Date of Award

2014

Degree Type

Dissertation

Degree Name

Doctor of Juridical Science (S.J.D.)

First Advisor

William Novak

Second Advisor

Thomas Green

Third Advisor

Richard Primus

Abstract

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 actual needs, and have their excellencies tested in the practical wisdom of the people from whose aspirations and exigencies they have sprung.” 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 tendered both the constitutional language and the means to protect against improper influences and majoritarian impulses ... and judges across the nation cheered.

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