II. Justice Field

When he retired in 1897, Justice Field was the longest serving justice on the Supreme Court up to that time (a position from which he would later be supplanted by William O. Douglas). Field had been Abraham Lincoln's fourth Supreme Court appointment, named to the newly created tenth seat in 1863.Footnote ³ Congress created the extra seat in response to the reorganization of the judicial circuit on the West Coast. It was understood that it would go to a citizen of the relatively new state of California, which Republican leaders were eager to keep loyal to the Union. At the time of the creation of the extra seat, Field was widely expected to be the appointee.Footnote ⁴ He was then chief justice of the California Supreme Court and, though a Democrat, was known as pro-North and antislavery.

Field's career spanned the period when the great issues of the Civil War dominated, through the era of Reconstruction, and on into the “Gilded Age” when industrialization and related social processes associated with capitalism dominated the political and legal landscape. The American people can never claim not to have gotten their money's worth out of him. As the justice assigned to the Pacific Coast, Field had to make the long trip west every year in order to ride circuit. On the Supreme Court itself, he authored over 550 Opinions of the Court and nearly eighty dissenting opinions. Although he is not remembered as a “great dissenter,” some of his most important opinions were written in dissent, as we shall see. In his long and prolific career on the Court, he became its intellectual leader, as John Marshall had been before him and as, say, William Brennan would be after him. Field's greatest fame, as well as his genuine claim to importance on the Court, lay in the part he played in developing a theory of rights protection that eventually led to the reigning substantive due process approach of the so-called Lochner era.

III. Classical Judicial Liberalism: Orthodoxy and Revisionism

Undoubtedly the classic critique of Lochnerism was Justice Oliver Wendell Holmes's dissent in the Lochner case itself: “This case is decided upon an economic theory which a large part of the country does not entertain.” The economic theory alluded to had nothing to do with the Constitution the Supreme Court was seemingly invoking: “The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics,” Holmes wrote.Footnote ⁵ On his view, the justices who supported the substantive due process doctrine were neither interpreting the Constitution nor allowing the democratic branches to speak the will of the people. They were acting on the basis of their own conception of good public policy, a conception based on the controversial economic theory of laissez-faire capitalism. Holmes's point is not so much that this is a bad theory (although he arguably thought it was), but rather that acting on the basis of any economic theory whatsoever is inappropriate for the courts.Footnote ⁶

Holmes's notion that the justices favoring Lochnerism were acting on the basis of extra-constitutional economic theories has been supplemented in various ways by later justices and scholars. Those of a legal-realist turn of mind surmised that Field's role in laying the ground for Lochnerism was less the result of a commitment to a philosophy of laissez-faire, and more a matter of whom he knew, whom he admired, and whom he wished to please, for Field had been a great friend of railroad men and industrialists like Leland Stanford and Collis Huntington.Footnote ⁷ Others saw Field's actions much as Holmes had: political scientist Robert McCloskey thought that Field was obsessed with laissez-faire economics;Footnote ⁸ Field's biographer Carl Brent Swisher agreed with Holmes that Field was preeminently committed to laissez-faire, but traced this commitment to Adam Smith, not Herbert Spencer. In addition to Field's commitment to free markets, Swisher saw in Field a strong belief in natural rights and natural law as exemplified by the Declaration of Independence.Footnote ⁹ McCloskey saw the presence of less traditional doctrines. Instead of a Lockean or a Jeffersonian, Justice Field was, on McCloskey's view, far more a creature of his own epoch. Thus, McCloskey's Field displays an attachment to the tenets of social Darwinism that places him squarely in the temper of his times.Footnote ¹⁰ Legal historian Howard Jay Graham pointed to a more political motive for Field's judicial work: fear of class conflict.Footnote ¹¹ Although the factors these scholars point to are many and diverse, they share the feature that they are, one and all, nonconstitutional doctrines. Implicit in their varied portrayals of Field's classical judicial liberalism is the imputation that it has little or nothing to do with the Constitution itself. All the critics so far mentioned are in agreement that Field and the Court he led made a significant mistake in entering the realm of Lochnerism.Footnote ¹²

The arguments of the Progressive and New Deal era critics of laissez-faire constitutionalism are familiar and need no extensive elaboration here. Revisionist scholars, however, are both less well-known and more complex in their understanding and assessment of the Lochner era and its aftermath. They are revisionist in that they promulgate a different version of Lochnerism, a version far more sympathetic in many ways to those who promoted this approach to the Constitution. One such scholar, Michael Les Benedict, gives a good brief description of the revisionist positions: “the traditional view [was] that judges imposed laissez faire on the Constitution to protect the interests of big business…. [The revisionists], in contrast, see laissez-faire constitutionalism as the natural outgrowth of widely held constitutional doctrines, the origins of which lay in hostility to special interests rather than in protection of them.”Footnote ¹³ The revisionists find the jurisprudence of laissez-faire constitutionalism to be far more (and far more legitimate) than the personal or class interests, biases, and theories of the justices of the period. Nonetheless, they also maintain (almost as much as Progressives do) that it was well that the Court ultimately jettisoned laissez-faire doctrines and moved on to post-classical judicial liberalism.

Since the mid-1970s, a substantial number of revisionist scholars have written on the Lochner era, but I will focus on only two of them: Charles McCurdy and Howard Gillman. These two are the most thorough, and, at the same time, they promote fruitfully different interpretations of classical judicial liberalism.Footnote ¹⁴ All the revisionist scholars share the basic idea that the doctrine that Field and others developed had much support in constitutional text and tradition, and that the doctrine was by no means invented by judges bent on imposing their favorite economic theory on the nation, or on insulating their business friends and allies from governmental regulation.Footnote ¹⁵ Where they differ is on the identification of the precedents and principles most relevant to the mature substantive due process doctrine.

McCurdy's 1975 essay “Justice Field and the Jurisprudence of Government-Business Relations” attempts a comprehensive account of Field's constitutional approach to issues of political economy. McCurdy locates the “fundamental theorem” of Field's jurisprudence in the “Jacksonian, radical anti-slavery precept that under ‘the Declaration [of Independence] of 1776’ each individual had a natural right ‘to pursue the ordinary vocations of life without other restraint than such as effects all others and to enjoy with them the fruits of his labor’.”Footnote ¹⁶ That “free labor” doctrine had a long and honorable pedigree within the American political tradition, even if it had not been developed quite in the manner that Field would develop it. The doctrine had received heightened prominence in the era leading up to the Civil War, when antislavery forces appealed to it in their opposition to “the peculiar institution.”Footnote ¹⁷

Building on the free labor doctrine, McCurdy attempts to reveal the inner logic of Field's position. It is not a logic of favoring business at every turn. Rather, Field was attempting to articulate a clear line between private and public, a line that would govern both what government could constitutionally do for business, and what it could do to business. Once he had defined this line, Field could be stringent in denying governmental power to aid or subsidize business enterprise, just as he could be supportive of governmental efforts to regulate business or even to set prices. McCurdy attempts to show, then, that Field's approach was one of constitutional principle (not economic theory or personal predilection) and that Field achieved a doctrine of remarkable consistency and logical coherence. Moreover, as Benedict suggested, it was a doctrine intended to prevent governmental underwriting of special interests, and to empower governmental action for the common good—all propositions contrary to the received Progressive interpretation.

