Earl Warren in a White Hat

Three questions

1.         What president increased the number of justices on the Supreme Court in order to ensure support for his policies?

2.         What justice successfully reinterpreted the Constitution to incorporate his views of the proper role of government?

3.         Whose side was he on?

The answers

1. FDR proposed to pack the court; Abraham Lincoln did it. In 1863, the Republican congress created a tenth seat to which Lincoln named the Chief Justice of the California Supreme Court, Stephen Field, a pro-war Democrat. In 1869, the number of Justices was reduced back to nine.

2. During Field’s thirty-five years on the Supreme Court he argued, mostly in minority opinions, for strict limits on the ability of governments to regulate and redistribute - establish monopolies, set prices, impose special taxes on disfavored industries. By the end of his term his position had finally become the majority view and remained so for the next forty years, until overthrown during the New Deal. When Justice Holmes, in his famous dissent in Lochner v. New York, complained that the majority was reading Herbert Spencer’s  Social Statics into the Constitution, it was Stephen Field, six years dead, whom he was attacking. Compared to Field, Earl Warren was a bit player.

3.  Ours.

Stephen Field

Field’s career began during the gold rush. As a state legislator he sponsored a bill giving official recognition to the customary law of the mining camps. As a judge on the California Supreme Court, he played a prominent and controversial role in the complicated litigation associated with Mexican land grants. His opinions were variously interpreted as support for private property (of people claiming under the land grants), opposition to private property (of people who had settled on land to which other people had a dubious claim based on a land grant), and support for wealthy and powerful friends, such as John Fremont, who managed to get the boundaries of his grant legally redefined so as to annex territory where other people had discovered, and were mining, gold. Field’s appointment to the U.S. Supreme Court shifted his attention from disputed land claims to government power and the problem of how to limit it.

After the Civil War, Missouri, like many other states, passed laws making a loyalty oath affirming that one had neither fought for nor supported the Confederacy a requirement for public office or any of a variety of professions — including the profession of clergyman. A Catholic priest refused the oath, continued to minister his faith, was fined, and appealed, eventually to the Supreme Court. To a modern eye the case seems a simple issue of freedom of religion. But prior to the 14^th Amendment the bill of rights, including the First Amendment, constrained only the Federal government, not the states.

Article I, Section l of the Constitution, however, forbids states from passing ex post facto laws or bills of attainder. Missouri argued that requiring a loyalty oath was merely a regulation and that states were entitled to regulate professions as they pleased.  Justice Field disagreed; writing for a narrow majority, he held that to deprive a man of his profession was a punishment. Since it was a punishment for acts committed before the oath was imposed it was an ex post facto law; since it was a punishment imposed without trial it was a bill of attainder.  Hence it was unconstitutional. The case provides an early example of Field’s efforts to limit government powers by arguing — contrary to then existing law — that government regulation was presumptively a violation of individual rights.

In 1869, the City of New Orleans designated a particular location for a public slaughterhouse, assigned the right to run it to a single firm, and required all butchers to move their operations to that location, renting space at a preset price. Some refused.  When the case reached the Supreme Court, the majority held that the city, which claimed the butchers created a public health problem in their existing locations, had the right to establish a monopoly in order to regulate the business for the general good.

Field dissented. The 14^th Amendment, which by this time had been passed, held that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” In Field’s view, one of those privileges and immunities was the right to practice one’s trade. While no constitutional provision banned government monopolies, “yet the whole theory of a free government is opposed to such grants.” He thus interpreted the 14^th Amendment as giving the court license to invalidate state laws for violating natural rights - whether or not the rights in question appeared explicitly anywhere in the Constitution.

Field’s belief in the right to practice a trade had its limits, however. In Bradwell v. Illinois, he joined the majority in support of the right of a state to refuse to admit a highly qualified woman to the practice of law, arguing that “The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.”

In Munn v. Illinois (1877), Field again dissented from the majority, this time on the subject of state price control. The Court voted 7-2 that Illinois had the right to set maximum prices for Chicago grain elevators, arguing on the basis of multiple precedents that the government was entitled to regulate businesses “affected with a public interest.”

