It now is more than 100 years since Thomas McIntyre Cooley wrote his "Treaties on Constitutional Limitations." He died in 1898 after a long career on the Michigan Supreme Court, as chairman of the Interstate Commerce Commission, and as a professor of law at the University of Michigan. His words continues to have a profound influence on the course of American law. He is one of America's most-quoted law writers. U.S. Supreme Court opinions frequently rely on his extensive research into the law.
As he is frequently quoted, he is frequently misquoted -- or quoted out of context. The Supreme Court opinion in Gannett Co. Inc., Petitioner v. Daniel A. DePasquale provides an example. It summons Cooley to support the doctrine that the requirement of a public trial is for the benefit of the accused only.
Justice potter Stewart, writing for the majority, cites the Supreme Court opinion In re Oliver, which held that secrecy of a criminal contempt trial violated the accused's right to a public trial under the Fourteenth Amendment. In re Oliver, in a footnote to the opinion, said:
"Frequently, quoted is the statement in 1 Cooley, Constitutional Limitations (8th ed 1927) at 647: "The requirement of a public trial is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions.'"
The whole point of the majority in Gannett v. DePasquale is that only the accused has a right to a public trial and, in the context quoted, that seems to be what Cooley is saying. But is it?
This particular quotation appears on page 647 in Chapter IX of the "Treatise," entitled "Protection to Persons and Property." This section is an enumeration of the rights of the accused, not a discussion of the general rights of the public; it is a discourse on the rights of the defendant, not a presentation on the rights of other equally important elements of society. It does not say that a public trial is for the benefit of the accused only, but states that it is for the benefit of the accused. There is a good reason to believe the language would reflect Cooley's views accurately if the word accused had been followed by the word primarily or the word especially in view of what Cooley says elsewhere in his "Treatise" about public trial; but there is no reason whatever to assume that he would have followed the word accused with the word only.
The very first sentence in this same paragraph is: "It is also requisite that the trial be public."
On page 931, Volume 2 of the "Treatise," Cooley says:
"The law, however, favors publicity in legal proceedings, so far as that object can be attained without injustice to the persons immediately concerned. The public are permitted to attend nearly all judicial inquiries, and there appears to be no sufficient reason why they should not be permitted to see in print the reports of trials if they can thus have them presented as fully as they are exhibited in court, or at least all the material portions of the proceedings impartially stated, so that one shall not, by means of them, derive erroneous impressions, which he would not have been likely to receive from hearing the trial itself."
In addition to this statement, Cooley had something to say of pretrial proceedings, closure of which the Supreme Court upheld in Gannett v. DePasquale. He wrote, on page 932:
"It seems to be settled that a fair and impartial account of judicial proceedings which have not been ex parte, but in the hearing of both parties, is, generally speaking, a justifiable publication. (And where the proceedings are such as will result in a final decision being given, a fair and accurate report, made bona fide, of those proceedings is privileged, although to be published before the final decision)."
Here, he was discussing privileged publication (immunity to charge of libel), but that involves an issue that could not arise were the press not present. It is only fair to say that Cooley was strongly opposed to publication of pretrial examinations held ex parte, and warned they had no privilege.
In his chapter "Liberty of Speech and Press," Cooley is an eloquent defender of the press as an instrument of modern society: "The newspaper is also one of the chief means for the education of the people. The highest and the lowest in the scale of intelligence resort to its columns for information; it is read by those who read nothing else, and the best minds of the age make it the medium of communication with each other on the highest and most abstruse subjects." The law, in his opinion, has not kept up with the necessities under which the press operates.
No objective reader could put down Cooley's "Treatise" with the belief that he could have consistently argued for closing pretrial proceedings in the presence of both parties to litigation.
It is too bad Justice Stewart did not read more of Cooley's "Treatise" before he wrote another part of his opinion. His statement on page 15 of the syllabus text is as follows:
"In arguing that members of the general public have a constitutional right to attend a criminal trial, despite the obvious lack of support for such a right in the structure or text of the Sixth Amendment, the petitioner and Amici rely on the history of the public trial guarantee. This history, however, ultimately demonstrates no more than the existence of a common law rule of open civil and criminal proceedings.
"Not many common law rules have been elevated to the status of constitutional rights."
Judge Cooley had a somewhat different view. On page 133 of his "Treatise" he wrote: "It is also a very reasonable rule that a State constitution shall be understood and construed in the light and by the assistance of the common law, and with the fact in view that its rules are still in force."
Further, in his notes he cites State v. Noble: "The language of the Constitution of the United States cannot be interpreted safely except by reference to the common law and to British institutions as they were when the instrument was framed and adopted."
It is good that judges still cite Cooley.e Cooley. It would be better if they cited him more extensively -- and more accurately.