Dartmouth College v. Woodward is taken to be the seminal case in the rise of the corporation. In recognizing a charter as a contract that vested private rights against many forms of state regulation, the case paved the way for the private business corporation and helped usher in large-scale commercial development against Jeffersonian agrarianism. In this “classical liberal story,” Dartmouth College is understood to have preserved a private corporation against public interference. Yet this understanding of Dartmouth College neglects what the actual case was about and erases an important moment of constitutional development. American colleges in the colonial period were church–state schools forged when the church and state were not separated. The Dartmouth College case was part of a wider constitutional debate over what many saw as a public institution that, in the wake of the American Revolution, needed to be “disestablished” from the church. Doing so was part of a revolutionary constitutionalism that would help frame how we understood the relationship between public and private, church and state. This was a conflict about recasting institutions and embedding them in constitutional ideas. While advocates failed to solidify Dartmouth as a “public” institution, they succeeded in forging distinctions between public and private that shape how we think today.
1. Novak, William J., The People's Welfare: Law and Regulation in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1996), 107.
2. Gillman, Howard, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (Durham, NC: Duke University Press, 1993), 47.
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), 65.
5. See, for example, Skowronek, Stephen, Building a New American State: The Expansion of National Administrative Capacities, 1877–1920 (New York: Cambridge University Press, 1982), 32; Orren, Karen, Belated Feudalism: Labor, the Law, and Liberal Development in the United States (New York: Cambridge University Press, 1991), 127; Wiecek, William, The Lost World of Classical Legal Thought: Law and Ideology in America, 1886–1937 (New York: Oxford University Press, 1998), 36; and White, G. Edward, The Marshall Court and Cultural Change, 1815–1835 (New York: Oxford University Press, 1991), 612, 614.
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), 144. 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.
7. Rudolph, Fredrick, The American College and University: A History (Athens: University of Georgia Press, 1990), 210.
8. Kersch, Ken, Constructing Civil Liberties: Discontinuities in the Development of American Constitutional Law (New York: Cambridge University Press, 2004), 11.
9. Orren, Karen and Skowronek, Stephen, The Search for American Political Development (New York: Cambridge University Press, 2004), 21.
10. Rudolph, The American College and University; Whitehead, John S., The Separation of College and State: Columbia, Dartmouth, Harvard, and Yale, 1776–1876 (New Haven, CT: Yale University Press, 1973); Herbst, Jurgen, From Crisis to Crisis: American College Government, 1636–1819 (Cambridge, MA: Harvard University Press, 1982); Cremin, Lawrence, American Education: The Colonial Experience (New York: Harper and Row, 1970); and Thelin, John R., A History of American Higher Education (Baltimore, MD: Johns Hopkins University Press, 2011), 70–73 .
11. Whitehead, John and Herbst, Jurgen, “How to Think about the Dartmouth College Case,” History of Education Quarterly 26, no. 3 (1986): 333–49, 348. See also Herbst, From Crisis to Crisis, 234. Similarly, Edward White argues that Dartmouth College presented “an ideal opportunity for the Court to constitutionalize the takings principle as a weapon against the states by reading it into the Contract Cause.” White, The Marshall Court and Cultural Change, 612.
12. McCloskey, Robert, The American Supreme Court, 2nd ed. (Chicago, IL: University of Chicago Press, 1994), 48.
13. Currie, David, The Constitution in the Supreme Court, 1789–1888 (Chicago, IL: University of Chicago Press, 1985), 141.
14. Dartmouth College at 632.
15. Dartmouth College at 682–83.
16. Gillman, The Constitution Besieged, 47.
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 , 82.
27. Blackstone, William, Commentaries on the Laws of England (Chicago: University of Chicago Press, [originally published 1765–69],1979), 1:458.
28. Blackstone, Commentaries on the Laws of England, 1:459.
29. Blackstone, Commentaries on the Laws of England, 1:459.
30. Blackstone, Commentaries on the Laws of England, 1:470.
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 .
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.
35. Brown, Elmer Ellsworth, The Origin of American State Universities (Berkeley: University of California Publications in Education, 1903), 5.
36. Rudolph, The American College and University, 59.
37. Whitehead, Separation of College and State, 225.
38. Rudolph, The American College and University, 185.
39. Tewksbury, Donald G., The Founding of American Colleges and Universities Before the Civil War: With Particular Reference to the Religious Influences Bearing upon the College Movement (New York: Columbia University, Teachers College, 1932), 81.
40. Morison, Samuel Eliot, Three Centuries of Harvard, 1636–1936 (Cambridge, MA: Harvard University Press, 1936), 24.
41. Morison, Three Centuries of Harvard, 25.
42. Tewksbury, The Founding of American Colleges and Universities Before the Civil War, 82.
43. Adams, Herbert B., The College of William and Mary: A Contribution to the History of Higher Education (Washington, DC: Bureau of Education, 1887), 17.
44. Columbia's founding as King's College also stirred arguments about establishment and religious liberty that would become central to the American Revolution. See Robson, David W., Educating Republicans: The College in the Era of the American Revolution, 1750-1800 (Westport, CT: Greenwood Press, 1985), 3–12 .
45. Penn seems an exception here, as it was not founded with a religious affiliation.
46. Michael W. McConnell, “Establishment and Disestablishment at the Founding, Part I: Establishment of Religion,” William & Mary Law Review (2002–2003): 2105.
47. Webster, Noah, Sketches of American Policy (Hartford, CT: Hudson and Goodwin, 1785), 27. 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.
48. Marsden, George M., The Soul of the American University: From Protestant Establishment to Established Nonbelief (New York: Oxford University Press, 1994), 70.
