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Marshall, the Dartmouth College Case, and Originalism

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.

Reader Discussion

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on January 31, 2019 at 10:01:00 am

If the Dartmouth College charter was a contract, what consideration did the original grantees give for it?

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Kevin Gutzman
on January 31, 2019 at 10:35:00 am

Presumably, a promise or covenant to provide higher education services to people in the State of New Hampshire. That should have been sufficient consideration to create an enforceable contract with the state, even if they charged their students tuition. Had the original grantees instead engaged in the logging business and did not provide higher education services, the state could have revoked their charter for breach of contract.

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Randall Guynn
on January 31, 2019 at 12:07:10 pm

It's a close question; and I'm not sure the "originalism" interpretation is right. The real problem was that the plaintiffs (despite Story's assistance, whose ex parte maneuverings make your jaw drop) couldn't find a way to bring the case in diversity. That would have brought the case under the courts' federal general common law. That would probably gotten you to the "contract" position (altho I haven't looked in a while). Instead they had to bring it has a federal question (Section 25) case, which cut off the entire body of general law (which, contra Holmes, was a way of deciding diversity/conflicts cases, not a free-standing body of substantive law). So Marshall solved the problem by cranking general law notions into the Contract Clause. It's pretty aggressive even by Marshall's standards. Not sure "original methods originalism" (by far the most defensible form) gets you there; Brothers Rappaport & McGinnis may have a view on that.

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Mike Greve
on January 31, 2019 at 12:15:21 pm

No consideration, whether in the form of a promise or otherwise, was given. The charter was simply granted by the Crown.

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Kevin Gutzman
on January 31, 2019 at 13:55:16 pm

"Nudem pactum" be damned, the Supreme Court had colorable jurisdiction if the deal was a contract but no jurisdiction if the deal was a pre-revolutionary grant or charter uttered by George III. So, naturally, all good Federalists like Marshall saw a contract, not a charter or a grant.

This is typical of L&L fudging the facts to support a Federalist narrative.

Predictably, the attorney for the College was Daniel Webster, the good shepherd of the Fugitive Slave Act of 1850.

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EK
on February 01, 2019 at 16:23:47 pm

"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.”"

AND

" All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. "

AND

We now find that any and all laws restricting marriage, sex / gender (both orientation and biological reality) are fodder for the EP Clause.

Did the Great Chief envision this with his comments quoted at opening of this comment.
Or was this Great Chief employing common law / chancery court methods / constructions to "expand" - oops, I must mean "expound" the constitution.

You decide!

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gabe

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