Thomas McIntyre Cooley

American judge and legal scholar Thomas McIntyre Cooley (1824-1898) served as a State Supreme Court Justice in Michigan and led the court to a national reputation with a distinguished record. In addition, his book, A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union, written in 1868, became the most widely-read and important work of its day on constitutional law.

Early Life

Thomas McIntyre Cooley was born on January 6, 1824, on a small farm in Attica, New York, in a rural part of western New York state. The son of Thomas and Rachel Cooley, he was part of a large, Protestant family. His father had come from Massachusetts to western New York 20 years earlier, and the Cooleys were a farming family.

Although the family was poor, learning was important to young Cooley. As a child he loved history and literature. He balanced his time between working on his father's farm and going to school. When he could not go to school, Cooley taught himself at home, but he did complete three years of high school. Later, he taught school in order to earn money for his education. As noted in American Biographical History of Self-Made Men, Cooley left the family farm in 1842 and became a lawyer's apprentice to Theron R. Stong in Palmyra, New York.

Settled in Michigan, Became a Lawyer

At the age of nineteen, Cooley moved west. As noted on the Michigan Supreme Court Historical Society website, Cooley had planned to continue his studies in Chicago, but during his travels, he ran out of money. He settled in Adrian, Michigan, in 1843, and finished his law studies in the firm of Tiffany and Beaman. His biography in American Biographical History of Self-Made Men commented that Cooley was a "careful student … quick, through, and methodical."

Soon, there were many changes in Cooley's personal and professional life. In December 1846, he married Mary Horton, and the couple would have six children. Also in that year, he was admitted to the Michigan Bar. As noted in his biography on the Michigan Supreme Court Historical Society website, Cooley began a fast-paced professional life upon his admission to the bar. He worked as a deputy county clerk and later, his biography noted, "worked in two law firms while editing the Adrian Watchtower, serving as court commissioner and recorder for Adrian, and cultivating his 100-acre farm."

As an attorney, the American Biographical History of Self-Made Men, noted, Cooley was known for his "great care and faithfulness, clearness, and logical force." His reputation likely led to his selection by the state legislature to compile the statutes of the state, which he completed in one year. As noted on the Cooley Law School website, after Cooley completed this task in early 1857, he was appointed reporter of the State Supreme Court, a position he would hold until 1864.

Accepted Position as Law Professor

In his biography on the Michigan Supreme Court Historical Society website, it was noted that early in his career, Cooley was offered a number of teaching positions at various law schools around the country, but he declined. In 1859, when a department of law was being organized at the University of Michigan in nearby Ann Arbor, he accepted a position. He would remain at the school as a professor until 1884 and also served as dean of the law department and chair of the history department.

The Cooley Law School website noted that Cooley "taught constitutional law, real property, trust, estates, and domestic property." In addition, he "authored countless articles on legal subjects and wrote several full-length works." Once he began his professional relationship with the University of Michigan, Cooley moved to Ann Arbor permanently. Wilfred Shaw, who once served as general secretary of the Alumni Association and was editor of the Michigan Alumnus, reflected that Cooley's home "was long a center of the intellectual and social life of Ann Arbor."

The State Supreme Court Justice

In 1850, according to the Michigan Supreme Court Historical Society website, Michigan's State Constitution read that circuit court judges would also serve as justices of the State's Supreme Court, serving six-year terms. This plan failed. In 1857, the Michigan State Legislature created a permanent State Supreme Court.

As added by American Biographical History of Self-Made Men, Cooley was appointed to the State Supreme Court in 1864, while serving as the dean of the University of Michigan Law School (as it was now known). He joined colleagues James V. Campbell and Isaac P. Christiancy on the bench. In 1868, Cooley became Chief Justice of the Court, and Benjamin F. Graves joined the Court, filling the Justice position vacated by Cooley. Together, these four men became known as "the Big Four."

As both a justice and chief justice, Cooley faced many challenges as the state of Michigan grew and changed. Yet, as it was noted in his profile in American Biographical History of Self-Made Men, Cooley had an "enviable reputation" and possessed "genial qualities … a delicate sense of honor … and strict integrity." His profile added, "his eminent public services entitle him to rank among the foremost men of Michigan."

