Thomas M. Cooley and "Laissez-Faire Constitutionalism": A Reconsideration

Abstract

TI? HOMAS M. COOLEY, nineteenth-century judge, first chairman of Interstate Commerce Commission, and author of important legal treatises, particularly Treatise on Constitutional Limitations Which Rest upon Legislative Power of States of American Union, published in 1868, merits an historical reputation different from one he has acquired.' Generally viewed as a zealous advocate of judicial protection of property rights, Cooley is described by Clyde Jacobs as the principal contributor to cause of constitutional laissez faire in era following Civil War. . . . Benjamin Twiss remarks that Cooley's treatise supplied laissez-faire capitalism with a legal ideology 'almost as a direct counter to appearance a year earlier of Karl Marx's Das Kapital; and Marver Bernstein compares him to Supreme Court Justice David Brewer in his observation that Cooley, like Brewer, regarded judges as spokesmen for principle of unfettered rights of property and as protectors of status quo against threat of popular power.3 A reconsideration of these assessments is needed not merely to do justice