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  • Michael P. Zuckert (a1)
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1 The due process clause of the Fourteenth Amendment reads: “nor shall any state deprive any person of life, liberty, or property without due process of law.” The Fifth Amendment version: “No person … shall be deprived of life, liberty, or property without due process of law.”

2 Lochner v. New York, 198 U.S. 45 (1905). The Lochner case overturned a New York law setting maximum working hours for bakers as a violation of “liberty of contract,” a protected right under the Fourteenth Amendment's due process clause. The most thorough account of Lochner is Kens, Paul, Lochner v. New York: Economic Regulation on Trial (Lawrence: University Press of Kansas, 1998). For a survey of current perspectives on Lochner, see the dedicated issue of the New York University Journal of Law and Liberty 1, no. 1 (2005).

3 The number of justices serving on the United States Supreme Court has varied over time. The Judiciary Act of 1789 set the number at six justices, but the Court was expanded in 1807 (to seven), 1837 (to nine), and 1863 (to ten). The Judiciary Act of 1869 set the number of justices at nine, where it remains to this day.

4 Swisher, Carl Brent, Stephen J. Field: Craftsman of the Law (Chicago: University of Chicago Press, 1969), 116.

5 198 U.S. at 75 (Holmes, J., dissenting).

6 For a thorough discussion of Holmes's charges against the Court's majority, see Paul, Ellen Frankel, “Freedom of Contract and the ‘Political Economy’ of Lochner v. New York,New York University Journal of Law and Liberty 1, no. 1 (2005): 515–69.

7 Swisher, Stephen J. Field, 426.

8 McCloskey, Robert, The American Supreme Court (Chicago: University of Chicago Press, 1960), 101–35; McCloskey, Robert, American Conservatism in the Age of Enterprise, 1865–1910 (Cambridge, MA: Harvard University Press, 1951). See also Fine, Sidney, Laissez-Faire and the General Welfare State (Ann Arbor: University of Michigan Press, 1956).

9 Swisher, Stephen J. Field, 424–27.

10 McCloskey, American Conservatism, 75, 103.

11 Graham, Howard Jay, Everyman's Constitution (Madison: State Historical Society of Wisconsin, 1968), 124–28.

12 For a further survey of the literature upholding the “standard view,” see Gillman, Howard, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (Durham, NC: Duke University Press, 1993), 207–8 n 8.

13 Benedict, Michael Les, The Blessings of Liberty (Lexington, MA: D. C. Heath, 1996), 246.

14 For important revisionist statements apart from those on which I focus below, see Orth, John V., Due Process of Law: A Brief History (Lawrence: University Press of Kansas, 2003), 51–72, 85–102; Semonche, John, Charting the Future: The Supreme Court Responds to a Changing Society, 1890–1920 (Westport, CT: Greenwood Press, 1978); Phillips, Michael J., The Lochner Court, Myth and Reality: Substantive Due Process from the 1890s to the 1930s (Westport, CT: Praeger, 2000); Ely, James W. Jr., “The Oxymoron Reconsidered: Myth and Reality in the Origin of Substantive Due Process,” Constitutional Commentary 16 (1999); Ely, James W. Jr., The Guardian of Every Other Right: A Constitutional History of Property Rights (Oxford: Oxford University Press, 1992); Benedict, Michael Les, “Laissez-Faire and Liberty,” Law and History Review 3 (Fall 1983): 295331.

15 It should be added that there were scholars of a classical liberal persuasion who always had a more favorable view of the Lochner era courts. Among these are the authors in the New York University Journal of Law and Liberty special issue on Lochner, cited in note 2 above, and Siegan, Bernard H., Economic Liberties and the Constitution (Rutgers, NJ: Transaction Publishers, 2005).

16 McCurdy, Charles W., “Justice Field and the Jurisprudence of Government-Business Relations: Some Parameters of Laissez-Faire Constitutionalism, 1863–1897,” Journal of American History 61, no. 4 (1975): 973. (McCurdy is here quoting Justice Field in his Slaughterhouse dissent.)

