by Damon Root
Field then took aim at Miller’s ahistorical reading of the Fourteenth Amendment. Citing a range of evidence, including the controversy over the Black Codes, the congressional debates over the Civil Rights Act and the Fourteenth Amendment, and Justice Washington’s influential opinion in Corfield v. Coryell, Field maintained that the Privileges or Immunities Clause did in fact place substantive limits on state power, such as requiring lawmakers to respect the civil rights of all Americans. “Clearly among these,” he wrote, “must be placed the right to pursue a lawful employment in a lawful manner, without other restraint than such as equally affects all persons.”70 Yet, thanks to Miller’s cramped reading, Field observed, the Fourteenth Amendment had been reduced to “a vain and idle enactment, which accomplished nothing and most unnecessarily excited Congress and the people upon its passage,”71 an outcome Field found ludicrous in light of the evidence plainly before him.
It was a strong dissent, firmly rooted in the text and history of the Fourteenth Amendment—but it was still a dissent. Louisiana and its corporate partners won the case. The Supreme Court had declared the Privileges or Immunities Clause to be dead on arrival.
From Slaughter-House to Liberty of Contract
Although it failed to command a majority in The Slaughter-House Cases, Field’s dissent would lay the foundation for future victories. Over the following three decades, Field sharpened and expanded his Slaughter-House arguments in a series of influential opinions, mostly filed in dissent, but with some carrying the force of law. In them, he advanced three interlocking ideas: First, that the Fourteenth Amendment protects economic liberty, including the free labor right “to pursue a lawful employment in a lawful matter,” soon to be shorthanded to “liberty of contract”; second, that government regulations are only permissible if they represent a legitimate and verifiable effort to protect the health, welfare, or safety of the public; and third, that it is both necessary and proper for the courts to police government actions in order to distinguish between legitimate regulations and illegitimate infringements on liberty. By the time Field retired in 1897 at the age of eighty-one, a majority of the Supreme Court was beginning to follow his approach.
The writing was on the wall as early as 1885. That year the New York Court of Appeals—the state’s highest court—employed language that might have been ghostwritten by Field himself in order to strike down a state law banning the manufacture of margarine, or oleomargarine as the food product was then known. “No proposition is more firmly settled,” that court held, “than that it is one of the fundamental rights and privileges of every American citizen to adopt and follow such lawful industrial pursuit, not injurious to the community, as he may see fit.”72 One year later, in the case of In re Tie Loy, a federal circuit court in California bypassed the Slaughter-House majority entirely and instead relied in part on Field’s dissent to overturn an economic regulation for violating the Fourteenth Amendment right to labor in an “honest, necessary, and in itself harmless calling,” a right the federal court described as “one of the highest privileges and immunities secured by the Constitution to every American citizen, and to every person residing within its protection.”73
At the Supreme Court, meanwhile, Field was busy reading the precepts of free labor into the Fourteenth Amendment’s guarantee that no person be deprived of life, liberty, or property, without due process of law, effectively keeping the original purpose of the Privileges or Immunities Clause alive through its neighbor, the Due Process Clause. In time, that approach would come to be known as substantive due process, referring to the idea that the Due Process Clause guarantees more than just fair procedure and in fact protects various substantive rights as well. And surprisingly enough, a state law targeting margarine would once again figure prominently in the evolution of this constitutional doctrine into a handy tool used by the courts to invalidate state and federal laws.
“A Healthy and Nutritious Article of Food”
If the idea of waging a major Supreme Court battle over the fate of a popular food product like margarine sounds funny now, it was no joke in the late nineteenth century. Margarine was invented in 1869 by a French chemist named Hippolyte Mège-Mouriès, whose own spark of innovation came courtesy of French Emperor Napoleon III, the sponsor of a major contest seeking an affordable alternative to butter, which Mouriès entered and won. In the words of one food writer, Mouriès “produced a substance very like butter, although his primitive product lacked flavour and colour.” Nonetheless, it “was an immediate commercial success despite the disdain of those who regarded it as a cheaper and inferior substitute.”74 Among the loudest voices raised in disdain were those of American dairy farmers. They feared the competition and, in the words of historian Paul Moreno, “clamored for the suppression of the new rival.”75 The dairy industry’s clamorous lobbying paid off in the states of New York and Pennsylvania, where margarine bans soon went into effect.
The Supreme Court entered the mix in 1888 when it heard oral argument over the constitutionality of the Pennsylvania ban in the case of Powell v. Pennsylvania. According to state officials, prohibiting the manufacture and sale of margarine was necessary “for the protection of the public health, and to prevent adulteration of dairy products,”76 though of course the unstated true purpose of the law was to protect dairy farmers from unwelcome economic competition. Nonetheless, thanks to the principle of judicial deference, Justice John Marshall Harlan said he had no choice but to take those officials at their word. “Every possible presumption is in favor of the validity of a statute,”77 he declared. For those persons hoping to manufacture, sell, or consume “wholesome oleomargarine as an article of food,” Harlan’s opinion contained a distasteful message: “Their appeal must be to the legislature, or to the ballot-box, not to the judiciary.”78
Field just shook his head in disbelief. The purpose of the government’s regulatory power, he responded in dissent, was to protect “the health of the people,”79 not to use flimsy pretexts in order to prevent the manufacture or sale “of a healthy and nutritious article of food.”80 The courts must “examine into the real character of the act,” he argued, not simply “accept the declaration of the legislature as conclusive.”81 Having performed such basic scrutiny on the regulation before him, Field was left with no choice but to nullify the bogus law. “It derives no validity by calling itself a police or health law,” he announced. “It is nothing less than an unwarranted interference with the rights and liberties of the citizen.”82 The government should congratulate the makers of a healthy and affordable new food product, he observed, not hound them out of business with baseless regulations.
