Justice Field: Hero or Villain?

Justice Stephen Field served on the Supreme Court from 1863 through 1897, the second longest tenure in the long history of the Court. Field remains controversial. For Ian Millhiser, author of Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted (2015), Field was one of the five worst justices in American history. For Adam M.  Carrington, author of Justice Stephen Field’s Cooperative Constitution of Liberty: Liberty in Full (2017), he was a great justice, because he developed key principles to protect life, liberty and property.

Millhiser and Carrington focus on many of the same cases but see them very differently. For example, both discuss Munn v. Illinois, an 1877 case regarding Illinois regulations on the rates charged by Chicago grain elevators. Justice Field dissented from the majority decision upholding the regulations; he would have invalidated them as contrary to the Due Process Clause of the Fourteenth Amendment.

Field argued that the Clause should be given a broad interpretation, writing that if “the owner is prohibited from using his building for the purposes for which it was designed, it is of little consequence that he is permitted to retain the title and possession; or if he is compelled to take as compensation for its use less than the expenses to which he is subjected by its ownership, he is, for all practical purposes, deprived of the property as effectually as if the legislature had ordered his forcible dispossession.”

For Carrington, the dissent in Munn epitomizes Field’s “cooperative” approach to both due process and police power.

For Millhiser, the rate regulations at issue in Munn were a reasonable attempt by the state to prevent price-gouging by the operators of the grain elevators. He views Field’s dissent as an attempt to prevent the proper regulation of business by the federal or state governments, and as the basis of pro-business decisions handed down after Field’s tenure such as in the famous 1905 case of Lochner v. New York.

Although Carrington admits that Field may have gone too far in some instances, he agrees with Field’s general mode of analysis. Today this mode of analysis, notes Carrington, is derided as “substantive due process”; but he insists that Justice Field never distinguished between substantive and procedural due process (his focus was on life, liberty, and property), and that Field did not believe that life, liberty, or property should be taken or effectively taken by the government. Field also believed, as Carrington relates, that both federal and state government had extensive powers, and he upheld some laws (such as a prohibition on interstate distribution of immoral material) that other judges would have invalidated.

Carrington also admits that his subject had a mixed record on minority rights. Not only did Field join the infamous majority opinion in Plessy v. Ferguson (1896), holding that Southern states could provide “separate but equal” facilities for blacks and whites, but he often echoed the anti-Chinese sentiments of his fellow Californians. In one case, for example, Field commented that the “dissimilarity in physical characteristics, in language, manners and religion” between whites and Chinese would “prevent the possibility of their assimilation with our people.”

Yet Field from time to time decided cases in favor of blacks and in favor of Chinese. As a circuit judge in 1879, he invalidated a San Francisco law requiring that every male prisoner in the city jail have his hair cut to one inch from the scalp. Although the law appeared neutral on its face, Field determined that it was invalid because it was aimed at the Chinese, who would suffer disgrace if jailers cut their queues.

“When we take our seats on the bench,” Field wrote,

we are not struck with blindness, and forbidden to know as judges what we see as men; and where an ordinance, though general in its terms, only operates upon a special race, sect or class, it being universally understood that it is to be enforced only against that race, sect or class, we may justly conclude that it was the intention of the body adopting it that it should only have such operation, and treat it accordingly.

Neither Carrington nor Millhiser provides much biography for Field; they are interested in his legal opinions, not his birth, family, Gold Rush adventures, or dramatic personal life. He was the first (and one hopes the last) Supreme Court justice to be charged with murder—charges that arose when Field’s bodyguard shot and killed former state chief justice David Terry. The best treatment of Field the man is the biography Paul Kens wrote in 1997, Justice Stephen Field: Shaping Liberty from the Gold Rush to the Gilded Age.

John Kaminski, editor of the Documentary History of the Ratification of the United States Constitution, once explained to me why the most important part of a book is its index. The reason? The index is how other scholars will determine whether your book matters for their project. Let us say that your book on the Confederation period discusses “paper money” and “inflation” but those terms do not appear in the index. A scholar working on a book about paper money and inflation will glance at your index, see nothing, and put it aside. A good index, Kaminski urged, should cover not just all the proper nouns in a book but also all the key concepts.

Carrington’s index fails the Kaminski test. It is only two pages long, and it even lacks entries for important proper nouns in the text (such as scholars to whom the author refers, including Randy Barnett, John Hart Ely, and William Novak). Many topics appear in the text, ranging from immigration to the South. They are not in the index. This is, as I said, a book largely about Supreme Court cases. But only a few of these cases are mentioned in the index. There is a separate table of cases, but it includes no page numbers. So although the table of cases tells the reader that the book mentions, somewhere, Plessy v. Ferguson, the reader has no way of finding the discussion of that case short of turning the pages.

It would be a mistake to conclude this review on such a negative note, however. Justice Stephen Field’s Cooperative Constitution of Liberty is a solid book from a promising young scholar.