Tears on the Bench

Bethany Schneider in Avidly:

Here’s a little lesson about crying – historical crying – from another class I teach, “Literatures of American Indian Removal.” Once upon a time, the State of New Hampshire tried to claim Dartmouth College as its state university. In 1818, the case went to the Supreme Court, where John Marshall, as chief justice, presided. Dartmouth was represented by Daniel Webster. . . . It is, Sir, as I have said, a small college, and yet, there are those who love it . . . In an impassioned speech, Webster cited love as the private passion that draws a fairy circle of protection around the small college, keeping away publics that cannot possibly feel correctly. Webster’s oratory was so moving that the great judge wept openly on the bench. John Marshall, who shaped the Supreme Court into the powerful third arm of government that we now rely on it to be, was moved to tears. Dartmouth was founded to educate Native men, but immediately abandoned that project. That abandonment was partly why New Hampshire felt it could be claimed as public. But Marshall’s court decided it would remain private. The decision is a cornerstone of the American corporation. The corporation, he wrote, “is chiefly for the purpose of clothing bodies of men, in succession, with these qualities and capacities that corporations were invented, and are in use. By these means, a perpetual succession of individuals are capable of acting for the promotion of the particular object like one immortal being.” Corporations are immortal bodies, made up of successive generations of white men clothed in the invisibility cloak of power.

I teach this decision alongside Marshall’s Cherokee cases, partly because “Dartmouth v. Woodward” is about Native Americans, and partly to enable a discussion about the emotions of immortal “fathers,” and the ways that the “body corporate,” as Marshall described it, disciplines and disperses the bodies, and the emotions, of those who do not fit. In 1831, Marshall rejected the Cherokee Nation’s case against the State of Georgia, which wanted to force them to remove. Marshall’s decision ends with these words; “If it be true that wrongs have been inflicted and that still greater are to be apprehended, this is not the tribunal which can redress the past or prevent the future.”

More here.