One of the best known cases Cooley and the State Supreme Court heard involved the establishment of public high schools. In his book Michigan: A History of the Wolverine State, Willis F. Dunbar explained that the Michigan State Legislature passed an act in 1859 that authorized any school district with more than 200 children to establish a high school. The school board would then put forth a proposal to its residents, who would vote on a tax to support the high school. Some school districts ran into resistance, as their residents believed a primary school education was sufficient.

As told by Bruce A. Rubenstein and Lawrence E. Ziewacz in their book Michigan—A History of the Great Lakes State, a group of Kalamazoo, Michigan, citizens filed suit in 1873. They were opposed to taxes supporting a local high school. The citizens lost, but the decision was ultimately appealed to the State Supreme Court.

On July 21, 1874, the Court voted to uphold the lower court's decision, and Cooley spoke for the majority opinion. Rubenstein and Ziewacz noted that "Cooley's opinion helped convince state residents of the propriety of state-funded education." American Biographical History of Self-Made Men added that "the 'Kalamazoo Case' laid the legal foundation for the growth of high schools not only in Michigan, but in other states. … [T]he case is cited in the major histories of American education."

Cooley wrote many of the opinions for the State Supreme Court, including, as the Cooley Law School website noted, the "People ex rel. Sutherland v. Governor, 29 Mich. 320 (1874), which remains a benchmark in the separation of powers among the three branches of government."

The Michigan Supreme Court Historical Society website noted that during these years, Michigan's State Supreme Court, led by Cooley and the rest of the "Big Four," was soon "recognized throughout the United States as a strong judiciary, ranking with the best in the land. The Court worked with a new Constitution in the formative years of Michigan's statehood. It was instrumental in sharpening judicial procedures and resolving constitutional issues." The professional relationship of the "Big Four" would end in 1875, when Justice Christiancy was elected to the United States Senate.

Cooley the Writer

As noted on the Michigan Supreme Court Historical Society website, Cooley was also known for his literary works. He wrote a number of law articles, manuals, and books, the most famous being A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union. In this book, written in 1868, Cooley was the first to interpret 'due process of law,' mentioned in the Fifth and Fourteenth Amendments to the Constitution, as a means of broadly protecting property and liberty of contract.

Cooley also wrote The Law of Taxation (1876, 4th edition in 1924), Michigan, a History of Governments (1885, rev. ed. 1905), The Element of Torts, and General Principles of Constitutional Law, (2nd edition in 1891) and served as assistant editor of the American Law Register. In one of his writings, he also coined the phrase "A public office is a public trust."

Later Years

Cooley was committed to the ideals of private property, equal rights, and political liberty for all citizens. These influences also led to his intense dislike of special privileges for corporations. As a justice on the Michigan State Supreme Court, Cooley used common law in his opinions to place clear limitations on government power. He did this to keep corporations from influencing the government or violating public trust. He felt a distinct division between public and private activity was necessary.

Cooley retired from the State Supreme Court in 1885, and then, the Michigan Supreme Court Historical Society website noted, "The later part of Cooley's career was played out on a national level. He was placed on a commission to investigate issues involving railroads." During Cooley's time, the railroad companies committed many unfair practices. He believed the separation of public and private spheres of activity would keep the railroads from financing their own development with public credit and tax revenues.

Because of the abuses perpetrated by the railroads, the Interstate Commerce Act became law in 1887. The Interstate Commerce Commission (ICC) was established to enforce the Act. In 1887, U.S. President Grover Cleveland appointed him to the newly-established ICC. He was elected chairman and established the guidelines for the administration of this first important federal regulatory agency. He retired from the commission in 1891.

In his later years, Cooley received honorary degrees (LL.D.) from the University of Michigan, Harvard University, and Princeton. He continued to be highly regarded at the University of Michigan Law School. In 1895, a bronze bust statue of Cooley was placed in the University of Michigan Law Library. Shaw added, "Cooley's great work, with its high scholarship and profound learning, added greatly to the reputation of the University."

After he resigned from the Interstate Commerce Commission, Cooley continued to write legal articles until his death. He died on September 12, 1898, in Ann Arbor, at the age of 74.