The other major revisionist voice to be considered here is that of Howard Gillman, whose book The Constitution Besieged: The Rise of Lochner Era Police Powers Jurisprudence appeared in 1993. Gillman's focus was not on Justice Field, but rather, as his title suggests, on the entire experience of Lochnerism, or what I am calling classical judicial liberalism. Nonetheless, no other justice receives nearly as much attention from Gillman as Field does. Although Gillman traces Lochner era police power jurisprudence back to Jacksonian times, he presents Field as the justice who was particularly energetic in driving the Supreme Court to accept the doctrine and to apply it actively. Thus, Gillman presents Field as the one who, in the Slaughterhouse Cases (1873), was willing to accept the implications of the Fourteenth Amendment—that the Jacksonian standards governing the use of the police power could now be applied by the U.S. Supreme Court against the states, thereby overturning, even revolutionizing, the traditional federal system.Footnote ¹⁸ Moreover, Gillman identifies Field as the one who applied these standards by refusing to settle for state claims that legislation served the valid police-power aims of safety, health, welfare, or morality. On Field's view, courts should not take the word of the state but should investigate on their own whether a given piece of legislation accomplished (or even really aimed to accomplish) what was claimed for it.Footnote ¹⁹ Gillman agrees, in other words, that Field was particularly important as an architect of the new judicial liberalism, and I think it fair to conclude that he sees Field as a particularly able articulator of the tenets of that position.

An important part of Gillman's revisionism (as with that of McCurdy and others) is to skewer the myth that the Supreme Court in the Lochner era struck down all or nearly all legislation aiming to regulate economic activity or hostile in any way to business. “There were many circumstances,” Gillman tells us, “in which judges allowed legislatures to interfere with market liberties, including relations between employers and employees. Judges certainly believed in liberty of contract, but their commitment to it was far from absolute: it may even be fair to say that using liberty of contract to trump legislation was the exception, and not the rule.”Footnote ²⁰ Citing McCurdy, Gillman insists that Field was no exception to this rule: “Field … was more than willing to uphold statutes that prohibited certain businesses considered detrimental to the public welfare, prescribed standards of fitness for lawyers and doctors, required railroad corporations to erect cattle guards and eliminate grade crossings at their own expense, and regulated working hours or compelled hazardous businesses to compensate workers injured on the job.”Footnote ²¹ Gillman concludes that “Field shared much of the Court's (forgotten) willingness to uphold legislative interventions in market relations.”Footnote ²²

Neither Gillman nor McCurdy wishes to deny, of course, that there was some basis for the view that Field and the Court he led did take an active role in overseeing state legislative activity, and often acted to arrest “legislative interventions in market relations.” But that activity was far less frequent and pervasive than the standard myth held, and the standard explanations for it are too blunt to explain the actual pattern of behavior that can be observed. Field and the so-called laissez-faire Court did not act to impede all such legislative interference, but only to impede legislative acts that denied “equality before the law.”Footnote ²³ In effect, Gillman reinterprets substantive due process as a form of substantive equal protection. It guarded not against interferences with liberty (or property) per se, but against arbitrary interferences, interferences in which some group or class used the legislative process to gain benefits for itself at the expense of the community. Gillman, like McCurdy, thus concludes that Field was not, as the standard version has it, a protector of special interests. He was instead an enemy of special interests, of those who would use legislation to extract special benefits for themselves at the expense of others.Footnote ²⁴ Gillman captures his overall understanding of Field and of classical judicial liberalism in a quotation from an 1883 opinion written by Field. Under the Fourteenth Amendment, Field wrote:

The revisionists thus mean to rehabilitate Field and his fellow justices, but only up to a point. They are not lobbying for a revival of classical judicial liberalism; indeed, they see its passing as appropriate and good. Both McCurdy and Gillman see it as a historically bound position. McCurdy goes so far as to say that the Lochner decision itself was not an embodiment of Field's constitutional vision, but was decided by a group of justices who had moved on to a whole new set of concerns, approaching them with new and different judicial tools.Footnote ²⁶ “Field's ‘immortal truths’, if viable at all, provided solutions only for the policy issues of the 1870s.”Footnote ²⁷ By the early years of the twentieth century, “questions involving labor-management strife or governmental control of ‘ordinary trades’” rose to the surface—questions on which Field's rigorous attempt to separate public and private had little purchase.Footnote ²⁸ Similarly, Gillman sees the continued evolution of American capitalism as rendering Field's type of judicial liberalism outdated and counterproductive. Field and his fellows were committed to “a constitutional ideology of state neutrality” that resisted state intervention on behalf of any special or partial interests. But the evolution of capitalism led to a situation where state inaction left some groups vulnerable to “the coercive effects of the market,” in the face of which state intervention on behalf of the vulnerable no longer represented the kind of special-interest intervention contrary to the public good that Field and his peers thought it was. The old formulas and approaches no longer corresponded to the political and economic realities. Classical judicial liberalism may have been legitimate and justified when first introduced in the Jacksonian era, but by the time of the New Deal it had more than outlived its usefulness.Footnote ²⁹

My study of Justice Field takes as its point of departure the somewhat different explanatory emphases among the leading revisionists: can a fresh look at Field's jurisprudence give us a more unified and perhaps philosophically deeper grasp of classical judicial liberalism? I am equally concerned with the question of whether the revisionists are right to see judicial liberalism as a well-rid-of relic of an earlier phase of capitalist development. Is there anything to be said for the continuing validity—constitutional and philosophical—of the Field approach, and even for a revival of it as a living constitutional doctrine?

IV. Rights Protection Before the Fourteenth Amendment: The Test Oath Cases

Justice Field is best known for decisions made under the Fourteenth Amendment, but, ironically perhaps, the best ingress to his classical judicial liberalism may lie in two cases decided in 1866, well before the Fourteenth Amendment was ratified and became part of the Constitution. Even in his most famous Fourteenth Amendment opinion, Field provides a genuine basis for thinking that the Amendment is not itself at the root of his decisions. In his 1873 Slaughterhouse Cases dissent, after stating the facts of the case, Field revealingly commented: “No one will deny the abstract justice which lies in the position of the plaintiffs in error; and I shall endeavor to show that the position has some support in the fundamental law of the country.”Footnote ³⁰ First, Field affirms the “abstract justice” of his position, and then he finds “some support” for that position in the Constitution.

