We are celebrating Liberty Chronicles’ one year anniversary with a special Free Thoughts/Liberty Chronicles crossover episode featuring Free Thoughts Podcast host Trevor Burrus. We’ll discuss the Dorr War and its Supreme Court Case Luther v. Borden.
Dennison, George M. The Dorr War: Republicanism on Trial, 1831-1861. Lexington: The University of Kentucky Press. 1976.
Gettleman, Marvin. The Dorr Rebellion: A Study in American Radicalism: 1833-1849. New York: Random House. 1973.
Grimstead, David. American Mobbing, 1828-1861: Toward Civil War. New York: Oxford University Press. 1998.
00:08 Anthony Comegna: 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 it goes. Trevor Burrus 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’s the co-host of Libertarianism.org’s flagship podcast, Free Thoughts. He joins me on our birthday episode to talk about the Dorr War, its outcome in the Supreme Court, and the sudden death of American Republicanism.
01:01 Anthony Comegna: 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 it 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 Dorr War and its Supreme Court case, Luther v. Borden, and you said it was one of your favorite cases. I was shocked at that and delighted to hear it. So I absolutely wanted to have you on to talk about it. Why is this one of your favorite cases and how did you come about discovering it?
01:45 Trevor Burrus: 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 an excerpt, and it 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 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, there’s the whole question that happened with the Dorr 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.
02:45 Anthony Comegna: Now, I had never heard anything about the Dorr War until I was doing dissertation research on the Locofocos, and I read this book called American Mobbing by David Grimsted, which is all about popular rebellions and violence of one kind or another during the Antebellum era. And he had a section about the Dorr War, and he mentioned that Locofocos were involved in it. So I thought, “Whoa, that’s definitely something worth researching.” I had never heard about this before at any point. I was 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?
03:30 Trevor Burrus: I don’t think the term Dorr War or Dorr Rebellion even came up in the discussion of it in class. It’s the legal principle in Luther v. Borden that you’re trying to go for. Law school’s not a history class, unfortunately, and you have to find that yourself. If you wanna find how this case came about and what sort of situations made it arise, you kind of have to look for that yourself. Most people are there just figure out what the rule is and then move on to the next case. Getting into the Dorr War itself, I had heard of the Dorr 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 an exceptional governing document and how unique Rhode Island is in constitutional history itself because they did not go to the constitutional convention.
04:25 Trevor Burrus: When the Articles of Confederation were in place, they consistently were the only dissenting voice trying to pass tariffs ‘cause it required unanimous consent of all 13 colonies. They were heavily into their history, as a bastion of religious freedom, even to the point of taking out any mention of God, whatsoever in the state motto, 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.”
05:00 Trevor Burrus: 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 the 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 Dorr War.
05:25 Anthony Comegna: Yeah, historians like to point to it as an example, sort of 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 somewhat of a more serious shakeup. But now, let’s get into the details of the case here. If in law school, you really just learned the rule and move on, 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?
06:01 Trevor Burrus: During the Dorr Rebellion, when you had the People’s Constitution, you had, ostensibly, two different governments of Rhode Island. Some people who participated in it, they were people who were voted into the assembly of the second assembly of the People’s Constitution. There were people who took ballots and did voting and helped create the new constitution. And so the plaintiff, in this case, was Martin Luther, and he had worked with the government. And after the Dorr 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 jailing people, sometimes for quite a long time, they were told that anyone who participated in this rogue government was someone who was gonna be arrested. And so Borden, whose name is Luther Borden, was a member of some sort of military group. I’m pretty sure it was a…
06:57 Anthony Comegna: Militia.
06:57 Trevor Burrus: 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 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 v Borden was whether or not someone 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 somewhat 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.
06:58 Trevor Burrus: And so that’s what John Marshall looked at… Sorry, Roger Taney. [chuckle] 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 Dorr 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 ‘cause he was a lawyer who was helping direct the case from prison, which is kind of odd ‘cause 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 in it, 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.
08:39 Anthony Comegna: Yeah, and for our listeners who are wondering, “Well, what happened to Thomas Wilson Dorr after the Dorr 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 landholding requirement.
09:00 Trevor Burrus: And gave African-Americans the vote.
