| Book Review | Law and History Review, 24.1

Book Review

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 (ISBN 0-87580-320-2).

Mark Bailey's Guardians of the Moral Order lends substantial support to our developing awareness that religious conviction and moral belief significantly influenced the development of late nineteenth and early twentieth-century constitutional law. But Bailey pushes his thesis too far when he asserts that the explanation for Gilded Age and Lochner Era constitutional development is the religious and moral views acquired by the United States Supreme Court Justices when they were in college.

Bailey agrees with the now dominant view that Progressive historians were wrong to treat Gilded Age and Lochner Era constitutional development as "an expression of the material interests of the nation's industrial and financial elite" (13). Rather, Bailey argues, it was an elaboration of antebellum "academic moral philosophy" (23). Gilded Age and Lochner Era judges imbibed this philosophy in college. It formed the "mentalité that the justices brought to the bench" (22), giving them "an unshakeable belief in an individualistic, voluntaristic, and moral social order resting on eternal metaphysical truth" (23). In Bailey's view, early nineteenth- century "moral science ... resulted in a distinctive form of judicial thought during the Gilded Age" and "the Supreme Court's decisions in a variety of areas rested upon" it (22–23).

Bailey makes his argument in three steps. First he describes the antebellum college curriculum and its capstone course in moral science. Then, having noted that twenty of the twenty-three Justices who sat on the United State Supreme Court from 1862 to 1900 graduated from antebellum colleges, Bailey studies the Justices' off-the-bench writings and speeches to show the extent to which "they saw themselves as practitioners of a moral science ... guiding the nation in accordance with the fundamental principles of truth and justice enshrined in both the Constitution and the common law" (85). Finally, Bailey attempts to account for the case law in important constitutional areas—separation of powers and federalism, police powers and substantive due process, civil rights and race relations, and the Constitution's application to America's new colonial empire—as "an ultimately unsuccessful attempt to preserve a vision of man and society founded on the beliefs and values of the eighteenth-century Enlightenment and nineteenth-century moral science, particularly as it was expressed in the moral philosophy courses of the antebellum colleges" (210–11).

Bailey accurately describes early nineteenth-century academic moral philosophy as a "powerful synthesis of eighteenth-century thought and Protestant belief" (22) that "rested upon an ethical libertarian foundation of voluntaristic individualism and upon a view of moral accountability" (23). With convincing detail he recounts the concepts, assumptions, tenets, and teachings of antebellum moral science, which was a branch of Scottish common sense realism. Drawing from substantial secondary literature, he shows that this understanding of man, morals, and society dominated antebellum American higher education and that its teachings provided the foundation and capstone for the curriculum at many colleges.

The second part of Bailey's book persuasively argues that most of the Supreme Court Justices between 1862 and 1900 were students of antebellum moral science and took its lessons to heart. Drawing from a fresh reading of the Justices' extensive nonjudicial writings, Bailey establishes that the world view of many of the Justices was fully consistent with the tenets of their college course in moral science. He shows that the Justices, in their off-the-bench speeches, articles, and letters, discussed the issues of the day through the concepts and principles of the moral science they studied in their youth. (I should note that there is an extensive bibliography of primary and secondary sources that should be of great use to future scholars of late nineteenth-century judicial thought.)

Unfortunately, Bailey's effective use of the Justices' nonjudicial writings does not carry into his analysis of their legal opinions. Bailey's ultimate section, which attempts to show that the Justices drew from antebellum moral philosophy in shaping major areas of law, is not nearly as strong as the rest of the book. It is hard to tease nonlegal sources out of judicial opinions. Bailey's effort seems to consist mainly of descriptions of case development coupled with assertions that they follow from the Justices' commitment to the precepts of antebellum moral science. Most unpersuasive, yet emblematic of Bailey's treatment of all variety of late nineteenth-century constitutional development, is his argument that the Supreme Court's evisceration of the Fourteenth Amendment and its affirmation of Jim Crow "reflect[ed] prevailing theories of faculty psychology" (181) and "the existing ethical framework of moral philosophy" (209) rather than, at least to some extent, "the simple explanation that the justices were racist" (174) and accepted the post-Reconstruction political settlement.

A related shortcoming is that Bailey's grand theory fails to account for the many significant disagreements among the late nineteenth-century Justices. The Slaughter House Cases, The Income Tax Cases, and Lochner v. New York were all 5–4 decisions. The vote in Munn v. Illinois, Strauder v. West Virginia, and Holden v. Hardy was 7–2. Even Harlan's solo dissents in The Civil Rights Cases and Plessy v. Ferguson require explanation since he was as much a paradigmatic product of antebellum education as the Justices with whom he disagreed.

In sum, Bailey adds to our stock of explanations for Gilded Age and Lochner Era constitutionalism. He fully explains an important influence that should be more generally appreciated. Still, he has not found the Rosetta Stone. Contemporary historiography remains a discipline of multiple causes and interdependent variables.

Stephen A. Siegel

DePaul Univeristy

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