The two pre–Fourteenth Amendment cases to which I've referred, Cummings v. Missouri (1866) and Ex Parte Garland (1866), involved test oaths prescribed by the state of Missouri and the U.S. Congress, respectively, oaths that had to be taken before Cummings could take up his old position as a priest and Garland his position as an attorney practicing before federal courts.Footnote ³¹ The oaths were instituted during and in the immediate aftermath of the Civil War and required the subject to swear that he had never participated in the rebellion in a long list of specified ways. In the case of the Missouri oath, any individual unable to so swear was prohibited by the Missouri constitution from holding “any office of honor, trust, or profit under its authority, or of being an officer, councilman, director, or trustee, or other manager of any corporation, public or private, now existing or hereafter established by its authority, or of acting as a professor or teacher in any educational institution, or in any common or other school, or of holding any real estate or other property, in trust for the use of any church, religious society, or congregation.” Moreover, persons not taking the oath were forbidden from serving as “an attorney or counselor-at-law … [or] a bishop, priest, deacon, minister, elder or other clergyman, of any religious persuasion, sect, or denomination.”Footnote ³² The Missouri oath prohibited so much that Field commented that it was “for its severity, without any precedent that we can discover.”Footnote ³³ One of Field's biographers summed up the effect of the Missouri oath as follows:

The oath that was the subject of the Garland case was less draconian, for it forbade those who could not take the oath only from holding any office in the government of the United States or from being a member of the federal bar.

Both cases were decided by the same five judge majority against the oaths. Field wrote the majority opinion both times. Justice Samuel Miller wrote a dissent for the four-person minority in an opinion applying to both cases, but attached to the Garland case. Justice Miller opened his opinion with an oblique reference to Field's observation on the “severity” of the oath requirement:

The dissenters, in other words, agreed with Field in hoping that the harsh and punitive laws could give way to more conciliatory actions. Nonetheless, Miller chided Field and the others in the majority for letting their judgments about justice and good policy interfere with their proper judicial role:

The incompatibility with the Constitution was not that clear to Miller and thus he dissented, suggesting while doing so that Field had tested the law by policy and abstract justice rather than the Constitution. The constitutional issues in the two cases varied slightly, but the core issue in both, as Miller understood it, was whether the incapacities that were consequent on failing to take the prescribed oaths amounted to punishment or not. That was the crucial issue, for Field had made his explicit case against the test oaths not on the basis of abstract justice but on the basis of the constitutional clauses prohibiting bills of attainder and ex post facto laws. As Miller pointed out, both clauses could be appealed to if and only if the result of not taking the oath was rightly considered a punishment, for the ex post facto clause had been held (in a long string of cases) to apply only to criminal prosecutions, and the bill of attainder clause forbade certain sorts of nonjudicially imposed punishments. Miller had a relatively easy time showing that various features of the oath and the results of failing to swear to it looked nothing like ordinary criminal law or the kinds of punishment forbidden by the bill of attainder clause.Footnote ³⁷ Thus, Field's biographer Paul Kens observed that “even people who agreed with the outcome of the Test Oath Cases would have difficulty denying that Field stretched the Constitution to get there…. He employed considerable imagination in defining ex post facto, bill of attainder, and punishment.”Footnote ³⁸

Miller thought that the oaths were not a punishment at all, but were the exercise of a very ordinary state power to set the qualifications for individuals practicing certain professions. Thus, it is nothing extraordinary for governmental bodies to set qualifications for those attempting to practice law.Footnote ³⁹ It may be more unusual for state authorities to regulate the qualifications of the clergy, but, as Miller noted, nothing in the Constitution prohibited the states from doing so: the First Amendment's religion clauses applied only to the U.S. government.Footnote ⁴⁰

Miller made an impressive argument, but his approach to these two cases fails to respond to the core of Field's argument. Contrary to what Miller implied, Field accepted the responsibility to ground his decision in the Constitution: “The Court cannot decide the case upon the justice or hardship of these provisions. Its duty is to determine whether they are in conflict with the Constitution of the United States.”Footnote ⁴¹ Miller correctly identifies the particular constitutional clauses to which Field appeals, but he fails to grasp how Field arrived there. Contrary to his laissez-faire image, Field conceded at the outset of his Cummings opinion that “among the rights reserved to the states is the right of each state to determine the qualifications for office, and the conditions upon which its citizens may exercise their various callings and professions within its jurisdiction.”Footnote ⁴² Field saw, in other words, that the oath could be viewed as Miller viewed it, as prescribing a qualification for a “calling within its jurisdiction,” but Field quite self-consciously rejected that interpretation of it.

Field concedes that states may set qualifications for offices and callings, but, he insists, “it by no means follows that, under the form of creating a qualification or attaching a condition, the states can in effect inflict a punishment for a past act.”Footnote ⁴³ Some purported efforts to set qualifications may in fact not do that, but instead do something else—for example, serve as a punishment. Presumably, they may do other things as well, such as set up barriers factually unrelated to the qualifications for a calling or office, in order to benefit a favored group in the community by granting it a monopoly of access to the profession or office. For example, a law establishing that only graduates of the local state university may practice law or medicine in a given jurisdiction might well be an effort to favor certain groups in the community and disfavor others.

Field does not conclude that alleged efforts to set qualifications that in fact do something else are ipso facto invalid. There is the further question of “whether there is any inhibition in the Constitution of the United States against their enforcement.”Footnote ⁴⁴ Field thus outlines a three-step process. The court must determine, first, if the law does set a qualification. This is largely a matter of classification, the performance of which requires a court to apply a general standard to determine what counts as a qualification for a given profession, calling, or office. This clearly requires the court to enter upon substantive judgments that may involve the court in holding its own judgment about qualifications up against the judgment of the legislators, or, as in this case, the framers of the Constitution. If the court concludes that the provision in question indeed sets a valid qualification, then that, presumably, is the end of the inquiry.

The second stage of the process occurs when the court finds the provision to go beyond (or fall short of) setting a qualification. Then the court must ask: If this provision is not actually establishing a qualification, what is it doing? In Cummings, Field concluded that the provision was serving as a means of inflicting punishment. That sets the stage for the third and final inquiry: Does anything in the U.S. Constitution bar the state from imposing that punishment in that way?

