FIELD, STEPHEN J. (1816–1899)

Stephen Johnson Field is a massive figure in the history of the United States supreme court. Appointed by abraham lincoln in 1863 following six years of distinguished service on the California Supreme Court, Field remained on the bench until 1897 and established a record for length of tenure since surpassed only by william o. douglas. For two generations he preached a radically new gospel of constitutional interpretation that fused natural law concepts, a theory of adjudication based on formally bounded categories of public power and private right, and a designing foresight about the Court's unique capacity to shape American public life. Field's contributions to American constitutional development are conventionally summed up in the phrase laissez-faire constitutionalism. But his profound impact on the institutional character of the Court outlasted his doctrinal formulations. Field was arguably the Court's first self-conscious "activist," and he was certainly the first Justice to describe judicial protection of substantive rights as a democratic endeavor. "As I look back over the more than a third of a century that I have sat on this bench," Field wrote in his valedictory letter, "I am more and more impressed with the immeasurable importance of this court. Now and then we hear it spoken of as an aristocratic feature of a Republican government. But it is the most Democratic of all. Senators represent their states, and Representatives their constituents, but this court stands for the whole country, and as such it is truly "of the people, by the people, and for the people" It was this fundamentally new conception of the Court's position in the American system of government and the manifold ways Field acted upon it during his long career that prompted edward s. corwin to describe him as "the pioneer and prophet of our modern constitutional law."

Field's jurisprudence was essentially a constitutional version of the equal rights creed expounded by andrew jackson in his veto of the bill rechartering the Second Bank of the United States. Field understood democracy in terms of "the natural equal rights of the citizen," particularly equality in the marketplace; he was quick to distinguish the common good of the whole people from the focused demands of interest seekers that sometimes generated legislation favoring some and discriminating against others. Since the Court, like the President, represented "the whole country" rather than a narrow constituency, Field claimed that judicial review of legislation was at once the moral equivalent of the executive veto and a consummately democratic power. His two most famous opinions resonated with the substantive concerns of antebellum Jacksonians. The first was designed to protect the rights of the many against legal privileges granted to a few. Dissenting in the slaughterhouse cases (1873) Field denounced the "odious monopoly" produced by legislative skulduggery in Louisiana and claimed that the newly adopted fourteenth amendment would become "a vain and idle enactment, which accomplished nothing" if the Court continued to permit state legislatures "to farm out the ordinary avocations of life" to favored corporations. In the second, pollock v. farmers loan & trust co. (1895), Field resisted a statute that, in his view, was designed to enable the many to steal from the few under color of law. There he attacked the mildly progressive federal tax on incomes as an "assault on capital … the stepping stone to others, larger and more sweeping, till our political contests … become a war of the poor against the rich; a war constantly growing in intensity and bitterness." If Field had been successful in persuading his colleagues to conceptualize the case as he did, the income tax would have been invalidated not because it was a direct tax but on the ground that its graduated rates violated the Constitution's requirement that "all duties, imposts and excises shall be uniform throughout the United States." For Field, uniformity mandated equal treatment; the chief defect of the statute was that it created a different rule for rich and poor, thereby violating the first principle of republicanism articulated by his Jacksonian mentors.

Field's penchant for pouring his ideological predispositions into open-ended textual phrases such as "uniform" and "due process" was apparent to colleagues throughout his career. Many were alarmed by his expansive conception of the judicial function; some regarded him as a dangerous man. david davis called him a "damned rascal" in 1866 and horace gray likened him to a "wild bull" three decades later. henry b. brown said he was "a man of great determination and indomitable courage, though lacking in judicial temperament." Yet it was impossible to ignore him. What made Field so formidable was his skill in translating the featureless generalities of the Constitution into a coherent system of principled standards. He had an uncanny ability to diagnose recurrent problems almost immediately and to frame rules derived from the common law or the structure of the federal system that accommodated his value-laden premises. He anticipated future controversies and supplied mutually consistent solutions to all of them. For Field, these solutions were neither contingent nor variable; they were "true."

Few of the twenty-eight men with whom Field sat on the bench perceived the whole truth in precisely the way he did. But every Justice shared at least some of his premises, and most were willing to articulate one or more of his pet doctrinal formulations in an opinion for the Court. With each new handhold Field secured, however, his colleagues found it increasingly difficult to resist the entire array of rules he had proposed at the outset. The analogies linking each component of his system to the others were very compelling. As late as 1890, Field remained confident that the whole truth, as he understood it, would eventually be embraced by the Court. "[A]ny grave departure from the purposes of the Constitution … will not fit harmoniously with other rulings," he explained at the Centennial Celebration of the Organization of the Federal Judiciary. "[I]t will collide with them, and thus compel explanations and qualifications until the error is eliminated.… [T]ruth alone is immortal, and in the end will assert its rightful supremacy."

