Volume 18
Issue 1
Winter '20

The Misunderstood Thomas Cooley: Regulation and Natural Rights from the Founding to the ICC

Written By: Joseph Postell

Abstract

Although he was regarded by his contemporaries as the most influential legal author of the late 19th Century, Thomas Cooley is underappreciated and under-studied today. His legacy is typically misunderstood, which likely contributes to his relative obscurity. He is often inaccurately referred to as an advocate of laissez-faire government. Cooley was a staunch defender of regulation based on the well-established, traditional understanding of the state police power. While he believed that there were limits on regulation, those limits were inherent in the police power itself. Courts should uphold these limits, Cooley argued, but should grant due deference to legislatures. Cooley’s commitment to regulation as compatible with natural rights is indicated by his acceptance of the first chairmanship of the Interstate Commerce Commission. Because Congress care-fully limited the powers of the Commission, Cooley could accept this responsibility, and his service as the first chair, while brief as a result of declining health, ensured that the Commission remained within constitutional limits.

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