09:03 Anthony Comegna: Right. And in another one of the grand bargains here, to cut out the suffrage’s 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 Dorr liberation societies throughout New England, trying to get him removed from prison, trying to get his case revisited, trying to get other 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 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.
09:56 Trevor Burrus: 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 Dorr 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.
10:19 Anthony Comegna: Yeah, yeah. Great. This is just full of great stories, this whole affair. Now, let’s look at the rest of the cast of characters, here. Chief Justice Taney decides the majority opinion and Levi Woodbury is the soul dissenter. Can you tell us a bit about their backgrounds?
10:37 Trevor Burrus: Chief Justice Taney succeeded Chief Justice John Marshall to the court. And, of course, he’s most famous probably for writing the Dred Scott decision. He was from Maryland, a very pro-slavery guy. He didn’t invent the Political Question Doctrine as we call it from whole cloth in the case of Luther v Borden, it’s the first one, generally, you read in law school. But Chief Justice Marshall had decided some cases before, wherein 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 were different lines of sovereign control. And in those cases, Chief Justice Marshall had said this is not for the court to decide the lines of sovereignty. In that view that Chief Justice Marshall had was first, the government is created, they define their territory, and then the judiciary comes after it, and it doesn’t have a business in sort of undercutting or redefining the limits of the governments beforehand. So 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, as he was treasury secretary under Jackson and Van Buren. He was a Jacksonian, and you could call the Dorr Rebellion, Jacksonian, in some sense. And I think that’s probably why he voted on the other side.
12:01 Trevor Burrus: Now, we can’t read too much into that dissenting vote because, generally, in the 19th century, dissenting justices did not write opinions. 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. And maybe after that, he would have decided that the Dorr 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, served for governors and served in all three branches of government. He was a senator, I believe, in the 1820s and ’30s, and a very famous guy at the time. He was on the court until 1851, and not much remembered today.
12:57 Anthony Comegna: Yeah. 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 and do it with a Roger Stone-like tenacity and flair. And 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 ‘cause they refused to do it, and he says, “Yeah, I’ll do it.” And then he gets rewarded with the Supreme Court chair. Woodbury is the guy who goes ahead and basically manages the government deposits thereafter, putting them into different pet banks.
13:46 Anthony Comegna: It’s interesting that the Jacksonians have their… They have sharp limitations to their radicalism. And I wonder if you could infer for us, how much is Taney’s position as a slaveholder versus Woodbury’s position as, basically, a northern Locofoco radical 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.
14:18 Trevor Burrus: Oh, absolutely. Taney 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 maybe 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 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… That rule in that case is still true from current Supreme Court precedent. The Guarantee Clause is not justiciable, and that’s the first case that held it, but I think that the fact that it’s persistent, doesn’t mean you have to be a slaveholder or hold particular views of the time to think that it’s not justiciable.
15:27 Trevor Burrus: 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 Dorr government was illegitimate. I doubt he would have because of his politics, and there was definitely a good argument. I think that the Dorr government was legitimate, and that’s what Dorr, of course, said at his trial. He said, “If you vote against me, you might as well vote against the Rebels of 1776 who invoked the people and 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 then actually legally rehabilitated by the General Assembly of Rhode Island, sort of washing away his felony conviction because that’s a hard argument to match that, yes, that he did the same thing that the Declaration of Independence did and that the Constitution, but the current government and the people who held power there, especially the landholders with $134 requirement didn’t like it, and that’s the kind of revolts that America was built on.
16:34 Anthony Comegna: But in Woodbury’s dissent, he says that… He basically agrees with Taney, “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 peace was not disturbed in any way until they declared martial law and made all these people criminals. And it’s only then that Dorr, thinking he has the support of thousands of New Yorkers and that he’s gonna get a coalition in Washington together, that’s when he goes ahead and tries to start seizing state property and making his stamp as the legitimate government. And 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.”
17:28 Trevor Burrus: And they did. After they went to Acotes Hill and the rebellion petered off and walked away of the probably two to 300 people that were there with Thomas Dorr. They just started arresting the whole town. I think it’s around 1,000 people that they brought back to Providence and put in jail for different… Just people who ran inns and restaurants and things like that, who were… They wanted a 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, and then they’re not allowed to, they may look for other people to raid.
