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Published online by Cambridge University Press: 09 June 2015
The charge that the United States Supreme Court exercised a conservative influence upon the nation’s constitutional life during the period from 1864 to 1938 is impossible to refute. The Supreme Court during the period from the end of the Civil War to the New Deal era has been portrayed as having largely abdicated its obligation to protect society’s common interests in favour of a laissez-faire constitutionalism reflecting the social and political views of new and powerful economic interests. The judicial conservatism of the late nineteenth and early twentieth centuries conflicted with the political ideals of Progressives and with the direction taken by American policy-makers since the acceptance of Franklin D. Roosevelt’s New Deal in the 1930s. Historians have labelled the Court’s laissez-faire conservative style as undesirable, if not consciously immoral.
Nevertheless, the problem of understanding the ideas which lay at the foundation of judicial conservatism should be addressed. General legal historians have preferred to begin and end their inquiries into early influences on the judicial mind with a short overview of legal education and leave aside the possible influence of college studies. In recent years, historians have broadened their investigations of the intellectual underpinnings of late nineteenth-century legal thought in an attempt to provide the sort of synthetic account of legal thought suggested by Perry Miller’s Life of the Mind—a work which attempts to connect the thought of leading members of the bar to intellectual currents outside the legal sphere. The result has been a limited rehabilitation of the Supreme Court’s reputation during the Gilded Age.
1. See for example Lawrence M. Friedman, A History of American Law (New York: Simon & Schuster, 1985). Others have concentrated their efforts on die history of individual law schools and their faculty, emphasizing institutional development and the pedagogic contributions of individual educators. See Julius Goebel, Jr., A History of the School of Law, Columbia University. By the Staff of the Foundation for Research in Legal History (New York: Columbia University Press, 1953); Arthur E. Sutherland, The Law at Harvard: A History of Men and Ideas, 1817–1967 (Cambridge, MA: Belknap, 1967); Elizabeth G. Brown, Legal Education at Michigan, 1859–1959 (Ann Arbor: University of Michigan Law School, 1959); Frank L. Ellsworth, Law on the Midway: The Founding of the University of Chicago Law School (Chicago: University of Chicago Press, 1977); Robert Stevens, Law School: Legal Education in the United States from the 1850s to the 1980s (Chapel Hill: University of North Carolina Press, 1983).
2. Perry Miller, The Legal Mind in America: From Independence to the Civil War (Ithaca, NY: Cornell University Press, 1962); Herbert Hovenkamp, “The Political Economy of Substantive Due Process” (1988) 40 Stan. L. Rev. 379 and Enterprise and American Law, 1836–1937 (Cambridge, MA: Harvard University Press, 1991); Michael Les Benedict, “Laissez-Faire and Liberty: A Re-evaluation of the Meaning and Origins of Laissez-Faire Constitutionalism” (1985) 3 Law and History Rev. 292; David M. Gold, The Shaping of Nineteenth-Century Law: John Appleton and Responsible Individualism (New York: Greenwood Press, 1990).
3. Donald H. Meyer, The Instructed Conscience: The Shaping of the American National Ethic (Philadelphia: University of Pennsylvania Press, 1972) at vii. See also Frederick Rudolph, Curriculum: A History of the American Undergraduate Course of Study since 1636 (San Francisco, CA: Jossey-Bass Publishers, 1977) at 90; George Cotkin, Reluctant Modernism: American Thought and Culture, 1880–1900 (New York: Twayne Publishers, 1992) at 1–2; Mark A. Noll, “Common Sense Traditions and American Evangelical Thought” (1985) 37 Am. Quart. at 218; James McLachlan, “The American College in the Nineteenth Century: Toward a Reappraisal” (1978) 80 Teachers College Record at 300.
4. James McLachlan, “American Colleges and the Transmission of Culture: The Case of the Mugwumps” in S. Elkins & E. McKitrick, eds., The Hofstadter Aegis: A Memorial (New York: Alfred A. Knopf, 1974) at 185.
5. Paul M. Hamlin, Legal Education in Colonial New York (1939; reprint, New York: Da Capo Press, 1970)atxvii.
6. This leaves aside the chief justices (to whom ample attention has been paid), justices who served less than ten years on the bench, who did not attend an antebellum college before beginning their legal training, or who left few, if any, published works.
7. See “A Statement of the Course of Instruction, Expenses, etc., in Yale College” (1822–23) in Catalogue of the Officers and Students in Yale College, 1822-J 823 (n.p.) cited in Brooks Mather Kelley, Yale: A History (New Haven, CT: Yale University Press, 1974) at 499n. 57 and (April, 1928) 1 The Quart. Register and J. of the Am. Ed. Society [title varies] at 228.
