Chapter 4 The Mastermind: Supreme Court Justice Stephen J. Field

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Chapter 4 The Mastermind: Supreme Court Justice Stephen J. Field

If J.C. Bancroft Davis was the triggerman, then Justice -Stephen Johnson Field was the mastermind behind the corporate theft of constitutional rights. He’d spent three decades on the Supreme Court, building the intellectual infrastructure that would transform corporations into constitutional persons.

We must understand Justice Field to clearly see how democracy was hijacked by the oligarchs of that era. But more than just that, understanding Field also reveals the ideology behind the hijacking. This wasn’t just a case of corruption or greed, although there was plenty of both. This was, instead, a vision of America fundamentally opposed to the Founders’ and Framers’ vision of America and explicitly at odds with the possibility of creating a thriving middle class.

Field, like the railroad oligarchs to whom he was beholden, believed that property rights always trumped human rights. He believed the wealthy deserved constitutional protection from what John Adams called “the rabble”: the democratic majorities, the “common people.” He believed that workers organizing for better wages, farmers demanding fair treatment from the railroads they needed for their survival, and states regulating corporate behavior were all forms of tyranny against the morbidly rich of his day.

His vision was thus essentially feudal: a small class of white male property owners should rule over everyone else, protected by constitutional rights that the democratic majority could never touch.

Corporate constitutional rights were the weapon he—and the oligarchs close to him—chose to make that vision real.

The Gold Rush Justice

Stephen Field arrived in California in 1849, just as gold fever swept the territory. He wasn’t, however, looking for gold in the ground. He made his considerable fortune in lawyers’ fees, land speculation, and by exploiting and supporting raw political power.

Field established himself as a lawyer in Marysville, then became the alcalde for the town, a title encompassing the combination of mayor, judge, and local potentate inherited from California’s Mexican period. He wielded power arbitrarily, frequently jailed his more outspoken critics, and almost always ruled in favor of those clients who paid him well.

When California became a state, Field joined the state legislature, then became a justice on the California Supreme Court. He was ruthless, ambitious, and utterly convinced that rich people and their corporations were the only ones that really mattered.

In 1863, President Lincoln appointed Field to the US Supreme Court. It was a political appointment, as Lincoln needed California’s support and Field’s Democratic credentials to help balance the Court (with the bonus that he wasn’t, like the Southern Democrats, a slaveholder).

Lincoln would later regret his appointment, as Field quickly became one of the most consequential justices in American history, and not in a good way.

The Ideology of Oligarchy

Field brought to the Supreme Court a fully formed ideology that would reshape American law: corporations were property, property was sacred under the Constitution, and any democratic attempts to regulate or even “excessively” tax property were simple tyranny.

This wasn’t capitalism in any way Adam Smith would have recognized. Smith, in both Theory of Moral Sentiments and Wealth of Nations, advocated competitive markets and warned against monopolies that conspired against small competitors and the public. Field, on the other hand, pushed for corporate power and saw democratic regulation of business activity as the enemy.

Field’s ideology came from his experience in California. He’d seen and admired vigilante justice, rough-and-tumble mining camps, and the rapid accumulation of massive fortunes. As an attorney, he’d watched the railroad oligarchs build an empire, and as a judge had become invested in their success.

Most importantly, he agreed with that era’s oligarchs (who were often murdering labor leaders) that the wealthy deserved protection from the democratic majority. The “mob” couldn’t be trusted with power, particularly the power to tax or regulate the railroads. Property owners, especially corporate property owners, needed constitutional shields against populist politicians.

The Fourteenth Amendment, he hoped, would finally give Field his opportunity to repay decades of largesse from the nation’s richest men.

Field’s War Against the Emerging Middle Class

Field wasn’t just pushing corporate rights in the abstract. He was waging war against the emerging American Dream even before it could be named or fully take shape.

During Field’s time on the Court, workers were organizing into unions, demanding living wages that would allow them to support families, buy homes, and give their children opportunities they never had. Farmers were forming cooperatives to escape the stranglehold of railroad monopolies. Small businesses were fighting against corporate consolidation that threatened to crush them.

States responded positively to these deeply popular movements by passing laws limiting working hours, requiring safe working conditions, preventing monopolistic practices, and taxing corporate wealth to fund public schools and infrastructure.

Every one of those laws threatened Field’s oligarchic vision of America. Every one weakened the power of the oligarchs and gave it to democratic majorities. Every one moved America closer to what FDR would later call a nation where poor and working class “necessitous men” could become “free men.”

