A review of Guardians of the Moral Order: The Legal Philosophy of the Supreme Court, 1860-1910, by Mark Warren Bailey

Readers of this journal will be familiar with the argument that the United States was founded as a result of political thought and political action as just, noble, and wise as any in human history. To put it mildly, this is not how the vast majority of American university professors and administrators understand their country.

With that difference in mind, it is refreshing to read Guardians of the Moral Order, by Mark Warren Bailey. Bailey's main goal is to understand the ideas that unified American constitutional law between 1860 and 1910 as the justices of that period understood them. He assumes that their decisions reflect ideas that the justices had learned in college and law school 40 years earlier, and he has written avery useful book for students of American political and legal thought today. Guardians unearths a trove of unstudied sources—speeches, philosophical treatises, and curriculum plans for 19th-century colleges and law schools. The book carefully recounts and interprets opinions—about natural law, the social compact, constitutionalism, and the relation between reason and religion—that prevailed among educated Americans from roughly 1830 to 1910. Most intriguingly, Guardians gives a glimpse of a world in which the American university aimed not to undermine but to preserve and pass on the teachings of the American Founding.

But Bailey does not begin with these themes, for he is a historian and his primary audience is fellow historians. He starts with the tendency—familiar in American legal history—to denigrate the "Gilded Age," the period between the Civil War and the presidency of Woodrow Wilson. Bailey criticizes mainline legal histories of this period on the ground that they see the Gilded Age through Progressive blinders. To correct the problems with Progressive history— especially its tendencies to overemphasize reductionist economic explanations and to ignore the influence of religion and morality— Guardians interprets the writings of leading Gilded Age jurists in the light of the political and moral theory they had learned in college and law school.

Bailey presents that theory in the book's first half. "The purpose of a college education" in the 19th century, he explains, "lay not in specialized studies or training for a profession"; its purpose was "to convey to the student, through a series of repeated exercises, a Classical and Christian heritage deemed to be true and useful." Students learned the classics by reading Cicero and selections from Greek and Latin authors prepared by Andrew Dalzel and other editors. College teachers relied on William Paley and their own Biblical training to supply the Christian theology. Students learned about the moderate Enlightenment by reading selections from Locke; Dugald Stewart and other Scottish common-sense philosophers; and Vattel and other continental natural-law writers. For good measure, they learned of American constitutionalism and police regulation from the commentaries of Chancellor James Kent or Justice Joseph Story.

Bailey focuses special attention on the capstone college courses, the senior-level moral philosophy classes taught at most leading colleges. For him, these courses portray in miniature the "guiding cultural ethic" shared by educated Americans in the middle of the 19th century. In these courses, Protestant conceptions of sin and classical notions of virtue complemented one another. Both reinforced a portrait of man in which the overriding goal was to train the higher human faculties, especially reason and morality, to regulate the lower faculties, i.e., the passions. To help students attain this state of maturity, the courses applied the lessons of what Bailey calls "faculty psychology." Following John Locke's analysis of the human personality in the Essay Concerning Human Understanding, American teachers agreed that men have different faculties for desire, affection, imagination, speculative reason, and so forth. The readings in philosophy, and generally throughout the college curriculum, aimed to stimulate and redirect each of these faculties so as to integrate them into a well-formed personality.

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This course of instruction had both ethical and political consequences. Bailey quotes Francis Wayland, author of Elements of Moral Science, one of the most popular philosophy treatises, to show the ethical connection: "[T]he purpose of moral philosophy was to complete the process of taking in hand a child who 'enters the world utterly ignorant and possessed of nothing else than a collection of impulses and capabilities' and through the discipline, cultivation, and knowledge furnished by education to strengthen that individual's character and to enlarge his potential happiness and social usefulness." He quotes the charter of the University of Georgia to show the political implications: Without "Religion and Education," people would become "viciously disposed," and their "unprincipled" conduct would produce "greater Confusions" and "Evils more horrid than the wild, uncultivated state of nature." As these passages suggest, Georgia's trustees, on a mix of Christian and classical grounds, rejected Thomas Hobbes's teaching. The right education could elevate a citizen's character, but the wrong education could make man even more bestial than the solitary, poor, nasty, brutish, and short-lived creature he would have been in Hobbes's state of nature.

Bailey applies the moral framework of the book's first half to the interpretation of constitutional cases from the Gilded Age. For example, he examines the decisions of first-rank Supreme Court Justices like David Brewer and Joseph Bradley, who held that law's overriding goals were to restrain and teach men to live and practice the virtues within the constraints their mixed natures imposed upon them. In their view, by virtue of the Enlightenment and the blessings of divine Providence, American law and society could provide examples of self-restraint and self-government to the rest of the world. At the same time, Americans could just as easily squander those opportunities by succumbing to materialist temptations like greed at home or conquest abroad. Guardians shows how these themes influenced Supreme Court opinions in cases considering whether the subjects of newly-conquered territories in the Americas and the Pacific were entitled to the same constitutional rights as American citizens.

