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3. The Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819), 653. All citations to Dartmouth College are to this pagination unless otherwise noted.

4. Hoffer, Peter Charles, Hoffer, Williamjames Hull, and Hull, N. E. H., The Supreme Court: An Essential History (Lawrence: Univeristy Press of Kansas, 2007), 65Google Scholar.

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6. This is how the case is described in a leading casebook, Brest, Paul, et al. , Processes of Constitutional Decisionmaking: Cases and Materials (New York: Aspen Publishers, 2006), 144Google Scholar. See also the case's description at Oyez (http://www.oyez.org/cases/1792-1850/1818/1818_0), where Dartmouth is referred to as a “privately” funded institution.

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17. Gillman, The Constitution Besieged, 47, 55–56.

18. Novak, The People's Welfare, 107.

19. Novak, The People's Welfare, 107.

20. Novak, The People's Welfare, 106, 108. Gillman's The Constitution Besieged, for that matter, was an early revisionist account that also rejected laissez-faire and complements Novak's revisionist account. See also White, The Marshall Court and Cultural Change, 619.

21. Wiecek, The Lost World of Classical Legal Thought, 36.

22. Wiecek, The Lost World of Classical Legal Thought, 37.

23. Hoffer et al, The Supreme Court, 65.

24. White, The Marshall Court and Cultural Change, 175.

25. Rudolph, The American College and University; Whitehead, Separation of College and State; Herbst, From Crisis to Crisis; and Cremin, American Education, all consider Dartmouth “public” in this regard. See also the exchange in Whitehead and Herbst, “How to Think About the Dartmouth College Case.”

26. Whitehead and Herbst, “How to Think About the Dartmouth College Case,” 336. See also Clapp, Gordon R., “The College Charter,” Journal of Higher Education 5, no. 2 (1934): 79–87 Google Scholar, 82.

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31. Blackstone, Commentaries on the Laws of England, 1:471.

32. As Webster put it, “a better constitution for a college, or one more adapted to the condition of things under the present government, in all material respect, could not now be framed. Nothing in it was found to need alteration at the revolution.” Trustees of Dartmouth College v. Woodward, 4 Wheaton 518 (1819), 103 Google Scholar.

33. Orren and Skowronek, The Search for American Political Development, 23.

34. Rudolph, The American College and University, 13. See also Cremin, Education in America; Herbst, From Crisis to Crisis; and Whitehead, Separation of College and State. Yet, as Whitehead notes, this is a problematic conceptualization even in our own day. Whitehead, “How to Think About the Dartmouth College Case,” 340.

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45. Penn seems an exception here, as it was not founded with a religious affiliation.

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47. Webster, Noah, Sketches of American Policy (Hartford, CT: Hudson and Goodwin, 1785), 27Google Scholar. Webster altered his thinking as he grew older, but during the “founding” period he was a staunch advocate of disestablishment and separation of church and state in some form.

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59. In arguing the Dartmouth College case a few years earlier, Webster seemed to suggest that Harvard was set up in a similar manner to Dartmouth, as an eleemosynary corporation, where the rights of visitation would be exercised by the trustees. Dartmouth College (Wheaton) at 65–66.

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68. Dana, Yale College Subject to the General Assembly, 20.

69. Dana, Yale College Subject to the General Assembly, 37.

70. Bracken v. William & Mary College, 5 Va. (1 Call, 1797) at 161. See Bridge, J. W., “The Rev. John Bracken v. The Visitors of William and Mary College: A Post-Revolutionary Problem in Visitatorial Jurisdiction,” William & Mary Law Review 20, no. 3 (1979): 429 Google Scholar. There was a similar effort by Virginia to recharter Liberty Hall, which became Washington and Lee. See Hutchenson, James Morrison, “Virginia's Dartmouth College Case,” The Virginia Magazine of History and Biography 51, no. 2 (1943): 134–40Google Scholar.