18:08 Trevor Burrus: There’s one instance in that, where a soldier shoots through a keyhole into an inn when they’re trying to raid it. And all of that was uncalled for and interesting, I guess, reaction to Dorr and his original militancy, I guess, with the cannons and around the armory and those things, but it was definitely an overreaction.
18:34 Anthony Comegna: So and you mentioned before the guarantee clause factors in here too. Could you tell us first what the guarantee clause is then take us through how people actually apply that to this case? And what is the outcome with the guarantee clause because of Luther v Borden?
18:52 Trevor Burrus: The guarantee clause is part of the Constitution that says that the federal government shall guarantee a Republican form of government in the States. 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 does that mean you get from the federal government? 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 were asked 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, again, it’s not in its own way, that the states have a lot of autonomy to decide how they’re going to do things. Because the clause is so weird and vague, does it have to be representatives? Can you have majority rule seems to be at least part of this. I would say autocracy, 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.
20:07 Trevor Burrus: 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 they’ll do this in a few instances where they sort of punt on the issue. And it’s a little bit out of two things I would say, one is 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.
20:52 Trevor Burrus: 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 that 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 wanna 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.
21:23 Trevor Burrus: So that still stands today, that if you asked the Supreme Court to decide this question, 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 changed a little bit and it’s still ongoing. Colorado has a thing called the Taxpayer Bill of Rights, which requires tax increases to go through a referendum process. And after there was a fail to pass substantial tax increase for education funding, a suit was brought that said that the Tabor Amendment itself violates the Republican form of government clause the guarantee clause, because that what that means in their interpretation were that taxes and the 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.
22:19 Trevor Burrus: Now, that’s a good example of a strained 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. This case was brought by teachers unions funded by teachers unions upset with the education funding. So at this point, they don’t like Tabor, but in another time maybe they would like it in a different way. So that’s the kind of question the courts generally do not wanna get involved and adjudicating between.
22:51 Anthony Comegna: So the Dorrites were arguing, and the Dorrites 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 50% of them should be able to vote. And because the state Charter forbid that or precluded it is probably more accurate. This was not a republic anymore. And they went back to the time tested methods of the revolution to [23:20] ____ their own spontaneous convention and legal documents to accompany it, and they submitted it to a vote they got most of the people even most of the landholders to support it. Doesn’t that sound pretty simple?
23:36 Trevor Burrus: It does, I think that the Dorr government was legitimate. Thomas Dorr is sort of a personal hero of mine. In that way, is they’re so persistent too. But I think that it’d be hard to argue on that. If there is an example of something that may not be a Republican form of government, it could be that that does not answer though the question of 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, if they’ve decided that the Dorr government was the real government, then how does that resolve itself? Would they be contributing to Civil War in Rhode Island for those who supported the Rhode Island constitution? And that’s why they stepped back in those situations.
24:35 Trevor Burrus: And that’s prudence. There are ways for these things to resolve themselves. It did resolve itself, and it did in an effective manner, and I would say, even though the Dorr government, I think was legitimate under any theory of legitimacy their complaints about suffrage and representation were eventually heard, and as you know 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’s Court 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 into 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.
25:28 Anthony Comegna: 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 Dennison, both they argued that Luther V. Borden was the moment when might made right in America 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.
26:23 Trevor Burrus: That’s an interesting argument, and the problem is that power would still matter if the federal government, were gonna 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 you’re going to call out the state militia to resist the federal government trying to impose something upon you, and then the federal government say, “Can you bring a bigger stick to that fight to resolve that issue.” You still have this question of who actually rules a territory, and I think that often the one was the biggest guns do role the territory. There have been other complaints about the guarantee clause, and this will put it into more understanding the difficulty of enforcing something like this, that after the Civil War and during Reconstruction, and even up through the Jim Crow era, there was 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 have 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 sort of comments had the Supreme Court should have said, “This is violates the Republican form of government clause.”
27:43 Trevor Burrus: But again, imagine what that meant if you said, “Okay, southern states.” [27:49] ____ 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 and the end of reconstruction. The limited attention and desire of the federal government to use force to force non compliant states 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.