The Cooley Legacy

In 1972, Cooley's contributions to law were permanently recognized when "The Thomas M. Cooley Law School" was founded in Lansing, Michigan, the state's capital. Thomas E. Brennan Sr., one of the founders of the law school, as well as its president, commented on Cooley's accomplishments, noting that "Justice Cooley, a law teacher, constitutional scholar, and small town practitioner, combined true scholarship with professional accomplishment, business acumen, and public service."

In addition to the law school, Cooley's legacy lives on in the 21st century. The law school's website noted that Cooley's writings are still cited in court opinions, and legal scholars continue to discuss his interpretations. Papers that Cooley wrote between 1850 and 1898 can also still be found at the University of Michigan Bentley Historical Library. Dunbar perhaps summed it up best when he wrote, "Cooley was the most notable jurist Michigan has ever produced."

Books

American Biographical History of Self-Made Men—Michigan Volume, Western Biographical Publishing Company, 1878.

Cooley, Thomas M., General Principles of Constitutional Law, Weisman Publications, 2 Ed edition, 1998.

Dunbar, Willis F., Michigan: A History of the Wolverine State, William B. Eerdmans Publishing Company, 1995.

Dunbar, Willis Frederick, PhD, Michigan Through the Centuries, Lewis Historical Publishing Company, Inc., New York, 1955.

Jones, Alan, The Constitutional Conservatism of Thomas McIntyre Cooley: A Study in the History of Ideas, Garland Publishing, 1987.

May, George S., Michigan: An Illustrated History of the Great Lakes State, Windsor Publications, Inc., 1987.

Paludan, Phillip, A Covenant with Death: The Constitution, Law, and Equality in the Civil War Era, University of Illinois Press, 1975.

Rubenstein, Bruce A., and Lawrence E. Ziewacz, Michigan—A History of the Great Lakes State, Forum Press, 1981.

Shaw, Wilfred, (General Secretary of the Alumni Association and editor of the Michigan Alumnus), The University of Michigan, Harcourt, Brace, and Howe, 1920.

Online

"The Big Four," The Michigan Supreme Court Historical Society website,http://www.micourthistory.org (January 13, 2002).

"History & Mission," Thomas M. Cooley Law School website,http://www.cooley.edu (January 13, 2002).

"Thomas M. Cooley," Amazon.com,http://www.amazon.com(January 17, 2002).

"Thomas M. Cooley," Biography Resource Center Online, Gale Group, 1999.

"Thomas M. Cooley, 25th Justice," The Michigan Supreme Court Historical Society website,http://www.micourthistory.org (January 13, 2002).

"Thomas M. Cooley—The Man," Thomas M. Cooley Law School website,http://www.cooley.edu (January 13, 2002).

"Welcome from the President," Thomas M. Cooley Law School website,http://www.cooley.edu (January 13, 2002). □

Thomas McIntyre Cooley (1824-1898)

Sources

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.

Sources

Alan R. Jones, The Constitutional Conservatism of Thomas McIntyre Cooley: A Study in the History of Ideas (New York: Garland, 1987);

G. Edward White, The American Judicial Tradition: Profiles of Leading American Judges, revised edition (New York: Oxford University Press, 1988).

COOLEY, THOMAS McINTYRE

As a jurist, scholar, and educator in the late nineteenth century, Thomas McIntyre Cooley greatly influenced the development of U.S. constitutional law. In particular, Cooley's writings shaped later interpretation of the due process clauses of the Fifth and Fourteenth Amendments to the Constitution. His ideas were used, and sometimes misused, by others to help define a laissez-faire approach to constitutional law that sought to minimize the power of government over private and commercial life. (Laissezfaire is French for "let [people] do [as they choose].") Cooley's most important books include A Treatise on the Constitutional Limitations Which Rest upon the Legislative Power of the States of the American Union (1868) and A Treatise on the Law of Torts (1879, 3d ed. 1906), both of which became the leading texts in their respective fields. In his writings, Cooley consistently defended constitutional government and its ability to protect the rights of individuals from arbitrary actions by the state.