Field saw all of this as a “dictatorship of the proletariat,” a dangerous move toward the hot new idea of Marxism that was then sweeping the world’s intelligentsia. He believed that workers demanding fair wages was simple theft from property owners. He saw states regulating corporations as an unconstitutional interference with property rights and the democratic majority asserting control over economic life as mob rule.

Corporate constitutional rights were Field’s legal weapon against the American Dream before it could fully emerge.

Rewriting Reconstruction

The Fourteenth Amendment was meant to protect freed slaves, but Field believed it could be used to a different purpose: protecting corporations from state regulation.

Starting in the 1870s, Justice Field began writing dissents in both the 9th Circuit and the Supreme Court arguing that corporations were persons under the Fourteenth Amendment. He lost those arguments repeatedly as the majority of the Court understood what the Fourteenth Amendment was actually for, and several—including Waite—even occasionally ridiculed Field as a “man obsessed.”

But Field was patient. He knew that the Supreme Court’s composition would change with time. He knew that repeating an argument often enough can make it seem reasonable. And he knew that corporate money would fund challenges to every regulation, every tax, and every democratic attempt to constrain corporate power, and he wanted that money behind him and his presidential aspirations.

Field was playing the long game, building an intellectual framework that future courts could adopt.

The Slaughterhouse Dissent

In 1873, in the Slaughterhouse Cases, Field wrote one of the most important dissents in American legal history. It was important not because it was right, but because it laid the groundwork for what would later be called corporate constitutional rights.

The case involved the state of Louisiana granting a statewide monopoly to one single slaughterhouse in New Orleans owned by one of that state’s wealthiest men. Small and independent butchers sued, claiming their Fourteenth Amendment “equal protection” rights were violated.

The majority on the Supreme Court ruled against the independent butchers by throwing out the Fourteenth Amendment argument. Justice Samuel Miller, writing for the Court, explained that the Fourteenth Amendment was “designed to assure to the colored race the enjoyment of all the civil rights that under the law are enjoyed by white persons.” It wasn’t, in other words, ever meant to revolutionize federal–state relations or create new property rights.

Field dissented furiously. He argued that the Fourteenth Amendment protected broad economic rights, including the right to pursue any lawful occupation without government interference.

This argument of Field’s was eventually adopted by the Court and became known as “substantive due process,” the idea that the Due Process Clause of the Fourteenth Amendment protects not just fair procedures, but also certain fundamental rights from government interference.

It was a radical reinterpretation of the Fourteenth Amendment. And it was exactly what corporations needed to argue for constitutional protection from regulation.

Building the Case

Through the 1870s and 1880s, Justice Field kept pushing. In dissent after dissent, opinion after opinion, he argued that corporate property rights deserved constitutional protection, that corporations were persons, and that democratic regulation was, to use his word, tyranny.

The railroad oligarchs noticed and jumped aboard, funding legal challenges designed to reach Field’s Court with a fact pattern that would fit with his worldview. They hired the best lawyers money could buy and cultivated relationships with sympathetic judges.

Field was thus their champion on the Court. He socialized with railroad executives, owned railroad stock, and traveled on private railroad cars. The conflicts of interest were obvious and enormous, but in that era were frequently overlooked.

In a later time, Field would have been forced to recuse himself from cases involving the railroads. But in the 1880s, much like with today’s Roberts Court, judicial ethics were whatever the Court’s judges said they were. Field, therefore, had no intention of recusing himself from the cases that mattered most to his ideology, his future political ambitions, and his investment portfolio.

The Santa Clara Set-Up

When the Santa Clara case reached the Supreme Court in 1886, Field saw his moment.

The case wasn’t perfect, by any means. The legal issues were technical and boring, involving fence valuations and tax procedures. But it involved the railroad, whose very well-paid lawyer Sanderson was willing to argue the Fourteenth Amendment, and it thus gave Justice Field an opportunity to finally, after all those years of effort, establish a legal basis for corporate constitutional rights that would endure for more than a century.

Field’s biggest problem, however, was that the majority of the Court didn’t agree with him. They were skeptical of his Fourteenth Amendment arguments and generally preferred to rule on narrow grounds and—unlike today’s corrupt Republican-dominated Court—generally tried to avoid constitutional questions altogether.

Field, then, couldn’t control the majority. But he could influence the Court’s official reporter.

