GUARDIANS OF THE MORAL ORDER: THE LEGAL PHILOSOPHY OF THE SUPREME COURT, 1860-1910 [Hardcover]

MARK WARREN BAILEY (Author)

Book Description

Publication Date: January 6, 2004

Progress was the byword of America's Gilded Age, a time of technological innovation, industrial growth, and overseas expansion. It was an era of emancipation for former slaves, settlement houses for immigrants, and colleges for women. Anti-saloon leagues called for the prohibition of alcohol, while citizens demanded labor regulations and food and drug laws. Confronted by all these forces of change, the Supreme Court appeared the bastion of conservatism in case after case as it defended the old moral and social order.

Progressive reformers of the time as well as historians of the twentieth century have depicted the era's nine justices as aging reactionaries or, worse, accused them of championing a laissez-faire, imperialistic reading of the U.S. Constitution. Now, in Guardians of the Moral Order, Mark Bailey rises to their defense. The conservatism of the Supreme Court from 1860 through 1910, he argues, reflects not a conversion to the gospel of wealth but a steadfast belief in the vision of man and society grounded in eighteenth-century Enlightenment ideas and nineteenth-century moral science. As college students, the justices learned these values through the philosophy courses central to the antebellum curriculum. As judges, their understanding of the law as a branch of moral science influenced their rulings on a wide array of social, political, and economic issues.

Taking the approach of an intellectual historian, Bailey examines the college education and legal training that these justices received. He then looks at their speeches and writings, both on and off the bench, to discover their views on such topics as the definition of private property, racial equality, and the rights of peoples in America's newly acquired territories. An unflagging faith in a divinely ordained natural order, he concludes, provided these men with their model for the social and moral order.

The worldview cherished by these men was shared by many Americans educated in antebellum schools, colleges, and law offices. Theirs was not a reactionary conservatism rabidly opposed to change but a deeply ingrained belief in immutable moral truths upon which civilization itself depended. If we are to understand the Gilded Age, as Bailey so convincingly demonstrates, we must acknowledge that ideas matter.

Editorial Reviews

Review

"With convincing detail [Bailey] recounts the concepts, assumptions, tenets, and teachings of antebellum moral science."—Law and History Review

"An engaging and well-argued interpretation of the Court, full of intellectual surprises and new insights."—Kermit Hall, Utah State University

"A significant contribution to legal history that offers a clear application of nineteenth-century moral philosophy to the work of the Supreme Court."—William LaPiana, New York Law School

About the Author

Mark Warren Bailey is an independent history scholar who has published several articles on American legal history.

Product Details

• Hardcover: 305 pages
• Publisher: Northern Illinois University Press; 1 edition (January 6, 2004)
• Language: English
• ISBN-10: 0875803202
• ISBN-13: 978-0875803203
• Product Dimensions: 9.3 x 6.4 x 1.2 inches
• Shipping Weight: 1.4 pounds (View shipping rates and policies)
• Average Customer Review: 5.0 out of 5 stars  See all reviews (2 customer reviews)
• Amazon Best Sellers Rank: #4,063,999 in Books (See Top 100 in Books)

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Most Helpful Customer Reviews

4 of 6 people found the following review helpful:

5.0 out of 5 stars The Glory of the Unity of the Law, November 14, 2004

By 

M. Johnson (Harrold, SD) - See all my reviews

This review is from: GUARDIANS OF THE MORAL ORDER: THE LEGAL PHILOSOPHY OF THE SUPREME COURT, 1860-1910 (Hardcover)

This is a necessary book in both jurisprudence and American history generally. Another reviewer believes that the justices of the period read their politics (or more accurately, what that reviewer believes to have been their politics) into the Constitution. This completely misses the point of the book: the justices believed not only in the unity of the common law, but in the Unity of the Law - that the Science of the Law is the golden chain that links the farthest reaches of theology to everyday human experience. Legislation in such a view is mere fallible distraction from Truth; the suggestion that the justices consciously introduced their political ideas into the law would have greatly insulted them. To speculate that these preferences unconsciously dictated their rulings not only falls into the murky depths of Legal Realism, but is directly contradicted by the evidence of the book, showing that all the justices, regardless of party affiliation or regional origin, shared this view. This is the norm against which Oliver Wendell Holmes' radicalism can now properly be viewed; it is ironic that the reviewer upset by the supposed activism of this Court holds their same conservative view that there can be only one correct interpretation of the law.

4 of 6 people found the following review helpful:

5.0 out of 5 stars The Gilded Age Supreme Court and Morality, June 3, 2004

By 

Ronald H. Clark (WASHINGTON, DC USA) - See all my reviews
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This review is from: GUARDIANS OF THE MORAL ORDER: THE LEGAL PHILOSOPHY OF THE SUPREME COURT, 1860-1910 (Hardcover)

Recently, there has been an increasing stream of revisionist studies of the Supreme Court, focusing on the New Deal period, designed to convince us that the Court really was not as reactionary and partisan as generally believed. Cushman's book on the New Deal Court and McKenna's volume on the Court Packing plan are two examples. The author of this volume goes back to the Gilden Age Court to develop a complimentary thesis. It is hard to be too critical of the book, given that the scholarship is impeccable and exhaustively examines an area not too well studied in the Court literature. Bailey's main thesis is that the Justices comprising the Court between 1860 and 1910 overwhelmingly based their decisions upon a shared heritage of morality and ethics, which gave them a "moral compass." The author reviews in depth the speeches and off-the-court writings of Justices Brewer, Field, Strong, Harlan, Bradley, Brown, McKenna and others to examine their private views of morality, ethics, and the role of law. He demonstrates that several Justices, especially Brewer and Harlan, held strongly Christian orientations. The bibliography of original sources covers nearly ten pages and is a very valuable resource in tracing these viewpoints. But in final analysis, one asks "so what?" The fact that "moral" and Christian justices unleashed the Income Tax decision, developed the concept of freedom of contract, and came close to suppressing the labor and reform movements is not made any more palatable because those Justices sincerely believed in what they were doing. So the main contribution of the book, which is a substantial one, is that it gives us new insight into what made these Justices tick. Nonetheless, their oath was to preserve and protect the Constitution, not to translate their religious and ethical beliefs into constitutional law. Some Justices of the period appeared to have forgotten that fact.