The Problem of General Constitutional Law: Thomas McIntyre Cooley, Constitutional Limitations, and the Supreme Court of the United States, 1868-1878

SIXTH ANNUAL SALMON P. CHASE

LECTURE

The Problem of General Constitutional Law:

Thomas McIntyre Cooley, Constitutional

Limitations, and the Supreme Court of the United

States, 1868–1878

CHARLES W. MCCURDY*

Two milestones in American constitutional history occurred in 1868. The f‌irst,

which we commemorate this weekend, was the publication of Thomas McIntyre

Cooley’s great Treatise on the Constitutional Limitations Which Rest Upon the

Legislative Power of the States of the American Union. The second was the ratif‌i-

cation of a Fourteenth Amendment that, among other things, ordained and estab-

lished sweeping new constitutional limitations on the several state governments.

Many scholars have written histories that link these two events with a third—vari-

ously described as the advent of a “new judicialism,” the emergence of “laissez-

faire constitutionalism,” or the rise of “guardian review” to protect liberty and

property during “the Lochner era.” I’ll confess that such histories have rarely sat-

isf‌ied me. In the standard literature on late-nineteenth-century constitutional de-

velopment, the connections between Thomas Cooley’s treatise, the Fourteenth

Amendment, and the work of the Supreme Court are impossibly vague and allu-

sive. My objective this evening is to connect the dots with greater precision.

Let’s start with Cooley’s book.

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It seems to me that Constitutional Limitations

was animated by three big ideas. First, Cooley presumed the existence in the

American union of a general constitutional law consisting of principles that could

be rooted neither in the text of every state’s constitution nor in the reported deci-

sions of every state’s highest court. Our federalism meant that the constitutional

law of Virginia would be different than the constitutional law of California. Still,

Cooley’s main task in Constitutional Limitations, as he understood it, was to set

down principles of general constitutional law that bench and bar throughout the

country might recognize as just and true and appropriate for their particular state.

* Charles W. McCurdy is Professor of History and Law, emeritus, at the University of Virginia. This

is the Salmon P. Chase Lecture, delivered at the U.S. Supreme Court on November 30, 2018. It has been

lightly edited by the Georgetown Journal of Law & Public Policy, and citations have been added, but it

is substantively the same. © 2020, Charles W. McCurdy.

1. THOMAS M. COOLEY, TREATISE ON THE CONSTITUTIONAL LIMITATIONS WHICH REST UPON THE

LEGISLATIVE POWER OF THE STATES OF THE AMERICAN UNION (1st ed. 1868) [hereinafter CONSTITUTIONAL

LIMITATIONS].

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