J.C. Bancroft Davis and Stephen Field shared more than ideology. They were friends who socialized in the same circles. They both had financial interests in railroad stock. And they both believed corporations and the oligarchs who owned railroads deserved constitutional protections that went far beyond those applied to average working people.

Did Field simply come out and tell Davis to write a fraudulent headnote? While possible, the historical record doesn’t prove a direct conspiracy. But it does show how opportunity, alignment of interest, and mutual benefit all came together that day in 1886.

What we know for certain is that after Davis wrote the headnote, Field never objected. In subsequent cases, in fact, Field cited the Santa Clara headnote as proof positive his Court had established corporate constitutional rights. He’d gotten what he wanted, even if he couldn’t pull it off through the Court’s actual decision.

The Long Shadow

Field stayed on the Supreme Court until 1897, becoming the second--longest-serving justice in American history at that time. His final years on the Court were marked by senility and bitterness, but his ideology had won.

By the late 1890s, the Court was regularly citing Santa Clara as pre-cedent for corporate constitutional rights. Field’s dissents became majority opinions, and his radical reinterpretation of the Fourteenth Amendment became settled law.

And the freed slaves for whom the Fourteenth Amendment was written? By 1896, in Plessy v. Ferguson, the Supreme Court ruled that “separate but equal” was constitutional, setting up more than a half-century of legal discrimination and apartheid.

Justice Henry Billings Brown’s opinion in that case acknowledged that the post–Civil War amendments made Black people citizens and forbade states from denying equal protection, but insisted the Fourteenth was meant to secure legal/political equality, not to abolish “distinctions based upon color” or to require “social equality.”

The Fourteenth Amendment—which was supposed to protect Black Americans from discrimination—was instead used to uphold segregation.

Meanwhile, corporations flourished under Fourteenth Amendment protection. By 1900, the Supreme Court had ruled in favor of corporations claiming Fourteenth Amendment rights in dozens of cases. The amendment meant to serve freed slaves now mainly served to free corporations from democratic control by local, state, or even agencies of the federal government.

Field’s transformation of American law was complete. The oligarchs had won, and democracy and the emerging American middle class had lost.

And it all traced back to that one fraudulent headnote in that one infamous 1886 case.

Field’s Feudal Vision Realized

Field died in 1899, two years after leaving the Court. He’d spent thirty-four years as a Supreme Court justice. He’d reshaped American constitutional law more profoundly than almost any other jurist in history.

And he’d done it in service of a feudal vision that most Americans would have rejected if they’d understood it clearly.

His vision was the opposite of the American Dream that promised that hard work would be rewarded, ordinary people could build secure lives, and children would have more opportunities than their parents. Field’s vision, instead, promised that the wealthy would stay wealthy, the powerful would stay powerful, and democratic majorities would be powerless to change anything.

For fifty years after Field’s death, his vision seemed to triumph. The Gilded Age gave way to the Roaring Twenties, another era of oligarchic excess. Corporate power again grew unchecked, and wealth again concentrated at the top. Workers were again crushed when they tried to organize, and the American Dream began to seem like a cruel joke.

Then came the Great Crash of October 1929 and the Republican Great Depression. Field’s America, the oligarchs’ America, had collapsed under the weight of its own contradictions, excesses, and naked thefts.

President Franklin D. Roosevelt built a new and different America on the wreckage, where workers could organize, corporations were regulated for the public good, and the morbidly rich paid their fair share. We became, for the first time in the history of the world, a country where two-thirds of families could achieve the middle class by 1980.

But Roosevelt couldn’t undo Justice Field’s constitutional legacy empowered by court reporter Davis’s headnote. Corporate constitutional rights remained embedded in the law, a then largely dormant weapon waiting to be activated. Thus, when Ronald Reagan’s “Revolution” began in 1981, that weapon was turned against everything Roosevelt had built, and Donald Trump and the GOP are doubling down on it today.

After forty-plus years of Republican and neoliberal Democratic rule, Field’s feudal vision is ascendant again today. Three men own more wealth than the bottom half of America combined. Corporations claim constitutional rights to buy elections, block regulations, and crush workers. And the American Dream is dying.

Stephen Field would be pleased, if not giddy: this is exactly what he wanted.

But Field and Davis didn’t invent the idea of corporate constitutional rights out of nothing. Instead, they built on decades of corporate legal strategy. To understand how deeply rooted this fraud really is, we need to take a quick look at the seventy-year legal war that preceded Santa Clara.