8. See Charles Fairman, “The Education of a Justice: Justice Bradley and Some of his Colleagues” (1949) 1 Stan. L. Rev. at 242 and The Quart. Register and J. of the Am. Ed. Society, ibid.
9. Kelley, supra note 7 at 174–75.
10. Carl Brent Swisher, Stephen J. Field: Craftsman of the Law (1930; Hamden, CT: Archon Books, 1963) at 17.
11. Fairman, supra note 8 at 242. See also Swisher, supra note 10 at 18.
12. D.A. Wells & S.H. Davis, Sketches of Williams College (Williamstown, MA: 1847) cited in Swisher, ibid, at 18.
13. Walter A. Groves, “Centre College—The Second Phase, 1830–1857” (October, 1950) 4 Filson Club Historical Quart, at 324.
14. Julian M. Sturtevant, ed., Julian M. Sturtevant: An Autobiography quoted in Kelley, supra note 7 at 157; Richard Hofstadter & Wilson Smith, eds., American Higher Education: A Documentary History (Chicago: University of Chicago Press, 1961) vol. 1 at 274; Kelley, supra note 7 at 174–75.
15. John C. Young, “Address of John C. Young, delivered at his inauguration as President of Centre College, Danville, November 18, 1830 at 6 in a bound volume of pamphlets, Centre College Library, quoted in Groves, supra note 13 at 320.
16. Cotkin, supra note 3 at 2.
17. Meyer, supra note 3 at 29.
18. Francis Wayland, The Elements of Moral Science (1835; reprint, Cambridge, MA: Harvard University Press, 1963) at 107.
19. Noah Porter, The Elements of Moral Science: Theoretical and Practical (New York: Charles Scribner’s Sons, 1889) at 16.
20. Samuel Stanhope Smith, The Lectures Corrected and Improved Which Have Been Delivered for a Series of Years in the College of New Jersey on the Subjects of Moral and Political Philosophy, 2 vols. (Trenton, NJ: Wilson for Fenton, 1812; reprint, Worcester, MA: American Antiquarian Society), vol. 1 at 10.
21. Wayland, supra note 18 at 17.
22. Smith, supra, vol. 2, note 20 at 22.
23. Wayland, supra note 18 at 17–18.
24. John Witherspoon, An Annotated Edition of Lectures on Moral Philosophy, edited by Jack Scott (Newark: University of Delaware Press, 1982) at 66 and Smith, supra, vol. 2, note 20 at 14. Henry Ware, D.D., Late Hollis Professor of Divinity in Harvard College, An Inquiry into the Foundation, Evidences, and Truths of Religion 2 vols. (Cambridge, MA: John Owen. Boston: John Munroe & Co., 1842), vol. 1 at 18–19.
25. Witherspoon, supra note 24 at 66; Porter, supra note 19 at 3; Mark Hopkins, Lectures on Moral Science. Delivered before the Lowell Institute, Boston (New York: Sheldon & Co., 1863) at 66.
26. Ware, supra, vol. 2 note 24 at 196.
27. William Paley, Natural Theology, with an introduction by Henry, Lord Brougham & C. Bell, 4 vols. (London: C. Cox, 1851), vol. 3 at 190–91.
28. James McCosh, The Method of the Divine Government, Physical and Moral (New York: Robert Carter & Brothers, 1855) at 317. See also Paley, supra, vol. 3 note 27 at 190–91.
29. Paley, ibid, at 179.
30. Smith, supra, vol. 1 note 20 at 275, 292, 277.
31. Francis Bowen, The Metaphysics of Sir William Hamilton: Collected, Arranged, and Abridged for the Use of Colleges and Private Students (Boston: John Allyn, Publisher, 1873) at 16–17.
32. Hopkins, supra note 25 at 66. See Exodus 13: 21.
33. Joseph Butler, The Analogy of Religion Natural and Revealed to the Constitution of Nature, 3d ed. (London: George Routledge and Sons, 1887; reprint, Charlottesville, VA: Ibis Publishing, n.d.) at 29.
34. John Daniel Gros, Natural Principles of Rectitude, for the Conduct of Man in All States and Situations of Life; Demonstrated and Explained in a Systematic Treatise on Moral Philosophy (New York: T. and J. Swards, 1795; reprint, Worcester, MA: American Antiquarian Society) at 68.
35. Ware, supra, vol. 2 note 24 at 196, 195; vol. 1 at 200–01.
36. Wayland, supra note 18 at 182.
37. Witherspoon, supra note 24 at 115. See also Smith, supra, vol. 1 note 20 at 269–70; Francis Wayland, Elements of Political Economy (1837; New York: Sheldon & Co., 1886) at 4–5; Porter, supra note 19 at 363.
