An American college under attack, including for alleged religious intolerance. A government that seeks to take control of the college’s governance, claiming that the college is hostile to the spirit of a free society. Students unsure whether the college will survive, or whether they should transfer. College trustees, facing a financial crisis, who at first seek to compromise with the government, but then decide that they must resist, notwithstanding the possibility that they might be personally punished for doing so.
That is the saga of Harvard today – but also that of Dartmouth College more than 200 years ago, in 1816. (The latter is captured in an 1969 essay titled “Will to Resist,” by Dartmouth’s Librarian of the College, Richard W. Morin.)
One of the most consequential Supreme Court decisions arose from the courageous resolve of the Dartmouth College trustees to resist the unlawful encroachments of the New Hampshire governor and legislature. Harvard’s resistance to the similarly unlawful attacks of the Trump Administration – or, alternatively, its ultimate submission to those attacks – will have no less consequence not only for academic freedom, but freedom in this country as a whole.
The Dartmouth College case arose out of the actions of New Hampshire’s newly elected Jeffersonian Republican governor and legislature. Seizing on a struggle for control between the then-president of Dartmouth College and the College’s trustees – a struggle in which the president accused the trustees of, among other things, promoting religious intolerance – the legislature enacted, and the governor acted upon, legislation that annulled the College’s original charter and created a new “Dartmouth University.” That legislation also usurped core functions of the College: in particular, it gave the governor the power to appoint a controlling number of new trustees, as well as a board of overseers with the power to override the actions of those trustees.
The existing trustees of the College initially sought to reach an accommodation with the governor and legislature. But when the settlement talks broke down, they undertook a legal challenge to this law that they brought to the U.S. Supreme Court, despite accompanying “penal” legislation that exposed them to fines for continuing to act under the College’s original charter. (Morin’s recounting of the internal deliberations of the trustees is a reminder of the indelible nature of such historic decisions.)
Chief Justice John Marshall held in the landmark decision Trustees of Dartmouth College v. Woodward that the action of the New Hampshire legislature violated Article 1 section 10 of the Constitution, which provides that no State shall “pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts.”
Having concluded that the College’s original charter was a “contract” within the meaning of the Constitution, Marshall then found that New Hampshire’s actions clearly impaired that contract. In particular, the Chief Justice noted, “[t]he whole power of governing the college is transferred from trustees … to the executive of New-Hampshire.” As a result, Dartmouth College was unconstitutionally changed “into a machine entirely subservient to the will of government.”
This is the same fate that Harvard resists today.
To be sure, Harvard is under attack from the federal, not state government, but the broader lessons of the Dartmouth College case are surely applicable here: the government, whether federal or state, cannot constitutionally undertake a campaign that seeks to intimidate an independent university and seize control of its operations and assets. While Dartmouth College’s federal claim sounded in contract law, the theme that repeats and resonates throughout the case is freedom from tyranny. Marshall’s choice of words is telling: what was at stake was not simply a dry issue of contracts, but the vital question whether an independent institution would be rendered “subservient” to the government, be made a “machine” – that is, a thing lacking a will of its own.
This theme was first raised by the College’s lawyers in the New Hampshire courts. The College’s counsel, Jeremiah Mason, quoted Thomas Jefferson’s assertion in Notes on the State of Virginia that “[a]n elective despotism was not the government we fought for.” Mason further argued that “[i]f our seminaries of learning … are to be new modelled, to answer the occasional purposes of prevailing political parties, all hopes of their future usefulness must be abandoned.”
Daniel Webster carried forward this theme in his argument on behalf of Dartmouth College to the Supreme Court. Webster pointed out that Chief Justice Marshall himself, in Fletcher v. Peck, had stated that the Article I, section 10’s collective prohibition of bills of attainder, ex post facto laws, and impairment of contracts constituted a “‘bill of rights, for the people of each state.’” Quoting Madison in the Federalist Papers, Webster noted that bills of attainder, ex post facto laws, and laws impairing the obligation of contracts each in their own way were “contrary to the first principles of the social compact.” Thus, the actions of the New Hampshire legislature and executive would have been unlawful even if there were “no special restriction” in the constitutions of the United States or New Hampshire. In essence, New Hampshire had engaged in “[a]ttainder and confiscation” – that is, it usurped “the proper province of the judiciary” by taking away and transferring the rights of the College.
The equivalent constitutional rights exist at the federal level and similarly protect Harvard from the successive assaults undertaken by the Trump Administration. Our Constitution empowers no branch of the government to unilaterally target ideological or political opponents for retribution and retaliation. Such actions violate the Constitution’s separation of powers and prohibition against extrajudicial punishment, which is reinforced in the specific and absolute ban against bills of attainder applicable to both political branches of the federal government. This is one of the fundamental rights that forms our social compact and that is enshrined in our Constitution. The Framers took pains not to “concentrate the roles of prosecutor, judge, and jury in the hands of the Executive Branch.” SEC v. Jarkesy, 603 U.S. 109, 140 (2024). Yet the Executive’s retributive campaign of attainder against Harvard unconstitutionally seizes for the President the roles of legislator, prosecutor, judge, and jury.
As the Dartmouth College case recognized more than 200 years ago, the stakes here could not be higher, for universities and for our country as a whole. Students of history justly celebrate Webster’s famous peroration that Dartmouth was a small college, “and yet there are those that love it.” But no less telling was his point that what was at stake was not simply Dartmouth College’s independence, but that of:
every college in our land …. It is more. It is, in some sense, the case of every man who has property of which he may be stripped, for the question is simply this: Shall our [government] be allowed to take that which is not their own, to turn it from its original use, and apply it to such ends or purposes as they, in their discretion, shall see fit? Sir, you may destroy this little institution:… but if you do, you must … extinguish, one after another all those great lights of science, which, for more than a century, have thrown their radiance over the land!
As Webster presciently told the Court:
Nor has Harvard College any surer title than Dartmouth College. It may, to-day, have more friends; but to-morrow it may have more enemies. Its legal rights are the same. So also of Yale College; and indeed of all the others.
In short, if the lights of our universities are not to be extinguished seriatim, Harvard must continue to show the same courage and will to resist that the trustees of Dartmouth exhibited two centuries before. And in turn the courts, as the Supreme Court did in the Dartmouth College case, must enforce our Constitution’s fundamental safeguards, which forbid a retributive government from seeking to control and destroy the independence of an academic institution.
