Vol. 14 No. 8 (August 2004), pp.634-638

GUARDIANS OF THE MORAL ORDER: THE LEGAL PHILOSOPHY OF THE SUPREME COURT, 1860-1910, by Mark Warren Bailey.  DeKalb, IL: Northern Illinois University Press, 2004.  305pp.  Cloth $45.00.  ISBN 0-87580-320-2.

Reviewed by Jennifer Faust, Philosophy Department, California State University, Los Angeles.  E-mail: jfaust@calstatela.edu.

GUARDIANS OF THE MORAL ORDER aims to present us with a more thorough understanding of the record of the U.S. Supreme Court in the post-Civil War era by placing the landmark decisions of the Court in the context of the moral philosophy of the day.  In the book, Mark Warren Bailey contends that when viewed through the lens of the Anglo-American (Protestant) moral philosophy of the late 19th century, these decisions constituted a coherent defense of both the “moral order” and the Constitution (including the Civil War amendments) against an onslaught of challenges.  In defending this thesis, Bailey takes on what might be called the “standard view” of the Court in this era—i.e., that they were reactionaries who fought social progress, defenders of laissez-faire economics to the detriment of laborers, and believers in Social Darwinism who ensured that freed slaves got no help from the federal government.  Part of Bailey’s agenda is to take issue with what he sees as wrongheaded legal historiography that has analyzed the Court’s decisions independent of their social and intellectual context.  Viewed in their larger context, he argues, the decisions of the Court can be defended against the charges leveled in the standard view. 

Bailey, an independent history scholar with a concentration in legal history, has chosen a formidable project in defending the Court during the Civil War and post-Civil War era (1860-1910).  These justices would face some of the most vexing questions in the Court’s history.   Challenges based on the Civil War Amendments, the Civil Rights Acts of 1866, 1875 and 1883, and the Enforcement Acts of 1870 and 1871 would raise questions of due process, separation of powers (especially with regard to the reach of state regulations of business and labor relations), the extent of the civil rights and equality granted to newly freed blacks, and the extent of federal government’s powers in enforcing those rights.  Viewed from today’s vantage point, the Court balked time and again when these issues were brought before it, with the result that laissez-faire economics ruled the day and de facto civil rights for blacks did not emerge for another century.  A brief review of some of the landmark decisions of the era shows just how difficult it is to characterize the justices’ reasoning as the product of a coherent, defensible, legal philosophy.

In U.S. v. CRUIKSHANK (1875) the Court overturned the conviction in federal court of Cruikshank, a Ku Klux Klan member who was present at the Colfax, LA massacre of blacks, on the grounds that the protection of civil rights was the concern of the states.  The CIVIL RIGHTS CASES of 1883 and PLESSY v. FERGUSON (1896) sought [*635] to enforce the Civil Rights Act of 1875, which granted to all persons “the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theatres, and other places of public amusement” (p.183).

In these cases, the Court distinguished between actions by the states and their agents and private actions, and ensured that blacks denied access to accommodations had no recourse in federal courts.  The Court’s record on economic legislation is decidedly more mixed, making it difficult to argue that a coherent economic philosophy was at play (rather than, as seems likely, that the Court struggled with the emerging capitalist system and the question of separation of powers vis-à-vis regulation of commerce).  With the notable exceptions of MUNN v. ILLINOIS (1871), which upheld state legislation regulating grain elevator prices, HOLDEN v. HARDY (1898), which upheld a Utah law limiting miners to 8-hour days, and a smattering of regulative legislation concerned with the public health and safety, the Court took a decidedly hands-off approach to businesses.  In ALLGEYER v. LOUISIANA (1897), the court struck down a Louisiana law barring the purchase of property insurance from other states, introducing the notion of “freedom of contract” that would play an increasingly prominent role in later decisions.  LOCHNER v. NEW YORK (1905) is widely understood as exhibiting the Court’s laissez-faire economics—in this case, the Court struck down a New York law limiting bakers’ hours on the grounds that the bakers were autonomous and freely entered into their labor relations.

