Cooley, Thomas M. (1824–1898)

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COOLEY, THOMAS M. (1824–1898)

Thomas McIntyre Cooley was a distinguished law teacher, state judge, first chairman of the Interstate Commerce Commission, and author of the influential 1868 Treatise on the Constitutional Limitations Which Rest upon the Legislative Power of the States of the American Union. Born in western New York to a family with a Jeffersonian "bias," Cooley absorbed an anticorporate equal-rights ideology, fearful of "class legislation" that aided the few at the expense of many.

In 1843 Cooley went west to Michigan and combined activities in law, journalism, politics, and poetry. He helped organize the Free Soil Party in the state and in 1856 became a Republican. Narrowing his concerns to the law, he rapidly attained professional recognition. Appointed Compiler of the state's laws in 1857 and Reporter to the Supreme Court in 1858, he was selected in 1859 as a professor at the newly opened University of Michigan Law Department. In 1864 he was elected to the Michigan Supreme Court.

Cooley tempered his preoccupation with the law with historical and political values and naturally turned to constitutional questions. To Francis Thorpe's 1889 query on books for a constitutional law library he replied that "constitutional law is so inseparably connected with constitutional history and that is so vital a part of general history that I should not know where to draw the line."

Historical, common law, and Jacksonian sensibilities were the presuppositions of Cooley's 1868 treatise, although his aim was merely to write "a convenient guidebook of elementary constitutional principles." The book was that; it had gone through six editions by 1890 and had a broader circulation, a greater sale, and more frequent citations than any other law book published in the second half of the nineteenth century.

The treatise was useful because no one prior to Cooley had systematically analyzed the cases and principles dealing with constitutional limitations on state legislative power. Chapters on constitutional protection to personal liberty, to liberty of speech, and to religious liberty were supplemented with chapters on municipal government, eminent domain, taxation, and the police power. Chapter Eleven, "Of the Protection to Property by the Law of the Land" attracted the most attention, for here Cooley discussed due process of law and gave it a significant substantive definition. Cooley said that legislative restraints on property should be tested by "those principles of civil liberty and constitutional defense which have become established in our system of law, and not by any rules that pertain to forms of procedure only." His test of due process was historical: the "established principles" and "settled usuages" of the common law protected property rights.

Cooley's definition of due process was used in the briefs of corporation lawyers who also distorted his comprehensive definition of the liberty protected by the fourteenth amendment as embracing "all our liberties—personal, civil, and political" to a freedom of contract doctrine. Twentieth-century commentators have often accepted these briefs, misinterpreting Cooley as a zealous advocate of the judicial protection of property rights. To Cooley, however, due process did not necessarily mean judicial process nor did individual property rights mean corporate property rights. His views on judicial self-restraint were summarized in his treatise comment that judges "cannot run a race of opinions upon points of right, reason, or expediency with the law-making power." And Cooley repeated Justice lemuel shaw's views on a strong police power.

When Cooley was writing his treatise he was lecturing students on "the struggle between corporations and the rights of the people," condemning the decision in dartmouth college v. woodward (1819), issuing opinions criticizing special privileges for corporations, and using the principle of equal rights and the maxims of "no taxation except for a public purpose " and of "due process of law" to declare tax aid to railroad corporations unconstitutional.

Cooley anxiously observed the growth of corporate capitalism in post-civil war America. Deploring the national sentiment "to become immediately rich and great," he worried over the conflict of labor and capital and felt "that class legislation has been making the rich richer and the poor poorer," adding that "property is never so much in danger of becoming master as when capital unjustly manipulates the legislation of the country." These remarks in an 1879 lecture at Johns Hopkins University have been overlooked, as has a similar warning in an 1884 article on "Labor and Capital Before the Law" that when constitutional protection to property especially benefits those who have possessions, "the Constitution itself may come to be regarded by considerable classes as an instrument whose office it is to protect the rich in the advantages they have secured over the poor, and one that should be hated for that reason."

In court decisions Cooley evidenced older Jeffersonian values, upholding free public education, the freedom of the press, the rights of local self-government, and the necessity for judicial self-restraint. But the changing America of the late nineteenth century diminished earlier Jeffersonian hopes. In a melancholic mood in 1883 he admitted that "the political philosophy of Burke never grows stale and is for all times and all people."

By the 1880s Cooley had a national reputation, earned by judicial duties and constant lecturing, editing, and writing, including editions of sir william blackstone and joseph story and treatises on torts and taxation. Aspirations for a United States Supreme Court appointment were dashed in 1881 when railroad interests, Cooley thought, successfully lobbied for stanley matthews. But Cooley had given up on Republicans, and in 1886 wondered whether the Party "possesses any good reason for existence." He admired grover cleveland and accepted his offer of the chairmanship of the Interstate Commerce Commission. Regulating the American railway system was a task beyond Cooley's declining powers, and the effort led to a breakdown that left him a semi-invalid after 1890.

An 1889 comment to the South Dakota Constitutional Convention reveals that Cooley had modified older beliefs in constitutional limitations to legislative power: "Even in the millennium people will be studying ways whereby—by means of corporate power—they can circumvent their neighbors. Don't do that to any such extent as to prevent the legislative power hereafter from meeting all the evils that may be within the reach of proper legislation."

Alan R. Jones


Jones, Alan R. 1986 The Constitutional Conservatism of Thomas McIntyre Cooley: A Study in the History of Ideas. New York: Garland Publishing.

Twiss, Benjamin 1942 Lawyers and the Constitution: How Laissez-Faire Came to the Constitution. Princeton, N.J.: Princeton University Press.

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Cooley, Thomas M. (1824–1898)

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