Coolidge’s Constitutional Traditionalism

Chancellor James Kent, whose Commentaries on American Law played a foundational role in Calvin Coolidge’s legal education

By Edith H. Jones

This article appears in the Winter 2024 issue of the Coolidge Review.

Calvin Coolidge matured at the fulcrum of American legal history. The Founders’ view of law was being challenged by the “scientific” approach spreading among law schools from its home base at Harvard. Progressive theories about direct democracy and active government regulation in economic affairs were pressing constitutional change largely outside the formal amendment process.

But Coolidge derived his ideas and ideals from the common law tradition and homage to the written ­Constitution.

Coolidge’s lessons in law were first taught at home and school. John Coolidge familiarized his young son with Plymouth Notch’s local governance, from school district to the town council, as well as the offices of justice of the peace and county sheriff. Coolidge writes in his Autobiography that his father’s broad knowledge of local law led people constantly to seek his advice. By observing his father’s public service, he “came to have a good working knowledge of the practical side of government.” Coolidge “understood it consisted of restraints which the people had imposed on themselves in order to promote the common welfare.”

At Black River Academy, thirteen-year-old Coolidge encountered American history and the U.S. Constitution. With “exceeding” interest, he studied the Constitution then and “never ceased” doing so.

Proverbs 22:6 says, “Train a child in the way he should go, and when he is old he will not depart from it.” Coolidge’s apprenticeship under his father’s guidance and in primary school fostered a clear understanding of the needs and limits of local government. Early education in the Constitution’s beautiful symmetry impressed on him the checks and balances in national government and the dual sovereignties of the federal system.

absorbing Blackstone and Kent

Coolidge’s formal study of law reinforced his views. He chose to become a lawyer by “reading law” while employed as a clerk at a firm in Northampton, Massachusetts. To gain a license, he assisted in the preparation of various legal documents, attended court sessions, and studied the law of Massachusetts. Most important, his required reading included Blackstone’s Commentaries on the Laws of England, which predated the American Revolution, and Chancellor James Kent’s Commentaries on American Law, first published in 1838. Most American lawyers of Coolidge’s era received similar training.

Blackstone’s treatise held that the first source of law is Divine; that God created natural laws that rule this world and its creatures; and that the law of nature, by which all are bound, is identical with the will of God. God enabled man to discover, through reason, the “eternal, immutable laws of good and evil” “so far as they are necessary for the conduct of human actions.” A universal “law of nations” derived from natural jurisprudence, right reason, morality, and custom, while “municipal law,” reflecting these principles, determined rules of conduct for individual societies. Kent and Blackstone shared this fundamental hierarchy.

Against this background, Kent’s commentary discussed the Anglo-American common law system, which evolved from immemorial custom, court decisions, and statutes. His treatise covered law concerning the “rights of persons,” real and personal property, commerce, and descent and distribution. Kent explained the traditional understanding of American government and constitutional jurisprudence, focusing on enumerated powers and limitations of the federal and state sovereigns.

“Reading law” was an inherently conservative mode of study, designed to impress on the student the age-old continuity and stability of law along with its steady but careful adaptation to accommodate economic and social changes. It is no surprise, then, that in his famous speech “Have Faith in Massachusetts,” Coolidge expressed basic common law axioms: “Men do not make laws. They do but discover them. Laws must be justified by something more than the will of the majority. They must rest on the eternal foundation of righteousness.”

It is also no surprise that Coolidge absorbed Chancellor Kent’s description of “great and manifest” evils resulting from “an indigestible heap of laws and legal authorities,” which destroyed legal certainty and promoted litigation, delay, and “subtilty.” Kent extolled the need for law’s stability in order to facilitate commerce and people’s confidence when dealing with each other. Thus, in the same speech Coolidge cautioned, “Don’t hurry to legislate. Give administration a chance to catch up with legislation.” Coolidge was not a “standpatter”; he sought incremental reform.

The Limitations of the Law

That Coolidge had taken to heart Kent’s account of the Constitution’s distribution of powers is evident in his 1922 speech to the American Bar Association. In this speech, on “The Limitations of the Law,” he analyzed the implications of the Progressive movement’s campaign to effect dramatic social change through ­legislation.

One part of the speech defended the authority of the U.S. Supreme Court. The Court then faced criticism for constitutional decisions that were claimed to inhibit social change. It also came under criticism for having recently overturned a federal law regulating labor. Coolidge noted that the Court had seldom found any “humanitarian” legislation beyond the power of Congress. But he pointed out that such a decision did not mean the Court took a political position on the law. The decision “simply means that the Congress has gone outside of the limitations prescribed for it by the people in their Constitution and attempted to legislate on a subject which the several states and the people themselves have chosen to keep under their own control.”

If the people want to entrust the federal legislature with this power, he added, let them amend the Constitution. This is constitutional traditionalism.

transformation

A world of difference separates Coolidge, trained in the common law, from lawyers like his Amherst classmate Harlan Fiske Stone. Stone matriculated at Columbia Law School and became a professor and dean of that prestigious institution. Stone was a dogged advocate of the then-novel “scientific” and case-study-­oriented approach to legal education. This innovation broadly proposed to rationalize law, removing outdated rules and assumptions that might conflict with the needs of an increasingly complex economy. Modernist law study devalued and ultimately displaced law’s nobler heritage. Unlike Coolidge, Stone was sanguine about social legislation; he saw no particular constitutional ground for protecting individual property rights; and he had no quarrel with national economic ­regulations.

In light of their conflicting legal predispositions, it is ironic (though understandable politically) that President Coolidge appointed Stone to the U.S. Supreme Court. In 1941, after Franklin Roosevelt had brought about a constitutional revolution with other Supreme Court appointments, Stone authored the opinion that overturned the very decision whose constitutional basis Coolidge defended. The foundations of structural, traditional constitutionalism have been challenged ever since that “Progressive” transformation by a heap of indigestible authorities.

Wisdom, Prudence, and Liberty

Coolidge gained wisdom and the statesman’s prudence from early education in self-government and traditional legal training. As a result, he loved the structural Constitution and the common law. His education yields important lessons for those who would restore limited government and preserve liberty for future ­generations.

Edith H. Jones is a judge on the United States Court of Appeals for the Fifth Circuit.