In the light of this (albeit sometimes confusing) record, the claim that the justices were operating on a coherent set of principles might seem suspect—but one of the strengths of this book is that Bailey’s analysis of the Court’s record does make a compelling case for the influence of religion and moral philosophy on the justices.  The book begins (after a brief introduction) with a chapter on historiography, where Bailey takes issue with reigning paradigms in American legal history and sets out his “new approach,” which attempts to study judicial decisions as intellectual history.  The rest of the book divides roughly into two parts.  Chapters Two through Four review the classical curriculum of antebellum colleges and the Protestant religion and moral philosophy that was nearly universally espoused at these institutions.  Chapters Five through Eight then review the major trends in the Court’s decisions, making the argument that these decisions amount to a sustained defense of the moral and religious philosophy of the antebellum period. 

Antebellum education in America’s elite institutions was astoundingly uniform (in comparison to today’s university curricula) and focused primarily on Greek and Latin classics, mathematics, rhetoric, Protestant theology, and philosophy.  Bailey’s main focus is on the moral philosophy of the justices (understood generally, to include political and economic views).  Using the justices’ own writings on the topic—both their opinions in important cases and their personal papers and public addresses—Bailey makes the case that some of the most contested and most criticized decisions of this era can be seen as fitting into a coherent moral [*636] worldview based on a few core tenets; further, he contends, these core tenets were the focus of the antebellum philosophy curriculum and were widely held by the educated classes.  The moral philosophy espoused by many of the justices assumed that there was a divinely inspired natural and moral order to the universe, that progress was a natural and inevitable result of individuals’ and society’s commitment to truth and justice, and that individuals are created as free, autonomous beings who are responsible for their own well-being.  One might call the latter view “moral bootstrapping,” and in Bailey’s analysis it played a central role in the legal philosophy of the Court.  A corollary of this claim is that persons were degraded to the extent that they were aided in life’s struggles and uplifted to the extent that they achieved life’s goods on their own; as a result, the accumulation of goods and wealth was seen as a sign of virtue (and presumably, a lack of worldly goods must be an indicator that one lacked virtue).  Bailey argues that this “moral individualism” was the primary influence—and not laissez faire economics per se or Social Darwinism—on decisions such as LOCHNER and the CIVIL RIGHTS CASES that have come to characterize the Court during this era.

At times, Bailey suggests that he (merely) wishes to give us a fuller understanding of the motivations of the justices behind some of the most widely criticized decisions in the Court’s history.  But often, he seems to suggest the stronger claim that, once understood in its proper intellectual context, the Supreme Court of the era is immune to the charges often leveled against it.  For the most part, he succeeds at the former task—it is true that one more fully understands how (for instance) the Court came to consistently defend the States and private parties denying blacks access to the “rights and privileges” of citizenship in civil rights cases when those decisions are subsumed under the “moral individualism” of the justices; and one more fully understands how the Court could continuously side with capitalists and against labor organizations when those decisions are explained as emerging from a moral worldview wherein property is equated with virtue and labor is seen as a necessary evil to be overcome in one’s own road to salvation.  It is part of this view, Bailey contends, that to take away a person’s “right to labor” (as an instance of the more general “right to contract” rule) is to take away his autonomy and also to make it impossible for him to earn his salvation through struggle.  But to explain is not to defend, and in the end, Bailey does not succeed in convincing his reader that his interpretation is inconsistent with the standard view or that it saves the justices from the charges leveled against them by later historians. 

Bailey often presents his interpretation as an alternative to the predominant view, but he sometimes gives us a distinction without a difference.  For example, he claims that the “paradigm that defined legal thought at the end of the nineteenth century . . . was drawn largely from moral philosophy rather than primarily from either classical political economy or Spencerian Social Darwinism”  (p.142, emphasis added).  Yet, he also notes that for antebellum moral philosophers, “classical laissez-faire economics represented both a key to understanding the moral universe and [*637] proof that the rewards of virtue were an integral part of that moral order” (p.70).  Here, rather than saving the justices from charges that they embraced laissez-faire economics, Bailey seems to indicate that that economic theory was part of the “moral order” they embraced.  Further, when applied to classes of people rather than individuals, moral individualism became virtually identical to Social Darwinism—that is, while the Social Darwinist argued that the fit survive and the unfit (should be left to) perish, and that to interfere with such natural processes was socially and morally disastrous, the Protestant moral individualist argued that legislation aimed at helping certain individuals or groups was “inherently flawed because . . . [it] failed to address the corrupted individual will and the immoral and antisocial behavior it produced” (p.147).   Whether one calls this “moral individualism” applied to group behavior or “Social Darwinism” seems to be merely a semantic, and not a substantive, issue.