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74. Shirley, The Dartmouth College Causes, 77.

75. Shirley, The Dartmouth College Causes, 76.

76. Whitehead, Separation of College and State, 63.

77. Whitehead, Separation of College and State, 59.

78. Francis N. Stites, Private Interest and Public Gain: The Dartmouth College Case, 1819 (Amherst: University of Massachusetts Press, 1972), 24; Whitehead, Separation of College and State, 61

79. Whitehead, Separation of College and State, 59.

80. Dartmouth College (Wheaton) at 34.

81. Stites, Private Interest and Public Gain, 29.

82. Stites, Private Interest and Public Gain, 24.

83. Shirley, The Dartmouth College Causes, 78–79.

84. Jefferson quoted in Herbst, From Crisis to Crisis, 236.

85. Stites, Private Interest and Public Gain, 49.

86. Dartmouth (Wheaton) at 120.

87. Dartmouth (Wheaton) at 110–11.

88. Stites, Private Interest and Public Gain, 50.

89. Stites, Private Interest and Public Gain, 53.

90. Trustees of Dartmouth College v. Woodward, 65 N.H. 473 (1817).

91. Writing to Joseph Story, Daniel Webster said “The truth is, the New Hampshire opinion is able, ingenious, and plausible.” Quoted in Shirley, The Dartmouth College Causes, 192.

92. Stites, Private Interest and Public Gain, 71.

93. Dartmouth (Wheaton) at 55.

94. Dartmouth (Wheaton) at 79.

95. White, The Marshall Court and Cultural Change, 615.

96. Dartmouth at 630.

97. Dartmouth at 632.

98. Dartmouth at 644.

99. Dartmouth at 653.

100. Dartmouth at 662.

101. Dartmouth at 666.

102. Blackstone, Commentaries, 1: 472.

103. Edward White suggests there was political maneuvering, and possible manipulation, between Webster and Story to bring the case to the Supreme Court. White, The Marshall Court and Cultural Change, 285–86.

104. Dartmouth at 671.

105. “Dartmouth College,” Columbian Centinel, Feb. 10, 1819, page 2. See also, White, The Marshall Court and Cultural Change, 751.

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116. Story relied here on his opinion in Terret v. Taylor, 13 U.S. 43 (1815). In 1798 and 1801, the state of Virginia, based on its constitutional principles of religious freedom, asserted a right to the property of the Episcopal churches of the state. The state argued that such lands, which had been given by the colony and state (and reaffirmed by the state), should revert to the state in accord with constitutional principles, which now forbade such an establishment. Story rejected Virginia's attempt, insisting that the state could not alter a contract that was brought into being even prior to the state's existence. Thomas Jefferson saw this sort of accumulation by ecclesiastical corporations—including colleges—as particularly problematic insofar as it was initially built on public funds and public policies meant to serve the public good. Indeed, Jefferson thought institutions such as his alma mater, William & Mary, were best understood as public institutions established by public bounty, which should not be converted to private sectarian institutions.

117. Sumner, Charles, Reports of Cases Argued in Circuit Courts of United States, First Circuit, 2^nd ed. (Boston, MA: Little and Brown, 1848) I: 294Google Scholar. In The Separation of College and State, Whitehead notes that state and college would continue to be intertwined, particularly in New England. And there are important questions about the distinctions that remain in our own day. Are publically chartered institutions subject to the complete will of the state legislature? Nearly all private colleges are chartered by a state. Does the state exercise powerful control over even private institutions? These important questions are beyond the scope of this article.

118. Orren and Skowronek, The Search for American Political Development, 144.

119. Kersch, Constructing Civil Liberties, 13.

120. Orren and Skowronek, The Search for American Political Development, 108.

121. Kersch, Constructing Civil Liberties, 10.

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131. William & Mary became public in 1906. In its bid to become a public univeristy, the administration insisted the college had long ago broken any link with a sectarian faith and had long operated as a secular institution.