Wayne O’Leary

The Man Who Made the Monster

In 1863, President Abraham Lincoln appointed an obscure California judge, Stephen J. Field, to the US Supreme Court and unknowingly set the stage for a judicial revolution with lingering ramifications for our own time. Lincoln, preoccupied with the Civil War — this was the year of Gettysburg and Vicksburg — gave little apparent thought to his choice; it was sufficient that Field was a loyal Union man whose older brother had been instrumental in founding the Republican Party and securing Lincoln’s own nomination.

Stephen Field (1816-99) went on to serve as associate justice for three decades, becoming the dominant force in American jurisprudence during the postwar Gilded Age. Though never chief justice, Field literally imposed his will on a court that was conservative to begin with, pushing it even farther to the right, particularly on questions of economics and government-business relations. “He was,” wrote prominent Supreme Court scholar Robert G. McCloskey, “the most uncompromising judicial exponent of laissez-faire in his time, perhaps in American constitutional history.”

Politically, Field was a conservative Democrat, but one with a virulent streak of prejudice and paranoia when it came to the social movements of his era. The fledgling revolutionary communism represented by the Paris Commune of 1871 first stoked his inbred fears of a coming war between rich and poor aimed at overthrowing capitalism and private property. The late-19th century rise of populism, unionism, and labor unrest on this side of the Atlantic only added to his determination to preserve property rights at all costs — by writing protections for them into constitutional law, subjecting the popular will to judicial veto, if necessary.

Field’s obsession with property rights placed him in the forefront of the Court’s radical reinterpretation of the “due-process” clause of the 14th Amendment (ratified in 1868), a creative exercise called, with scant exaggeration, “a feat of constitutional alchemy.” None of this occurred in a vacuum. Field was a friend and intimate of powerful railroad tycoons, the business elite of their time; he socialized with them, admired them, and represented them in court prior to becoming a judge. His jurisprudence became an extension of his social life.

What Field did from the bench for his wealthy friends was nothing less than declaring their monopolistic corporations to be living, breathing “persons” with inalienable rights. Starting in the late 1870s, he virtually midwifed the living corporation into existence, using a combination of intellectual acumen, personal intimidation, and uncompromising stubbornness to drag the Court in his direction. Fellow justices variously described Field in action as “a wild bull” and “a madman” consumed by an unassailable belief in his own dogmatic righteousness. But they went along, much as the current conservative Supreme Court follows in the wake of Antonin Scalia’s tantrums, threatening demeanor, and personal certitude.

Field’s singular accomplishment was to create out of whole cloth the doctrine of “substantive due process,” by which the due-process clause of the 14th amendment (“No State shall deprive any person of life, liberty, or property, without due process of law”), intended to protect the civil rights of newly freed slaves from state interference in the old Confederacy, was applied to the “civil rights” of private corporations under threat of state taxation or regulation. Originally, due process was a procedural guarantee providing such legal safeguards as the right to counsel, prior notice, hearings, or fair trials; under Field’s tutelage, it evolved into a device guaranteeing that any regulatory interference with propertied business interests by government must be “reasonable” and that reasonableness would be subjectively decided by the Supreme Court, usually by denying it was present.

Of course, this due-process power grab by the Court on behalf of corporate America, which made economic policy the prerogative of the unelected federal judiciary, could not be realized unless corporations somehow fell under the 14th Amendment — unless they were recognized as persons. Field found the answer. His ingenious rationale was that the individual rights of corporate stockholders (admittedly persons) automatically transferred, as if by osmosis or through magical incantation, to the corporation in which they held stock; the corporation, in other words, exercised their constitutional rights on their behalf.

Beginning with his famous dissent in Munn v. Illinois (1877) and culminating with his majority argument in Santa Clara County v. Southern Pacific Railroad (1886), Field used a series of cases involving state regulation of railroads to gradually convince his colleagues to accept the bizarre notion of corporate personhood. The 14th Amendment, he ultimately persuaded the receptive Court majority, was intended to confer full federal citizenship on corporations and offer them the same protections as “the humblest citizens.” (The concept was later applied to the Fifth Amendment governing federal violations of due process.)

The Field view remained the accepted law of the land until a succeeding generation of justices, led by Oliver Wendell Holmes and Louis Brandeis, began to chip away at it in the Progressive Era. The last gasp for the sanctity of corporate rights came during the New Deal, when a series of reactionary due-process decisions in 1935-36 temporarily rendered aspects of the New Deal unconstitutional on the grounds of interference with corporate autonomy. Starting in early 1937, the so-called Roosevelt Court appointed by FDR completely reversed these laissez-faire judgements and consigned the Field legacy to the dustbin of history. Justice Hugo Black pronounced the last rites by formally declaring (in Connecticut General Life Insurance Co. v. Johnson, 1938) that a corporation was manifestly not a “person” entitled to substantive due- process protection.

There things stood for 70 years -- until the modern-day conservative takeover of the Supreme Court that led to this January's startling resurrection, in the Citizens United case, of the long-discredited doctrine of corporate personhood. That action was strongly denounced by retiring Justice John Paul Stevens on behalf of the dissenting minority. Channeling Field, the Roberts Court not only revived the dormant concept of individual corporate rights under the Constitution, it also granted corporations the added First Amendment protection of free speech based on their expenditures of campaign funds -- thereby building on the earlier decision by another Republican-dominated Court (in Buckley v. Vallejo, 1976) that money, in the form of campaign spending, equals speech. If you listen closely, you can hear the exultant voice of Stephen J. Field thundering from the netherworld on behalf of his creation: “It's alive! It's alive!”

Wayne O’Leary is a writer in Orono, Maine.

From The Progressive Populist, May 1, 2010