Volume 86, Number 6

December 2011

The Law of Democracy and the Two Luther v. Bordens: A Counterhistory

Ari J. Savitzky

How, and how much, does the Constitution protect against political entrenchment?
Judicial ineptitude in dealing with this question—on display in the modern Court’s
treatment of partisan gerrymandering—has its roots in Luther v. Borden. One hundred
and sixty years after the Luther Court refused jurisdiction over competing
Rhode Island state constitutions, judicial regulation of American structural democracy
has become commonplace. Yet getting here—by going around Luther—has
deeply shaped the current Court’s doctrinal posture and left the Court in profound
disagreement about its role in addressing substantive questions of democratic fairness.
While contemporary scholars have demonstrated enormous concern for the
problem of the judicial role in policing political entrenchment, Luther’s central role
in shaping this modern problem has not been fully acknowledged. In particular,
Justice Woodbury’s concurrence in Luther, which rooted its view of the political
question doctrine in democratic theory, has been completely ignored. This Note
tells Luther’s story with an eye to the road not taken.