We might look briefly at Field's handling of all three inquiries, for the structure of thought underlying his inquiries came to play a central role in the judicial liberalism he articulated. Field first establishes that the test oath is not in fact a regulation setting qualifications for the various professions covered by it. He begins by announcing a general principle: “Qualifications relate to the fitness or capacity of the party for a particular pursuit or profession.” Qualifications may include “any natural endowment or any acquirement which fits a person for a place, office, or employment, or enables him to sustain any character with success.”Footnote ⁴⁵ Field has, on the face of it, a capacious notion of what counts as a qualification. He goes into very little detail in delineating what sorts of considerations are legitimate in setting qualifications, but he develops at some length the case for judging that the provisions of the test oath do not establish valid qualifications for the priesthood:

These observations led Justice Field to the conclusion that “the oath could not, therefore, have been required as a means of ascertaining whether parties were qualified or not for their respective callings or the trusts with which they were charged.”Footnote ⁴⁷ It might be objected that Field is deploying a rather narrow notion of qualification. Might it not be a relevant qualification for a teacher of the young in Missouri that he be loyal to the government and the Union and that he not be likely to teach his impressionable young charges subversive doctrines like the rightfulness of secession and the injustice of the Union cause? Might not similar considerations relate to the priesthood, a calling that stands in high prestige in the community and whose members often exert great influence on the minds of those to whom they minister? And is it not the case that many (though perhaps not all) of the acts and words held to be disqualifying from these professions would be evidence of a frame of mind likely to lead to behavior in the profession that is, in the broad sense, inappropriate, and even disqualifying?

Given the extremity and blunderbuss quality of the oath in the Cummings case, Field did not have to face these more subtle issues. His opinion leaves some room for a more refined oath, but other than affirming the rightfulness of asking subjects to swear present and future loyalty, he does not make clear what (if anything) of past behavior may be taken to be disqualifying.

Field, having established that the oath as written did not set legitimate qualifications for the various callings it regulated, proceeded to ask what the oath was. He concluded, of course, that it was a punishment. The oath “was required in order to reach the person not the calling. It was exacted, not from any notion that the several acts designated indicated unfitness for the callings, but because it was thought that the several acts deserved punishment, and that for many of them there was no way to inflict punishment except by depriving the parties who had committed them, of some of the rights and privileges of the citizen.”Footnote ⁴⁸

If the disabilities imposed on those who did not take the oath were indeed punishments, then it would not be difficult to show that they indeed run afoul of various constitutional prohibitions. For example, if being unable to serve as a clergyman or an attorney is a punishment, then Cummings and Garland were being punished for acts that were not crimes when they performed them. Or, alternatively, they were being punished with penalties not affixed to the crimes at the time committed. That is to say, the test oath amounts to a prohibited ex post facto law.

The test oath cases, then, clearly hinged on the finding that the results of not taking the oath were punitive, a finding that depended in part on the prior finding that the oath was not a valid means of establishing qualifications for the professions involved. Field knew in advance that his conclusion that the inability to practice law or serve as a priest was a punishment would be challenged. The state of Missouri had argued that “to punish one is to deprive him of life, liberty, or property, and that to take from him anything less than these is no punishment at all.”Footnote ⁴⁹ Field thought that definition too narrow by far, and in order to establish that point he had recourse to “the theory upon which our political institutions rest.”Footnote ⁵⁰ He found that theory in the Declaration of Independence, which holds that

As Charles McCurdy points out, Field appeals to the “free labor” ideology of the Jacksonians and the antislavery movement as inferences from “the theory upon which our political institutions rest.” As Howard Gillman points out, Field emphasizes that in legislation touching these matters, “all are equal before the law,” that is, there must be no legislating of special privilege for some at the expense of others. What both scholars miss, or at least deemphasize, is the dependence of both these themes on Field's more general affirmation of “certain inalienable rights.”

From the basic rights follow the free labor commitments of the Jacksonians: “in pursuit of happiness all avocations, all honors, all positions are alike open to every one.” Field understands the pursuit of happiness as a comprehensive right to follow a self-chosen path in life, consistent with the agent's views of what may lead to happiness. Since all are equal possessors of the right to the pursuit of happiness, all possess equally the right to pursue “avocations, honors, and positions.” There is no room in a society built on inalienable rights for professions passed on as heritable goods, excluding others from their pursuit, or for exclusions based on qualifications unrelated to the talent and ability required to perform the tasks of the position. The law is to protect these basic rights, including the right to opportunity to pursue vocations and positions. Field accepts the implication that protection of rights involves setting limitations on activities arguably related to the rights. Thus, he concedes that the state may set qualifications for the practice of professions. For example, the state may require demonstration of knowledge of the law and competence in its practice, as well as “good character,” as a condition for being an attorney. But it must do so in a way that recognizes that “all are equal before the law.” It must not single out individuals or groups for special burdens or benefits in its regulating activities aimed at protecting the inalienable rights.

Thus, the jurisprudential emphases that McCurdy and Gillman identified as components of Field's thought are subsumed under and derivative from Field's more fundamental commitment to rights. Field does not explain at length whether the right to pursue vocations (i.e., the free labor right) is best understood as a means to other rights—for example, as a means to the right to life, or as a part of the right in itself. I am inclined to the view that if pressed he would identify it as both. He would almost certainly agree that this right is a means to the other rights; in a civil society marked by division of labor and private property, the right to labor where and how one chooses would be in service to one's rights to life and the pursuit of happiness. But the direct link that Field draws between the right to pursue happiness and the right to pursue vocations and positions suggests that he regards the connection as more intimate than a means-end relation. If human beings have a comprehensive right to pursue happiness in ways of their own choosing, then the right to pursue occupations would be a part of that right, and not just a means to it.

Justice Holmes and other critics accused Field and the other Lochner-era judges of appealing to airy nothings like natural law and natural rights, which were actually covers for their pet economic theories or policy preferences. These critics pressed for a jurisprudence that did not appeal to natural-law sources, but to positive law only. Field agrees with Holmes and the positivists that laws that violate the precepts of natural political morality are not ipso facto invalid. He insists that there must be a constitutional basis for finding a law invalid. However, Field freely appeals to natural political morality as part of his explication of the Constitution. Thus, in Cummings and Garland, he adumbrates a novel theory of what constitutes punishment en route to finding the test oaths to be violations of constitutional prohibitions in Article I, sections 9 and 10. Justice Miller, notably failing to follow Field in appealing to natural rights, reads the constitutional clauses in question in a much more traditional manner.

Field appeals to natural political morality in his judicial reasoning, but unlike some of our contemporary legal theorists he does not countenance appeals to the judge's personal view of moral right; rather, he appeals to “the theory upon which our political institutions rest,” the Lockean theory of natural rights to which the founding generation was committed. Field looks to extra-textual material in order to aid in interpreting the text of the Constitution, but this is not material chosen on the basis of his personal judgment. He sees the need to appeal beyond the text in order to understand the text; but like the positivists, he recognizes that as a judge he must be guided by the law given to him, rather than creating the law.Footnote ⁵²

Field uses his appeal to the theory of inalienable rights, and not an appeal to an economic theory, in order to ground his analysis of the test oaths as indirect and partially concealed punishments. First, he implicitly rejects the theory put forth by counsel for Missouri that punishment involves the deprivation by the state of “life, liberty, or property” understood narrowly and literally. Thus, to execute, to imprison, or to fine or seize property would count as deprivations of rights (or objects of rights), but nothing else would. Field deploys a more capacious notion of rights. In the notorious words of a much later case, he sees the basic rights as containing “penumbras and emanations” such that the concept of “deprivations” of rights encompasses far more than the state of Missouri contends. He says, for example, that property includes “those estates which one may acquire in professions.”Footnote ⁵³

Being inalienable, the basic natural rights have a continued existence in civil society as “civil rights.” These rights include far more than freedom from imprisonment or loss of title to one's property, but in this context Field does not explore very far what counts as a civil right. He does say that “the deprivation of any rights, civil or political, previously enjoyed, may be a punishment.”Footnote ⁵⁴ He seems to have in mind a strong doctrine of vested rights, but it is not clear what he regards as the vehicle of investiture—perhaps it is no more than the previous enjoyment of some liberty or property.

