Two milestones in American constitutional history occurred in 1868. The first, which we commemorate this weekend, was the publication of Thomas McIntyre Cooley’s great Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union. The second was the ratification of a Fourteenth Amendment that, among other things, ordained and established sweeping new constitutional limitations on the several state governments. Many scholars have written histories that link these two events with a third—variously described as the advent of a “new judicialism,” the emergence of “laissez-faire constitutionalism,” or the rise of “guardian review” to protect liberty and property during “the Lochner era.” I’ll confess that such histories have rarely satisfied me. In the standard literature on late-nineteenth-century constitutional development, the connections between Thomas Cooley’s treatise, the Fourteenth Amendment, and the work of the Supreme Court are impossibly vague and allusive. My objective this evening is to connect the dots with greater precision.

Keep Reading The Problem of General Constitutional Law: Thomas McIntyre Cooley, Constitutional Limitations, and the Supreme Court of the United States, 1868–1878