JUSTICE STEPHEN FIELD: SHAPING AMERICAN LIBERTY FROM THE GOLD RUSH TO THE GILDED AGE by Paul Kens. Lawrence, KS: University Press of Kansas, 1997. viii, 376pp, 12 illustrations. Cloth $39.95. ISBN 0-7006-0817-6.

Reviewed by Howard Gillman, Department of Political Science, University of Southern California
 

We are long overdue for a contemporary book-length treatment of Justice Stephen J. Field’s public life and jurisprudence. Even though he was not around to put his stamp on the case that has defined the so-called "Lochner era," Field is still the focal point for explorations of the late-nineteenth-century Court’s notorious due-process jurisprudence. Moreover, the most familiar book on the justice, Carl Brent Swisher’s STEPHEN J. FIELD: CRAFTSMAN OF THE LAW, was written in 1930 at a time when the devastation of the Great Depression intensified impatience with the Supreme Court’s wariness about market regulation. In fact, one of the main points that Swisher wanted to drive home was that Field had "a great deal to do" with those instances "where a function of great responsibility was taken out of the hands of the representatives of the people by an irresponsible body, or by a body responsible only to its own interpretation of the law, which is much the same thing" (Swisher 1930, 1969: 394-395). This progressive-era emphasis on the unprecedented and illegitimate nature of the Court’s conservative jurisprudence still shapes our view of justices such as Field.

However, the historiography surrounding Lochner-era jurisprudence has changed over the last half century. McCurdy (1975) was one of the first to suggest that the pattern of opinions and decisions did not support the claim that Field was simply "reading laissez faire into the Constitution" (Beth 1992:290). More importantly, it was suggested that Field’s jurisprudence was inspired more by Jacksonian concerns about "special privileges" and antebellum free-labor political thought then by Adam Smith or by an unholy alliance with the Robber Barons (see also Benedict 1985, Gillman 1993). In other words, according to the revisionists, Field’s constitutional vision was more precedented and less obsessed with laissez faire than we have been led to believe.

Paul Kens has previously provided us with a wonderful study of LOCHNER V. NEW YORK (Kens 1990), and now he uses his talents as a researcher and a storyteller to delve more deeply into late nineteenth-century constitutionalism by examining the life and times of Stephen J. Field. Kens is a thoughtful and careful scholar and readers interested in this period can be confident that they will benefit from his new research as well as his perspective on more familiar terrain. But the book is also of interest because of the way that Kens situates himself between the traditionalists and the revisionists. Like the traditionalists, Kens continues to maintain that Field was "a prototype for the activist judge." But he has also been convinced by the revisionists that he should take "it as a given that Stephen Field’s ideas about liberty had roots in Jacksonian Democracy and antebellum free-labor theory" [7].

What is noteworthy about this combination is that Kens’ critiques of Field reflect a surprising inversion of traditional complaints. Instead of reiterating the argument that Field should be faulted for his unprecedented approach to constitutional liberty Kens claims that Field’s mistake was his unwillingness to break from the precedent of Jacksonian and free-labor ideology and join others in an unprecedented reconceptualization of liberty, one that would be more appropriate for a post-industrial age. As he puts it, what allows us to still claim "that Field’s views were ultimately driven by laissez-faire economics," and that he was "guided not so much by a philosophy as an agenda," is that he remained a "radical individualist" who worried mostly about "freedom from the excesses of government" and thus did not join those free-labor "reformers" who "realized that the force of private wealth could just as effectively restrain individual liberty" and who "turned to government to help combat that power" [8-10]. As a result of this thesis Kens provides a new perspective on the origins of Field’s world view and advances the conversation between traditionalists and revisionists.

Kens begins his review of origins by providing an overview of the Forty-Niners and what they experienced during their often treacherous trip to an anarchic San Francisco. Kens uses this effective scene-setting to first make the point that those pursuing the gold rush were seeking "emancipation from oppressive circumstances [created] by private economic and social forces" and "were not trying to escape from an oppressive system of government." Apparently, though, the more important influence on Field was the "atmosphere of individualism" that "flourished" under these circumstances [24]. Kens follows Field to Marysville, where (for a few months) he became the city’s first "alcalde," a combination mayor, judge, and "feudal lord" -- "the only law northwest of the Yuba" [30]. To help capture the moment Kens conveys one tall tale about how Field once presided over a trial at which more than twenty pistols were drawn after a losing defense attorney threatened the jury. Intent on taking the responsibility of protecting the jury himself, Field "drew from his breast pocket an eight-inch Bowie knife, placed its back between his teeth, and from its Holster drew a Navy Colts revolver, cocked it, and placing its muzzle within six inches of the offending Counsels head -- hissed at him, the command ‘Eat those words, or Dam you, I’ll send you to Hell’" [30].

Easier to swallow are accounts of Field’s one-year tenure in the California assembly, where he sponsored new codes of civil and criminal procedure modeled after codes that his brother David Dudley Field had designed. Before turning to Field’s work as a lawyer Kens devotes a chapter to California politics in the 1850s, and in particular how Jacksonian Democracy and the free-labor movement interacted with the controversies surrounding the mine fields, homesteading, Mexican land grants, and land monopolies. Here, Kens extends the work of the revisionists by situating these strands of thought in the particular context of Field’s formative years as a lawyer and judge.