17 Foner, Eric, Free Soil, Free Labor, Free Men: The Ideology of the Republican Party before the Civil War (Oxford: Oxford University Press, 1975).

18 Gillman, The Constitution Besieged, 166.

19 Ibid., 75.

20 Ibid., 6. For a more precise and quantitative argument to the same effect, see Phillips, The Lochner Court, Myth and Reality; see also Semonche, Charting the Future.

21 Gillman, The Constitution Besieged, 7.

23 Ibid., 66.

24 Ibid., 199.

25 Ibid., 70. Gillman is here quoting Field, 's opinion in Butcher's Union v. Crescent City, 111 US 746, 750–59 (1883). On the significance of this case, see Paul, “Freedom of Contract,” 561–67.

26 McCurdy, “Justice Field,” 1005. See also Paul, “Freedom of Contract,” 561.

27 McCurdy, “Justice Field,” 1005.

29 Gillman, The Constitution Besieged, 200.

30 Slaughterhouse Cases, 83 U.S. 36 (1873), at 86–87 (Field, J., dissenting; emphasis added).

31 Cummings v. Missouri, 71 U.S. 277 (1866); Ex Parte Garland, 71 U.S. 333 (1866).

32 Cummings v. Missouri, 71 U.S. 277 at 317.

33 Id. at 318.

34 Swisher, Stephen J. Field, 141.

35 Ex Parte Garland, 71 US 333 at 382 (Miller, J., dissenting).

36 Id.

37 Id. at 386–95.

38 Kens, Paul, Justice Stephen Field: Shaping Liberty from the Gold Rush to the Gilded Age (Lawrence: University Press of Kansas, 1997), 117.

39 Ex Parte Garland, 71 U.S. 333 at 385 (Miller, J., dissenting).

40 Id. at 397.

41 Cummings v. Missouri, 71 U.S. 277 at 318.

42 Id. at 319.

43 Id.

44 Id. at 322.

45 Id. (Field is quoting Webster's dictionary).

46 Id. at 319–20.

47 Id. at 320.

48 Id.

49 Id.

50 Id. at 321.

51 Id. at 321–22. On the Declaration of Independence as a ground for protecting liberty, see Paul, “Freedom of Contract,” 562–63. I differ from her in maintaining that Field (not Justice Bradley) first made this appeal, and that it was central to all that Field did in the area of economic rights. I also differ in the way I trace out the links between Field's constitutional doctrines and the natural rights philosophy of the Declaration.

52 Two obvious issues arise. First, Holmes and present-day allies like Robert Bork might say that this appeal to “the theory upon which our political institutions rest” is little different from an appeal to Field's pet policy preferences or “values.” The “theory” of our institutions is not, after all, so clearly set out as to guide and discipline a judge. To notice but one indication of this, the literature on John Locke, the articulator of the theory on which the Declaration of Independence rests, is not only voluminous but highly contentious. Hardly any two of the large crew of Locke scholars agree on what Locke means, much less on what “the theory” of our institutions is. A second and related issue concerns the stance of a judge who no longer shares the theory on which our institutions rest. Field appeals to the theory of rights because it is the background theory of the Constitution, but there can be little doubt that he also believed it to be the true theory of political right. But what if he or some other judge believed otherwise? Should they, can they, appeal to the theory of rights as Field did?

53 Cummings v. Missouri, 71 U.S. 277 at 320.

54 Id.

55 Id.

56 Id. at 322.

57 Dent v. West Virginia, 129 U.S. 114 (1881).

58 Slaughterhouse Cases, 83 U.S. 36 at 73–79.

59 Id. at 94–101.

60 See, e.g. Curtis, Michael Kent, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (Durham, NC: Duke University Press, 1986); and Wiecek, William, Liberty Under Law: The Supreme Court in American Life (Baltimore, MD: Johns Hopkins University Press, 1988), 98.

