Guest Essayist: Joerg Knipprath

It is an understatement to describe Stephen Johnson Field as a giant among Supreme Court justices. He served more than 34 years on the Court, longer than any but Justice William Douglas. He authored 544 opinions, exceeded only by Justice Samuel Miller. He and his fellow justices during the 1880s, including Miller, Joseph Bradley, and John Marshall Harlan composed what, collectively, was likely the most intellectual bench in Supreme Court history.

Field’s heritage and life are exceptional. He was the son of David Dudley Field and Submit Dickinson, both with roots directly traceable to early New England Puritans. Best-known among his eight siblings were David Dudley Field, Jr., a prominent New York attorney who led the movement to codify the common law that became the “Field Codes”; Cyrus Field, a businessman who founded the Atlantic Telegraph Company to lay the first transatlantic telegraph cable in 1858; and Henry Martyn Field, a leading Presbyterian minister and author of popular travel books. One of his sisters, Emilia Field Brewer, had a son David, who became a judge for 48 years, 20 of them on the Supreme Court. Eight of those years on the Court, Brewer served with his uncle Stephen.

After practicing law in New York, Field moved to California during the Gold Rush in 1848 to do the same in the mining community, Marysville. Within a decade, in 1857, he was elected to the California Supreme Court. Field served as chief justice from 1859 to 1863, replacing David Terry, who had to leave the state because he killed his former friend, U.S. Senator David Broderick, in a duel. Field also was challenged to a duel (by another judge), but neither combatant fired his gun. There were other physical confrontations. In 1851, at the state Democratic Party convention, Field attempted to throw a man through a window. He only half succeeded before others pulled him away. The man carried ten proxies Field had been given by delegates to vote for his nomination for a state senate seat. The man had sold the proxies to receive a political favor for a partner, and Field lost the nomination by two votes. To deal with potential adversaries, Field wore a specially-made coat with deep pockets to contain two pistols he could fire through those pockets. He also carried a bowie knife. He later recollected wryly, “I found that a knowledge that they were worn generally created a wholesome courtesy of manner and language.”

A pro-Union Democrat, Field was appointed to the U.S. Supreme Court by President Abraham Lincoln in 1863 as a tenth justice. Congress had temporarily increased the number of Supreme Court justices to ten as a result of the 5-4 decision in the Prize Cases. That litigation challenged the constitutionality of Lincoln’s blockade of the Confederate States because there had not been a declaration of war. Though the Court sustained Lincoln’s authority, the closeness of the vote alarmed Congress, especially as one of the Justices in the majority, James Wayne, was a Southerner whose loyalty to the Union war effort was seen as less than solid. As it was likely that the lower federal courts in the North would uphold Lincoln’s actions, even a tie in the Supreme Court would be enough. Lincoln gave Field the nod through the influence primarily of California’s governor Leland Stanford and of Field’s brother David Dudley Field, Jr., who had helped to organize the Republican Party and to secure Lincoln’s nomination in 1860.

Another reason for Field’s appointment was that Lincoln wanted to tie California to the Union. There was the geographical isolation of the state, the relative strength of pro-Confederate sentiment, especially in the southern part, and the need to have someone on the Court with experience to sort out the legal confusion from conflicting land titles exacerbated by the Treaty of Guadalupe Hidalgo that ended the Mexican War and with knowledge of mining law in cases arising out of the Gold Rush. Field had written those mining laws and had experience dealing with the associated legal issues from his roles as attorney, politician, and judge in California.

Field’s main contribution to the jurisprudence of the time was his strong belief in the freedom of contract as property and the right to property as a person’s fundamental liberty. This coincided with the flowering of free enterprise capitalism and the perceived need of the business interests for protection from regulatory laws passed by increasingly assertive state legislatures. At the same time, Field was suspicious of capitalist interests that sought to harness state legislatures to preserve their position against competition.

There are several opinions that stand out among the many he wrote. In 1867, he wrote for the Court in Cummings v. Missouri and Ex parte Garland. Both cases involved loyalty oaths, state and federal, respectively, which required persons in certain professions to attest that they had not fought for the Confederacy, been a member of its government, or even expressed sympathy for it. Field held that these oaths, established after the Civil War, were unconstitutional bills of attainder and ex post facto laws. More important, he incorporated the principles of the Declaration of Independence into the Constitution when he opined that people have inalienable rights to life, liberty, and the pursuit of happiness, and that “all avocations, all honors, all positions are alike open to everyone” in that pursuit of happiness. This foreshadowed Field’s later views of the fundamental nature of the right to pursue a calling, his inclination to nationalize fundamental rights, and his resort to extraconstitutional sources to define them.