Expanding Liberty’s Reach
In the eyes of many critics, Justice Field’s real agenda had nothing to do with individual liberty and everything to do with aiding and abetting the forces of industrial capitalism. The influential political scientist Robert Green McCloskey, for instance, once described Field as a heartless reactionary who put property before people while on the Supreme Court. Field’s commitment to “the legal and theoretical fictions of ‘laissez faire,’”83 McCloskey argued, made it “more and more difficult” for him “to recognize that human rights have any real standing in the scale of social values.”84
To be sure, Field was no angel. In the 1873 case of Bradwell v. Illinois, for instance, he joined the majority in upholding that state’s power to prevent women from practicing law, effectively forbidding a brilliant woman named Myra Bradwell from exercising her free labor right to earn a living as a licensed attorney. Field did not always practice the libertarian philosophy he liked to preach.
Nor did Field shy away from casting his vote in favor of the rich and powerful. Take the 1877 case of Munn v. Illinois. At issue was one of the so-called Granger Laws, a series of regulations passed throughout the Midwestern states at the urging of organized farm labor groups such as the Grange. In Munn, the state legislature had set maximum storage rates f
or fourteen massive privately owned grain elevators located at the port of Chicago. According to local farmers, the law was necessary in order to level the playing field and save them from ruinous price gouging.
Writing for the majority, Chief Justice Morrison Waite agreed with that assessment and upheld the price-fixing scheme as a legitimate exercise of the state’s police powers. When private property is “affected with a public interest,”85 it becomes open to greater government intervention, Waite argued. The grain elevators “stand . . . in the very gateway of commerce and take toll from all who pass”; they “exercise a sort of public office,”86 a de facto monopoly. Besides, Waite said, striking a pose of judicial deference, even if there was something funny about the regulation, “for protection against abuses by the legislature, people must resort to the polls, not the courts.”87
Writing in dissent, Field accused the majority of turning a blind eye to government overreach. The right to property under the Due Process Clause must refer to more than just “title and possession,”88 he said. It necessarily includes the right to use and dispose of one’s property, to set rates of compensation, and to profit. Yet under what he saw as the Court’s perverse rationale in Munn, Field charged, “whenever one devotes his property to a business which is useful to the public,” that usefulness carried the risk of forfeiting constitutional protection and leaving the property subject to previously unacceptable forms of state control. “If this be sound law . . . all property and all business in the State are held at the mercy of a majority of its legislature.”89 As for the grain elevators, they are “not nuisances,” their operation “of receiving and storing grain infringes upon no rights of others, disturbs no neighborhoods, infects not the air, and in no respects prevents others from using and enjoying their property.”90 Because the regulation served no legitimate public purpose, he concluded, it should have been struck from the books.
To say the least, Field’s dissent in Munn showed little sympathy for the farmers who felt themselves getting squeezed by high prices at the port of Chicago. But that’s not to say his economic opinions always came down on the side of the big guy. In Slaughter-House, for instance, Field sided with small-scale butchers against a state-backed corporation wielding monopoly powers. In Powell, he opposed the dairy industry’s successful effort to prevent upstart competitors from entering the marketplace and selling a harmless food product. But perhaps nothing better illustrates how Field’s jurisprudence could serve to expand liberty’s reach than a pair of cases arising out of California’s notoriously xenophobic crackdown on Chinese immigrants in the latter half of the nineteenth century.
Among his responsibilities as a Supreme Court justice, Field was required to “ride circuit,” meaning he spent a certain part of the year hearing cases as a federal appellate court judge. His circuit covered his adopted home state of California. In that capacity, Field encountered the case of Ah Kow v. Nunan. At issue was a San Francisco ordinance of 1876 requiring all male prisoners in the county jail to have their hair “cut or clipped to an uniform length of one inch from the scalp.” Ostensibly a public health measure, the law’s true purpose was to humiliate and harass those male Chinese immigrants who wore their hair in long braided ponytails, also known as “queues.” Indeed, throughout the Bay Area, the law was commonly referred to as the “queue ordinance.”
Employing the same scrutiny he later applied to Pennsylvania’s margarine ban, Field cut to the heart of the matter. The notion of a “hostile and spiteful”91 law such as the queue ordinance serving any sort of legitimate regulatory function “is notoriously a mere pretense,” he declared. The law’s only purpose was to punish the Chinese, and everybody knew it. “When we take our seats on the bench we are not struck with blindness,” he observed, “and forbidden to know what we see as men.”92 He nullified the law.
