Field, Stephen Johnson (b. Haddam, Conn., 4 Nov. 1816; d. Washington, D.C., 9 Apr. 1899; interred Rock Creek Cemetery, Washington), associate justice, 1863–1897. Field was the sixth of nine children born to Submit Dickinson, a descendant of a long line of New England Puritans, and David Dudley Field, a strict Congregationalist minister who brought up his children to be pious Puritans. The family moved to Stock‐bridge, Massachusetts, when Stephen was still a baby. At thirteen he was sent to Turkey with his sister, whose husband was a missionary, and spent several years traveling in the Greek islands and residing in Athens, an experience that greatly broadened his outlook. As a seventeen‐year‐old youth he entered Williams College, where he was deeply influenced by the teachings of Mark Hopkins and from which he graduated at the top of his class in 1837. He read law in the New York office of his brother, David Dudley Field, who was fast becoming one of America's leading lawyers, and with whom he practiced law until 1848. Stephen also spent a year traveling in Europe with his father and other family members. Thus far, however, he had shown none of the leadership qualities that were to become so prominent later in his life.
A craving for excitement led him to voyage to California during the Gold Rush year of 1849. Instead of prospecting, however, he quickly entered legal practice and politics, becoming the equivalent of mayor‐plus‐judge in Marysville; he also became wealthy through real estate speculation and fees. Field emerged as a colorful and controversial character in the unsettled days of the little community, making enemies whose hostility would follow him even to the Supreme Court. Elected to the California state legislature in 1850, he was the major contributor to the civil and criminal laws it passed in 1851, which were widely copied in the western states. He served only one year, however, before being defeated in a race for the state senate in 1851. Turning his attention wholly to the practice of law, he quickly became one of the state's leading lawyers, and he was elected to the state supreme court in 1857.
In his six years on the state court Field achieved an enviable reputation, which traveled beyond the state's boundaries. He did not, however, cease to acquire enemies, both political and personal. Despite this, when Congress created a tenth Supreme Court seat, Field was the logical appointee. He was not only a well‐regarded lawyer and judge but also a strong Unionist (although a Democrat). A California appointment was thought to be particularly useful both politically and legally, for it might help to cement the new state to the Union and it would provide the Court with a member familiar with the distinctive characteristics of California mining and land law. He took his seat on the Court in December 1863.
Field sat on what was to become one of the strongest Supreme Courts in history. There has never been a quadrumvirate that has surpassed in ability that of Field, Samuel F.
Miller, Joseph P.
Bradley, and John Marshall Harlan. Each was stubborn, dogmatic, and intellectually arrogant, however—a situation that led to a high level of disagreement and dissent. No great case decided during Field's tenure was without a strong dissent, which greatly reduced the value of the Court's decisions as
precedents. And, in fact, most of that Court's rulings have been reversed or modified over time.
Field's philosophy as a judge was dictated by an attachment to an ideal of inalienable rights that, however, did not have specifically to appear in the Constitution. He was, in other words, strongly result‐oriented: if he felt that a claimed right was inalienable he could find a place in the Constitution for it (usually the
Fourteenth Amendment in state cases). His opinions are thus studded with dogmatic assertions that in many cases are not strongly supported by any constitutional provision.
Increasingly through the 1870s and 1880s Field came to believe in a rather extreme version of an inalienable right of
property, protected from interference by the states by the
Due Process Clause of the Fourteenth Amendment. This theory, known as “substantive due process” because it looks at substantive rights (especially the right to hold and use property) rather than process, was probably first suggested to Field when John A.
Campbell used it in arguing for the rights of Louisiana butchers in the
Slaughterhouse Cases (1873). Certainly he used it in his dissent in that case and enlarged on it in another dissent in
Munn v. Illinois (1877). In the latter case he argued that Illinois could not regulate the prices charged by grain elevators. In both cases there is a strong
natural law flavor to Field's arguments, which most of the justices shared to some extent; but the Californian had to campaign for twenty years before the Court's majority would accept the doctrine of substantive due process, and the Court would never carry it to the extent that Field probably would have wished. (See
Due Process, Substantive.)
Field was thus the leader of the Court's movement toward reading
laissez‐faire into the Constitution—a movement that reached its apogee in Harlan's opinion in
Smyth v. Ames (1898), Rufus
Peckham's opinion in
Lochner v. New York (1905), and in various decisions of the Taft Court in the 1920s (See
Laissez‐Faire Constitutionalism). Not content with providing such protection for the burgeoning large corporations of the day, Field went on to attempt to build bulwarks against federal action as well. A notorious example is his concurring opinion in
Pollock v. Farmers' Loan & Trust Co. (1895), in which he made plain his fear that a federal
income tax would be but the first movement in a slide into communism. He also participated in the decision limiting the power of the federal government to break up monopolies (
United States v.
E. C. Knight Co., 1895), and of the
Interstate Commerce Commission to prescribe railroad rates (
Cincinnati, New Orleans & Texas Pacific Railway v. ICC, 1896). Using various arguments, he also argued against state regulation of railroads (e.g., in
Stone v. Wisconsin, 1876), although he was often in the minority in such cases. In none of these areas were his arguments solidly grounded in the Constitution; he was reduced to hortatory statements based on the theory that private property is almost always to be protected: that is, that property is an inalienable right.
