February 2, 2019


Marshall, the Dartmouth College Case, and Originalism (CARSON HOLLOWAY, 1/31/19, Law & Liberty)

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."

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."

...words have meaning.

Posted by at February 2, 2019 8:41 AM