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American Minute with Bill Federer
Thomas Cooley, President, American Bar Association, 1893, on Religion, 2nd Amendment, Local Control of Government
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The dean of the University of Michigan Law School was
Thomas McIntyre Cooley,
who died SEPTEMBER 12, 1898.
Thomas M. Cooley
was
Chief Justice of Michigan's Supreme Court
(1864-1885),
President of the American Bar Association
(1893-1894), and the
first Chairman of the Interstate Commerce Commission
(1887).
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Thomas Cooley's
commentaries were influential in shaping American law.
He declined offers to teach at Hastings College of Law, University of Texas, Johns Hopkins University, Boston Law School, University of Pennsylvania and Cornell Law School.
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In
Constitutional Limitations,
8th Edition, Volume 2, p. 966, 974, Thomas Cooley stated:
"While thus careful to establish, protect, and
defend religious freedom and equality,
the American constitutions contain no provisions which prohibit the authorities from such
solemn recognition of a superintending Providence
in public transactions and exercises as the general religious sentiment of mankind inspires, and as seems meet and proper in finite and dependent beings ..."
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Cooley
continued:
"Whatever may be the shades of religious belief,
all must acknowledge
the fitness of recognizing in important human affairs
the superintending care and control of the great Governor of the Universe,
and of
acknowledging with thanksgiving His boundless favors,
of
bowing in contrition
when visited with the
penalties of His broken laws."
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In his
General Principles of Constitutional Law,
1890,
Thomas Cooley
wrote:
"It was
never intended by the Constitution
that the
government
should be
prohibited
from
recognizing religion,
or that religious worship should never be provided for in cases where
a proper recognition of Divine Providence in the working of government
might seem to require it, and where it might be done without drawing an invidious distinction between religious beliefs, organizations, or sects ..."
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Thomas Cooley
continued:
"The Christian religion
was
always recognized in the administration of the common law of the land,
the
fundamental principles of that religion must continue to be recognized
in the same cases and
to the same extent as formerly."
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The
American Bar Association
acknowledged the
historic attitude
toward the
Christian religion.
James H. Landman,
director of community programs for the
American Bar Association Division for Public Education in Chicago,
wrote in "Trying Beliefs: The Law of Cultural Orthodoxy and Dissent"
(Insights on Law and Society,
American Bar Association Division for Public Education, Winter 2002, Vol. 2, No. 2):
"For
most of our history,
the
majority of Americans
have practiced some form of
Christian Protestantism ...
In 1925 ...
public schools
... still played a significant role in inculcating
Anglo-Protestant moral values."
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Modern day constitutional law scholar
Edward S. Corwin
wrote of
Justice Joseph Story and Thomas Cooley's
view of the First Amendment
(The Constitution and What it Means Today,
14th Ed., 1978, Harold W. Chase and Craig R. Ducat, Eds., at p. 246, n.1.):
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"[i]t [that
Justice Story
believed the
United States Congress
was still
free to prefer
the
Christian religion
over other religions, in contrast to modern Constitutional law and interpretation] is also supported by
Cooley
in his
Principles of Constitutional Law,
where it is said that the clause forbids 'the setting up of recognition of a state church of special favors and advantages which are denied to others.'"
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A change began to occur in the interpretation of constitutional law in the late 1800s.
In 1890, Harvard Law School Dean
Christopher Columbus Langdell
pioneered a novel technique of
applying Darwin's theory of evolution
to the
legal process
with his innovative
"case precedent" method
of practicing law.
No other law school at the time taught this.
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Evolutionary law,
also called
"legal realism,"
grew in its acceptance, especially in 1902 when Harvard graduate
Oliver Wendell Holmes, Jr.,
was put on the Supreme Court.
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As described by his biographer in
The Justice from Beacon Hill: The Life and Times of Oliver Wendell Holmes
(1991),
Holmes'
theory of
"legal realism":
"... shook the little world of lawyers and judges
who had been raised on Blackstone's theory that
the law, given by God Himself,
was immutable and eternal and judges had only to discover its contents.
It took some years for them to come around to the
view that the law was flexible,
responsive to
changing social and economic climates ...
Holmes
had ...
broken new intellectual trails ...
demonstrating that the corpus of
the law was neither
ukase (an edict)
from God
nor derived from Nature, but ... was
a constantly evolving thing,
a response to the continually developing social and economic environment."
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Holmes' novel views
were not readily accepted.
American Bar Association president Frank J. Hogan
stated in 1939:
"If the Constitution is to be construed to mean what the majority at any given period in history wish the Constitution to mean,
why [have] a written Constitution?"
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U.S. Supreme Court stated in
Westbrook v. Mihaly
(2 C3d 756):
"Constitutional rights may not be infringed simply because the majority of the people choose that they be."
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Supreme Court Justices began to divide into two general categories:
1) those who hold that laws should maintain the
original meaning
of those who wrote them; and
2) those who hold that laws
can evolve
to have new meanings at the discretion of the judge.
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Another historic view that
Justice Story
and
Thomas Cooley
commented on was the purpose of the
Second Amendment.
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Justice Joseph Story
wrote in his
Commentaries on the Constitution of the United States,
1833 (3:§§ 1890--91):
"The importance of this article will scarcely be doubted ... The
militia
is the natural
defense
of a free country
against ... domestic usurpations of power by rulers.
It is against sound policy for a free people to keep ...
standing armies
in time of peace ... from ... the facile (easy) means, which they
afford to ambitious and unprincipled rulers,
to
subvert the government,
or
trample upon the rights of the people.