Three years later, Field brought the same scrutiny to yet another San Francisco law rooted in anti-Chinese animus. Under the terms of a municipal ordinance of 1882, anyone seeking to operate a laundry business within city limits had to first obtain “the consent of the board of supervisors, which shall only be granted upon the recommendation of not less than 12 citizens and taxpayers in the block in which the laundry is proposed to be established, maintained, or carried on.”93 In this case, the law’s true targets were those entrepreneurial Chinese immigrants who had established themselves in the laundry business. Writing once again for a majority of the Circuit Court, Field voided the law.
He began with the “miserable pretense” offered by the city as justification for its exercise of the police power. Government-issued licenses may certainly be required “where the nature of the business demands special knowledge or qualifications,” Field held, but they may not be required “as a means of prohibiting any of the avocations of life which are not injurious to public morals, nor offensive to the senses, nor dangerous to the public health and safety,”94 such as the non-dangerous and non-offensive business of washing, ironing, and pressing clothes.
Furthermore, he argued, the city’s requirement that a business owner receive permission from his neighbors serves no conceivable public health purpose; it simply subjects one person’s ability to exercise a basic economic freedom to “the favor or caprice of others.”95 Indeed, Field noted, the petitioner in the case was more than happy to pay any necessary fees required by the city, yet on account of the “great antipathy and hatred toward the people of his race,”96 he found it impossible to find twelve neighbors willing to endorse his business. The Fourteenth Amendment was designed to outlaw that very sort of discriminatory economic regulation, Field maintained, and he put the amendment to precisely that use by striking down the law.
A Libertarian Legacy
Justice Stephen Field sat on the Supreme Court for thirty-three years, a busy stretch of history that ran from the height of the Civil War to the pre-dawn of the twentieth century. And while he often voted in dissent, that heterodox position did not stop him from leaving his mark on the law. Several months before his retirement in 1897, a unanimous Supreme Court adopted the core premise of his 1873 Slaughter-House dissent, holding that a Louisiana statute forbidding state residents from buying insurance through the mail from an out-of-state company violated the Fourteenth Amendment right to liberty of contract. “In the privilege of pursuing an ordinary calling or trade, and of acquiring, holding, and selling property, must be embraced the right to make all proper contracts in relation thereto,”97 declared the opinion of Justice Rufus Peckham in Allgeyer v. Louisiana.
For once, Justice Field sided quietly with the majority. Unfortunately for him, the hard-fought victory would not last long.
Two
The Devil and Oliver Wendell Holmes
On September 17, 1862, two great armies met in battle in and around the quiet town of Sharpsburg, Maryland. For Confederate General Robert E. Lee, who had marched his formidable Army of Northern Virginia into the Union-controlled border state just two weeks earlier, the goal was nothing short of total victory. Invading the North and menacing the enemy on its own soil, Lee wrote to Confederate President Jefferson Davis, would demolish northern morale, solidify the case for Southern independence, and “enable the people of the United States to determine at their coming elections whether they will support those who favor a prolongation of the war, or those who wish to bring it to a termination.”1 The stakes were equally high for Union Maj. General George B. McClellan, now forced to reorient his massive Army of the Potomac in order to meet the invading Southern host. “Destroy the rebel army if possible,”2 instructed Abraham Lincoln.
The resulting clash of arms would prove to be the single bloodiest day of the entire Civil War. By the time the smoke cleared after twelve hours of hard, brutal fighting, some 23,000 men were dead, wounded, or missing. “The air was full of the hiss of bullets and the hurtle of grapeshot,”3 recalled one Union soldier who survived the ordeal. At the center of the Confederate bat
tle line, in a sunken farm road now remembered as the Bloody Lane, Southern soldiers were outflanked and massacred by the score. As the historian Shelby Foote later described it, “Quite suddenly, as if they had tumbled headlong by the hundreds out of the sky, dead men filled whole stretches of the road to overflowing.”4
It was a day of death and horror, with staggering casualties on both sides of the Antietam Creek, the winding local waterway that gave the battle its now-storied name. Among the thousands of wounded men littering the ground that day, shot through the neck and left for dead, was twenty-one-year-old Oliver Wendell Holmes Jr., captain of the Twentieth Massachusetts Regiment and future associate justice of the U.S. Supreme Court. “It don’t seem to have smashed my spine,” Holmes wrote home to his mother, “or I suppose I should be dead or paralyzed or something.”5
It was not the young officer’s first brush with death. Two months earlier, at the Battle of Ball’s Bluff in northern Virginia, Holmes was shot twice in the chest, causing his mouth to fill with blood. “The first night I made up my mind to die & was going to take that little bottle of laudanum as soon as I was sure of dying with any pain,”6 he reported home. He suffered a third and final wound one year later at the Battle of Chancellorsville, also in Virginia, where he was shot in the foot. “I’ve been chloroformed & had bone extracted,” he informed his mother, “probably shant lose foot.”7