All three of those aspects of Field’s jurisprudence were on display in his dissent, joined by Chief Justice Salmon Chase and Justices Joseph Bradley and Noah Swayne, in the Slaughterhouse Cases (1873). Louisiana had granted a monopoly license to a company to establish a slaughterhouse in New Orleans and vicinity that would rent space to butchers. The purpose was to moderate the pollution by animal waste of drinking water taken from the Mississippi River. That pollution was connected to several cholera outbreaks in the city. The butchers challenged the monopoly as violating the 13th and 14th Amendments. They hired as their attorney former Supreme Court Justice John Campbell, who had resigned his seat on the Court to join the Confederacy. Campbell argued that the language of the 14th Amendment was race-neutral, so that it protected not only the newly-freed slaves, but all persons.

The Court, per Justice Samuel Miller, read the 14th Amendment as restricted by its historical context and the debates in Congress. Thus, it applied only to the newly-freed slaves and the rights, privileges, and immunities protected were those of national citizenship. As most rights were fixed by states within the structure of American federalism, such rights attributable to national citizenship were narrowly defined. The butchers were not freedmen, and their right to pursue their calling was not a right of national citizenship.

Field’s dissent agreed with Campbell. The 14th Amendment was not textually limited to race. As to the protected rights, Miller’s restrictive view was not supported by the Congressional debates and would make the amendment a “vain and idle enactment, which accomplished nothing, and most unnecessarily excited Congress and the people on its passage.” Instead, the amendment protected fundamental rights that belong to each “as a free man and a free citizen” and “do not derive their existence from [a state’s] legislation and cannot be destroyed by [a state’s] power.” Referring once more to the language of the Declaration of Independence, he claimed that the 14th Amendment “was intended to give practical effect to the declaration of 1776 of inalienable rights, rights which are the gift of the Creator, which the law does not confer, but only recognizes.” To pursue a calling, free from restriction by monopoly, was such a right. Field quoted approvingly from Adam Smith’s Wealth of Nations, “The property which every man has in his own labor, as it is the original foundation of all other property, so it is the most sacred and inviolable.” Louisiana’s law was a “plain violation of this most sacred property. It is a manifest encroachment upon the just liberty both of the workman and of those who might be disposed to employ him.”

Miller was concerned that Field’s view of the amendment would “fetter and degrade the State governments by subjecting them to the control of Congress.” Further, it would “constitute this court a perpetual censor upon all legislation of the States.” As a Democrat, Field opposed Congressional Reconstruction, so he supported Miller’s pro-federalism stance to limit Congress’s powers. However, he saw no problem in Miller’s second objection.

Field’s judicial nationalism that the 14th Amendment protected the right to pursue a calling and the liberty of contract more generally, and that the courts were the proper forum to protect those rights against state legislatures eventually gained a majority on the Court in Allgeyer v. Louisiana (1897) and Lochner v. New York (1905). In Allgeyer, Field lived to see his arguments vindicated, albeit under the due process clause, one month before he sent his letter of resignation to President William McKinley.

Another major area of controversy, politically and constitutionally, was Chinese immigration. At the national level, this involved the scope of Congress’s power to control immigration and the degree of deference Congress was owed by the Court. At the state level, discriminatory laws, particularly from California–and even more specifically, San Francisco–required the Court to apply the 14th Amendment outside its original protection of Blacks. On both levels, Field trod a meandering path, sometimes holding for the Chinese, but then veering in the other direction. This gave him little credit from either side on these issues, but roused such hostility to him that it eventually doomed his aspirations to the Presidency.

Congress suspended Chinese immigration for ten years in 1882, and, in 1888, passed a law refusing re-entry to Chinese workers who had left the country even if they had an identity card entitling them to re-enter. The second law violated a treaty between China and the United States. A Chinese citizen was denied re-entry to the United States despite having the requisite card. He argued that the 1888 law violated the treaty and his vested right to return.

In the Chinese Exclusion Case (Chae Chan Ping v. U.S.) (1889), Field, writing for a unanimous Court, rejected the claims. The opinion broadly upheld Congress’s power and the right of a nation to control entry by aliens. Whether or not a treaty was properly disregarded was a political question not for the courts. Moreover, the Court could look only at the statute itself:

“This Court is not a censor of the morals of other departments of the government; it is not invested with any authority to pass judgment upon the motives of their conduct. When once it is established that Congress possesses the power to pass an act, our province ends with its construction and its application to cases as they are presented for determination.”

