate thing to do and popular uprising much more common at that time than it would be after after I would say into the 20th century you don't see such things except for an extremely marginal groups radical groups whether they're something like the communists or Marxists wanting to overturn or some of the the uprising of the 60s Marvin Gettleman and Murray Rothbard and Brooklyn Polytechnic exactly and the question of what where did it go? I think that not being part of a generation that recently saw this or knowing you know if you're if you knew your parents in 1840s they could tell you about the Revolution times and the Constitution and when the people got up and did something about it and that's very very important generational lessons that you could have learned at that time now no one remembers that no one can tell you the story of how the people got up and did this they prefer to act through government the idea the people do get up and do things like them you know civil rights movement and things like this but they try to work through the government as opposed to overthrowing the government I also think it's important to realize that state allegiances are so much weaker now than they were during the door war and the idea that you were first a citizen of your state and you had loyalty to your state and that the states gave power to the federal government and the states created the federal government and the federal government was that was the agent of the states that the states were the principles and the federal government was less important government to your life than your state that has been supplanted because the federal government is now in almost every way more important than your state government both in terms of our attitudes about the states that we're from and just realistically speaking we don't really think of the federal government as the as the agent to the principles of the states even though that's still constitutionally true in America now the federal government spends much more time extorting the states to that policies that it wants by holding tax revenue or withholding different things that the states don't behave in certain ways so when they think about the government they're thinking about the federal government and then the idea of overthrowing the federal government via a popular revolt or getting together and having the people do it again seems very very difficult and of course the question of whether or not you'd have to ask the federal government for permission to hold a constitutional convention and things like this that they did as for example in the Articles Confederation they asked the Articles they said to call a convention to rewrite a constitution and then they broke that rule and wrote and recreated a new government I don't think any of that stuff could happen now and I don't think people really think it would be a likely thing to do or to ask the federal government to do so in those contexts it just does not seem possible and it's probably correct it would be very hard to have a popular revolt against the federal government what about some new contexts though you know the immediate future I'm thinking about technologies like the blockchain distributed ledger of Bitcoin things that I don't know much about but I understand that there are very radical implications for how this technology could be used to do things like accurately record a popular vote of everybody in the country on a particular referendum and so you could have a very you know easily easily accessible democracy in the Athenian sense but without slaves walking around you know what could could Dorism win out if we just stopped going to authorities to organize things in our life I think new technologies will present questions and ways of being that we're only beginning to scratch the surface of and we will have a question that we'll be asking ourselves from the next many decades which is how does centralized government jive with decentralized people especially when decentralized people can be empowered by technologies such as the blockchain or just the internet in general and the ability to communicate while the government seems to be monolithic not very versatile not be able to change quickly when new technologies come on and that makes people start asking questions about what government is good for and those questions are going to be asked an artist I think for the next decades in 1844 the same year that 25,000 Dorites swarmed to Swamsket, Massachusetts for the last of the great Democratic clambakes a longtime independent author and reformer took up her pen to write a history of the Rhode Island catastrophe to Francis Whipple the door war was a clear and obvious clash between might and right and might one by 1849 Polk was president expansion crazed Americans seized half of Mexico and now everyone was scrambling to find some answer to the question of slavery in the territories that year the Supreme Court announced its agreement with Fannie Whipple might officially made right in the United States while Republicanism died quietly a few diehard radicals like Whipple left without much hope of performing this world on their own turned to the invisible forces of electromagnetism and spirit possession for help in the here and now Liberty Chronicles is a project of libertarianism.org is produced by test terrible if you've enjoyed this 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