The system of rules Field proposed for integrating the Fourteenth Amendment into the existing corpus of constitutional law was breathtaking in scope. It also had a deceptively simple and, in its day, alluring structure. First, he called for a clear and immutable boundary between the public and private spheres in order to forestall legislation that emptied one pocket only to fill another. Here the operable phrase in the amendment was not due process so much as "take property." Beginning in the Slaughterhouse Cases, Field claimed that some businesses were purely private while others were public in "use." Firms that necessarily "held franchises of a public character appertaining to government," such as those that exercised the eminent domain power or occupied the public rivers or public streets, were public in "use." Consequently government might confer monopoly privileges on such firms, subsidize their operations with tax funds, and regulate their rates of charge. But manufacturers, food processors, warehouse operators, and other businesses that did not need to exercise public franchises were purely private. Those businesses had to be open to all entrants as a matter of common right and their operations could be subject neither to price regulations nor to public subsidy. In the granger cases (1877) Field added one corollary to this scheme. When government regulated the rates of firms public in "use," he asserted, the prices fixed must be subject to judicial review in order to ensure that service to the public was not "required without reward, or upon conditions amounting to the taking of property for public use without compensation." The Court's duty, he said, was "to draw the line between regulation and confiscation."

Field repeatedly claimed that judicial application of these doctrines required no great departure in constitutional interpretation. All the Court had to do was constitutionalize under the Fourteenth Amendment and apply in a systematic fashion the principles of "general constitutional law" articulated by samuel f. miller in Pumpelly v. Green Bay Co. (1872) and loan association v. topeka (1874). There the Court proscribed exercises of the eminent domain and tax powers that amounted to "robbery," in the one case by designating irreparable injury to property as a taking and in the other by barring public spending "for purposes of private interest instead of public use." When the Court refused to apply the same principles to the police power under the Fourteenth Amendment in the Granger Cases, Field dissented. "Of what avail is the constitutional provision that no State shall deprive any person of property except by due process of law, " he asked, "if the State can, by fixing the compensation which he may receive for its use, take from him all that is valuable in the property?" Beginning in stone v. farmer ' sloanand trust co. (1886), however, the majority made one concession after another to Field's position. By 1898 only the doctrine of business affected with a public interest, which Field considered dangerously protean, remained to be pulled down before "the truth … asserted its rightful supremacy."

The second component of Field's Fourteenth Amendment system dealt with intergovernmental relations. His general theory was based on the Jacksonian principle of dual federalism : "a national government for national purposes, local governments for local purposes," and each "sovereign" within its assigned sphere such that neither was dependent upon or subordinate to the other nor, indeed, capable of clashing with it as long as the powers of each were properly defined. Thus Field eagerly joined majorities that imposed implied limitations on Congress's monetary power in Lane County v. Oregon (1869), its taxing power in collector v. day (1871), and its commerce power in united states v. e. c. knight co. (1895). Beginning in Tarble's Case (1871) he also developed implied limitations on the states' authority to impair the national government's independent energy in the exercise of its "acknowledged powers." Yet Miller, speaking for the majority in the Slaughterhouse Cases, claimed that the Fourteenth Amendment threatened to unravel these "main features of the federal system." What frightened Miller most was the assumption that if the Court had jurisdiction to protect fundamental rights under the amendment's first section, Congress must have jurisdiction to enact statutes affecting the same rights under the fifth section vesting it with power "to enforce, by appropriate legislation" the amendment's substantive provisions. One reason the majority gutted the privileges or immunities clause, then, was to avoid articulating doctrine that might ultimately "fetter and degrade the State governments by subjecting them to the control of Congress."

In Field's view, the Slaughterhouse majority was afraid of a phantom, for a state action doctrine could stay the hand of Congress without disturbing the Court's jurisdiction. Here the operable phrase in the text was: "No State shall make or enforce any law." The Fourteenth Amendment, he asserted in dissent, only "ordains that [fundamental rights] shall not be abridged by State legislation." "The exercise of these rights … and the degree of enjoyment received from such exercise," he added in anticipation of united states v. cruikshank (1876), "are always more or less affected by the condition and the local institutions of the State, or city, or town where he resides." These rights had never been a concern of the United States and the amendment did not make them one. The enabling clause in the fifth section, whatever its meaning, could not constitutionally enlarge the modest accretion to national authority envisioned by the first section. Because the amendment was not a grant of power but a series of limitations on state legislation, moreover, the Court could readily distinguish between national remedies for prohibited state action (laws that were not "true" exercises of the eminent domain, taxing, and police powers reserved to the states) and inappropriate acts of Congress invading the sphere of state authority. In practical application, the amendment would affect the federal system in a way comparable to the clauses of the Constitution forbidding the states from passing ex post facto, laws, and laws impairing the obligation of contracts.