38. See Luke 10:42. Wayland, supra note 18 at 238. See also Mark Hopkins, The Law of Love and Love as Law, or Christian Ethics, with an Appendix Containing Strictures by Dr. McCosh, 6th ed. (New York: Scribner, Armstrong & Co., 1873) at 213.
39. Smith, supra, vol. 2 note 20 at 98 and vol. 1 at 175; Wayland, supra note 18 at 66.
40. Meyer, supra note 3 at 103.
41. Wayland, supra note 18 at 57. Porter, supra note 19 at 375.
42. Wayland, supra note 37 at 6.
43. Francis Bowen, The Principles of Political Economy (Boston: Little, Brown & Co., 1856) at 2–3.
44. Bowen, ibid, at 2–3.
45. J.S. Mill cited in Francis Bowen, American Political Economy Including Strictures on the Management of the Currency and the Finances Since 1861 (New York: Charles Scribner & Co., 1870) at 108.
46. Bowen, supra note 43 at 18–19; Wayland, supra note 18 at 149,181.
47. Wayland, supra note 37 at 6–7. See Matthew 7: 12 and Luke 6: 31.
48. Bowen, supra note 43 at iii-iv.
49. Swisher, supra note 10 at 8–9.
50. Dictionary of American Biography [hereafter DAB], s.v. “David J. Brewer.” See also “Justice Brewer and Organized Charity” (1910) 24 The Survey at 119.
51. Arnold M. Paul, “David J. Brewer” in Leon Friedman & F.L. Israel, eds., The Justices of the United States Supreme Court 1789–1969: Their Lives and Major Opinions, 4 vols. (New York: R.R. Bowker, 1969) at 1522.
52. John Marshall Harlan, “The Courts in the American System of Government,” Remarks of Mr. Justice Harlan at the banquet of the Presbyterian Social Union of Philadelphia, 27 March 1905, Chicago Legal News (8 April 1905) at 271. See also Louis Hartz, “John Marshal) Harlan in Kentucky, 1855–1877: The Story of his Pre-Court Political Career” (1940) 14 Filson Club Historical Quart, at 18.
53. Jon C. Teaford, ‘Toward a Christian Nation: Religion, Law and Justice Strong” J. of Presbyterian History 54 (Winter 1976): at 433. See also Charles Fairman, “What Makes a Great Justice? Mr. Bradley and the Supreme Court, 1870–1892” (1950) 30 Boston U. L. Rev. at 64; DAB, s.v. “William Strong;” National Cyclopedia of American Biography [hereinafter NCAB], s.v. “William Strong.
54. “Joseph P. Bradley, “On the Existence of God” in Charles Bradley, ed. and comp., Miscellaneous Writings of the late Honorable Joseph P. Bradley (Newark, NJ: L.J. Hardham, 1902) at 422–23.
55. Joseph P. Bradley, “Esoteric Thoughts on Religion and Religionism” (1876) in Bradley, ibid. at 423,425, 428–29.
56. David J. Brewer, The Twentieth Century from Another Viewpoint (New York: Fleming H. Revell Co., 1899) at 31, 38–39.
57. David J. Brewer, “The Promise and Possibilities of the Future” in David J. Brewer, The United States a Christian Nation (Philadelphia: John C. Winston Co., 1905) at 82.
58. Alfred, Lord Tennyson, “Locksley Hall” (1842).
59. Brewer, supra note 57 at 79. See also Brewer, The Mission of the United States in the Cause of Peace, Address of the Hon. David J. Brewer, Associate Justice of the Supreme Court of the United States, before the New Jersey State Bar Association, 12 June 1909 (Boston: International School of Peace, 1910 at 5 and “America’s Duty in the Peace Movement,” Address at the Fourteenth Conference, 22 May 1908, in Edward E. Hale and David J. Brewer, Mohonk Addresses (Boston: Ginn & Co., 1910) at 126.
60. Brewer, The Mission of the United States, ibid, at 5.
61. Brewer, “The Promise and the Possibilities of the Future,” supra note 57 at 75 and Brewer, “Our Duty as Citizens”, supra note 57 at 65.
62. Brewer, “Our Duty as Citizens” ibid, at 70–71.
63. David J. Brewer, “Legal Ethics,” Address Delivered at Commencement of Albany Law School, June 1 st, 1904. In Albany Law School Catalogue, Addresses and Papers, Legal Ethics Lectures (Albany: n.p., 1904) at 18 passim.
64. David J. Brewer, The Spanish War: A Prophecy or an Exception? Address before the Liberal Club, Buffalo, New York, 16 Feb. 1889 (n.p.: Anti-Imperialist League, n.d.) at 34.
