De Facto or De Jure: Is the Present Government Lawfully Constituted?

"De facto" means in fact; "de jure" means by right. A de jure government is one established according to law. A de facto government is one that actually governs, whether or not it was lawfully established. Within alternative legal literature, a recurring claim holds that the governments of the United States — national, state or both — are now merely de facto: that at some point the lawful constitutional order was suspended or displaced, and that what exercises power today does so without lawful title.

The dates and events offered vary. Some point to the departure of Southern members of Congress in 1861 and say that Congress has never lawfully reconvened. Some point to the ratification of the Fourteenth Amendment during Reconstruction. Some point to the emergency banking legislation of 1933 and the declarations of national emergency that followed. What unites the claims is a single question: is the government that governs the government that the law establishes?

The question is not foolish. American law has a long, real and largely forgotten body of doctrine about de facto governments and officers. This article examines that doctrine, the historical episodes the claims rely on, and what courts have said.

The doctrine of the de facto officer

The de facto officer doctrine is old and practical. It holds that the acts of a person who occupies an office under color of authority — with an apparent right to it, recognized by the public — are valid as to the public and third parties, even if the person's title to the office is later found defective. A judge whose appointment was technically irregular, for example, does not render every judgment he signed void.

The doctrine exists to protect people who relied on official acts. The Supreme Court discussed its limits at length in Norton v. Shelby County, 118 U.S. 425 (1886), which the archive examines in Norton v. Shelby County. In that case the Court held that "there can be no officer, either de jure or de facto, if there be no office to fill": if a statute creating an office is unconstitutional, the office never existed and its occupant's acts have no validity. Norton is often quoted for the sentence that an unconstitutional act "is not a law; it confers no rights; it imposes no duties," and it is one of the authorities most cited by those who argue that the present government is merely de facto.

The modern Court has narrowed the doctrine in some respects. In Ryder v. United States, 515 U.S. 177 (1995), it declined to apply the de facto officer doctrine to save a decision of the Coast Guard Court of Military Review on which two civilian judges had sat in violation of the Appointments Clause, where the challenger raised the issue in a timely way.

Which government is lawful? Luther v. Borden

The most direct engagement by the Supreme Court with the question "which government is the lawful one" arose from the Dorr Rebellion in Rhode Island in the 1840s. Rhode Island still governed itself under its colonial charter, which restricted the vote. Reformers held a convention, adopted a new constitution by popular vote outside the charter process and elected their own governor. The charter government declared martial law. Two governments claimed to be lawful at once.

In Luther v. Borden, 48 U.S. (7 How.) 1 (1849), the Court declined to decide which government was lawful. It held that the question belonged to the political branches — Congress, in deciding whose representatives to seat, and the President, in deciding whose call for assistance to answer under the Guarantee Clause of Article IV. This is the origin of the political question doctrine, and it remains the principal reason courts do not entertain claims that the present government is not de jure.

The Civil War and Texas v. White

The Civil War produced the most extensive judicial treatment of de facto governments in American history. In Texas v. White, 74 U.S. (7 Wall.) 700 (1869), the Court held that the Constitution "looks to an indestructible Union, composed of indestructible States," and that Texas had never left the Union. At the same time, the Court acknowledged that the Confederate state government had actually governed. It held that the acts of such a government in ordinary matters — marriages, property transfers, enforcement of ordinary law — could be treated as valid, while acts in furtherance of the rebellion were void.

This is a nuanced and important holding. It shows that American law has accepted that a government can be unlawful in origin and yet have many of its acts recognized, for the sake of the people who lived under it.

The ratification of the Fourteenth Amendment

The Fourteenth Amendment's ratification is a genuine historical controversy, not merely a modern theory. The Supreme Court itself summarized the record in Coleman v. Miller. Georgia, North Carolina and South Carolina rejected the amendment in 1866. New governments were then erected in those states "under the direction of Congress," and the new legislatures ratified in July 1868. Ohio and New Jersey ratified and then passed resolutions withdrawing their consent. On July 20, 1868, Secretary of State Seward issued a proclamation that the amendment had been adopted if the Ohio and New Jersey ratifications were still in force, noting that it was "a matter of doubt and uncertainty" whether their withdrawals were valid. The next day Congress adopted a concurrent resolution declaring the amendment part of the Constitution, counting Ohio and New Jersey among the ratifying states.

Serious historians and legal scholars have debated the regularity of this process. The Supreme Court has never invalidated the amendment, and in Coleman v. Miller, 307 U.S. 433 (1939), it treated questions about the effect of prior rejection and attempted rescission as political questions for Congress, citing the Fourteenth Amendment's history as an example.

The 1861 and 1933 claims

The claim that Congress adjourned "sine die" in 1861 and never lawfully reconvened is not supported by the documents its proponents cite. Congress continued to sit through the war and enacted the legislation printed in the Statutes at Large for those years; the Southern members' seats were vacant, but the body was not dissolved. The 1933 claims concern the Emergency Banking Act and later emergency declarations. These involved real and far-reaching delegations of power, which the archive examines in its monetary-history and judicial entries. But emergency statutes are enacted by Congress under the Constitution; they do not, by their terms, replace it.

What can reasonably be concluded

The record establishes a real de facto doctrine, real limits on it (Norton, Ryder), a recognized category of governments that were unlawful in origin yet partly recognized (Texas v. White), and a real controversy over the Fourteenth Amendment's ratification. It also establishes why courts do not decide whether the present government is de jure: since Luther v. Borden, that question has been treated as political, for the elected branches and ultimately the people.

The claim that the present government is merely de facto therefore rests less on a gap in the record than on a disagreement about who has authority to decide the question. That disagreement — about whether the people retain a lawful means to challenge the title of those who govern them — is the serious question underneath the theory, and it is one the founding generation itself argued about at length.