The
right
of the
citizens
to
keep and bear arms
has justly been considered, as the
palladium
(guarantee) of the
liberties of a republic;
since it offers
a strong moral check against the usurpation and arbitrary power of rulers;
and will ...
enable the people to resist
and triumph over them."
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Michigan Supreme Court Chief Justice
Thomas Cooley
quoted Justice Joseph Story in The General Principles of Constitutional Law (2nd Ed., 1891, p. 282):
"The
Second Amendment
... was meant to be a strong moral check against the usurpation and arbitrary power of rulers ... "
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Cooley
continued:
"... The right is general. It may be supposed from the phraseology of this provision that the
right to keep and bear arms
was only guaranteed to the militia; but this would be an interpretation not warranted by the intent.
The
militia ... consists of those persons who,
under the law,
are liable to the performance of military duty,
and are officered and enrolled for service
when called upon ...
If the right were limited to those enrolled,
the purpose of the guarantee might be defeated altogether
by the action or the neglect to act of
the government it was meant to hold in check.
The meaning of the provision
undoubtedly is, that
the people,
from whom the militia must be taken,
shall have the right to keep and bear arms,
and they need no permission or regulation of law for that purpose."
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Similarly,
Justice William J. Brennan Jr.,
explained in
U.S. v. Verdugo-Urquidez
(494 U.S. 247, 288, 1990):
"The term
'the people'
is better understood as a
rhetorical counterpoin
t to
'the government'
...
that
rights that were reserved
to
'the people'
were to protect all those subject to 'the government' ...
The
Bill of Rights did not purport to 'create' rights.
Rather, they designed the Bill of Rights
to prohibit our government from infringing rights and liberties presumed to be pre-existing."
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In
U.S. v. Verdugo-Urquidez
(1990), the Supreme Court stated:
"'The people'
protected by the
Fourth Amendment,
and by the
First
and
Second Amendments,
and to whom rights and powers are reserved in the
Ninth
and
Tenth Amendments,
refers to a class of
persons
who are part of a national community ...
The Fourth Amendment's drafting history shows that
its purpose was to protect the people
of the United States
against arbitrary action by their own government."
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James Madison
thought it unimaginable that the people and the States would allow themselves to be disarmed, which would create a dangerous situation where only the federal government would possess arms, as he wrote in
Federalist, No. 46:
"Those who prophesy the downfall of the State governments ... that the
federal government
may ... accumulate a military force
for the projects of ambition ...
It could be necessary now to disprove the reality of this danger.
That
the people
and
the States
should, for a sufficient period of time,
elect
an uninterrupted succession of
men ready to betray both;
that the
traitors
should, throughout this period, uniformly and systematically
pursue some fixed plan for the extension of the military establishment;
that
the governments and the people of the States
should silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their own heads,
must appear to every one more like
the incoherent dreams of a delirious jealousy ..."
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Madison
described the unlikely scenario:
"Extravagant as the supposition is ... let a
regular army,
fully equal to the resources of the country, be formed; and let it be
entirely at the devotion of the federal government;
still it would not be going too far to say, that the
State governments, with the people on their side, would be able to repel the danger ...
A standing army ... does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men.
To these would be opposed
a militia amounting to near
half a million of citizens with arms in their hands,
officered by men chosen from among themselves,
fighting for their common liberties ...
It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops.
Those who are best acquainted with
the last successful resistance of this country against the British arms,
will be most inclined to deny the possibility of it."
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Supreme Court Justice James Wilson
stated his
Lectures on Law,
1790-91:
"The defense of one's self,
justly called the
primary law of nature,
is not, nor can it be abrogated by any regulation of municipal law.
This
principle of defense
is not confined merely to the
person;
it extends to the
liberty
and the
property of a man:
it is not confined merely to
his own person;
it extends to the persons of all those,
to whom he bears a peculiar relation-of his
wife,
of his
parent,
of his
child ...
nay,
it extends to the person of every one, who is in danger;
perhaps, to the liberty of
every one, whose liberty is unjustly and forcibly attacked."
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In addition to being armed,
James Madison
explained how
local control
of police departments and subordinate governments are a key to
resisting the ambitions of the federal government:
"Besides
the advantage of being armed,
which
the Americans possess over the people of almost every other nation,
the existence of
subordinate governments, to which the people are attached ... forms a barrier against the enterprises of ambition,
more insurmountable than any which a simple government of any form can admit of.
Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the
governments are afraid to trust the people with arms ...
But were the
people to possess the additional advantages of local governments chosen by themselves
... it may be affirmed with the greatest assurance, that the throne of
every tyranny
in Europe
would be speedily overturned
in spite of the legions which surround it."
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Madison
thought it an insult to suppose that the people and the States would ever succumb to schemes allowing the federal government to usurp power:
"Let us not insult the
free and gallant citizens of America
... with the supposition that they can ever reduce themselves to the necessity of making the experiment,
by a blind and tame submission
to the long train of insidious measures which must precede and produce it ...
The federal government
... and
its schemes of usurpation
will be easily
defeated by the State governments, who will be supported by the people ...
The powers
proposed to be
lodged in the federal government
are as little formidable to those reserved to the individual States ...
All those alarms which have been sounded, of ...
annihilation of the State governments,
must, on the most favorable interpretation, be ascribed to the chimerical (unrealistic) fears of the authors of them."
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Thomas Cooley
confirmed Madison's views in
People v. Hurlbut
(24 Mich. 44, 108 (1871):
"Local government
is [a] matter of
absolute right;
and the state cannot take it away."
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American Minute is a registered trademark of William J. Federer. Permission is granted to forward, reprint, or duplicate, with acknowledgment.
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Schedule Bill Federer for informative interviews & captivating PowerPoint presentations: 314-502-8924
wjfederer@gmail.com
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