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Reviews of Books and Films
doctrines on controversial subjects, such as police
power regulations, liberty of contract, economic due
process, civil rights, and the status of overseas territorial possessions, was "not an intellectual retreat into a
sterile conceptualism," as liberal legal historians have
charged. Conservative constitutional law signified an
attempt to apply the accepted moral theories of the
day to increasingly complex issues that emerged as the
United States became a modern industrial society.
Within this interpretive framework, Bailey offers a
novel explanation of the Court's role as moral guardian that is based on an analogy between the theory of
faculty psychology and the concept of separation of
powers. Faculty psychology doctrine held that happiness in human nature depended on regulation of the
powers of mind and body, in which appetite, sensibility, and intellect subsist. The doctrine of separation of
powers, a structural principle of American constitutionalism and basis of judicial review, functioned as an
instrument of balance and limitation between the
branches of government. In the minds of the justices,
Bailey argues, the separation of powers idea "meshed
perfectly with the idea in faculty psychology that the
desire for power deriving from the individual's selflove and the necessity of acquiring the means to attain
his ends must be subject to some limitation lest it
pervert the judgment and the will" (p. 118). Believing
that all government tended toward excess, Supreme
Court judges self-identified with "the moral faculty
and its powers of perception and approbation" (p.
119).
Bailey convincingly presents late nineteenth-century
conservative judges as expert reasoners in the field of
libertarian individualist moral philosophy. His account
also shows that in deciding cases in the Supreme
Court, they acted as expert legal reasoners, approaching jurisprudential matters from an internalist perspective using accepted and customary concepts and discourse. The justices conformed, in other words, to the
forms and standards that define the kind of intellectual
activity required of judges in the Anglo-American legal
tradition. It is not obvious, therefore, that the Court's
opinions were normatively grounded on the doctrines
of academic moral philosophy, to the extent implied by
Bailey's research model. Perhaps that is a weakness of
the "law-in-society" approach to the study of legal
history.
Bailey refrains from a conclusive judgment on moral
philosophic influence in the development of laissezfaire constitutionalism. He observes, prudently: "Theory was not, however, always straightforwardly applied
in practice, for the chaotic business of life was rarely
amenable to neat intellectual compartmentalization"
(pp. 141-42). The Court's attempts to determine the
proper relationship between government power and
liberty and property rights "merely suggested the
principles that ought to be applied to questions concerning the moral autonomy of individuals" (p. 143).
Bailey argues neither the correctness of conservative
jurisprudence nor the truth of nineteenth-century
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moral philosophy. The point of his study is to recover
the philosophic and religious dimensions of nineteenth-century society as the normative ground of legal
change. Bailey's thoroughly researched and fairminded account of the cultural context of laissez-faire
constitutionalism will be of interest to legal historians.
For American historians in general, this book offers a
fresh interpretation of law and society in the Gilded
Age that augments the recent "discovery" of conservatism as a subject of interest in academic historiography. If students and scholars are provoked to consider the truth value of the philosophical ideas and
constitutional concepts dealt with in Bailey's study, the
result can be accepted as a contingency inherent in the
activity of being a historian.
HERMAN BELZ
University of Maryland
EARL M. MALTZ. The Fourteenth Amendment and the
Law of the Constitution. Durham: Carolina Academic
Press. 2003. Pp. ix, 182. $30.00.
In this specialized but accessible book, Earl M. Maltz
offers a new and sympathetic assessment of the Supreme Court's use of the Fourteenth Amendment in
its dealing with issues concerning citizenship, economic regulation, political rights and civil rights in the
late nineteenth century. Standard literature tends to
criticize the Court and its conservative rulings for
undermining radical Republicans' efforts to build a
new American state and nation based on the principles
of racial equality and the primacy of the national
government in protecting citizens' rights. For Maltz,
such criticism is not entirely fair, because the Court's
interpretation of the Reconstruction amendments during this period was, instead of completely conservative,
a mixed legacy. Cautioning scholars not to "understate
the complexity of the forces" that shaped the decisions
of the Court, Maltz argues that the guiding forces of
the judicial interpretation of the Reconstruction-related amendments and laws "were the principles of
distinctively legal analysis rather than Republican ideology" (p. viii).
To substantiate his argument, Maltz devotes his first
chapter-the longest of seven-to examining how the
key concepts that would eventually be embodied in the
Section 1 of the Fourteenth Amendment-namely,
privileges and immunities, due process, and equal
protection-had evolved through a variety of cases
decided by both state and federal courts in the antebellum period. Historically retrievable as far back as
English constitutional theory and legal precedents,
none of these key principles was "invented for use in
the dispute over slavery" but had long occupied "a
well-established place in general antebellum constitutional theory" (p. 3). Both antislavery and proslavery
forces had used such legal principles as absolute right
to protection and privileges and immunities to respectively advocate their causes. Federal courts remained
at best ambiguous about what rights were to be
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Canada and the United States
regarded as "fundamental" and whether or not free
blacks were entitled to absolute right to protection for
much of the antebellum period until the Dred Scott
decision.
