University of Michigan Law School University of Michigan Law School Scholarship Repository SJD Dissertations Other Publication Series 2014 From Commonwealth to Constitutional Limitations: Thomas Cooley's Michigan, 1805-1886 Robert Allan Olender University of Michigan Law School Follow this and additional works at: https://repository.law.umich.edu/sjd Part of the Constitutional Law Commons, Courts Commons, Legal History Commons, and the State and Local Government Law Commons Citation Olender, Robert Allan, "From Commonwealth to Constitutional Limitations: Thomas Cooley's Michigan, 1805-1886" (2014). SJD Dissertations. This Dissertation is brought to you for free and open access by the Other Publication Series at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in SJD Dissertations by an authorized administrator of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. From Commonwealth to Constitutional Limitations: Thomas Cooley's Michigan, 1805-1886. By Robert Allan Olender Dissertation Submitted to the University of Michigan Law School Ann Arbor, Michigan In partial fulfillment of the requirements for the degree of Doctor of the Science of Jurisprudence 2014 Faculty Committee Professor William Novak, Chair Professor Thomas Green Professor Richard Primus 1 © Copyright by: Robert Allan Olender 2014 All rights reserved. 2 Acknowledgments A long list of friends and mentors provided considerable assistance during my journey to complete this work. I am indebted to them and thankful for their guidance, support, and wisdom. I am particularly indebted to my advisor and committee chair, Professor William Novak. Professor Novak took on the considerable task of molding me into a legal historian. His continuing advice to “get into the weeds” was invaluable as I sought to understand the forces of legal and constitutional change. Professor Novak has an infectious love for American legal history and I was fortunate to work with and be inspired by him. I could not have asked for a better mentor. Two other scholars at the University of Michigan Law School helped shepherd this project to conclusion and they, along with Professor Novak, made up my committee. In 1979, as a third year law student, Professor Thomas Green introduced me to the legal history field, and I have been smitten by his teachings ever since. I was incredibly fortunate that Professor Green invited me back to the law school and agreed to guide me along the way. I deeply appreciate his help, wisdom, and friendship. Professor Richard Primus constantly challenged and amazed me as his questions would cut to the core of my work and make me reconsider my thoughts and conclusions. Together my committee members helped me to understand the importance of probing research and deeper reflection. It was such a privilege to associate with such outstanding scholars and people. I would like to mention one other person who reviewed and guided my work – Fiona Linn. Ms. Linn graciously agreed to read the dissertation and provided great insights and suggestions, all the while caring for her newborn delight, Zoe. This work would never have happened if it were not for Professor Marc Kruman, the chair of Wayne State University’s Department of History, who – twenty years after I had 3 completed law school – invited me to reenter the world of academia. Given my law background, he suggested the field of legal history. Professor Kruman continues to be a constant advisor, teacher, and friend. Professor Elizabeth Faue not only expanded my historical understandings but also, to this day, regularly meets with me to discuss history, governance, and law. I especially owe a deep debt to my Wayne State academic and master’s thesis advisor, Professor Sandra Van Burkleo. She first introduced me to issues surrounding constitutional change and the societal forces that compel that change. She opened a world that I have so enjoyed exploring. I also benefited from the tremendous support I received from my employer, Dawn Food Products, Inc. When I advised CEO Carrie Barber and President Eric Metzendorf of my intention to leave work in order to study at Michigan, they tailored a job so that I could continue working at Dawn as I worked on this dissertation. The SJD program at Michigan Law blends SJD candidates with research scholars from around the world. Under the guidance of now retired Assistant Dean Virginia Gordan, I was able to work with legal scholars from multiple nations and legal systems. With the exception of Antarctica, I now have friends and colleagues on all continents. The deeper understanding of cultures and law that they presented to me continues to enrich and inform. My biggest debt goes to my immediate family who welcomed and delighted in my decision to leave the world of commerce and enter the world of academia. Upon learning of my decision to return to school, my two children, Kate and Steven, set forth to help their father handle the shock of schoolwork and student life. To that end, they penned The Conversation Guide: College Education – a book that helped inform this middle-ager of the important aspects of popular culture. While I never had to discuss the “body image war between Khloe and Kim Kardashian,” I slept better knowing that I was armed with such information. Most of all, I am 4 incredibly thankful for the love and support of my wife, Anne. She was there for me through the highs and lows of dissertation research and writing, and through the absences associated with my time working on this project and for my employer. This dissertation was possible because of Anne and is dedicated to her. 5 Chapter I: Introduction A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used. Oliver Wendell Holmes Jr. Towne v Eisner, 245 U.S. 418, 425 (1918) Feeling the oppression of a remote government, a group of farmers, tradesmen, merchants, doctors, and lawyers gathered through the summer to draft a constitutional blueprint for republican self-governance. Having had little voice in their distant government, and believing that it had ignored their welfare, these settlers boldly declared, “the time has arrived when our present political condition ought to cease, and the right of self-government be asserted.” The distant government responded with irritation, denying the settlers the right to self- government and insisting that agents of the distant government continue to rule. The year was 1835 and the place, Detroit, Michigan.1 In response to what he perceived as the challenges associated with republican governance in the later portions of the nineteenth century, Michigan’s Thomas McIntyre Cooley penned his treatise concerning constitutional limitations on legislative power. In it, Cooley offered a vision of government where courts would check government power and would raise constitutional barriers against the impact of improper influences on legislators. As a student of history, Cooley grounded his beliefs and doctrines in experience, not philosophical reflections. Believing that “the fruits of speculative genius in government are of little value,” Cooley submitted that governing structures and law “must be the work of time and circumstances, must grow out of 1 Preamble, Constitution of Michigan, 1835. 6 actual needs, and have their excellencies tested in the practical wisdom of the people from whose aspirations and exigencies they have sprung.”2 Accordingly, law and governance must evolve along with political, social, and economic circumstances. This is not to suggest that Cooley advocated that constitutional structures yield to political shifts or popular passions. Rather, he proposed that constitutional language should be reinterpreted in order to hold fast to the core of American constitutional governance – republican, limited-governance. With republican limited- governance as their lodestar, courts were to search for new constitutional understandings to safeguard and advance that governance and, as part of that responsibility, to protect individual liberties and rights. To Cooley, courts were flexibly to employ and re-interpret constitutional language to further those core constitutional purposes. This allowed and demanded that courts reassess legislative powers in light of new circumstances. When a legislature had disused or misused powers, its authority over that issue would end, particularly when continuing the legislative practice would undermine republican governance or its associated promotion of individual liberties. Therefore, what was once constitutional could become unconstitutional as social, political, and economic forces dictated. Informing that decision, and Cooley’s theories, was the concern that powerful forces had, and could continue to undermine the legislative process in order to grant the wealthy improper privileges and the masses inappropriate succor. Because he believed that judges were cut of a finer cloth and not as subject to political forces as were legislators, Cooley charged the courts with the responsibility to dispassionately discern when legislation exceeded republican bounds. In doing so, the judiciary would both maintain constitutional governance and the rule of law, while pressing the natural advancement of the individual in American society. Through his advocacy of enhanced judicial review, Cooley 2 Thomas McIntyre Cooley,