The deprivation of any of these rights “may be a punishment.” “Disqualification from office may be a punishment, as in cases of conviction upon impeachment.”Footnote ⁵⁵ He supplies other such examples. The most striking part of what he says, however, is his claim that deprivation of a previously enjoyed right “may be a punishment.” Not all such deprivations are punishments. What distinguishes a punishment from other deprivations is delineated by Field as follows: “Any deprivation or suspension of any of these rights for past conduct is punishment, and can be in no otherwise defined.”Footnote ⁵⁶ In the Cummings case, Cummings is being deprived of his right to pursue his profession on the basis of past conduct—his actions or words in sympathy with the rebel cause. The inquiry does not stop here, however, for Field is not saying that all punishment (i.e., deprivation of a right, based on past conduct) is illegitimate. There are established rules delineating what sorts of past conduct are relevant and what sorts of processes may be involved to effect deprivations of rights. When, as here, the past conduct was not illegal when committed, the deprivation is illegitimate according to natural principles of political morality, which are also recognized in the Constitution's ex post facto clause.

Field says little about prohibitions or regulations of future conduct, other than to concede that rights may be regulated (for the sake of broad or overall rights protection) and that these regulations must occur in such a way as to recognize each individual's equality before the law. Although he does not speak of it here, Field has in mind the doctrine that the state, under its “police power,” may regulate or even “deprive” individuals of rights. A regulation establishing demonstrated medical knowledge as a prerequisite for the right to practice medicine would be an exercise of the police power, and presumably a valid one, even though it prevented some members of the community from pursuing that profession.Footnote ⁵⁷

Field's Cummings opinion is an important source for understanding his overall jurisprudence of liberty and rights. It is a doctrine based not on personal preference or economic theory but on the political philosophy underlying American institutions. It may support capitalism with its emphasis on the individual's right to freely pursue a calling of his own choice (within some limits), thereby establishing a more or less free labor market. But while creating a free labor market, and thus contributing to the economic efficiency of the market in general, may have been a consequence of the affirmation of the right to freedom of vocation, it was not the purpose of that affirmation. Field's is a liberalism very much grounded on rights understood as natural and inalienable and not as consequential implications from market values.

As valuable as Cummings is for explaining some of the grounds of Field's position, it is also very limited, for it is bound to the specific factual situation posed by the test oath. Field thus explores only a small piece of the police power as it applies to the power to set qualifications for callings and to punish. The larger questions about the police power in relation to inalienable rights (e.g., the larger questions involving the relation of government and economy) are barely touched on. For a fuller understanding, we must look to two more of Field's classic opinions—his dissents in the Slaughterhouse Cases (1873) and in Munn v. Illinois (1877).

V. The Slaughterhouse Cases

Field's Slaughterhouse dissent is almost certainly his best-known opinion, for in the first case under the new Fourteenth Amendment he lays down an interpretation of the text that loses out in that case, but goes on to influence the way the Supreme Court treats the amendment in the not too distant future—and, arguably, for many years to follow. The dissent is also an impressive achievement, both as constitutional interpretation and as a statement of political/constitutional principle.

A much better known case than Cummings or Garland, Slaughterhouse probably requires less background explanation. The basic character of the case is this: in an attempt to regulate sanitary conditions in the area of New Orleans, the Louisiana legislature passed regulations establishing where and by whom the slaughtering of animals in the surrounding counties could take place. The regulatory scheme had two main parts: Slaughtering was prohibited everywhere except in a designated area, and one corporation was given exclusive right to establish a slaughterhouse in that area. The law provided that other butchers could use the slaughterhouse facilities, but they could do so only if they paid a fee to the owners of the slaughterhouse.

The legal issue raised by the case was whether this regulatory scheme ran afoul in any way of the relatively new post–Civil War amendments. The Court's five-member majority, speaking through Justice Miller (Field's nemesis from Cummings and Garland), held that the scheme did not. Field, speaking for a four-member minority, held that it did. The case was complicated in part because there was no settled law on the new amendments, and in part because it mixed, as cases in American constitutional law so often do, considerations of federalism with substantive considerations. The most central constitutional issue concerned the Fourteenth Amendment's first section, particularly the clause that read “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”: Miller held that the law did not abridge these privileges and immunities; Field held that it did. The disagreement between them occurred along two dimensions, only one of which is of particular interest to us here. The part of the debate that has attracted the most attention over the years concerns the textual issue of the meaning of the privileges and immunities clause. Miller, noticing that the opening sentence of the amendment defined two kinds of citizenship that each citizen holds, U.S. and state, proceeded to read the amendment as assuming two sets of privileges and immunities, corresponding to the two kinds of citizenship. The amendment protected only the privileges and immunities attached to U.S. citizenship, which, according to the majority in the case, were relatively few and did not include the basic rights of citizenship, which remained attached to state citizenship in the American federal system.Footnote ⁵⁸

Field deemphasized the dual citizenship in the amendment and insisted on the subordinate nature of state citizenship; according to the amendment, individuals were citizens first of the United States and, secondarily and derivatively, “of the state wherein they reside.” The four justices in the minority concluded from this that the basic privileges and immunities attach to U.S. citizenship, not to state citizenship.Footnote ⁵⁹ Although many constitutional scholars believe that Field had the better of the argument, on the immediate issue of the privileges and immunities clause the Miller view has so far prevailed, and that clause has remained almost a dead letter in the Constitution.Footnote ⁶⁰

The Court majority upheld the Louisiana law in part because they gave such a narrow reading to the privileges and immunities clause (for federalism reasons), but also because they thought the Louisiana law would be valid even if the Constitution had established a unitary system and the privileges and immunities clause applied within that unit. This is the part of the case of most immediate interest here. Justice Miller, even before he turns to the constitutional issues raised by the Fourteenth Amendment, pronounces this law valid as an exercise of the state's police power and not a violation of citizen rights. The regulation of slaughtering is a well-known instance of valid police-power regulation, and the grant of exclusive rights to the slaughterhouse corporation is a reasonable and perfectly valid means of regulating slaughtering. None can claim a deprivation of rights, since the statute guarantees all butchers the right to use the corporation's facilities upon payment of a reasonable fee. Thus, although the Court did not address the issue quite so directly, it is rather clear that Miller would have held the law to be valid even if he had found that the privileges and immunities clause protected basic rights of citizens.Footnote ⁶¹