49. Willard Smith, “Relations of College and State in Colonial America” (Ph.D. diss., Columbia University, 1949), 148.
50. Francis, Nathaniel, ed., Jefferson and Cabell: The University of Virginia (Richmond, VA: J.W. Randolph, 1856), 207.
51. Backus, Isaac, A Church History of New England, extending from 1783 to 1796 (Boston: Manning & Loring, 1796), 47.
52. Backus, Isaac, Isaac Backus on Church, State, and Calvinism, Pamphlets, 1754–1789, ed. McLoughlin, William G.. (Cambridge, MA: Harvard University Press, 1968), 338.
53. Private religious institutions could be beneficial in supporting the new polity, and certainly could flourish as part of religious liberty, but they could not be given a monopoly and supported by the civil government. This also suggests that revisionary scholarship that insists on religious liberty rather than “separation” may neglect that fact that separation was essential at some level, or that religious liberty requires some type of separation between church and state. For leading revisionist accounts that emphasize religious liberty over separation, see especially Hamburger, Philip, Separation of Church and State (Cambridge, MA: Harvard University Press, 2002); and Drakeman, Donald L., Church, State, and Original Intent (New York: Cambridge University Press, 2010).
54. As were other colleges, such as Columbia, during this period. Herbst, From Crisis to Crisis, 232.
55. Prince, Nathan, The Constitution and Government of Harvard-College (Boston, 1742), 15.
56. Prince, The Constitution and Government of Harvard-College, 15.
57. Prince, The Constitution and Government of Harvard-College, 32, 21, 27.
58. Daniel Webster, Report by the Commonwealth of Massachusetts, Constitutional Rights and Privileges of Harvard College (1821), 5.
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.
60. Pierson, George Wilson, The Founding of Yale: The Legend of the Forty Folios (New Haven, CT: Yale University Press, 1988), 21.
61. Clap, Thomas, The Annals or History of Yale-College in New-Haven, In the Colony of Connecticut, From the first founding thereof, in the Year 1700, to the Year 1766 (New Haven, CT: John Hotchkiss, 1766).
62. Pierson, The Founding of Yale, 129.
63. Pierson, The Founding of Yale, 119.
64. Dana, Samuel Whittlesey, Yale College Subject to the General Assembly (New Haven, CT: Thomas and Samuel Green, 1784), 10.
65. Dana, Yale College Subject to the General Assembly, 12.
66. Dana, Yale College Subject to the General Assembly, 10.
67. Dana also pointed out the absurdity of Clap's argument with regard to the ministers being the founders, arguing that the ministers did not act in corporate form when they donated books, but as individuals. Dana, Yale College Subject to the General Assembly, 9.
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 . 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): 134–40.
71. Hamburger, Separation of Church and State, 120.
72. Marsden, The Soul of the American University, 71.
73. John M. Shirley, The Dartmouth College Causes and the Supreme Court of the United States (New York: Da Capo Press [orignally published 1895], 1971), 76.
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.
106. “Dartmouth College,” Columbian Centinel, Feb. 10, 1819.
107. Dutton, Warren, “Constitutional Law,” North American Review 10, no. 26 (1820): 83–115 , 85.
108. Dutton, “Constitutional Law,” 83.
109. Dutton, “Constitutional Law,” 101.
110. Madison to Thomas Jefferson, September 10, 1824, in The Writings of James Madison, ed. Hunt, Gaillard (New York: G. P. Putnam's Sons, 1900), 9:202–7
111. Everett, Edward, “University Education,” North American Review 10, no. 26 (1820): 115–37, 130–31.
112. Madison, from a somewhat different perspective, would continue to worry about the “indefinite accumulation of property from the capacity of holding it in perpetuity by ecclesiastical corporations” given that the “wealth acquired by them never fails to be a source of abuses. ” Madison, James, “Detached Memoranda,” in Kurland, Philip and Lerner, Ralph, eds., The Founders’ Constitution (Indianapolis, IN: Liberty Fund, 1987), 5:103.
113. Novak, The People's Welfare, 107.
114. Allen v. McKean, 1 Fed. Case N. 229 (1833), 491.
115. Allen v. McKean at 495, 498.
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, 2nd ed. (Boston, MA: Little and Brown, 1848) I: 294. 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.
122. Fleming, James E., “Successful Failures of the American Constitution,” in The Limits of Constitutional Democracy, ed. Tulis, Jeffrey and Macedo, Stephen (Princeton, NJ: Princeton University Press, 2010), 9–46 .
123. Rudolph, The American College and University, 210.
124. Blyth, Mark, Great Transformations: Economic Ideas and Institutional Change in the Twentieth Century (New York: Cambridge University Press, 2002), 39–41 .
125. Thomas, George, “Political Thought and Political Development,” American Political Thought 3, no. 1 (2014): 114–25.
126. Smith, Rogers M., “Which Comes First, the Ideas or the Institutions?” in Rethinking Political Institutions: The Art of the State, ed. Shapiro, Ian, Skowronek, Stephen, and Galvin, Daniel (New York: New York University Press, 2006), 91-113, 92.
127. Kersch, Constructing Civil Liberties, 11.
128. Lieberman, Robert C., “Ideas, Institutions, and Political Order: Explaining Political Change,” American Political Science Review 96, no. 4 (2002): 697–712 , 700.
129. Greenstone, J. David, “Political Culture and American Political Development: Liberty, Union, and Liberal Bipolarity,” Studies in American Political Development 1 (1986): 1–49 , 13.
130. See Thomas, George, The Founders and the Idea of a National University: Constituting the American Mind (New York: Cambridge University Press, 2015).
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.
I would like to thank the Huntington Library for a research fellowship that aided the writing of this article.
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