Cooley had a distinguished career on the Michigan Supreme Court between 1864 and 1885. From the 1870s onward, he was considered a leading candidate for a seat on the U.S. Supreme Court; however, he never received a nomination. Cooley was also a founding member of the University of Michigan's law department in 1859, remaining there as a professor until 1884. As an indication of the complexity of Cooley's brand of conservatism, he served as the first chairman of the interstate commerce commission (ICC), the body that regulates interstate transportation. He was instrumental in the establishment of the ICC as the federal government's first regulatory commission.

A descendant of seventeenth-century New England settlers, Cooley was born January 6, 1824, on a farm near Attica, New York, the eighth of his mother's thirteen children. He had a very basic education in local schools and did not attend college. In 1842, he began studying law under Theron R. Strong, a politician and lawyer from Palmyra, New York. After moving to Adrian, Michigan, to explore life on the frontier, Cooley earned admission to the bar in 1846. In that same year, he married Mary Horton. Cooley's frontier experiences in Michigan had a profound effect on him and shaped much of his

later thought. He learned the benefits of frugality and self-reliance, and he took great pride in being one of the state's pioneers. He later wrote of the way in which Michigan had been transformed before his very eyes: "It was a state almost lost in its woods … but the magic touch of industry plied by vigorous hands speedily transformed the scene; the woods opened to the building of many beautiful and prosperous towns."

"The value of government to any man is proportioned to the completeness of the protection it extends to all men."
—Thomas Mcintyre Cooley

Cooley was influenced in his youth by the history and traditions of his New England fore-bears, as well as the values of Jacksonian Democracy, so named for andrew jackson, president of the United States from 1829 to 1837. The Jacksonians lay claim to the legacy of thomas

jefferson, and, like Jefferson, they had a bias in favor of an agrarian society rather than a commercial one. The Jacksonians were, therefore, suspicious of big government and big business, and saw both as a potential danger to the common individual. Cooley's constitutional philosophy grew out of the Jeffersonian and Jacksonian ideals of self-reliance, free trade, equal rights, limited government, and maximum personal liberties such as freedom of speech.

During the 1840s and 1850s, Cooley was a member of the radical wing of the democratic party. He was, for example, a Free-Soiler, believing that territories and new states should remain free of slavery. In 1854, he accepted the Democratic nomination to run for district judge of common pleas in Toledo, but he lost the election. His views on slavery led him to join the republican party shortly after its inception in 1854, and he remained a member of it for the rest of his life.

After a difficult decade spent moving about and trying to get his legal career underway, in 1855, Cooley formed a law partnership in Adrian with Charles M. Croswell, who later became governor of Michigan. Two years later, the state legislature chose Cooley to compile the state statutes. He performed this task so ably that in 1858 he was appointed the official reporter of the state's supreme court, an office he held through 1865 and in which he edited volumes 5 through 12 of Michigan Reports. Cooley became one of the three founding professors of the law department at the University of Michigan in 1859, and later he served as its dean. In 1884, he gave up his position with the law department to serve as professor of U.S. history and constitutional law in the literary department, a position he held until his death on September 12, 1898.

Largely because of his excellent work editing the Michigan Supreme Court's reports, Cooley was elected to the Michigan Supreme Court in 1864. Not long afterward, he began to prepare a book based on his lectures on constitutional law. A Treatise on Constitutional Limitations made Cooley a nationally recognized authority on the Constitution.

further readings

Carrington, Paul D. 1997. "The Constitutional Law Scholarship of Thomas McIntyre Cooley." American Journal of Legal History 41 (July): 368–99.

Cooley, Thomas M. 1868. A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union. Boston: Little, Brown.

Fleener, William J., Jr. 2000. "Thomas McIntyre Cooley: Michigan's Most Influential Lawyer." Michigan Bar Journal 79 (February): 208.

Jacobs, Clyde E. 2001. Law Writers and the Courts: The Influence of Thomas M. Cooley, Christopher G. Tiedeman, and John F. Dillon upon American Constitutional Law. Union, N.J.: Lawbook Exchange.

Jones, Alan R. 1960. The Constitutional Conservatism of Thomas McIntyre Cooley: A Study in the History of Ideas. Ph.D. Thesis. Reprint, New York: Garland, 1987.