The Misunderstood Thomas Cooley: Regulation and Natural Rights From the Founding to the Icc

The Misunderstood Thomas Cooley:
Regulation and Natural Rights from the
Founding to the ICC
JOSEPH POSTELL*
ABSTRACT
Although he was regarded by his contemporaries as the most influential legal
author of the late 19
th
Century, Thomas Cooley is underappreciated and under-
studied today. His legacy is typically misunderstood, which likely contributes to
his relative obscurity. He is often inaccurately referred to as an advocate of
laissez-faire government. Cooley was a staunch defender of regulation based on
the well-established, traditional understanding of the state police power. While
he believed that there were limits on regulation, those limits were inherent in
the police power itself. Courts should uphold these limits, Cooley argued, but
should grant due deference to legislatures. Cooley’s commitment to regulation
as compatible with natural rights is indicated by his acceptance of the first
chairmanship of the Interstate Commerce Commission. Because Congress care-
fully limited the powers of the Commission, Cooley could accept this responsi-
bility, and his service as the first chair, while brief as a result of declining
health, ensured that the Commission remained within constitutional limits.
TABLE OF CONTENTS
I. REGULATION AND NATURAL RIGHTS IN THE ANTEBELLUM
REPUBLIC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
A. The Scope of Regulation in the Antebellum Republic . . . . . . . 80
B. The Rationale for Regulation in the Antebellum Republic. . . . 82
II. COOLEY AND THE NATURAL RIGHTS REGULATORY FRAMEWORK . . 84
A. The Police Power and the Power to Regulate. . . . . . . . . . . . . 85
B. The Limits of Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
C. Cooley and the Era of “Laissez-Faire Constitutionalism”. . . 90
* Associate Professor of Political Science, University of Colorado Colorado Springs. I am grateful
to participants at the Salmon P. Chase Colloquium at Georgetown University Law Center for insightful
comments and suggestions. I also thank Grant Reinicke for valuable research assistance. © 2020, Joseph
Postell.
75
III. COOLEY AND THE INTERSTATE COMMERCE COMMISSION . . . . . . . . 93
A. Cooley’s Views on Railroads Prior to the ICC . . . . . . . . . . . . 94
B. The Limited Interstate Commerce Commission. . . . . . . . . . . . 98
C. Cooley’s Engagement with Railroad Policy and Appointment
as ICC Chair . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
Given that he was, by many accounts, the most important legal thinker of his
generation, Thomas McIntyre Cooley has received surprisingly little attention
from historians, and most treatments of Cooley are unsympathetic. By all appear-
ances, there is only a single book-length biography of Cooley, authored by histo-
rian Alan Jones.
1
A handful of law review articles on Cooley supplement this
single book-length biography—hardly a legacy befitting a mind that so deeply
influenced the legal thinking and development of his time.
2
Cooley was one of
the first members of the faculty at the University of Michigan’s Law Department
and he also served on the Michigan Supreme Court for twenty years, from 1865
to 1885.
3
He was a prolific author, writing many legal treatises on subjects span-
ning from constitutional law to taxation.
4
Many of these works had a profound
influence on the development of the law.
5
And yet he remains an obscure figure.
Those legal historians who do give attention to Cooley do so because they
believe his influence on his time was mostly negative. In particular, scholars
lament Cooley’s most famous work, Constitutional Limitations, published just af-
ter the Civil War in 1868, for the profound influence it had on the development of
“laissez-faire constitutionalism.”
6
Various critics assert that Constitutional
Limitations encouraged a judiciary all too willing to impose an ideology of
1. See, e.g., ALAN H. JONES, THE CONSTITUTIONAL CONSERVATISM OF THOMAS MCINTYRE COOLEY:
A STUDY IN THE HISTORY OF IDEAS (1987).
2. See, e.g., Paul D. Carrington, Law as “The Common Thoughts of Men”: The Law-Teaching and
Judging of Thomas McIntyre Cooley, 49 STAN. L. REV. 495 (1997); James W. Ely, Jr., Thomas Cooley,
“Public Use,” and New Directions in Takings Jurisprudence, 2004 MICH. ST. L. REV. 845 (2004); Carl
W. Herstein, Postmodern Conservatism: The Intellectual Origins of the Engler Court (Part I), 59
WAYNE L. REV. 781 (2013).
3. Carrington, supra note 2, at 496.
4. Cooley’s works include A TREATISE ON THE LAW OF TAXATION (1876), A TREATISE ON THE LAW
OF TORTS (1879), and THE GENERAL PRINCIPLES OF CONSTITUTIONAL LAW IN THE UNITED STATES OF
AMERICA (1880).
5. As Carrington writes, by 1886 Cooley “was the most respected lawyer in America.” Carrington,
supra note 2, at 495; see also Philip S. Paludan, Law and the Failure of Reconstruction: The Case of
Thomas Cooley, 33 J. HIST. IDEAS 597, 598 (1972) (“[Constitutional Limitations] became America’s
second constitution. Cooley became the most influential legal author of the late nineteenth and early
twentieth centuries.”).
6. See THOMAS M. COOLEY, A TREATISE UPON THE CONSTITUTIONAL LIMITATIONS WHICH REST
UPON THE LEGISLATIVE POWER OF THE STATES OF THE AMERICAN UNION (1868).
76 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 18:75

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