Cooley, Thomas McIntyre (1824-1898)

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Thomas McIntyre Cooley (1824-1898)

Jurist

Humble Beginnings. Although Thomas M. Cooley’s jurisprudence became an important tool for the entrenchment of elite interests in the late nineteenth century, is own background was not privileged. The tenth of fifteen children born into a family that supported itself on a one-hundred-acre farm near Rochester, New York, Cooley would come to feel disadvantaged by his lack of social opportunities and education. He was the only one of the Cooley children to advance beyond the local common schools and attend Attica Academy. Upon graduating in 1842 he began to study law in nearby Palmyra under the direction of Democratic congressman Theron Strong. The next year he moved to Michigan, where he was admitted to the bar in 1846. He soon associated himself with the Democratic faction charging that the party had come to be dominated by a small circle of insiders—headed in Michigan by longtime U.S. senator Lewis Cass—who promoted railroads and other corporate interests as well as territorial aggrandizement in the Mexican War. Like many others who took a similar position, Cooley drew inspiration from the 1848 revolutions in Europe and from English reform leaders such as Richard Cobden, who championed free trade, popular education, and world peace. He participated actively in the Free Soil movement in Michigan in 1848. He then tried his fortunes for several years in Toledo, Ohio, where he returned to the Democratic fold and ran for the state bench in 1854. Overwhelmed by a two-to-one margin in the political tidal wave that followed the Kansas-Nebraska Act, he returned to Michigan and followed many of his former political allies into the new Republican Party.

Opportunities. Cooley’s move into the Republican Party proved to be more politically rewarding than his move to Toledo. As the party forged a majority that would place his law partner in the governor’s office, Cooley received some valuable appointments. In 1857 the Republican legislature selected him to compile the statutes of the state, which he performed with a speed and skill that contributed to his appointment one year later as reporter for the Michigan Supreme Court. In 1859 he became one of the first three faculty members at the new law school opened by the University of Michigan. His position as Supreme Court reporter—then a significant editorial role in the circulation of judicial opinions—and his lectures at the Michigan Law School provided opportunities to earn a reputation for his legal scholarship. In 1864 he was elected on the Republican ticket to a position as associate justice of the Michigan Supreme Court.

National Reputation. During the next twenty years, Cooley became one of the most influential figures in American law. A man of remarkable energy, he continued to teach at the University of Michigan Law School and drew upon his lectures to publish several books that long influenced legal thinking on vital topics. His Treatise on the Constitutional Limitations which Rest Upon the Legislative Power of the States of the American Union appeared in 1868, followed by an edition oí Blackstone’s Commentaries (1871), an edition of Joseph Story’s Commentaries on the Constitution (1873), Treatise on the Law of Taxation (1876), and Treatise on the Law of Torts (1879). At the same time, he was a prolific author of judicial opinions that addressed problems confronting many other state courts. For example, in People v. Salem (1870) he wrote for the court in a case analyzing state legislation that permitted the town of Salem to issue municipal bonds to support construction of the Detroit and Howell Railroad. Cooley found the authorizing legislation to be an invalid exercise of state taxing power because construction of the railroad was not a public purpose. The liberal Republican movement publicized this decision widely as a heroic stand against the legislative influence of special interests, although one consequence for Cooley was that this publicity precluded any possibility that he would be named to the U.S. Supreme Court by the Liberal Republicans’ nemesis, President Ulysses S. Grant.

Legal Theory. People v. Salem illustrated the Jacksonian determination to thwart economic privilege and maintain equality of opportunity that informed Cooley’s influential Constitutional Limitations. As business enterprises increasingly came to fear government regulation more intensely than they sought government assistance, Cooley’s doctrines offered a shield against legislative interference. Under “due process of law” clauses, for example, a state government could not redistribute wealth from one party to another. Lawyers and judges applying Cooley’s treatise reasoned that the same notion of “substantive due process” precluded redistribution of wealth through regulation of railroad rates or working conditions just as it precluded redistribution of wealth through tax subsidies for railroads. The implications of Cooley’s ideas could so easily be reversed because he understood law to be an abstract, logical set of axioms and inferences, detached from the social context of American life. In this way the academic conceptualization of law as a science during the mid nineteenth century transformed the Jacksonian critique of privilege into a bulwark of elites.

Interstate Commerce Commission. After twenty years on the Michigan Supreme Court, Cooley was defeated in 1885. He was sharply attacked as a corporate pawn because his Treatise on the Law of Torts and his judicial opinions supported several conventional doctrines that enabled defendants to escape liability for the personal injuries that accompanied industrialization. Even before this defeat his career had been moving in new directions. He had switched from the law faculty at Michigan to the teaching of history, which led to the publication of his Michigan, a History of Governments (1885). Upon leaving the court he devoted increasing amounts of his time to problems of railroad administration in which he had become immersed in 1882 as an arbitrator on the Advisory Commission of Differential Rates. Upon the creation of the Interstate Commerce Commission in 1887, President Grover Cleveland appointed Cooley the first chairman. He exercised considerable influence in molding the agency, and his reports for the agency were widely read. Cooley relied on information gathering, persuasion, and publicity to promote moral integrity in business dealings. But his contribution to the growth of the Interstate Commerce Commission was ironic, for just as Cooley’s antiprivilege Jacksonianism had become a theory of constitutional protection against government regulatory power, he now played a key role in building the institutional framework through which regulatory powers would later expand. Cooley served on the commission until September 1891 and died seven years later.