American Minute with Bill Federer
Thomas Cooley, President of American Bar Association in 1893: on Religion, 2nd Amendment, Local Control of Government
The dean of the University of Michigan Law School was
Thomas McIntyre Cooley,
who died SEPTEMBER 12, 1898.
Thomas M. Cooley
- Chief Justice of Michigan's Supreme Court (1864-1885),
- President of the American Bar Association (1893-1894), and
- the first Chairman of the Interstate Commerce Commission (1887).
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, Thomas Cooley stated:
"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 recognition 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,
acknowledging with thanksgiving His boundless favors,
bowing in contrition
when visited with the
penalties of His broken laws."
General Principles of Constitutional Law,
never intended by the Constitution
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
always recognized in the administration of the common law of the land,
fundamental principles of that religion must continue to be recognized
in the same cases and
to the same extent as formerly."
American Bar Association
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
Christian Protestantism ...
In 1925 ...
... still played a significant role in inculcating
Anglo-Protestant moral values."
Modern day constitutional law scholar
Edward S. Corwin
Justice Joseph Story and Thomas Cooley's
view of the First Amendment
(The Constitution and What it Means Today,
14th Ed., 1978, Harold W. Chase and Craig R. Ducat, Eds., at p. 246, n.1.):
United States Congress
free to prefer
over other religions, in contrast to modern Constitutional law and interpretation] is also supported by
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.'"
A change began to occur in the interpretation of constitutional law in the late 1800s.
In 1890, Harvard Law School Dean
Christopher Columbus Langdell
pioneered a novel technique of
applying Darwin's theory of evolution
with his innovative
"case precedent" method
of practicing law.
No other law school at the time taught this.
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
"... 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,
changing social and economic climates ...
broken new intellectual trails ...
demonstrating that the corpus of
the law was neither
ukase (an edict)
nor derived from Nature, but ... was
a constantly evolving thing,
a response to the continually developing social and economic environment."
Holmes' novel views
were not readily accepted.
American Bar Association president Frank J. Hogan
stated in 1939:
"If the Constitution is to be construed to mean what the majority at any given period in history wish the Constitution to mean,
why [have] a written Constitution?"
U.S. Supreme Court stated in
Westbrook v. Mihaly
(2 C3d 756):
"Constitutional rights may not be infringed simply because the majority of the people choose that they be."
Supreme Court Justices
began to divide into two general categories:
1) those who hold that laws should maintain the
of those who wrote them; and
2) those who hold that laws
to have new meanings at the discretion of the judge.
U.S. Attorney General William Barr
stated at Notre Dame University, October 11, 2019
"By and large, the
view of human nature was drawn from the classical
dismiss this idea of morality as other-worldly superstition imposed by a kill-joy clergy.
Judeo-Christian moral standards
are the ultimate utilitarian
rules for human conduct ...
They are like
God’s instruction manual
for the best running of man and human society ..."
bad, real-world consequences
for man and society. We may not pay the price immediately, but
over time the harm is real ...
I think we all recognize that over the past 50 years
under increasing attack.
On the one hand, we have seen the
steady erosion of our traditional Judeo-Christian moral system
and a comprehensive effort to
drive it from the public square.
On the other hand, we see the
growing ascendancy of secularism
and the doctrine of
By any honest assessment, the consequences of this moral upheaval have been grim ..."
Attorney General Barr
is being used as a
break down traditional moral values
and to establish
as a new orthodoxy.
is being used as
in a couple of ways.
First, either through legislation but more frequently
through judicial interpretation, secularists
have been continually seeking to eliminate laws that reflect
traditional moral norms.
At first, this involved rolling back laws that prohibited certain kinds of conduct. Thus, the watershed decision
And since then, the
legalization of euthanasia
More recently, we have seen the
law used aggressively to force religious people
and entities to subscribe to practices and policies that are
antithetical to their faith.