The antebellum legal analysis had influenced the
making of the Fourteenth Amendment, which is discussed in chapter two. In spite of radical Republicans'
reform-minded ideology, the framers chose to construct the amendment in a language that had a "well
settled meaning in American legal thought" (p. viii).
The adoption of such antebellum legal concepts as
"privileges and immunity," "due process," and "equal
protection," in Maltz's view, modified the original
open-ended nature of the amendment and "mollified"
conservative and mainstream Republicans, whose support was crucial to the passage of the proposed
amendment (p. 69).
With this background in mind, in the remaining
chapters Maltz reviews the Court's rulings in the last
three decades of the nineteenth century in four major
areas: definition of national citizenship, proper division of governmental powers in economic regulation
and the protection of property rights, the boundaries
of federal protection of political rights and rights to sit
on jury, and the constitutionality of racial segregation
in public facilities. Using both well-known and less
well-known cases, Maltz demonstrates that the Court's
record in these areas was again a mixed one. The
Court denied citizenship to a Native American in Elk
v. Wilkins (1884) but, in Wong Kim Ark v. U.S. (1898),
by invoking the principle of the Fourteenth Amendment, affirmed the citizenship of an American-born
Chinese despite widespread anti-Chinese sentiment.
The Court refused to interfere with state's power to
regulate economy in the Slaughterhouse Cases (1873)
but in Yick Wo v. Hopkins (1886) firmly rejected a local
government's "arbitrary use of power" to interfere
with a U.S. citizen's autonomy in market economy. In
Civil Rights Cases (1883) and Plessy v. Ferguson (1896),
the Court sanctioned states' power to impose racial
separation in using public facilities that would in
actuality deprive black citizens' right to equal protection guaranteed by the Fourteenth Amendment, but in
Strauder v. West Virginia (1879) and Ex parte Virginia
(1879), the Court placed black citizens' right to sit on
juries under the protection of the privileges and immunity principle of the same amendment.
The mixed record of the post-Reconstruction Court
is both corrective and intriguing. The judicial interpretations of the Reconstruction amendments and laws,
Maltz explains, were profoundly influenced by the
justices' "idiosyncratic views" and "the political context that provided the background for their decisions"
(p. 171). Ideology was inapplicable to explaining the
pattern of the judicial behavior of the period. The four
dissenters of the Slaughterhouse ruling, for instance,
refused to share the majority's stated objective-to
"preserve the basic structure of American federalism"
(p. 118)-but they later shifted to the conservative
stand in other similar cases of the era. The differences
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495
between the majority and the dissenters in the case, in
Maltz's view, were "less dramatic than is sometimes
suggested" (p. 107). Even John Marshall Harlan, the
celebrated dissenter in Civil Rights Cases (which invalidated the Civil Rights Act of 1875) and Plessy (which
affirmed the constitutionality of de facto Jim Crow),
would maintain segregated schools as constitutional in
an 1899 case.
For lay readers, this book provides a concise and
enlightening narrative of the "strange career" of the
Fourteenth Amendment in the late nineteenth century. Political and constitutional historians who are
familiar with the cases under discussion may also find
Maltz's study valuable in that it presents a persuasive
reassessment of relations between the Court and the
Reconstruction amendments, supported by a meticulous and insightful study of a vast number of cases
throughout the nineteenth century. Nonetheless, the
book's overwhelming concentration on textual analysis
of court rulings in the absence of a richly researched
political context and, to an extent, its current format
(which is essentially a rearranged collection of previously published essays) prevent the author from making a much more coherent and convincing argument
about how exactly the justices' decisions were shaped,
or not shaped, by the surrounding political world.
Justices do write their opinions legalistically, but the
legality of their opinions, especially those written in a
politically explosive period and dealing with highly
politicized issues, must be read and understood politically.
XI WANG
Indiana University of Pennsylvania
VALERIE SHERER MATHES and RICHARD LoWITT. The
Standing Bear Controversy: Prelude to Indian Reform.
Urbana and Chicago: University of Illinois Press. 2003.
Pp. x, 211. $29.95.
In 1879, Standing Bear, a member of the Ponca Tribe,
and others of his family left Oklahoma to return home
to Nebraska to bury Standing Bear's son. He was
stopped by the army, and local lawyers sought his
release. Newspapers picked up the story and helped to
mobilize a nascent Indian reform movement. The case
also helped make Senator Henry Dawes of Massachusetts the leader of congressional efforts to reform
Indian policy. The reputation of Secretary of the
Interior Karl Shurz was damaged by his handling of
these events.
In this book, Valerie Sherer Mathes and Richard
Lowitt offer a modern treatment of the controversy.
The strongest part of the book is the narrative of how
events unfolded. Official reports and later congressional testimony often contradict one another, and the
authors show how hard it would have been for the
officials to know the real situation. The Ponca were a
small, peaceful tribe that in 1865 signed a treaty
establishing a reservation on the Niobrara River in
Nebraska. By mistake, the Treaty of Fort Laramie
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