The book turns finally to the bread and butter of federal constitutional law: separation of powers, federalism, and the relationship between state police regulations and individual rights. Bailey refutes suggestions, by Progressive historians from Charles Beard to Morton Horwitz, that the Gilded Age Court used constitutional due process to protect property and contract primarily for economic reasons, or because the justices were attached to social Darwinism. The author makes a convincing case that these substantive due process cases reflected a natural-law critique of confiscatory legislation—that such legislation corrupted majorities by teaching them to acquire property by taking it legislatively rather than by earning it themselves. Bailey insightfully interprets late 19th-century doctrines of separation of powers and judicial supremacy in light of the faculty psychology of mid-19th century moral philosophy. That is, legislatures reflected the human tendency to take action by force of will. The judiciary, by contrast played the role of human reason and, in Bailey's words, rationalized will and opinion by acting "as the nation's moral compass."

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Guardians of the Moral Order unearths many interesting primary sources, and it interprets well-known Supreme Court opinions originally and persuasively. If I have any reservations, they relate to the book's focus. Although Bailey does a useful service when he corrects the tendencies of 19th-century American legal historical scholarship, he is still targeting low-hanging fruit. Because he focuses on lessons most likely to interest historians, he does not consider many issues, raised by his sources, that will surely interest readers of this journal.

To begin with, Guardians of the Moral Order has important implications for the study of American political theory. At a minimum, the first half of the book provides plenty of fodder to refute some of the most common misperceptions of the American regime. Many Straussians (e.g., Allan Bloom), contemporary Thomists (e.g., Alasdair MacIntyre), and contemporary liberals (too numerous to mention) assume that the American natural-rights project followed and suffered from all the materialistic excesses associated with Hobbesian and Lockean natural-rights political theory. The first half ofGuardians confirms how facile this portrait is—how much it downplays the influence of Cicero and other classics, the Scottish Enlightenment, and especially the Protestant theological tradition. If Bailey's portrayal is accurate, many elements of the 19th-century curriculum insisted that reason and morality govern the passions rather than the other way around.

At the same time, Bailey's presentation raises a new set of questions about whether the different parts of this American synthesis could hang together. Did American college teachers succeed in harmonizing philosophy and religion? Could they coherently blend Cicero's and the ancients' teleological understanding of nature with Locke's and the moderns' necessitous understanding of nature? Did these teachers dodge the hard questions about whether reason takes its bearings from the moral sense or vice versa?

Guardians also makes claims that will be judged severely by legal theorists. Most law professors are not openly hostile to natural-law principles, but they do doubt that such ideas have specific content or contemporary relevance. As law professor William Stoebuck once put it, natural-law ideas seem "an empty vessel into which one can pour almost anything." Although Bailey has shown that 19th-century jurists relied heavily on natural-law ideas, he probably has not convinced anyone not already sympathetic to natural law that these ideas made 19th-century law coherent.

While many of Bailey's examples raise this problem, the 1877 case Munn v. Illinois is especially instructive. Munn forced the Supreme Court to consider whether and how natural-law principles distinguished between common carriers and private businesses. While this distinction held, states could regulate the former but not the latter as utilities, by capping their rates and forcing them to serve all customers willing to pay those rates. Illinois had passed a law regulating the rates that grain warehouses could charge farmers and grain merchants to store their grain; Munn argued that grain storage was a competitive and private business. The majority upheld the statute, reasoning that Munn and eight other owners had established an oligopoly over the Chicago grain-storage market. Justice Field dissented, arguing that private businesses should not be subject to common-carriage regulations except when they did business under exclusive monopolies created and enforced by state law. Bailey shows convincingly that both the Court opinion and Field's dissent appealed to natural law. But if natural-law principles could justify both the Court's and the dissent's conclusions, how useful were they? If they were not useful then, can they be useful now, in similar debates about even more complicated areas including antitrust, telecommunications, and electricity transmission?

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Above all else, however, Guardians of the Moral Order raises an intriguing question about the future of American education: What would it take to construct a system of education dedicated to the same goals as 19th-century American colleges and law schools? In those days, the entire college curriculum was organized around the goal of forming young men into gentlemen and good republican citizens. Is that possible or needful today? How, for instance, would we need to change the rules for tenure to encourage teachers to take an interest in practical affairs and the moral formation of students? What "canon" might accommodate all the changes that have taken place in the last century and still teach the same overarching lessons as a 19th-century education? Separately, as George Marsden and the Rev. James Burtchaell have argued, perhaps 19th-century college education was too tepid in its religious formation, and too doctrinaire in its philosophical and theological training, to provide a viable alternative to 20th-century liberalism and the modern research university. If Marsden and Burtchaell are right, what lessons should modern educators learn from 19th-century mistakes?

All the same, Mark Warren Bailey should not be criticized for leaving these questions unanswered. He deserves praise, rather, for helping to raise them.