he dean of the University of Michigan Law School was
Thomas McIntyre Cooley,
who died SEPTEMBER 12, 1898.
Thomas M. Cooley
hief Justice of Michigan's Supreme Court
President of the American Bar Association
(1893-1894), and the
first Chairman of the Interstate Commerce Commission
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.
, 8th Edition, Volume 2, p. 966, 974,
"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 r
ecognition 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
"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
bowing in contrition when visited with the penalties of His broken laws."
General Principles of Constitutional Law
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."
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
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):
most of our history
majority of Americans
have practiced some form of
In 1925 ... public schools ... still played a significant role in inculcating
Anglo-Protestant moral values
In 1890, Harvard Law School
Dean Christopher Columbus Langdell
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 "
," 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
theory of "
"...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
had ... broken new intellectual trails ... demonstrating that the corpus of
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
1) those who hold that
the meaning of those who wrote them
2) those who hold that
laws can evolve
to have new meanings
at the justice's discretion
Modern day constitutional law scholar
Edward S. Corwin
Justice Joseph Story
view of the
The Constitution and What it Means Today
, 14th Ed., 1978, Harold W. Chase and Craig R. Ducat, Eds., at p. 246, n.1.):
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
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.'"
Get the book BACKFIRED-A Nation Born for Religious Tolerance No Longer Tolerates the Religion of Its Founders
Another historic view that
commented on was the purpose of the
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
of a free country
against ... domestic usurpations of power by rulers
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
Justice Joseph Story
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
"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, tha
t the people
, from whom the militia must be taken,
shall have the right to keep and bear arms
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):
is better understood as
a rhetorical counterpoint 'to the government'
... that rights that were reserved to
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
U.S. v. Verdugo-Urquidez
(1990), the Supreme Court stated:
protected by the Fourth Amendment, and by the First and
to whom rights and powers are reserved
in the Ninth and Tenth Amendments, refers to a class of
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
DVD Who is the King in America?
the people and the States
would allow themselves to be
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
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
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
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 ..."
In addition to being armed,
local control of police departments and subordinate governments
are a key to
the ambitions of the
"Besides the advantage of being armed, which the Americans possess over the people of almost every other nation
, the existence of
, 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
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 ..."
thought it 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
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."
People v. Hurlbut
(24 Mich. 44, 108 (1871):
is [a] matter of a
; and the state cannot take it away."