Like most judges, Field was not entirely consistent in his record of voting to protect private corporations. Notably, he was often ready to find them—especially railroads—liable for compensation to injured or killed workers under the common law “fellow servant” doctrine. Here he was, again, often at odds with the Court majority (
Baltimore & Ohio Railroad v. Baugh, 1893).
Theories of economics and finance were freely used by both sides in the much‐debated
Legal Tender Cases, which involved the constitutionality of the issuance of paper money by the federal government. Field wrote at great length to prove that there was an inalienable right to the use of gold and silver as currency and thus that there was no constitutional power to force Americans to accept paper money as legal tender (
Knox v. Lee, 1871). Nevertheless, the five‐justice majority ruled the law to be valid, reversing an earlier decision. Field repeated much the same arguments—but this time as a minority of one—in 1884 in
Juilliard v. Greenman.
On the California Supreme Court and later as a U.S. circuit court judge, Field applied the idea of inalienable rights to the Chinese, who were discriminated against by California law. This made him politically unpopular in the Golden State, and it may be because of this that he slowly gave up his “extreme” opinions against anti‐Chinese state or local enactments (
Barbier v. Connolly, 1885). His record on the Chinese cases shows a good deal of inconsistency, which he never bothered to explain or even acknowledge.
Despite the Fourteenth Amendment's plain purpose to protect African‐Americans from state discrimination, Field showed no tendency to give effect to its provisions. Indeed, he went so far as to claim, in a dissenting opinion, that the amendment did not even secure for African‐Americans the right to serve on juries (
Ex parte Virginia, 1880). In the frequent cases in which the Court majority refused to use the amendment to protect African‐Americans' rights, Field merely went along with the majority, writing no opinions. Where, then, was his doctrine of inalienable rights? The civil rights cases illustrate the major difficulty with such doctrines—that of definition. In Field's case it became obvious that the rights of private property were more inalienable than the right to
equal protection under the law. Each judge had to define the word “right” for himself, and the Constitution disappeared in the process.
Field, true to his beliefs, did not retire from politics when he ascended the supreme bench. He served as a Democratic member of the electoral commission that decided the Hayes‐Tilden presidential election in 1876, voting down the line for the Democrat Tilden. When Hayes was declared the victor, Field manifested his disagreement by refusing to accompany the rest of the Court to the inauguration. Urged on by his brothers, the Californian became a more or less open candidate for the presidency in 1880, but, due partly to old and new enmities made in California, he failed badly at the nominating convention. Nevertheless, he remained a storm center in California politics for some years. He also, apparently, expected that President Grover Cleveland would appoint him chief justice when Morrison
Waite died in 1888, since he was the only Democrat on the bench and he felt that Cleveland owed him some political debts. Cleveland felt otherwise and appointed an outsider, Melville
Fuller; Field never forgave the president. (See
Extrajudicial Activities.)
The events leading to the killing, in California, of Judge David S.
Terry by Deputy Marshall David Neagle, are too complex to summarize. Neagle shot Terry in an apparent attempt to protect Field's life. In a celebrated case that reached the Supreme Court itself, Neagle's act was upheld as being pursuant to his duty to the United States (
In re Neagle, 1890). It was another example of Field's tendency to appear at the center of controversy, whether legal, political, or personal.
Because he was intent on remaining on the Court longer than the thirty‐three‐year record then held by John
Marshall, Field refused to step down even when diplomatically asked to do so by Justice Harlan at the insistence of the other justices. Field had done less and less Court work through the 1890s, and by the time of his retirement was practically useless to his colleagues. An element in his decision not to resign earlier was his extreme dislike of both Presidents Cleveland and Harrison: he did not want either of them to appoint his successor. After his retirement in 1897, he became increasingly feeble, turned back to the religion he had largely ignored during most of his life, and died after a brief illness in 1899.
Field was undoubtedly a chief contributor to the development of Fourteenth Amendment jurisprudence, especially that of the Due Process Clause. If he turned that provision to uses that were neither intended by the amendment's framers nor required by its words, he was at least in tune with his times and with the felt needs of an industrializing society. Substantive due process was, it is true, dropped by later, more liberal Courts, which did not share Field's attachment to the rights of private property; but these same liberals were to find the doctrine useful in developing noneconomic inalienable rights such as the right to personal
privacy used to justify the right to
abortion. Field, in his grave, may find a certain ironic satisfaction in the attempts of his critics to define very different inalienable rights by calling on the same natural law approach he used in constitutional interpretation. And who is to say whether Field or William O.
Douglas chose rights that are truly inalienable?
Bibliography
Howard Jay Graham , Justice Field and the Fourteenth Amendment. Yale Law Journal 52 (September 1943): 851–889.
Robert Green McCloskey , American Conservatism in the Age of Enterprise (1951), chap. 4.
Carl Brent Swisher, and Stephen J. Field , Craftsman of the Law (1930).
G. Edward White , The American Judicial Tradition (1976), chap. 4.
Loren P. Beth