28:16 Anthony Comegna: And I think to the Dorrites, basically, they would have said that ultimate responsibility rests with the people. Who else? So they chastised John Tyler for getting involved and committing federal troops, if need be to quash a rebellion. 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 tracks to some degree at least.
28:43 Trevor Burrus: He did visit Rhode Island actually.
28:46 Anthony Comegna: Right. Advisors. [chuckle]
28:47 Trevor Burrus: Advisors. Yes. He visited for and everyone sort of came out and of course he’d 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 journal entry from a citizen at the time, which is basically, “That’s John Tyler? What a weak presence and not… I guess that’s the President of the United States and he didn’t seem to impress anyone.
29:10 Anthony Comegna: It’s funny. The Dorrites talk about him as though he’s very much like Donald Trump. They say 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 what he goes with. But the Tyler administration said that Dorrism was a vast abolition plot because the principles unleashed by Dorrism 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 from John Tyler in Virginia. It would mean four states turn into black republics. Which for a good 20 years in reconstruction they were at least, well, maybe not 20 years, but say 10 or 15 while the armies were there. These were black republics.
30:02 Anthony Comegna: 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 wanted without consulting existing authorities? Does that idea really exist in any political pockets today?
30:24 Trevor Burrus: I think it’s worth putting in, if you think of the Dorr Rebellion, So this is 1840s, and for them, the revolution and the declaration was very recent history, and it was still part of the ethos of that era and what the American Revolution had done and what they had done with the Declaration of Repentance was incredibly radical as I think everyone is well aware. And then there was a fervent of… I would say 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 had something like the communist or Marxist wanting to overturn, or some of the uprising of the 60s.
31:16 Anthony Comegna: Marvin Gettleman and Murray Rothbard…
31:18 Trevor Burrus: Marvin Gettleman…
31:18 Anthony Comegna: Brooklyn Polytechnic.
31:19 Trevor Burrus: Exactly, and the question of where did it go? I think that not being part of a generation that recently saw this, or knowing 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 knowing remember 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 the Civil Rights Movement and things like this, but they try to work through the government as opposed to overthrowing the government.
32:03 Trevor Burrus: I also think it’s important to realize that state allegiances are so much weaker now than they were during the Dorr War and the idea that you are first a citizen of your state and you had loyalty to your state and then the states gave power to the federal government, and the States created the federal government. And the federal government was the agent of the States that the states were the principles and the federal government was a 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 agent to the principles of the states even though that’s still constitutionally true in America.
32:52 Trevor Burrus: Now the federal government spends much more time extorting the states to advance policies that it once by holding tax revenue 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. Is for example, in the Articles of Confederation, they ask the articles… They said to call a convention to rewrite a constitution and then they broke that rule 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 context, 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.
33:46 Anthony Comegna: What about some new context though? The immediate future? I’m thinking about technologies like the Blockchain Distributed Ledger, 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. So you could have a very easily accessible democracy in the Athenian sense, but without slaves walking around [chuckle] Could Dorrism win out if we just stopped going to authorities to organize things in our life?
34:34 Trevor Burrus: I think new technologies will present questions in ways of being that we’re only begin to scratch the surface of and we will have a question that we’ll be asking ourselves for the next many decades, which is how does centralize 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 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 that are gonna be in earnest, I think for the next decades.
35:24 Anthony Comegna: In 1844, the same year that 25000 Dorrites swam to Swampscott Massachusetts for the last of the Great Democratic Clambakes. A long time independent author and reformer took up her pen to write a history of the Rhode Island catastrophe. To Francis Whipple, the Dorr War was a clear and obvious clash between might and right and might won. By 1849, Polk was President. Expansion crazed American 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 reforming this world on their own. Turn to the invisible forces of electromagnetism and spirit possession for help in the here and now.
36:26 Anthony Comegna: Liberty Chronicles is a project of Libertarianism.org. It is produced by Tess Terrible. If you’ve enjoyed this episode of Liberty Chronicles, please rate, review and subscribe to us on iTunes. For more information on Liberty Chronicles, visit Libertarianism.org.