Field conceded the principle but argued that it applied only to businesses operating with special privileges from the government. The Chicago grain elevators were private firms. For the state to be free to regulate their prices would be inconsistent with the 14^th Amendment’s requirement that no state should deprive any person of life, liberty, or property without due process of law. “If this be sound law, if there be no protection, either in the principles upon which our republican government is founded, or in the prohibitions of the Constitution, against such invasion of private rights, all property and all business in the State are held at the mercy of a majority of its legislators.” Field was more than willing to oppose government created monopoly - in the earlier slaughterhouse cases or in a later case that invalidated an Illinois grant of almost the entire submerged lakefront of Chicago to the Illinois Central railroad. But regulation of private firms was a different matter.

Field conceded that some regulation was constitutional. In his view, the police power of the state applied to “whatever affects the peace, good order, morals, and health of the community” but no more. It was the role of the Supreme Court to decide whether or not state regulation was really aimed only at those ends. He had no objection to regulations restricting or forbidding the sale of alcoholic beverages, a proposal obviously aimed at the peace, morals and health of the community. But he cast a more skeptical eye on economic regulation. While his position fell short of full fledged libertarianism in principle, it came close in practice, since his interpretation of the police power applied mainly to what we would now call externalities, cases where one person’s actions imposed costs on others. 

Field lost on Munn, as on the Slaughterhouse Cases (1883), but not entirely. The court adopted a broader position than his on what the state could regulate but accepted, under the name of substantive due process, the principle that the 14^th Amendment imposed limits on state regulation of private property. A journey of a thousand miles begins with a single step.

Powell v. Pennsylvania (1888) dealt with a state ban on the manufacture and sale of margarine - justified as a public health measure but obviously intended for the benefit of the Pennsylvania dairy industry. Justice Harlan, writing for the majority, defended judicial deference to the judgment of the legislature: “If all that can be said of this legislation is that it is unwise, or unnecessarily oppressive to those manufacturing or selling wholesome oleomargarine as an article of food, their appeal must be to the legislature, or to the ballot-box, not to the judiciary.”

Field took a less restricted view of his role. “Who will have the temerity to say that these constitutional principles are not violated by an enactment which absolutely prohibits an important branch of industry for the sole reason that it competes with another, and may reduce the price of an article of food for the human race?” He agreed that the legislators had the right to pass regulations to protect the public health - but it was for the court to decide if that was what they were really doing. Field wanted to subject the legislation to what would now be called “strict scrutiny,” the approach a modern court would reject if the legislature was merely using economic regulation to buy votes but adopt if it suspected that the hidden purpose might be racial discrimination.

The modern doctrine on that also stems from a dairy case. In United States v. Carolene Products (1938), the Court again accepted a public health justification for legislation aimed at protecting the dairy industry from the perils of competition, holding that “regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless . . . it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators.” In a famous footnote, Justice Stone added that “prejudice against discrete and insular minorities may be a special condition, ... which may call for a correspondingly more searching judicial inquiry.”

Through most of Field’s career, his views were shared by only a minority of the justices. In the 1890s, when David Brewer, his nephew and ally, joined the court, the tide began to turn. In 1898, three months after Field had finally been forced by old age and failing memory to resign, the Court in Smyth v. Ames held that the due process and equal protection clauses of the 14^th Amendment applied to the regulation of railroads by the state, and that it was up to the court to decide whether the regulations deprived the railroad of its property without due process of law. Field died a few months later.

His most famous victory was posthumous. In Lochner v. New York (1905), the court reversed Powell, with Harlan this time in the minority. The majority opinion, overthrowing a state law limiting the hours of bakers, held that “The mere assertion that the subject relates, though but in a remote degree, to the public health, does not necessarily render the enactment valid.... The act must have a more direct relation, as a means to an end, and the end itself must be appropriate and legitimate.” The decision remained good law until the New Deal.

