| Book Review | The American Historical Review, 110.2

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| Book Review | The American Historical Review, 110.2 | The History Cooperative

Book Review

Canada and the United States

Mark Warren Bailey. Guardians of the Moral Order: The Legal Philosophy of the Supreme Court, 1860–1910. DeKalb: Northern Illinois University Press. 2004. Pp. 298. $45.00.
Mark Warren Bailey makes an important contribution to a steadily accumulating body of revisionist historiography on laissez-faire constitutionalism. In the folklore of American progressivism, the conservative jurisprudence of limited government and individual liberty and property rights in the late nineteenth century is viewed as an antidemocratic project aimed at protecting the economic interests of business elites and established wealth. Insofar as it is seen as having a rational basis, the intellectual origins of laissez-faire legalism are thought to lie in classical political economy or social Darwinism. Challenging the progressive interpretation, Bailey approaches his subject through the accepted methodology of modern legal history, according to which law is viewed in its social and cultural context, rather than as a body of immutable principles drawn from nature, reason, or revelation. Although Bailey faults progressive historians for their moral animus against "'bad' conservatism" (p. 19), his principal focus is their failure to understand laissez-faire jurisprudence in its cultural context. Exhibiting the "law-in-society" strand of modern historicism, Bailey proposes a more accurate analysis of conservative constitutionalism based on its involvement with nineteenth century moral philosophy and Protestant moralism.	1
Bailey argues that the intellectual approach of Supreme Court justices to problems of law and society in the period from 1860 to 1910 was informed by ethical libertarian concepts of individual responsibility and accountability. Nurtured, trained, and influenced by the moral imperatives of their society, judges articulated "a reasoned conservatism based upon an unshakeable belief in an individualistic, voluntaristic, and moral social order resting upon eternal metaphysical truths expressed by American Protestantism and academic moral philosophy" (p. 23). This conclusion is based on a research model that establishes, more comprehensively and systematically than previous studies, the cultural context of laissez-faire constitutionalism.	2
In opening chapters, Bailey describes the intellectual content of nineteenth-century college education and legal training, and the substantial body of writings in moral philosophy as a theoretical and practical science that supplied the curricular content. The educational and moral lights consulted include John Locke, William Paley, Francis Wayland Parker, Joseph Butler, Francis Bowen, Samuel Stanhope Smith, and Mark Hopkins. Subjects of moral philosophy considered include society, civilization, progress, natural science, proof of the divinity, faculty psychology, political economy, private property, justice, and righteous government. Against this background, Bailey examines the intellectual and moral formation of the twenty-three judges who served on the Supreme Court in the period under review.	3
Through analysis of off-the-bench writings on religion, philosophy, and public affairs, as well as legal opinions, Bailey presents the justices as representative men of their culture and society. They "saw themselves as practitioners of a moral science and possessors of a public role in guiding the nation in accordance with fundamental principles of truth and justice enshrined in both the Constitution and the common law" (p. 85). Bailey states that the interpretation of constitutional doctrines on controversial subjects, such as police power regulations, liberty of contract, economic due process, civil rights, and the status of overseas territorial possessions, was "not an intellectual retreat into a sterile conceptualism," as liberal legal historians have charged. Conservative constitutional law signified an attempt to apply the accepted moral theories of the day to increasingly complex issues that emerged as the United States became a modern industrial society.	. . .

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