Customer Reviews

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

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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.

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.