By Bill Federer
The dean of the University of Michigan Law School was Thomas McIntyre Cooley, who died Sept. 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).
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.
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.”
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.”
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.”
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.”
The American Bar Association acknowledged the historic attitude of 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.”
In 1890, Harvard Law School Dean Christopher Columbus Langdell pioneered 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. 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.
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.”
Supreme Court Justices now fall into two general categories:
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.): “[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.’”
Another historic view that Justice Story and Thomas Cooley commented on was the purpose of the Second Amendment.
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 (safeguard) 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.”
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. … ”
Thomas 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, as has been explained elsewhere, 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.”
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 counterpoint ‘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.”
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 and leave the federal government in sole possession of 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. …”
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.”
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, of his master, of his servant: 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.”
In addition to being armed, 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. …”
Madison thought it was 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.”
Thomas Cooley wrote 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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