By 1857, after spending a few years making a reputation in the private practice of law, Field won election to a seat on the three-member California Supreme Court. Also sitting on this Court was former governor Peter H. Burnett and a man who would become Field’s life-long nemesis, David Terry. (Terry resigned before the end of his term because of his participating in a duel in which he mortally wounded the powerful California politician David Broderick.) Kens seconds a chorus of opinion which credits Field for improving the Court’s reputation and efficacy by setting a respectable tone and establishing greater consistency in judicial outcomes, although he also notes that frustrated miners and settlers complained that his decisions reflected a bias in favor of the holders of paper titles and against their more customary claims.

Before these groups could vent their hostility at the polls the country was plunged into Civil War, and when the Democrat Field maintained his loyalty to the Union he made it possible in 1863 for Lincoln to make the California chief justice the tenth justice on the U.S. Supreme Court. Field spent the next thirty-four years on the Court, and Kens provides an intelligent yet critical overview of the justices’ most important decisions. He also reviews Field’s interest in the presidency during the 1880 election and speculates that the justice’s dissents in the cases EX PARTE SIEBOLD (involving the constitutionality of the Enforcement Acts of 1870-71), STRAUDER v. WEST VIRGINIA (involving the exclusion of blacks from juries), and EX PARTE VIRGINIA (involving a federal policy of holding state jury officials liable under federal law) "definitely were intended to provide a boost to his political campaign" since they provided "an effective soap box" from which he could opine on the importance of state independence from federal authority [183, 190]. On the other hand, in the course of his discussion of Field’s decisions in cases affecting the Chinese, Kens is willing to suggest more generously that his general civil rights jurisprudence "reflect the interplay of three concepts: that protecting individual liberty is not a function of government, that government should be of limited power, and that the federal government alone has the power to carry on relations with foreign nations" [211]. Given the prevalence of these convictions in nineteenth-century American political culture it may be difficult to say with confidence that these opinions are best characterized as merely opportunistic and self-serving rather than as more-or-less principled (but also self-serving).

Of course, the focus on this volume is not the general topic late-nineteenth-century constitutional law; it is constitutional conceptions of "liberty," and this topic, broadly defined, is the focal point of Kens’ examination of Field’s jurisprudence. In reviewing this material Kens knows that we are principally interested in the question of whether the justice should be remembered as an activist innovator. Mostly Kens thinks yes, but the evidence may be more mixed than Kens is willing to acknowledge. He notes that Field’s opinions in the TEST OATH CASES (CUMMINGS V. MISSOURI and EX PARTE GARLAND [1867]) relied on an "invented" right -- the "right to engage in a trade or profession" -- that is nowhere mentioned in the Constitution; but he also notes that "the effect that loyalty tests had on the people who refused to take the oath looked like criminal punishment" and to this extent his use of the ex post facto and bill of attainder clauses seems completely reasonable [117]. (It also suggests a concern about protecting state autonomy from federal power well before Field exhibited any discernible presidential ambitions.) His dissent in THE SLAUGHTER-HOUSE CASES (1873) made similar reference to an "inalienable" right to pursue lawful employment, but it also acknowledged the authority of government to regulate this right in a way that "equally affects all persons," and this Jacksonian concern with equal laws and no exclusive privileges was supported "in the legal doctrine of the day" [123].

In reviewing subsequent cases Kens acknowledges that Field was committed to protecting state police powers, particularly with respect to the promotion of "Victorian morality," but he also believed that judges should be aggressive about making sure that such laws actually promoted the health, safety, or morality of the community as a whole and that they were not merely "arbitrary" impositions on behalf of (or against) particular classes. Kens admits that "there may have been some justification for Field’s concern about class warfare" in an age of industrialization, but at times he cannot resist claiming that this aversion to "class legislation" was inspired by "the precepts of laissez-faire economics" [267-268]. It is unclear how he knows this or what is to be gained by insisting that the traditionalists’ emphasis on laissez faire should not be displaced by the revisionists’ desire to draw attention to a different set of beliefs. The latter ones are not completely inconsistent with laissez-faire principles but that also seek to highlight aspects of Field’s jurisprudence that are almost completely incomprehensible from within the traditional perspective. Kens is probably on safer grounds when he acknowledges that revisionists "have demonstrated that Stephen Field and his successors did not simply pull WEALTH OF NATIONS from their bookshelves and attach it as an addendum to the Constitution." But he then adds that it would "exaggerate the implications of the revisionists’ discoveries" to "depict the traditions of free labor and Jacksonian Democracy [as] running in a single straight line through Stephen Field’s opinions to the constitutional doctrine of the laissez-faire era" [272-273].

