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Saturday, August 03, 2019

Divorce and the Contracts Clause

Next semester I'm teaching a seminar on the Marshall Court. In preparation for that class, I reread Dartmouth College v. Woodward. One fascinating subplot in the argument was whether the Contracts Clause barred a state from making divorces easy to obtain. New Hampshire argued that the Contracts Clause could not truly apply to all contracts and should not be read to cover Dartmouth's charter. If the Contracts Clause were read so broadly, then a state law permitting something like no-fault divorce would be very problematic. After all, divorce laws do undercut the obligations imposed by a marriage contract.

Chief Justice Marshall discussed the point in his opinion. He said state divorce statutes were not liberal (in other words, someone needed to prove specific wrongs by their spouse to obtain a divorce). Thus, they tracked fairly closely with the common law exceptions to a contract. (fraud, duress, etc.). He also said that the divorce issue need not be addressed--Dartmouth's charter was a contract no matter what you thought about divorce.

Justice Story, in a separate opinion, went further. He said that no-fault divorce laws would be unconstitutional. Whether anyone else ever took that view, I do not know. (Justice Washington, characteristically, declined to talk about what amounted to a hypothetical in his separate opinion concurring in the judgement.

I do not know why Dartmouth College generated multiple opinions (unlike the typical Marshall Court opinion). But disagreements about divorce among the Big 3 (Marshall, Washington, and Story). may be the answer.    

Posted by Gerard Magliocca on August 3, 2019 at 08:38 PM | Permalink


Just to cite from the ruling," one touch " citation concerning the issue of Public v. private in this regard:

From this review of the charter, it appears that Dartmouth College is an eleemosynary institution incorporated for the purpose of perpetuating the application of the bounty of the donors to the specified objects of that bounty; that its Trustees or Governors [17 U.S. 641] were originally named by the founder and invested with the power of perpetuating themselves; that they are not public officers, nor is it a civil institution, participating in the administration of government, but a charity school or a seminary of education incorporated for the preservation of its property and the perpetual application of that property to the objects of its creation.


Posted by: El roam | Aug 4, 2019 9:24:09 AM

Interesting. But how do we know about any distinction between private and public spheres here ? The constitution in Article I(10) dictates that no state will make any " law impairing the Obligation of contracts ". Yet, no distinction between private and public contracts in that article. It is correct that in the Trustees of Darmouth College case, it was a contract, and private body seemingly. But the issue itself or the amendment legislated had public aspects one may argue. While divorce, should be related one may argue, rather to the private sphere. For the act amending, I quote, is:

"An act to amend the charter, and enlarge and improve the corporation of Dartmouth College." Among other alterations in the charter, this act increases the number of Trustees to twenty-one, gives the appointment of the additional members to the executive of the State, and creates a Board of Overseers with power to inspect and control the most important acts of the Trustees.

End of quotation:

This is rather a public issue one may argue. A sovereign issue of one state and not directly prohibited by the constitution, but impairing contracts, of which kind, we don't know much.

By the way, one may reach the ruling, here:



Posted by: El roam | Aug 4, 2019 6:31:13 AM

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