As I noted earlier, Field orders his dissenting opinion in a way that highlights his dependence on considerations of abstract principle as prior to constitutional text. He writes: “No one will deny the abstract justice which lies in the position of the plaintiffs in error; and I shall endeavor to show that the position has some support in the fundamental law of the country.” Field refuses to rest his decision on abstract justice alone, but he suggests here that he knowingly exploits ambiguities in the constitutional text of the privileges and immunities clause in order to read the text in the way most congruent with abstract justice.Footnote ⁶²

In a forceful affirmation of the police power (to which we shall return in a moment), Field upholds all the parts of the Louisiana legislation except that part that grants to the corporation the exclusive right to erect and maintain a slaughterhouse and the consequent requirement that all other butchers pay the corporation a fee in order to practice their calling. What Field calls a legally imposed monopoly is the target of his judicial artillery. Thus far, Gillman is correct to emphasize Field's concern for “equality before the law.”Footnote ⁶³ Field makes clear, however, that the ground of his affirmation of “equality before the law” (or, to put it otherwise, his rejection of legally established privilege) is to be found in “the immortal document which proclaimed the independence of the country.” That document “declared as self-evident truths that the Creator had endowed all men with certain inalienable rights, and that among these are life, liberty, and the pursuit of happiness; and that to secure these rights governments are instituted among men.”Footnote ⁶⁴ These are rights “which are the gift of the Creator, which the law does not confer, but [since the adoption of the Fourteenth Amendment] only recognizes.”Footnote ⁶⁵ Field's hostility to legally imposed “exclusive privilege” derives from his affirmation of the basic natural rights outlined in the Declaration of Independence. “All monopolies in any human trade or manufacture are an invasion of these privileges [protected by the Fourteenth Amendment] for they encroach upon the liberty of citizens to acquire property and pursue happiness.”Footnote ⁶⁶ The natural rights come first, and they both guide Field in his reading of the positive law of the Constitution and provide the basis for his inference of secondary principles of natural justice such as the illegitimacy of exclusive privilege. A prohibition of state-granted privilege or monopoly stands in Slaughterhouse as a limitation on state action, just as the idea of ex post facto punishment did in Cummings.

Field is never too precise in deriving his anti-privilege principle from the basic natural rights. He is not, for example, very careful in identifying which basic right is the basis for his inference; indeed, at different points, he identifies each of the three basic rights (life, liberty, and the pursuit of happiness) as a ground for his principle of equality before the law.Footnote ⁶⁷ The right to labor as one chooses and the right to the fruits of one's labor are not implausibly seen as implications of all three rights, including the right to pursue happiness. Field quotes Adam Smith (sounding very much like John Locke) to make his basic point: “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 inalienable.”Footnote ⁶⁸

The illegitimacy of laws that are not “just, equal, and impartial” follows from the logic of natural rights and the construal of government as a social contract. All men are equal in their possession of inherent rights. The rights both express the character of human beings as owners of their own labor (i.e., of themselves and their actions) and stand as the means to the satisfaction of the most basic right of all, the right to life. Government must be conceived to derive its legitimate authority from the rights-possessors over whom it would exercise coercive power, but the power it may rightly exercise must be such as the citizens could conceivably have delegated to it. Citizens seek from government security in their rights, which requires surrendering some of the liberty they would otherwise possess in exchange for the establishment of laws backed by force that protect them in their remaining rights. They cannot be thought to create government for the sake of granting governmentally imposed privileges to some citizens at their own expense. Most especially, they cannot be conceived to have empowered government to strip them of rights and liberties that are then to be vested exclusively in others. It is emphatically not the case that government is to have no power to restrict liberties or property, but the restrictions must be for the benefit of all and thus must impinge, mutatis mutandis, equally on all. Thus, Field is clear that certain actions or professions could be prohibited outright if deemed to be dangerous to individuals or to society at large. Certain individuals could be licensed to follow certain professions, and others prohibited from doing so, if the qualifications required for licensing are appropriately related to the competent and safe practice of the profession. Such was the situation Field addressed in Cummings. What is not acceptable is what happened in Louisiana, where some were arbitrarily allowed to follow their profession, and others, equally qualified, were forbidden to do so except upon paying a fee to the privileged.

It is thus no accident that almost the first thing in Field's opinion is a paean to the police power. This power, he says, “undoubtedly extends to all regulations affecting the health, good order, morals, peace, and safety of society, and is exercised on a great variety of subjects, and in almost numberless ways.” Far from being a pro-laissez-faire judicial activist eager to negate exercises of state power, Field affirms that “all sorts of restrictions and burdens are imposed under [the police power], and when these are not in conflict with any constitutional prohibitions, or fundamental principles, they cannot be successfully assailed in a judicial tribunal.”Footnote ⁶⁹ Field believes that he differs from the Court majority not in a lesser willingness to affirm exercises of the police power, but in recognizing that purported uses of that power may be “pretence” only: “under the pretence of prescribing a police regulation the state cannot be permitted to encroach upon any of the just rights of the citizen, which the Constitution intended to secure against abridgement.”Footnote ⁷⁰

The serious question for Field, then, is how one distinguishes the legitimate exercise of the police power from the pretence. He begins with a strong affirmation of the background principle of the system: the basic natural rights that translate into a rebuttable presumption in favor of liberty. When basic liberties (for example, the liberty to pursue a calling) are at stake, Field acts on the maxim that courts must consider whether the legislation is restricting liberty for a valid police-power purpose. Field has two ways of so judging. First, as in Cummings, he can ask whether the legislation actually matches, as a proper means, the valid police-power purpose alleged to justify the legislation. Thus, Field does not for a moment question the right of states to set qualification for callings, but he does challenge their right to set qualifications unrelated to the proper conduct of the calling. When the state sets unrelated qualifications, it is doing something other than it alleges. In judging the congruence between the state's means and its declared ends, Field seems to deploy something like what we now call intermediate scrutiny. He does not subject regulations to a kind of test that is nearly always fatal, as his extensive record of upholding legislation demonstrates. However, he seeks a level of review more stringent than Miller, writing for the majority, required. Field acts as if he believes that the category of “pretence” is a real one, and that it is the job of the Court to ensure that legislatures stick to their legitimate tasks. Paul Kens thus concluded that “perhaps” the “most important” element of Field's “police power jurisprudence” was his “insistence that the power to determine whether a statute fell within the boundaries of the police powers or violated an individual right rested with the courts, not the legislature.”Footnote ⁷¹ But applying the congruence test required courts to substitute their judgment of suitable means (at least some of the time) for the legislative judgment, thus threatening always to turn the courts into the “super legislatures” they were often accused of being. This problem lay behind Field's effort to shift as much of the burden of judging state legislation onto the kind of test he applied in Slaughterhouse. There Field proceeds in a somewhat different manner. He applies what we might call an adverbial test to the legislation (“adverbial” because it concerns how something is done). The state may regulate economic activity in the name of a whole array of public goods, but whatever regulations it imposes must not single out classes of persons for treatment arbitrarily different from what others receive. This too is a test of means, but not for congruence with alleged police-power purposes; rather, it is a test of whether the means is itself forbidden. Certain means are in themselves forbidden, such as the granting of exclusive privileges to some at the expense of others, or the use of bills of attainder. The first kind of test one might call a test for congruence; the second, a test for adverbial nonarbitrariness; it is a test not of what may be done, but of how it may be done. It is this second kind of test on which Gillman focused.

