Thomas M. Cooley and the Role of Government

In recent decades, Michigan citizens have seen their property rights eroded through environmental edicts and government-sponsored economic incentives favoring some business owners over others.

Michigan property owners might be surprised to learn that such measures fly in the face of the legal positions of perhaps the most eminent jurist Michigan has ever produced. He was Thomas M. Cooley — state Supreme Court Justice, University of Michigan law professor, namesake of Cooley Law School in Lansing, and author of a hugely influential post-Civil War work on constitutional law. Born in 1824 in New York, Cooley moved to Michigan early in his career and lived here the rest of his life.

Cooley’s celebrated law treatise, "Constitutional Limitations," which first appeared in print in 1868, helped to fill a glaring vacuum: While other noted constitutional scholars focused on national law, Cooley viewed the states as important arenas of legal development.

To reduce the threat to liberty from a powerful central government, argued Cooley, the powers of that government must be kept to those explicitly "enumerated" in the Constitution itself. All other powers remained the province of the states. These principles undergirded Cooley’s view that "the American system is one of complete decentralization . . . [and] local affairs shall be managed by local authorities, and general affairs only by the central authority."

Thomas E. Brennan, former chief justice of the Michigan Supreme Court and founder of Cooley Law School, called Cooley "the quintessential strict-constructionist" because Cooley believed that our liberties and our form of government required judges to interpret the law, not manufacture it from the bench. That’s a view that is happily represented today by a majority of sitting justices on the Michigan’s highest court, arguably the finest state Supreme Court in the nation.

For Cooley, the fact that the Constitution outlined a national government of limited scope had important ramifications for the manner in which the law should regard property and wealth. Cooley argued that a fundamental aspect of both liberty and the pursuit of happiness was the ability of individuals and groups to freely acquire and dispose of property.

If Cooley were alive today, he would likely point out with great alarm that property rights in Michigan have been substantially eroded over the years. For instance, when a regulatory agency declares a citizen’s property a "wetland," it can greatly reduce the value of that property to the owner without providing "just compensation." Under Michigan law, a property owner must be deprived of all value — not merely some or even most — before he is entitled to compensation.

Lawmakers targeting particular groups for special attention — by punishing certain classes of people or restraining certain activities simply because they make some people more wealthy — infringed upon human liberty, in Cooley’s view. Such efforts would only succeed in vastly increasing the government’s arbitrary power at the expense of citizens’ liberty — with no lasting gain for the supposed beneficiaries, the poor or underprivileged.

Cooley was no advocate for special privileges and perks for the wealthy or politically well-connected, and he condemned the cozy, corrupt relationships that often tied powerful interests and government. His main concern was to ensure the even and impartial application of the laws. He believed that laws designed to benefit one class of people at the expense of others — (be they rich, or poor) — represented a dangerous tendency toward arbitrary power and real injustice.

In rejecting subsidies to Michigan railroads, Cooley reasoned, ". . . it is not the business of the State to make discriminations in favor of one class against another, or in favor of one employment against another. The State can have no favorites. Its business is to protect the industry of all, and to give all the benefit of equal laws . . ." He saw the wisdom of "a fair field and no favor" approach to economic development, and would undoubtedly object to the way the Michigan Economic Development Corporation today picks winners and losers through discriminatory tax abatements and subsidies.

A little over a century ago, Thomas M. Cooley was one of the best-known and most respected citizens of Michigan. His warnings against unchecked government power still resonate with wisdom, and he deserves renewed attention today.

(Peter J. Richards is an attorney pursuing doctoral studies at Yale Law School and is an adjunct scholar with the Mackinac Center for Public Policy in Midland, Michigan.