65. Luke 10: 30–6.
66. Brewer, supra note 64 at 3.
67. Wayland, supra note 18 at 311, 322, 324. See also Hopkins, supra note 38 at 268–69.
68. Brewer, supra note 64 at 3–4.
69. Brewer, supra note 59 at 2, 3, 6, 10–11, 12.
70. John Marshall Harlan, “Centennial of the Adoption of the Constitution” Chicago Legal News 21 (1889) at 302.
71. John Marshall Harlan, Opinions of Mr. Justice Harlan at the Conference in Paris of the Bering Sea Tribunal of Arbitration, Constituted by the Treaty of February 29, 1892, between Her Britannic Majesty and the United States of America (Washington, D.C.: Government Printing Office, 1893) at 53.
72. John Locke, Second Treatise of Civil Government (Indianapolis, IN: Hackett Publishing Co. Inc., 1980) at § 4,2 and § 6,4 and Baron de Montesquieu, The Spirit of the Laws, trans, by Thomas Nugent (1748; reprint, New York: Macmillan, 1949), Bk. XI, XII.
73. Smith, supra, vol. 2 note 20 222–23; Wayland, supra note 18 at 319.
74. Harlan, The Bering Sea Tribunal of Arbitration, at 134.
75. Ibid, at 29–30, 31–32, 133.
76. Ibid. at 133.
77. Ibid, at 134.
78. Henry Wheaton, Elements of International Law (London, 1878) cited in David J. Brewer & Charles Henry Butler, “International Law; a Treatise” in Cyclopedia of Law and Procedure, 40 vols. (New York: American Law Book Company, 1901–12), vol. 22 at 1706.
79. Emmerich de Vattel, The Law of Nations, or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns (1758), §§1,2 cited in Brewer & Butler, ibid.
80. Brewer, American Citizenship, Yale Lectures on the Responsibilities of Citizenship (New Haven: Yale University Press, 1902) at 40. See also the discussion above of his address before the Liberal Club in February, 1889, The Spanish War, supra note 64.
81. De Lima v. Bidwell, 182 U.S. 1 (1901). Majority: Brown, Brewer, Fuller, Harlan, Peckham. Dissenting: Gray. McKenna, Shiras, White. Dooley v. United States, 182 U.S. 222 (1901). Majority: Brown, Brewer, Fuller, Harlan, Peckham. Dissenting: White, Gray, McKenna, Shiras. Downes v. Bidwell, 182 U.S. 244 (1901). Majority: Brown, Gray. Concurring: White, McKenna, Shiras. Dissenting: Fuller, Brewer, Harlan, Peckham. Hawaii v. Mankichi, 190 U.S. 198 (1903). Majority: Brown, Gray, Shiras. Concurring: White, McKenna. Dissenting: Fuller, Brewer, Peckham. Harlan.
82. De Lima v. Bidwell, 182 U.S. 1, 198, 200 (1901).
83. Downes v. Bidwell, 182 U.S. 244 (1901).
84. Downes v. Bidwell, 182 U.S. 244, 250, 251, 257, 279 (1901) per Brown.
85. Dowries v. Bidwell, 182 U.S. 244, 279–80 (1901) per Brown.
86. Late Corporation of the Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1, 34 (1890) per Bradley cited in Dowries v. Bidwell, 182 U.S. 244, 268 (1901) per Brown.
87. Johnson v. Mcintosh, 8 Wheat. 543,583 per Marshall cited in Downes v. Bidwell, 182 U.S. 244, 281 (1901) per Brown.
88. Downes v. Bidwell, 182 U.S. 244, 282–3 (1901) per Brown. See also Wayland, supra note 18 at 327.
89. Wayland, ibid, at 316–22 passim.
90. Dowries v. Bidwell, 182 U.S. 244,246 (1901) per White. See also Urofsky, A March of Liberty vol 2 at 487.
91. Hawaii v. Mankichi, 190 U.S. 198 (1903). See the Bill of Rights, Art. V and VI.
92. Hawaii v. Mankichi, 190 U.S. 198, 209 (1903).
93. Hawaii v. Mankichi, 190 U.S. 198, 211, 217 (1903) per Brown.
94. Hawaii v. Mankichi, 190 U.S. 198, 219–20 (1903) per White.
95. Hawaii v. Mankichi, 190 U.S. 198, 223, 225, 226 (1903) per Fuller.
96. Harlan, supra note 74 at 134.
97. Hawaii v. Mankichi, 190 U.S. 198, 233–4, 236 (1903) per Harlan.
98. Hawaii v. Mankichi, 190 U.S. 198, 239–40 (1903) per Harlan.
99. Brewer, supra note 57 at 86.
