Will Baude's recent article provides new reasons to defend sovereign immunity, and he does so on originalist grounds.
Two hundred years ago this week, the Supreme Court issued its now famous ruling in Dartmouth College v. Woodward. Writing for the Court, John Marshall defended the independence of Dartmouth College against New Hampshire’s effort to transform its governance, arguing that the school’s charter was protected by the Contracts Clause of the U.S. Constitution. The Great Chief Justice’s opinion is also of continuing relevance, however, because of the lesson it offers in the traditional and proper approach to constitutional interpretation.
Political conservatives today, appalled by what they believe to be the unjustifiable constitutional innovations of activist courts, tend to be defenders of an originalist constitutional jurisprudence. Under this view, the binding meaning of the Constitution—the view that should guide the courts in the cases that come before them—is its original meaning.
Finding Fault with Originalism
Liberal critics of originalism sometimes counter that this not so much a principled approach to constitutional interpretation as it is a political tool devised by conservative judges in order to get the outcomes they desire. Originalism, after all, supposedly appeared on the scene in the 1970s and 1980s, when prominent conservative legal figures like Judge Robert Bork and Attorney General Edwin Meese were seeking arguments by which they could push back against what they thought were the excesses of the liberal Warren Court in the 1960s.
The development of originalism into the 21st century, say such critics, reveals its shaky intellectual foundations. The early originalists tended to present their approach as a quest for the “original intent” of the Framers of the Constitution, but that approach proved untenable. After all, the Constitution became law by, and thus derives its authority as law from, its ratification. Who cares, then, about the private, subjective intentions of those who wrote the language at the Constitutional Convention?
In response to this problem, a new generation of originalists framed it as a quest for the “original understanding” or the “original public meaning” of the Constitution—the meaning that would have been evident to, and considered authoritative by, the generation of Americans who ratified the Constitution. Such modifications were pounced on by liberal skeptics to argue that originalism was a jury-rigged or improvised, and therefore unpersuasive, theory.
Marshall Got There First
Marshall’s opinion in the Dartmouth case, however, undermines these contemporary critiques of originalism. Long before Bork or Meese appeared, John Marshall sought the original meaning of the Constitution. Not only that, his quest, as recorded in his opinion for the Court written back in 1819, prefigures the intellectual development of originalism two centuries later. That is, Marshall began with an examination of the intentions of the authors of the Contracts Clause, but then dispensed with that inquiry in favor of a more justifiable quest for the original public meaning of that clause.
Those who defended what the state of New Hampshire had done held that Dartmouth’s charter should not be understood as a contract within the meaning of the Constitution’s provision forbidding state laws that “impair the obligation of contracts.” In support of their view, they appealed to the intentions of “the Framers of the Constitution.” When the Contracts Clause was written, they contended, its authors were not thinking about institutions like Dartmouth College or the corporate charters by which such institutions are created. Rather, the Framers were responding to a specific abuse that had arisen, in the various states, in the period following the Revolution. State legislatures were attacking the rights of property by passing laws that diminished, or even cancelled outright, what debtors owed to their creditors.
Thus the Contracts Clause, as Marshall summarized this argument, “must be understood as intended to guard against” only such abuses, and application of the clause “ought to be confined to cases of this description; to cases within the mischief” that “it was intended to remedy.”
Although Marshall’s opinion recounted this argument, he and the other members of the Court were not persuaded by it. Marshall admitted that those who argued this way were probably correct in their presentation of the Framers’ intentions. “It is more than possible,” he wrote, that the protection of corporate charters like the one at issue in the Dartmouth case “was not particularly in the view of the framers of the Constitution, when the clause under consideration was introduced into that instrument.” It was even “probable,” he conceded, that other, more frequent kinds of interference with contracts “constituted the great motive for imposing this restriction on the state legislatures.”
Nevertheless, Marshall continued, those who sought the intentions of the Framers were not asking the most important question. The key consideration, he suggested, was the words of the Constitution itself, understood according to their ordinary meaning. While “a particular and a rare case may not, in itself, be of sufficient magnitude to induce a rule, yet it must be governed by the rule, when established, unless some strong reason for excluding it can be given.” Put another way: “The case being within the words of the rule, must be within its operation likewise, unless there be something in the literal construction so obviously absurd, or mischievous, or repugnant to the general spirit of the instrument, as to justify those who expound the Constitution in making it an exception.”
The Framers’ Word Choices Are What Matter
This is to say that, for Marshall and for the Court, the immediate intentions of the Framers of the Constitution mattered less than the original meaning of the words they chose to employ in writing the document’s particular provisions. And, Marshall added, those words clearly embraced and therefore protected Dartmouth’s charter of incorporation. For a lawyer, he suggested, it was so obvious as to “require no argument to prove” that a corporate charter is a kind of contract. Moreover, Marshall noted, in being guided by the original meaning of the words used in the Constitution, the Court was simply following “the ordinary rules of construction.”
The originalist inquiry, then, is not an invention of contemporary conservatives. Nor is it an invention of John Marshall or even of the Constitution’s authors. It is rather part of the traditional approach to legal interpretation that the Founding generation had learned from English authorities like William Blackstone.
What this means is that originalism is not a partisan conservative approach to constitutional interpretation, but the traditional American approach to constitutional interpretation. It is constitutional interpretation the way John Marshall and the Founding-era Supreme Court did it. Today’s courts could do worse. And they have in fact done a lot worse—which is what provoked, not the contemporary invention, but the contemporary revival, of originalism.