On the issue of judicial conservativism, Bailey contends that the Court encouraged “the maintenance of the moral status quo” (p.144) and yet was “conservative, not in a reactionary sense, but as preservers and expounders of the principles upon which future moral and secular progress depended” (p.141).  Finally, he contends that the “primary importance of freedom of contract in late-nineteenth-century judicial thought was not as a component in a conservative ideology of laissez-faire constitutionalism adamantly opposed to regulation of business.  Rather, freedom of contract had everything to do with the meeting of two minds sui juris in a moral economy operating according to providential natural laws” (p.160).  Again, one is left wondering what the substantive difference is between a conservative and a reactionary (in a context in which the conservatives’ values are under attack)—isn’t the defender of conservative values going to be reactionary, in so defending his values?  And can one mitigate the critique of this Court by showing that they had a value set that they were defending?  In the end, Bailey has reinforced the standard view’s central claim that the justices embraced laissez-faire Constitutionalism both with regards to economic issues and with regards to civil rights.  So, rather than offering a genuine alternative to the standard view, he has taken us deeper into the explanation for why this view is correct—the justices were reluctant to endorse economic reforms and federal civil rights legislation because these laws threatened the moral order of the universe as they understood it.

Establishing this much is no small feat, given the perplexing record of the Court during this era.  The difficulty in categorizing the Court’s decisions is evident in the less than ideal organization of the latter half of the book.  On the face of it, Bailey wants to consider the Court’s legacy in various areas separately—thus, Chapter Five, “Law and Society in the Context of Providential Design,” considers questions on the extent of the federal government’s powers and obligations in newly acquired territories; Chapter Six, “Moral Accountability, the Facultative State, and the Police Power,” largely focuses on issues of state regulation of business/commerce; and Chapter Seven, “Laissez-Faire Constitutionalism and the Moral Economy,” explores further the [*638] philosophical commitments that led the Court to its laissez-faire legacy.  But the result is that important decisions are covered out of (chronological) order, making it hard to see how the views of the justices might have developed over time, and related cases are handled in different chapters, making it hard to see the coherent “big picture” that Bailey promises to provide.  The last chapter especially illustrates the difficulty of handling the material this way.  Chapter Eight, entitled “The Moral Order Endangered,” joins a discussion of the major civil rights cases of the era with a lengthy commentary on the Court’s decisions in municipal bond and income tax cases.  The fact that, in Bailey’s analysis, the two kinds of cases presented difficulties to the moral philosophy of the Court hardly helps as an organizing principle.  The reader’s job might have been made easier with a more thoroughly thematic organization in which both the cases that fit the philosophical pattern attributed to the justices and those that did not were considered side by side, and in which Bailey puts his thesis to the test next to the standard view.

In addition, there are some minor inaccuracies and missteps in Bailey’s philosophical account.  For instance, he refers to “the idealism of [David] Hume” when no standard usage of that term applies to him.  Later, he claims that the doctrine of faculty psychology (the view that the mind is composed of various discrete faculties or powers) originated in John Locke’s (1690) ESSAY CONCERNING HUMAN UNDERSTANDING, when in fact the view was well articulated at least fifty years earlier in Rene Descartes’ MEDITATIONS ON FIRST PHILOSOPHY (and arguably was present centuries earlier in the writing of St. Augustine). 

But aside from these relatively minor flaws, the book largely succeeds in establishing what Bailey sets out to do (in his more modest mode)—namely, to provide us with a fuller understanding of the legal reasoning of these Supreme Court justices.  Because he succeeds at this task, the book will be valuable to any scholar of the Court and to anyone interested in 19th century American history.  But Bailey has not succeeded in his more ambitious aim, which was to defend the Court against the usual charges leveled against it; his analysis, while thorough and interesting, is unlikely to change anyone’s mind with regard to this Court’s legacy.


ALLGEYER v. LOUISIANA, 165 US 578 (1897).

CIVIL RIGHTS CASES, 109 US 3 (1883).

HOLDEN v. HARDY, 169 US 366 (1898).

LOCHNER v. NEW YORK, 198 US 45 (1905).

MUNN v. ILLINOIS, 94 US 113 (1876).

PLESSY v. FERGUSON, 163 US 537 (1896).

U.S. v. CRUIKSHANK, 92 US 542 (1875).


Copyright 2004 by the author, Jennifer Faust.