The problem is not that religion is being forced on others. The problem is that
irreligion and secular values are being forced on people of faith.
This reminds me of how some
could not leave their loyal
subjects in peace but would
mandate that they violate their conscience by offering religious sacrifice to the emperor as a god.
do not have a live and let live spirit
- they are not content to leave religious people alone to practice their faith. Instead, they seem to take a delight in
compelling people to violate their conscience.
For example, the last Administration sought to force
Catholic religious orders,
their sincerely held
in their health plans.
Similarly, California has sought to require
pro-life pregnancy centers
to provide notices of
This refusal to accommodate the free exercise of religion is relatively recent. Just 25 years ago, there was broad consensus in our society that
our laws should accommodate religious belief..."
"Ground zero for these
attacks on religion
To me, this is
the most serious challenge to religious liberty.
For anyone who has a religious faith, by far the most important part of exercising that faith is the
teaching of that religion to our children.
The passing on of the faith ...
The first front relates to the content of
public school curriculum.
Many states are adopting
incompatible with traditional religious principles
according to which parents are attempting to raise their children. They often do so without any opt out for religious families.
Thus, for example, New Jersey recently passed a law requiring public schools to adopt an
that many feel is
inconsistent with traditional Christian teaching.
Similar laws have been passed in California and Illinois.
And the Orange County Board of Education in California issued an opinion that “parents who disagree with the instructional materials related to
gender, gender identity, gender expression and sexual orientation may not excuse their children
from this instruction ..."
"I can assure you that, as long as I am Attorney General, the Department of Justice will be at the forefront of this effort, ready to fight for the most cherished of our liberties: the
freedom to live according to our faith."
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
is the natural
of a free country
against ... domestic usurpations of power by rulers.
It is against sound policy for a free people to keep ...
in time of peace ... from ... the facile (easy) means, which they
afford to ambitious and unprincipled rulers,
subvert the government,
trample upon the rights of the people.
keep and bear arms
has justly been considered, as the
(guarantee) 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
quoted Justice Joseph Story in The General Principles of Constitutional Law (2nd Ed., 1891, p. 282):
... 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.
militia ... 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, that
from whom the militia must be taken,
shall have the right to keep and bear arms,
and they need no permission or regulation of law for that purpose."
Justice William J. Brennan Jr.,
U.S. v. Verdugo-Urquidez
(494 U.S. 247, 288, 1990):
is better understood as a
rights that were reserved
were to protect all those subject to 'the government' ...
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
and by the
and to whom rights and powers are reserved in the
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."
thought it unimaginable that the people and the States would allow themselves to be disarmed, which would create a dangerous situation where only the federal government would possess arms, as he wrote in
Federalist, No. 46:
"Those who prophesy the downfall of the State governments ... that the
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,
an uninterrupted succession of
men ready to betray both;
should, throughout this period, uniformly and systematically
pursue some fixed plan for the extension of the military establishment;
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
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."
Supreme Court Justice James Wilson
Lectures on Law,
"The defense of one's self,
justly called the
primary law of nature,
is not, nor can it be abrogated by any regulation of municipal law.
principle of defense
is not confined merely to the
it extends to the
property of a man:
it is not confined merely to
his own person;
it extends to the persons of all those,
to whom he bears a peculiar relation-of his
it extends to the person of every one, who is in danger;
perhaps, to the liberty of
every one, whose liberty is unjustly and forcibly attacked."
In addition to being armed,
of police departments and subordinate governments are a key to
resisting the ambitions of the federal government:
the advantage of being armed,
the Americans possess over the people of almost every other nation,
the existence of
subordinate governments, 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 ...
But were the
people to possess the additional advantages of local governments chosen by themselves
... it may be affirmed with the greatest assurance, that the throne of
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
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."
confirmed Madison's views in
People v. Hurlbut
(24 Mich. 44, 108 (1871):
is [a] matter of
and the state cannot take it away."
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