This Day in Supreme Court History (Webster, Marshall Save ‘A Small College’—and the Private Realm in America)

Feb. 2, 1819—In one of the central cases advancing John Marshall’s concept of a republic in which contracts would create a diverse economy that would bind the nation together, the Supreme Court ruled 5-1 in favor of the trustees of a then-small New England college and the eloquent alumnus arguing its case, Daniel Webster.

At first glance, the case, Trustees of Dartmouth College v. Woodward, might seem highly technical: whether the legislature of New Hampshire, in seeking to convert Dartmouth College from a privately funded institution to a public university, had violated the Constitution’s Contract Clause (Article 1, Section 10, Clause 1), which prohibits states from violating contracts with private or public corporations.

But Marshall (pictured here) saw matters more broadly. If the state could abrogate the terms of a private contract—even a charter such as Dartmouth’s granted in 1769, when New Hampshire was still a colony under British rule—then it could interfere in the operations of charities and, by extension, Americans’ private lives.

“The Dartmouth College case established an important safeguard for charitable institutions in the United States,” writes Justin Zaremby in the February 2019 issue of The New Criterion:

“The Court held that while privately run institutions may engage in activities that are within the purview of government, government could not by right assume control. It affirmed the role of charities (and their donors) in shaping America’s educational, literary, and cultural life, and over time the number and impact of such organizations grew.”

Only two decades later, Alexis de Tocqueville, in his classic political study Democracy in America, marveled at the strength and variety of these private activities in the U.S.:

"Nothing, in my opinion, is more deserving of our attention than the intellectual and moral associations of America. The political and industrial associations of that country strike us forcibly; but the others elude our observation, or if we discover them, we understand them imperfectly because we have hardly ever seen anything of the kind.”

But in another sense, Marshall opened the door to a constitutional interpretation that others would push far more aggressively. In holding for the trustees of Dartmouth College, he stated that a corporation was "an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of creation confers upon it, either expressly, or as incidental to its very existence." 

In the 1880s, former Senator Roscoe Conkling of New York took this a step further in arguing before the Supreme Court: a corporation was not just "an artificial being" but a person, thus entitled to protection under the post-Civil War 14th Amendment. The high court adopted that proposition, producing a situation far from "originalist" (to use Antonin Scalia's term) in its basis: a constitutional  amendment adopted was a dead letter for the group it was intended to protect--African-Americans--but a boon for one not contemplated: robber barons.

(Indeed, the "Two Centuries of Corporate Personhood" that ensued from the decision was hailed in an op-ed piece in this Friday's Wall Street Journal by Carson Holloway, a visiting scholar at the conservative Heritage Foundation and a professor of political science science at the University of Nebraska Omaha.)

In more personal terms, Trustees of Dartmouth College v. Woodward enabled the two figures most essential to its outcome—the justice hearing the case and the lawyer who successfully pleaded it—to stake out a continuing important role in the nation’s affairs, even after the Federalist Party to which they had once belonged had self-destructed at the end of the War of 1812 through secessionist mutterings.

Following the collapse of the Federalist Party, Marshall, as Chief Justice of the Supreme Court, was the last party member in any major leadership post in Washington. With the capital not yet rebuilt after the British burning of the city in the war, he and his fellow justices were operating out of what an observer of the Dartmouth case, Chauncey Goodrich of Yale College, called “a mean apartment of moderate size.”

If Thomas Jefferson and his two Democratic-Republican successors, James Madison and James Monroe, had had their way, Marshall would have been lucky to have even that cubbyhole. Armed only with his incisive intellect and an easygoing, egalitarian manner, Marshall had somehow still managed to carry the day with sizable majorities, as he often managed to persuade justices appointed by the other party to join his cause.

Likewise fighting a rear-guard action against the Democratic-Republicans, Webster was also struggling to maintain his viability against his old foes. A couple of years before, he had left the House of Representatives—and the state of New Hampshire—to start a thriving legal practice in Boston, Mass.

From 1814 to 1852, “Black Dan” (a reference to his commanding dark looks) argued 168 cases before the Supreme Court. In the process, argued historian Merrill Peterson in The Great Triumvirate, “Webster turned ordinary law cases into vehicles of statesmanship with profound effects. The unique right of judicial tribunals to decide constitutional questions, enabling the humblest citizen in the humblest case to appeal to the supreme law, widened the scope of American law and invested it with the utmost dignity of state.”

The Dartmouth case, together with another he argued successfully before the court that year, McCulloch v. Maryland, allowed Webster to form a reputation as “defender of the Constitution”—and win election as U.S Senator from his new state. (His formidable reputation as a legal advocate would be memorably evoked a century later in Stephen Vincent Benet's much-anthologized short story "The Devil and Daniel Webster," in which the great man pulls off the neat trick of saving a poor farmer who had sold his soul to Ol' Scratch.

Oddly enough, Webster felt the conclusion to his four-hour argument in the Dartmouth case was so mawkish that he deleted it when he had copies printed. It has only been saved for posterity through Professor Goodrich, who published it after Webster’s death in 1852. These sentences, directed squarely at Marshall, moved the justice to tears and have become famous since then:

“Sir, you may destroy this little Institution; it is weak, it is in your hands! I know it is one of the lesser lights in the literary horizon of our country. You may put it out! But, if you do so, you must carry through your work! You must extinguish, one after another, all those greater lights of science which, for more than a century, have thrown their radiance over our land! It is, Sir, as I have said, a small College. And yet there are those who love it.”