Field clearly allows a large role for principles of natural justice, but at the same time, he always insists that natural justice is not enough; there must be constitutional warrant for constitutional decisions. With the adoption of the Fourteenth Amendment, read as Field reads it, the gap between natural principles of justice and the constitutional text narrowed considerably. All fundamental principles of justice are incorporated in the amendment, as parts of the privileges and immunities of citizens of the United States. Had the Fourteenth Amendment been in place at the time of the test oath cases, Field would have been able to treat them much more directly, for as alleged attempts to set qualifications for the pursuit of ordinarily lawful callings, they went well beyond the limits warranted by the legitimate police power of licensing. Field would have seen these oaths as abridgements of privileges and immunities and would not have had to stretch for the ex post facto and bill of attainder grounds he relied on. Recall that Field's biographer Kens argued that in relying on these clauses he “stretched the Constitution.”Footnote ⁷² With respect to Cummings, I do not believe that conclusion is justified; Garland is a harder case, but the difficulty there concerns the greater plausibility of seeing the oath as a qualification for office.Footnote ⁷³

It should be apparent why Field initially favored the privileges and immunities clause over the due process clause. The former accomplished more purely what Field believed the Fourteenth Amendment was meant to accomplish—making the fundamental natural rights binding against the states. The due process clause, with its protection of life, liberty, and property, could also be read to accomplish the same thing, as Justice Bradley did in his Slaughterhouse dissent, but it did so in a much more ambiguous way, for it forbade deprivation of the objects of the basic rights only if not done with “due process of law.” To transform the phrase “due process of law” into a substantive restraint on legislative action was to counter the process language of the clause and open the Court to the charge that it was indeed stretching the Constitution.Footnote ⁷⁴

VI. Munn v. Illinois: Rate Setting

The limitation of Gillman's approach is quite visible in the 1877 case of Munn v. Illinois, where Field again wrote a stunning dissenting opinion. This case much better fits McCurdy's emphasis on Field's effort to draw a more or less impenetrable line between public and private matters as a way of distinguishing licit from illicit exercises of the police power. (Interestingly, in his brief treatment of Munn, Gillman treats the case in the terms of public and private, more or less adopting McCurdy's way of understanding Field.)Footnote ⁷⁵

Field's approach in Slaughterhouse—emphasizing the exclusive privileges granted by law—had little traction in Munn, for what distinguishes the latter case in Field's mind is the complete absence of legally granted privilege. In Munn, the Illinois legislature—pursuant to provisions of the Illinois Constitution declaring all grain storage facilities “to be public warehouses” and requiring the Illinois General Assembly to pass laws “for the protection of producers, shippers, and receivers of grain and produce”—had set maximum rates that could be charged in these facilities for the storage of grain.Footnote ⁷⁶ These laws were part of the broader Granger movement of the late nineteenth century, aimed at protecting the interests (mainly) of farmers by curbing perceived abuses and hardships imposed by railroads, owners of grain elevators, and others involved in the now mostly national commerce in agricultural products.

The legislative rate-setting in Munn was completely different from the legislative scheme in Slaughterhouse, for here the laws applied uniformly to all engaged in the commercial storage of grain. There was no question of different classes of owners being treated differently. The absence of the equal protection dimension in Munn may have accounted for the fall-off in support Field had for his dissent in the case. In Slaughterhouse, Field spoke for a four-member minority; in Munn, he had only one other justice with him, that one (Justice Strong) ironically having been in the Slaughterhouse majority. But Field lost two of the justices who had been with him in Slaughterhouse, Bradley and Swayne, both of whom had joined his Slaughterhouse opinion and had also written their own strong dissents. Both had emphasized the exclusive privilege aspect of the Louisiana law, and we might at least presume that the absence of that feature in Munn led to their joining the majority in the latter case.

The question posed in Munn was whether the price-setting scheme was a violation of the due process clause of the Fourteenth Amendment (the privileges and immunities clause having been taken off the table by Slaughterhouse and some successor decisions). Three different answers to the chief question posed can be discerned in Munn and in the earlier version of the case as decided by the Illinois Supreme Court. The Illinois court decided there was no violation of the due process clause because “so long as the owner was not deprived of the title and possession of his property,” there was no deprivation within the meaning of the clause.Footnote ⁷⁷ Chief Justice Waite, speaking for the U.S. Supreme Court majority, upholds the law but not on such broad grounds as the Illinois court took. Instead, he takes a broader view of protections afforded by the due process clause: It is “a guaranty against any encroachment upon an acknowledged right of citizenship by the legislatures of the states.”Footnote ⁷⁸ He does not understand the term “deprive” in so narrow a way as the Illinois court did.Footnote ⁷⁹ Thus, he denies that “statutes regulating the use, or even the price of the use, of private property necessarily [deprive] an owner of his property without due process of law.” Unlike the Illinois court, he affirms that “under some circumstances, but not under all,” such regulations “may” work such a deprivation.Footnote ⁸⁰ Put otherwise, the due process clause does protect against some regulations and particularly against price settings. Waite and Field are thus closer to each other than either is to the Illinois court. Field agrees with Waite that not all regulations, not even all price-setting regulations, are unconstitutional, but he has a much more stringent doctrine on when such regulations are valid.

The differences between Waite and Field are two. First, Field sets price setting off more firmly from other legislative acts relating to property than Waite does, and second, he has a tighter notion of what will constitutionally justify legislative price setting. Waite accepts the same large narrative about rights and governmental power that Field does. Individuals possess prepolitical rights, but “when one becomes a member of society, he necessarily parts with some rights and privileges which, as an individual not affected by his relations to others, he might retain.” On Waite's view, limitations do remain on what government may rightly do: “This [parting with some rights] does not confer power upon the whole people to control rights which are purely and exclusively private,”Footnote ⁸¹ but, he also insists, “it does authorize the establishment of laws requiring each citizen to so conduct himself, and use his own property, as not unnecessarily to injure another.”Footnote ⁸² The police powers include the right to regulate all sorts of uses of private property, including the right to fix maximum rates for services provided.Footnote ⁸³

The standard that governs valid regulations, including price-setting regulations, is whether property is being “used in a manner to make it of public consequence, and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good to the extent of the interest he has thus created. He may withdraw his grant by discontinuing the use; but so long as he maintains the use, he must submit to the control.”Footnote ⁸⁴ This is the doctrine of “clothed with a public interest” made famous by Munn and excoriated vehemently by Field.