Looking at American practice and that of foreign nations against Americans, Field wrote,

“Jurisdiction over its own territory to that extent is an incident of every independent nation. It is a part of its independence. If it could not exclude aliens, it would be to that extent subject to the control of another power.”

In language that would make current cosmopolitans recoil in horror, Field declared,

“To preserve its independence, and give security against foreign aggression and encroachment, is the highest duty of every nation, and to attain these ends nearly all other considerations are to be subordinated. It matters not in what form such aggression and encroachment come, whether from the foreign nation acting in its national character, or from vast hordes of its people crowding in upon us….If, therefore, the government of the United States, through its legislative department, considers the presence of foreigners of a different race in this country, who will not assimilate with us, to be dangerous to its peace and security, their exclusion is not to be stayed because at the time there are no actual hostilities with the nation of which the foreigners are subjects….[I]ts determination is conclusive upon the judiciary.”

A significant constitutional case that involved Field, but one where he recused himself, was In re Neagle (1890). The case arose out of the climax to a long-running plot straight out of Hollywood. One cannot do the matter justice in an essay, and it is presented in great detail in the late Professor Carl Brent Swisher’s definitive biography of Field. The case involved feuding judges, a wealthy “Silver Senator” from Nevada, an attractive young woman of “free manners,” intimate assignations, a disputed marriage contract, a large financial estate, acts of intrigue and violence, and, finally, a purported attempt to assassinate Field–not the first, it should be said.

As word got out about the potential plot, President Benjamin Harrison, acting on the request of the Attorney General and the U.S. Attorney in San Francisco, appointed Marshal David Neagle as Field’s bodyguard. There was no clearly applicable federal law, so that the President acted on his inherent constitutional powers. When California wanted to prosecute Neagle for murder in killing Field’s alleged assailant, former California Supreme Court justice David Terry, Neagle’s defense hinged on the President’s authority to appoint him. To no one’s surprise, the Court upheld the President’s power to protect the “peace of the United States” under his constitutional duty to take care that the laws be faithfully executed. What is mildly surprising is that two justices dissented because no statute of Congress permitted the appointment.

Field has been described as stubborn and vindictive, as well as brilliant and ambitious. Examples and stories to support those opinions are too numerous to relate. A couple will give the sense in addition to those already discussed. Field always had political ambitions, from his first election as mayor of Marysville, shortly after his arrival in California, to his brief stint in the state assembly, to his unsuccessful campaigns for the California state senate and for the United States Senate. In 1880, he became a candidate for the Democratic nomination for President. However, at the party convention, his best showing was 65.5 votes out of 728, with only 6 out of 12 from California. Indeed, the state convention had pointedly refused to endorse him due to the unpopularity of his votes in cases where he had held in favor of the Chinese and in the state party’s view of him as a “railroad” or “corporation” judge. His biographer, Professor Swisher, attributes Field’s loss to the justice’s overdeveloped self-confidence and his failure to recognize that he was not a “man of the people.” Field’s time on the Court made him ideologically rigid rather than politically flexible, and with a tendency to register forcefully his dissents, rather than adapt to majority consensus. In 1884, the state’s Democratic convention voted overwhelmingly to oppose his candidacy for the nomination, should he seek it. He refrained.

In early December, 1869, a delegation of justices, including Field, had been sent to the aging Justice Robert Grier, whose mental acuity was declining, to persuade him to resign. Grier resigned, effective two months later. Many years thereafter, in 1895, as Field’s mental faculties became feebler, the justices sought to persuade him to resign. Field, however, had set it in his mind to serve longer than any previous justice. The Court delegated the task to Justice Harlan, the senior associate justice after Field. Harlan approached Field in the justices’ robing room, where Field was sitting, apparently oblivious to his surroundings. Harlan gradually awakened him and asked if he did not remember that day when he had been sent to persuade Grier to resign and what had been said to Grier. Field became suddenly alert, and, with eyes blazing, shouted, “Yes! And a dirtier day’s work I never did in my life!” He then closed his eyes, again at rest. That was, as later told by Harlan to Justice Charles Evans Hughes, the end of the effort to get Field to resign. Field stayed on the Court two more years and met his longevity target.

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at:

1 reply
  1. Publius Senex Dassault
    Publius Senex Dassault says:

    This is so absolutely fascinating I am spurred to read Professor’s Swisher’s biography. Or at least the “feuding judges” section. 😉



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