Historic Dartmouth College case back on the docket

  • An undated photograph from Thayer Hall at Dartmouth College in Hanover, N.H., shows a painting of Daneil Webster arguing the college case before the Supreme Court. (Courtesy of Dartmouth College Library)

  • Neal Katyal speaks to members of the media outside the Supreme Court, Wednesday, April 25, 2018, in Washington. (AP Photo/Andrew Harnik)

Valley News Correspondent
Thursday, January 31, 2019

HANOVER — It’s a long way from Dartmouth College to the U.S. Supreme Court — about an eight-hour drive, according to Google Maps. But bad traffic meant a bus carrying 33 Dartmouth students and three faculty members that left at 3 p.m. on Wednesday didn’t arrive at the nation’s capital until after 2 a.m. Thursday.

Dartmouth literature professor Donald E. Pease, who is team-teaching the students in a course titled “Daniel Webster and the Dartmouth College Case,” called the long ride “well worth it.”

They were in the capital to take another trip, this one 200 years into the past, to watch an historic Supreme Court case that protected Dartmouth’s independence and established the sanctity of private contracts.

The case was re-argued, for show, in the Supreme Court’s main courtroom Thursday evening, with Chief Justice John Roberts presiding.

“It promises to be a significant argument,” Pease said, adding, “The students are quite excited about this.”

In addition to the private event in Washington, a two-day symposium at Dartmouth starting March 1 will also mark the 200th anniversary of Trustees of Dartmouth College v. Woodward. The case was an important precedent in restricting states from interfering in private contracts, but it was also the source of Dartmouth graduate Daniel Webster’s famous quote in defense of the college’s independence: “It is, Sir, as I have said, a small college. And yet there are those who love it!”

The trouble had all started when John Wheelock, Dartmouth’s second president and the son of the school’s founder, got in a power struggle with the Board of Trustees. The two sides engaged in a war of pamphlets, which according to a display at Dartmouth’s Rauner Special Collections Library titled “Limits to Power: Daniel Webster and the Dartmouth College Case,” was common back in the 18th and 19th centuries.

“They were used similarly to how Twitter is used today, but with no word limit!” the display reads.

When the Dartmouth trustees fired Wheelock, he turned to the state of New Hampshire for help. The state attempted to change Dartmouth’s charter so it could assert control, reasoning that because the charter had been issued by King George III in 1769, it was no longer valid in the post-American Revolution world.

The case made its way to the U.S. Supreme Court with Webster representing the college.

“At that point in time, the case itself had become of great importance to other colleges,” said Jere Daniell, professor emeritus of history at Dartmouth. If a state could alter a charter, other schools such as Princeton and Harvard could be taken over, effectively turning them into state-controlled institutions.

Blurring the line between public and private institutions could also have affected business, investments, and the growth of the American system of capitalism.

“But Dartmouth did survive,” Daniell said.

Webster’s legal argument, which compared England’s tyranny over its former American colonies to New Hampshire’s taking control of Dartmouth, won the day. Webster became a hero, and Chief Justice John Marshall wrote the landmark opinion of 1819 that cemented the protection of private contracts.

“It would have been a massive thing, had the court allowed state legislatures to interfere with private contract,” said Neal Katyal, a Dartmouth graduate and former acting solicitor general of the United States, when reached by email. “It may have literally changed the path of America profoundly.”

Katyal is playing the role of Webster in re-arguing Dartmouth v. Woodward. He prepared the same way he did the 37 times he’s argued before the Supreme Court — by reading cases, rereading the briefs and taking good notes.

Gregory G. Garre is a former solicitor general of the United States, and also a Dartmouth graduate. He argues against Katyal as the “bad guy,” William Woodward, who was the state-approved secretary of Dartmouth’s board.

“It’s ‘only’ a re-enactment, but the bottom line is that the chief justice of the United States and other outstanding judges will be asking questions,” Garre wrote in an email. “So you need to be ready for battle.”

(The Valley News inquired about coverage of the event featuring Roberts, but was told it was a private event and no official information would be released from the court. Katyal and Garre will also be playing the same roles at the Dartmouth symposium in March.)

Both Garre and Katyal are sticking to the historic arguments, but with a more modern tone and length.

“Today, it’s not uncommon to get 60 or 70 questions over the course of a 30-minute argument,” Garre wrote. “In Webster’s time, attorneys basically gave prepared speeches.”

After Dartmouth v. Woodward, Webster went on to become a U.S. senator and secretary of state. He also returned before the Supreme Court to argue other important cases.

“He was for many, many years Dartmouth’s favorite son,” Pease said, though Webster had fallen somewhat out of favor due to his support for the Compromise of 1850 and the Fugitive Slave Act.

And that famous ‘small college’ quote? It may not be quite as Webster originally spoke it. Webster’s speech was published years later by a witness, and it isn’t considered wholly reliable as a historical document.

But the case he won was decisive.

“Dartmouth would not have the standing that it has at present ... had not Daniel Webster intervened on Dartmouth College’s behalf 200 years ago,” Pease said.

Pease is one of the one of the organizers of Dartmouth’s upcoming symposium, which will feature panels of justices, discussions by legal scholars, and a performance of Daniel Webster’s Dartmouth College case speech.

And his bus-weary students? They’ll present their legal papers at the symposium in Hanover before “some of the most distinguished legal minds in the United States,” Pease said, giving them a taste of law school — or of Webster arguing before the Supreme Court.

“It’s going to be a remarkable event,” Pease said.

The focus on the Dartmouth College case is also part of the college’s series of events celebrating its 250th anniversary this year.

Matt Golec can be reached at mattgolec@gmail.com.