It is a strange doctrine and requires some explication. Perhaps its most striking feature is its effort to construe regulations of the uses of property as voluntary submission to legislative conditions, or as voluntary waiving of the private (immune) character of the property use in question. It is clearly an attempt to sidestep the question of whether any such regulations amount to deprivations. The “clothed with a public interest” doctrine provides an alternative path to legitimizing legislative power, one that does not require the Illinois Supreme Court's narrow reading of “deprive” to mean only stripping of title and possession. In principle, according to Waite, legislative acts that leave title and possession can nonetheless work deprivations, and by implication could violate the due process prohibition.

The fiction of a voluntary granting to the public of “an interest in that use” of property may have almost the same effect as the Illinois court's narrow notion of “deprivation,” however. Waite's fiction depends on a deep equivocation in the use of the word “interest.” The key sentence is this: “When … one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use….” The first use of interest is equivalent, in effect, to “concern” or even “attention”; the second use is equivalent to “a legal share in something.”Footnote ⁸⁵ If the legislature takes action, that is prima facie and perhaps irrebuttable evidence that the public has an “interest,” that is, a concern about that use of property, a concern which automatically(?) triggers the conclusion that the owner has granted to the public an “interest,” that is, a legal share in the property which then justifies the legislation. The Court's doctrine would thus amount to the position that the existence of the legislation would be its own justification. If this is a fair reading, then Field's general response would seem justified: “The principle upon which the opinion of the majority proceeds is, on my judgment, subversive of the rights of private property.”Footnote ⁸⁶ Although Waite sets his opinion within a doctrinal context in which there may be some regulations that violate the due process clause, his path to determining that the Illinois law is not such a violation seems to shut the door he had opened. The “clothed with a public interest” doctrine, in other words, does not appear well-crafted for the purposes it was developed to serve.

Field develops an alternative doctrine, one that retains a strong commitment to the police power and the permissibility of the regulation of property, but one which also retains some power to protect property rights. Field agrees with Waite and the others in the majority on the general story about rights and governmental power. Government may regulate property in a large number of ways; “indeed,” Field says, “there is no end of regulations with respect to the use of property which may not be legitimately prescribed, having for their object the peace, good order, safety, and health of the community.”Footnote ⁸⁷ The police power “embraces an almost infinite variety of subjects.”Footnote ⁸⁸

As wide-ranging as the police power is, Field nonetheless makes the case that regulation of price is special and normally not legitimate. He does so in the context of a comprehensive review of the kinds of actions governments may, under appropriate circumstances, take with regard to property. The state has the power “to take … property for public uses, upon just compensation being made there for.” The state may go so far as to extinguish title and seize possession upon the two conditions of a (genuine) public purpose and just compensation.Footnote ⁸⁹

The state may also take some but not all of an individual's property in the form of “taxation for the support of government.”Footnote ⁹⁰ Field does not specify the limitations on the taxing power, but he no doubt would endorse the standard one, that taxes be laid by representatives of the property owners. The state may also “regulate the use and possession of his property, so far as may be necessary for the protection of the rights of others, and to secure to them the equal use and enjoyment of their property.”Footnote ⁹¹ All property use is to be limited by the rights of others, and Field is generous in recognizing state authority to operate in service of these rights. Taking, taxation, and regulation—these are the three legitimate uses of state powers relative to property: “The power of the state over the property of the citizen does not extend beyond such limits.”Footnote ⁹²

What lies on the other side of these limits is price and rate setting. Certain kinds of police-power regulations of the grain storage business are perfectly acceptable, such as the setting of standards for weights and measures to prevent fraud and promote honest dealings. But price setting is special. First, Field makes clear that “the prices which the owner [of a grain warehouse] shall receive for its uses” are part of the property right protected by the due process clause.Footnote ⁹³ While other aspects of the property right (for example, the right to use property as the owner wills to use it) may readily impinge on the rights of others, the prices at which an owner makes his property or services available do not. Thus, an automobile manufacturer may reasonably be required under the police power to equip his automobiles with safe brakes, for unsafe brakes threaten public safety. There is no comparable police-power purpose to be served by a regulation of the price at which the manufacturer sells his product. Consumers are free not to purchase the good or service if the price is too great, and thus they have the power to act on their own to respond to prices. To set the price is to impinge on labor, liberty, and property with no police-power justification. As a matter of standard practice, then, the state's power does not extend to setting prices (or wages). They are specially protected by the due process clause.

This is not to say, however, that Field thinks all price setting is unconstitutional. In fact, he accepts a great deal of it, but he rejects the grounds for it and the legitimacy of it in this instance, as put forward by the various actors in this case. Thus, he rejects the efforts of the framers of the Illinois Constitution to render price setting legitimate by declaring grain storage facilities public institutions. Declaring them public “does not make them so,” Field remarks, “… One might as well attempt to change the nature of colors, by giving them a new designation.”Footnote ⁹⁴ The nature of the grain elevators is what it is, and no legal “redescription” can change that. Field also rejects the Illinois Supreme Court's ultra-narrow definition of the character of the rights protected by the due process clause.Footnote ⁹⁵ And he rejects Waite's approach to the “clothed with a public interest” doctrine as not much different in practice from the Illinois Constitution.Footnote ⁹⁶

Field accepts the idea that the public may possess or acquire “an interest” in an enterprise or a property, but not merely through its being a matter of public concern or even public impact.Footnote ⁹⁷ There is a sense in which Field's argument mimics that of Waite; there are cases where, in effect, the owner of a property “implies an assent to the regulation of its use and the compensation for it.” This occurs when the enterprise depends upon “some special privilege granted by the State or municipality.” If such a privilege is involved, then “no one,” least of all Field, “has ever contended that the State had not a right to prescribe the conditions upon which such privilege should be enjoyed.” “It matters not how limited the privilege conferred,” the result is the same—the openness to state control. This is the paradigm case McCurdy has in mind when he speaks of Field's effort to draw a bright and shining line between public and private, with the former subject even to price and rate setting and the latter not. To accept a governmental privilege is to be removed from the category of the purely private. The owners of the grain warehouses in Munn had no such privileges and thus were not vulnerable to price setting.Footnote ⁹⁸

The public-private distinction is important to Field, but we must note the particular context in which it is important, and we must notice also the way in which Field's version of the natural rights philosophy lies behind this aspect of his jurisprudence, just as it lay behind his commitments to free labor and the rule of equal, uniform law, and his rejection of exclusive privileges.