November 4, 2010

Happy birthday, Stephen J. Field!

By Happy birthday, Stephen J. Field!

Author: Timothy Sandefur

Today is the birthday of one of the great figures in the history of American liberty—Stephen Johnson Field, who was born on this day in 1816.

Field was born into an illustrious family; his brother, Cyrus, laid the first transatlantic telegraph cable (and is mentioned in 20,000 Leagues Under The Sea), and his other brother, David Dudley Field, was perhaps the most famous and influential lawyer in his day. But unlike his brothers, Stephen came west to California in 1849, arriving in San Francisco, where he started a law firm. It failed quickly, and he moved to Marysville, where he was soon elected alcalde—something similar to mayor. After serving in the state legislature, Field was elected to the California Supreme Court in 1857, and soon achieved wide respect, although he clashed with his colleague, Chief Justice David S. Terry. When Terry shot and killed California Senator David Broderick in a duel two years later, Field replaced him as Chief Justice of California.

In 1863, needing a western Democrat for the Supreme Court, Abraham Lincoln appointed Stephen Field to the new 10th seat, making him the first Californian on the Supreme Court. Field soon distinguished himself as a defender of economic freedom and a friend to the Chinese immigrants who were so severely persecuted in California at the time. While riding circuit in the state, for instance, Field struck down the San Francisco “queue ordinance.” This was a law requiring any person who was thrown in jail to first have his head shaved. Although the government claimed this was a health measure intended to prevent lice infestation, Field recognized that it was really an attempt to allow the cutting off of the Chinese workers’ long hair braids, or queues, that they prized for traditional reasons: “we cannot shut our eyes to matters of public notoriety and general cognizance,” Field wrote. “When we take our seats on the bench we are not struck with blindness, and forbidden to know as judges what we see as men.” Ho Ah Kow v. Nunan, 12 F. Cas. 252, 255 (C.C.D. Cal. 1879).

Field was a champion of the individual’s right to earn a living without unreasonble interference by the government. (Which is why I dedicated my book to him.) In a persuasive dissenting opinion in Munn v. Illinois, 94 U.S. (4 Otto.) 113 (1877), Field argued that a law limiting how much the owners of grain silos could charge for storing grain was a violation of the due process clause, because it violated the owners’ right to do with their property as they pleased—not to protect the general public, but simply to benefit a group that managed to exercise greater political influence than their rivals. The Court majority devised a new test, saying that any business “affected with a public interest” could be regulated by the government in this way, but Field pointed out that the storage of grain was simply “a private business,” and if the legislature could dictate the prices owners could charge simply by declaring that the business is “affected with a public interest,” then “all property and all business in the State are held at the mercy of a majority of its legislature,” which might just as easily

fix the rent of all tenements used for residences, without reference to the cost…[or set prices for] cotton, woollen, and silken fabrics, in the construction of machinery, in the printing and publication of books and periodicals, and in the making of utensils of every variety, useful and ornamental; indeed, there is hardly an enterprise or business…in which the public has not an interest in the sense in which that term is used by the court…and the doctrine which allows the legislature to interfere with and regulate the charges which the owners of property thus employed shall make for its use…has never before been asserted, so far as I am aware, by any judicial tribunal in the United States.

Field rightly saw that Munn would open the door to a flood of government control over businesses, and in the decade that followed (virtually every state held a constitutional convention in the 1870s) legislatures declared industries willy-nilly to be affected with a public interest so that bureaucrats could control large segments of industry. Likewise, in what is probably his most famous opinion—his dissent in The Slaughterhouse Cases, 83 U.S. (16 Wall.) 36 (1873)—Field insisted that the privileges or immunities clause protected, among other rights, the right to engage in a business without unreasonable government interference—a right protected by the common law for more than two and a half centuries at that time.

It’s ironic that Progressive legal theorists like Roscoe Pound later accused the pro-free market judges like Field of being “formalists.” Field was anything but a formalist, as the quote from the queue case suggests. In Cummings v. Missouri, 71 U.S. (4 Wall.) 277 (1867), he struck down a Missouri law that required people to swear they’d never been a supporter of secession before they could take certain jobs. This scheme was just a clever attempt at double-punishment for the same offense, Field wrote, and

what cannot be done directly cannot be done indirectly. The Constitution deals with substance, not shadows. Its inhibition was levelled at the thing, not the name. It intended that the rights of the citizen should be secure against deprivation for past conduct by legislative enactment, under any form, however disguised. If the inhibition can be evaded by the form of the enactment, its insertion in the fundamental law was a vain and futile proceeding.

Field ended up serving on the Court longer than any other justice except John Marshall. (William O. Douglas later surpassed him.) During that time, his influence on American law was profound—far greater than is usually recognized by legal historians. Upon his retirement from the bench, Field explained that in his view, the Supreme Court was actually the most democratic of the branches of the government, because while the legislature represents the will of temporary majorities that change over time, the Supreme Court’s job is to preserve the Constitution—the true will of the people—and protect it from legislatures that often abuse their constituents and ignore their constitutional limits.

Field also had a very colorful personal life. He ran for President several times while serving on the Supreme Court, and he’s the only Supreme Court justice ever arrested for murder. David Terry—the Chief Justice of California who had resigned after killing Senator Broderick—threatened Field’s life after Field ruled against Terry’s girlfriend in a divorce case. Field was then assigned a bodyguard, a U.S. Marshal named David Neagle. Not long afterwards, when Field was traveling through Lathrop, California, on judicial business, he happened upon David Terry, who walked up to Field and slapped him in the face. Marshal Neagle immediately pulled out his revolver and shot Terry dead. Although the sheriff arrested both Field and Neagle on murder charges, Field was immediately released and never charged. Neagle, however, was charged, and appealed to the U.S. Supreme Court, which held that the Marshal could not be tried under state law.

For more on this remarkable figure, check out Paul Kens’ book Stephen Field: Shaping Liberty from The Gold Rush to The Gilded Age, or Carl Brent Swisher’s book Stephen Field: Craftsman of The Law. Field also wrote a memoir of his early days in California. And not long ago I visited his gravesite.

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