Generations of legal scholars have attacked Lochner as a symbol of the Court’s support for laissez-faire. Recent scholarship suggests that the real purpose of the law that the court overthrew was to give bakeries with enough employees to assign multiple shifts to the successive processes involved in making a single batch of bread an advantage over their smaller competitors. If you want to annoy law professors, get yourself a button reading “Lochner v. New York was rightly decided.”

In his dissent to Lochner, Oliver Wendell Holmes accused the majority of reading the views of Herbert Spencer into the Constitution. While Field and his allies were influenced by writers such as Spencer and Adam Smith, their position was more directly derived from an American political philosophy, Jacksonian democracy. Andrew Jackson and his supporters believed that the chief threat to America was wealth derived from special privilege and that the best defense against that threat was to keep government small and decentralized. In opposing a monopoly slaughterhouse in New Orleans, price control on grain elevators in Chicago, or special taxes on California railroads, Field was, as he saw it, consistently following through on his Jacksonian roots.

Oddly enough, his opponents also considered themselves Jacksonians. In their view, while government might have been the problem in Jackson’s day, the problem of the late 19^th century was power and privilege due to private wealth, large corporations, and private monopoly. Consistent application of Jacksonian principles as they saw them implied using the power of government to regulate corporations for the public good. It is an argument many of us are familiar with. What actually happened when the government attempted to regulate “for the public good,” the CAB carelizing the airlines and the ICC railroads and then trucking, was more consistent with Field’s views - and Jackson’s - than with theirs.

My source for most of what I know about Field is Paul Kens’s biography.¹  While its author does an admirably fair-minded job of presenting Field as a principled man working for what he believed in, he cannot wholly conceal his suspicion that what Field believed in was wrong, that he really was misapplying the solutions of the first half of the 19^th century to the problems of the second half.

One reason may be that Kens knows more about political philosophy and legal history than about economics. He is, for example, willing to accept without question the claim that the Chicago grain elevators, fifteen elevators owned by nine firms with no legal control over entry to the industry, could properly be described as a monopoly with a stranglehold over the port of Chicago. On railroad regulation he not only sides with the regulators, he entirely misses the argument on the other side.

Consider his response to the perceptive comment by Charles Crocker of the Central Pacific that “You can get any man to be unfriendly with a railroad after it is built.” Kens explains the change in attitudes towards the railroad after it was built as due to people discovering too late its disruptive effect on their local communities. If that was all that was happening, one would suppose that at some point communities without a railroad would have noticed what was happening elsewhere and stopped moving heaven and earth to persuade the railroad to come through town. It didn’t happen.

Crocker was making a point about economics, not sociology. Before a line was built, local communities had to offer the railroad good terms to get it to come. Once track was laid, it was a sunk cost — the railroad would keep operating at any price that more than covered operating costs. That created an opportunity for expropriation through rate regulation, special taxes, and the like. California railroads defended themselves by investing not only in rails but in politicians. Justice Field helped out by ruling against special tax rules that applied only to railroads.

Field lived a long, interesting, and controversial life, much of which, including two unsuccessful bids for the Democratic nomination for president, I have omitted. His biography reveals a strong minded man fighting passionately for his beliefs with complete confidence that, in any controversy, he was right and the other side was wrong.

Field’s career poses a problem for conservative critics of the Warren court: Should they be for or against him? Like Warren, he was a judicial activist, more than willing to overrule the decisions of elected legislators. Like Warren, he interpreted the Constitution broadly to get the results he wanted; Field’s doctrines of freedom of contract and substantive due process are no more to be found in the literal words of the document than the penumbra of privacy under which the Warren Court legalized contraception and abortion. The fact that Stephen Field had been born too late to participate in the Constitutional convention was an accident of history that he was happy to correct, given the opportunities provided by considerable abilities, patience, and thirty-five years on the Supreme Court. While he did not, indeed could not, carry his revisions as far as many of us would like, they were, on the whole, in the right direction.²

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1. Paul Kens, Justice Stephen Field: Shaping Liberty from the Gold Rush to the Gilded Age, University Press of Kansas, 1997.

2. An earlier version of this essay appeared in Liberty as a review of Kens’ book.