His various comments on traditional versus revisionist accounts of this period demonstrate that, despite his acknowledgment of the influence of Jacksonianism, Kens is leery about seeing Field as a principled caretaker of antebellum constitutionalism in an age of industrialization, and this leaves room for continuing conversations with revisionists. Kens does a good job providing careful readings of the structure of legal argumentation, but he omits from his discussion any serious attention to the antebellum precedents for Field’s jurisprudence, and this means that he is not in a good position to substantiate claims such as how "personal philosophy played at least as much of a role as legal precedent in Field’s decision making" [10] and that as an "activist" Field "knew well how to mold precedent to support ground-breaking ideas" [284].

This omission is especially frustrating when it comes to the central issue of Field’s due-process jurisprudence. Kens provides no evidence for the assertion that during the nineteenth century due process "was assumed to mean that a person could not be deprived of life, liberty, or property without the benefit of proper judicial hearing and procedure" and did not include a substantive component that "would give the judiciary the authority to overrule legislation that interfered with individual rights" [157]. He does mention in a footnote that some scholars have found ample support in antebellum jurisprudence for the tradition of so-called "substantive due process" (e.g., see Riggs 1990 and other material cited by the revisionists mentioned earlier). But he makes no effort to engage the evidence that is marshaled in this work.

Kens notes that Field’s understanding of due process was essentially the same as the understanding offered by Thomas Cooley in his influential treatise CONSTITUTIONAL LIMITATIONS. Kens minimizes the significance of this support by treating Cooley as an isolated ally rather than as a compiler of countless antebellum state court discussions of the meaning of "due process of law."

Kens is on stronger grounds when he moves away from traditional claims about Field’s unprecedented, activist preoccupation with laissez faire economics and focuses instead on the differences between making Jacksonian claims in the 1830s and making them toward the end of the nineteenth century. He is right to point out that "class legislation did not have the same meaning to late nineteenth-century opponents of government regulation as special privilege had for Jacksonians" [270]. The implication for Jacksonians of invoking the principle of "equal laws and no special privileges" was that it made it slightly more difficult for social elites to receive certain kinds of inappropriate favors from politicians. By contrast, by the late-nineteenth century these same principles had the effect of preventing vulnerable classes from receiving some important protections against powerful market competitors. He is also right to note that, "although the direction taken by the Court as the century progressed undoubtedly had a basis in the Jacksonian and free-labor traditions, it was not the only path that would have been consistent with those traditions" [273]. Whether this also means that Field should be viewed as pursuing "a personal agenda" or as fighting to defend a well-established tradition of American constitutionalism against the forces of industrialization is, well, rather inconsequential, a relatively minor intramural squabble. While he invites continuing discussion of the issue he is also smart (and civil) enough to add that, when it comes to lingering debates about the relative impact on Field of Jacksonianism versus laissez-faire economics, "it is impossible to say with certainty where his beliefs came from or what motivated him" [275].

Nevertheless, Kens need not be humble about what he has accomplished in this fine volume. While his account will not replace Swisher’s more sweeping examination of Field’s public life, it does offer an important post-revisionist analysis of nature and origins of the justice’s constitutional vision and an insightful perspective on how capitalism complicated antebellum conceptions of liberty and political equality. It should be considered essential reading for scholars interested in nineteenth-century political and legal history, American constitutional development, Supreme Court politics, and judicial behavior.
 

Benedict, Michael Les. 1985. Laissez-Faire and Liberty: A Reevaluation of the Meaning and Origin of Laissez-Faire Constitutionalism. LAW AND HISTORY REVIEW 3:243-331.

Beth, Loren P. 1992. Stephen Johnson Field. THE OXFORD COMPANION TO THE SUPREME COURT OF THE UNITED STATES, Kermit L. Hall editor in chief. New York and Oxford: Oxford University Press.

Gillman, Howard. 1993. THE CONSTITUTION BESIEGED: THE RISE AND DEMISE OF LOCHNER ERA POLICE POWERS JURISPRUDENCE. Durham and London: Duke University Press.

Kens, Paul. 1990. JUDICIAL POWER AND REFORM POLITICS: THE ANATOMY OF LOCHNER V. NEW YORK. Lawrence, KS: University Press of Kansas.

McCurdy, Charles W. 1975 Justice Field and the Jurisprudence of Government-Business Relations: Some Parameters of Laissez-Faire Constitutionalism, 1863-1897. JOURNAL OF AMERICAN HISTORY 61:970-1005.

Riggs, Robert E. 1990. Substantive Due Process in 1791. Wisconsin Law Review 1990:941-1003.

Swisher, Carl Brent. 1930, 1969. STEPHEN J. FIELD: CRAFTSMAN OF THE LAW, with an introduction by Robert G. McCloskey. Chicago and London: University of Chicago Press.
 

CUMMINGS V. MISSOURI, 71 U.S. 277 (1867)

EX PARTE GARLAND, 71 U.S. 333 (1867)

EX PARTE SIEBOLD, 100 U.S. 371 (1880)

EX PARTE VIRGINIA, 100 U.S. 339 (1880)

LOCHNER V. NEW YORK, 198 U.S. 45 (1905)

THE SLAUGHTER-HOUSE CASES, 83 U.S. 36 (1873)

STRAUDER V. WEST VIRGINIA, 100 U.S. 303 (1880)