61 Slaughterhouse Cases, 83 U.S. 36 at 60–66.

62 For the presentation of a theory of constitutional interpretation that explains Field's style of reasoning, see Zuckert, Michael P., “Epistemology and Hermeneutics in the Constitutional Jurisprudence of John Marshall,” in Shevory, Thomas C., ed., John Marshall's Achievement: Law, Politics, and Constitutional Interpretations (New York: Greenwood Press, 1989), 193216.

63 Gillman, The Constitution Besieged, 66.

64 Slaughterhouse Cases, 83 U.S. 36 at 105 (Field, J., dissenting).

65 Id. at 193–216.

66 Ibid. at 101.

67 Id. at 101, 110.

68 Id. at 110n.

69 Id. at 87.

70 Id.

71 Kens, Justice Stephen Field, 253.

72 Ibid., 117.

73 For discussion of Field's initial desire to distinguish the two cases, upholding Garland and striking down Cummings, see Ross, Michael A., Justice of Shattered Dreams: Samuel Freeman Miller and the Supreme Court during the Civil War Era (Baton Rouge: Louisiana State University Press, 2003), 133–34.

74 On the paradoxes of appealing to the due process clause for substantive limitations, see Ely, “The Oxymoron Reconsidered.”

75 Gillman, The Constitution Besieged, 68–69.

76 Munn v. Illinois, 94 U.S. 113 (1877), at 114–15.

77 Id. at 139.

78 Id. at 124.

79 Id. at 123.

80 Id. at 125.

81 Id. at 124.

82 Id.

83 Id. at 125.

84 Id. at 126.

85 Black's Law Dictionary.

86 Munn v. Illinois, 94 U.S. 113 at 136 (Field, J., dissenting).

87 Id. at 146.

88 Id. at 145.

89 Id. For an excellent presentation of Field on takings, see McCurdy, “Justice Field,” 974–76.

90 Munn v. Illinois, 94 U.S. 113 at 145 (Field, J., dissenting).

91 Id.

92 Id.

93 Id. at 142.

94 Id. at 138.

95 Id. at 142.

96 Id. at 139–40.

97 Id. at 140.

98 Id. at 190. Field also recognizes a category of property “dedicated to public use,” which is amenable to rate-setting. He mentions “land for a park or a street.” He does not analyze this category any further, however. (Id. at 150.)

99 It might well be denied that Field was the most friendly justice to laissez-faire policy who has been on the Court. To take just one prominent example, it should be apparent from our discussion of Field's approach to issues of political economy that he might well not have sided with the majority in Lochner. In that case, the New York legislature attempted to limit the maximum hours that bakers could work, as a health measure. Field always accepted health as a valid police-power aim, and while he would have shared the majority's desire to be sure that the health claim was not a mere pretence, enough evidence was amassed in Justice Harlan's dissent that there was a genuine health issue involved that Field might well have joined his opinion upholding the law.

100 I am referring especially to cases related to race, such as U.S. v. Cruikshank, 92 U.S. 542 (1876), and the Civil Rights Cases, 109 U.S. 3 (1883). The basis for the claims about the proper meaning of the Fourteenth Amendment expressed in the text are my essays Congressional Power under the Fourteenth Amendment,” Constitutional Commentary 3 (Winter 1986): 123–56; and Completing the Constitution: The Fourteenth Amendment and Constitutional Rights,” Publius 22, no. 2 (1992): 6991.

101 For my thoughts on the matter, see my Natural Rights and the New Constitutionalism (Princeton, NJ: Princeton University Press, 1994), chap. 9; and Launching Liberalism (Lawrence: University Press of Kansas, 2002).

102 Roe v. Wade, 410 U.S. 113 (1973); Planned Parenthood v. Casey, 505 U.S. 833 (1992). See my “Casey at the Bat: Taking Another Swing at Planned Parenthood v. Casey” in Wolfe, Christopher, ed., That Eminent Tribunal: Judicial Supremacy and the Constitution (Princeton, NJ: Princeton University Press, 2004), 3758.

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