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Angus McClellan: Thomas M. Cooley and Enduring Constitutional Principles
Michael Ramsey

Angus McClellan (Claremont Graduate University) has posted Thomas M. Cooley and Enduring Constitutional Principles (21 pages) on SSRN.  Here is the abstract:

Judge Thomas M. Cooley was one of the last of an old order: a jurist and constitutional treatise-writer cloaked in the traditions of Blackstone, Story, and Kent, a guardian of written constitutions, fundamental legal principles, and the English common law as adopted and modified by the states. His career peaked during Reconstruction and closed at the dawn of the Progressive era, when statesmen and jurists were first interpreting the most consequential amendment affecting the relationship between the states and central government. Many point out he was the most cited authority in federal and state case law for nearly half of a century, so knowing Cooley is knowing how the men of this transformative era understood our most fundamental law. He is in many ways a founder of modern constitutional law, and yet he is almost completely forgotten. Nearly 75 years of tunnel-vision scholarship often revolving around tenuous claims that Cooley was a political or economic ideologue has deprived legal thinkers of insights into how to understand American laws and constitutions. The purpose of this paper is twofold: first, to demonstrate that Cooley was no politician and was indeed a principled jurist. Second, to present his constitutional arguments and judicial philosophy by letting Cooley speak for himself through his most prominent treatises and his own judicial opinions.

To map this paper broadly, Section I will review the existing, most prominent literature that has cast Cooley as a political or economic ideologue. Few have written on him exclusively, and none of them have separated his political background from his later judicial career. Section II will examine Cooley’s understandings of American constitutions and legislatures generally, with particular emphasis on his view of implied limitations on American constitutional government. Section III will turn to his judicial philosophy, methods of statutory and constitutional interpretation, and then three case studies from his time on the Michigan Supreme Court.

(Via Larry Solum at Legal Theory Blog.)