The waite court tentatively endorsed the state action doctrine in Cruikshank, and invoked it with a vengeance in united states v. harris (1883) and the civil rights cases (1883). These decisions not only assuaged previous doubts about Congress's authority to use the Fourteenth Amendment as a grant of power but also prompted the Court to reconsider Field's blueprint for judicial intervention in government-business relations. Meanwhile, Field elaborated the third component of his Fourteenth Amendment theory. It addressed what he called invidious discrimination. Here Field was a singularly important pioneer, for he decided the federal case of first impression on circuit. At issue in Ho Ah Kow v. Nunan (1879) was the San Francisco "queue ordinance" requiring county prisoners to have their hair cropped. As it was "universally understood" that the regulation had been designed "to be enforced only against [the Chinese] race," Field explained, the ordinance violated the equal protection clause. This decision, along with Field's 1882 opinion striking down an anti-Chinese laundry ordinance, supplied the conceptual foundations for the Court's ringing proclamation of the antidiscrimination principle in yick wo v. hopkins (1886).

Yet Field's understanding of "invidious discrimination" did not compel state governments to be colorblind. Dissenting in strauder v. west virginia (1880), where the Court invalidated a statute that limited jury service to whites, Field claimed that the equal protection clause dealt only with the civil rights described in Ho Ah Kow. It "leaves political rights … and social rights … as they stood previous to its adoption." "Civil rights," he explained, "are absolute and personal and [a]ll persons within the jurisdiction of the State, whether permanent residents or temporary sojourners, whether young or old, male or female, are to be equally protected." But nobody in the Strauder majority was prepared to hold that the Fourteenth Amendment forbade the states from excluding Chinese aliens, women, or children from the jury box. The conclusion was inescapable that jury service could not be regarded as a "civil right," for which the amendment mandated "universality of the [equal] protection secured," but only as a "political right … conditioned and dependent upon the discretion of the elective or appointing power, whether that be the People acting through the ballot, or one of the departments of their government." The "social rights" to which Field only alluded in the Strauder stood on a similar footing. The capacity of individuals to marry or to have access to public goods such as libraries and schools had always been regulated by law on the basis of age, sex, race, and citizenship. "Such legislation is not obnoxious to the [equal protection] clause of the 14th Amendment," he said, "if all persons subject to it are treated alike under similar circumstances and conditions."

The Strauder majority flatly rejected the classification of rights that Field proposed. "The Fourteenth Amendment makes no attempt to enumerate the rights it is designed to protect," william strong declared for the Court. "It speaks in general terms, and those are as comprehensive as possible." But once again a Field dissent proved to be prophetic. Three years later, speaking for a unanimous Court in pace v. alabama (1883), Field held that antimiscegenation laws were not forbidden by the Fourteenth Amendment as long as both parties received the same punishment for their crimes. Equal protection mandated equal treatment, not freedom of choice; antimiscegenation laws restricted the liberty of blacks and whites alike. Underlying this ruling was an unarticulated premise of enormous importance: the legal classification "Negro" was not suspect per se. The doctrine of separate but equal enunciated in plessy v. ferguson (1896) followed almost as a matter of course, especially after the Court had distinguished "civil rights" from "social rights" under the thirteenth amendment in the Civil Rights Cases. Even Field's distinction between "civil rights" and "political rights" eventually got incorporated into the Court's Fourteenth Amendment jurisprudence, albeit in a form substantially different from what he proposed in Strauder. The Waite Court conceded from the outset that jury selection officials might constitutionally employ facially neutral yet impossibly vague tests of good character, sound judgment, and the like. In the absence of state laws expressly restricting participation to whites, john marshall harlan explained in Bush v. Kentucky (1883), the Court had no choice but to presume that jury commissioners had acted properly. When the "civil right" of equal opportunity to pursue an "ordinary trade" was at issue in Yick Wo, however, the Court unanimously invalidated the law not only because it had been administered with "an evil eye and an unequal hand" but also because it lacked adequate standards for controlling the discretion of public officials authorized to license the regulated trade.

Simply to sketch the basic contours of Field's jurisprudence is to suggest the degree to which his views, forged into a coherent system at an astonishingly early date and reiterated with great force throughout his record-shattering tenure on the Court, shaped the course of American constitutional law. His associates resisted the whole "truth," as Field understood it, to the very end, and Harlan predicted that he would spend even the final days with "his face towards the setting sun, wondering … whether the Munn case or the eternal principles of right and justice will ultimately prevail." Yet appellate judging in America is inherently a collective enterprise. The remarkable thing about Field's career is not that he failed to win every battle but that he eventually celebrated so many victories when the stakes were so very high. What endured was his claim that the Court was "the most [d]emocratic of all" governmental institutions. By acting on that belief Field not only transformed the character of judicial power in America but also influenced debate on the Court's legitimate role long after the structure of doctrine he helped to forge had been annihilated.

Charles W. Mc Curdy
(1986)

Bibliography

Corwin, Edward S. 1909 The Supreme Court and the Fourteenth Amendment. Michigan Law Review 7:643–672.

Graham, Howard J. 1968 Everyman's Constitution: Historical Essays in the Fourteenth Amendment, the "Conspiracy Theory," and American Constitutionalism. Madison: State Historical Society of Wisconsin.

Mc Curdy, Charles W. 1975 Justice Field and the Jurisprudence of Government-Business Relations. Journal of American History 61:970–1005.

Swisher, Carl B. 1930 Stephen J. Field: Craftsman of the Law. Washington, D.C.: Brookings Institution.