1. See, for example, Adair v. United States, 208 U.S. 161 (1908); Coppage v. Kansas, 236 U.S. 1 (1915); Adkins v. Children's Hospital, 261 U.S. 525 (1923); Murphy v. Sardell, 269 U.S. 530 (1925); Adams v. Tanner, 244 U.S. 590 (1917); New State Ice Co. v. Liebmann, 285 U.S. 262(1932).

2. Lochner v. New York, 198 U.S. 45, 75 (1905) (Holmes, J., dissenting).

3. See Paul, Arnold M., Conservative Crisis and the Rule of Law: Attitudes of Bench and Bar, 1887–1985 (Ithaca: Cornell University Press, 1960), 159–84Google Scholar; McCloskey, Robert Green, American Conservatism in the Age of Enterprise, 1865–1910 (Cambridge: Harvard University Press, 1951), 104–16CrossRefGoogle Scholar; Jacobs, Clyde E., Law Writers and the Courts: The Influence of Thomas M. Cooley, Christopher G. Tiedeman, and John F. Dillon Upon American Constitutional Law (Berkeley: University of California Press, 1954), 23–63Google Scholar; Twiss, Benjamin R., Lawyers and the Constitution: How Laissez Faire Came to the Supreme Court (Princeton: Princeton University Press, 1942), 42–62, 141–73Google Scholar; Corwin, Edward S., “The Doctrine of Due Process of Law Before the Civil War,” Harvard Law Review 24 (1911): 366–85, 460–79.CrossRefGoogle Scholar

4. The Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 83–126 (1873).

5. Munn v. Illinois, 94 U.S. 113, 136–54 (1877); Chicago, Burlington & Quincy R.R. Co. v. Iowa, 94 U.S. 155 (1876); Peik v. Chicago & N.W. Ry. Co., 94 U.S. 164 (1876); Chicago, Milwaukee & St. Paul R.R. Co. v. Ackley, 94 U.S. 179 (1876); Winona & St. Peter R.R. Co. v. Blake, 94 U.S. 180 (1876); Stone v. Wisconsin, 94 U.S. 181, 183–87 (1876).

6. Twiss, Lawyers and the Constitution, 3–17.

7. Benedict, Michael Les, “Laissez-Faire and Liberty: A Re-Evaluation of the Meaning and Origins of Laissez-Faire Constitutionalism,” Law and History Review 3 (1985): 293, 331.CrossRefGoogle Scholar Benedict cites to the Minnesota Rate Cases (Stone v. Farmer's Loan & Trust, 116 U.S. 307 [1886]; Chicago, Milwaukee, and St. Paul Ry. Co. v. Minnesota, 134 U.S. 418 [1890]), Smyth v. Ames, 169 U.S. 466 (1898), and Allgeyer v. Louisiana, 165 U.S. 578 (1897).

8. Benedict, “Laissez-Faire and Liberty,” 293. This is a common characterization of Progressive legal history. Owen Fiss, for example, has written that Progressives built “a scholarly tradition that treats all the talk of liberty by the Fuller Court as mere camouflage or subterfuge.” Fiss, , Troubled Beginnings of the Modern State, 1888–1910, vol. 8 of History of the Supreme Court of the United States (New York: Macmillan, 1993), 12–13.Google Scholar Howard Gillman writes that Progressives “character[ized] … the Court's jurisprudence as essentially unprincipled or rooted in extraconstitutional policy preferences for laissez-faire economics.” Gillman, , The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (Durham, N.C.: Duke University Press, 1993), 4.Google Scholar Charles W. McCurdy has stated that “historians have relentlessly marched to the conclusion that [Justice Stephen] Field was a mere handmaiden for ‘business needs.’” McCurdy, , “Justice Field and the Jurisprudence of Government-Business Relations: Some Parameters of Laissez-Faire Constitutionalism, 1863–1897,” Journal of American History 61 (1975): 972.CrossRefGoogle Scholar

9. Cohen, Morris Raphael, American Thought, ed. Cohen, Felix S. (New York: Collier Books, 1962), 191.Google Scholar A very few Progressives fit more comfortably into the revisionist stereotype. See Frank, Jerome, Law and the Modern Mind (New York: Brentano's, 1931).Google Scholar

10. See, for example, Lockhart, William B. et al., Constitutional Law: Cases-Comments-Questions, 8th ed. (St. Paul, Minn.: West Publishing, 1996), 315–31Google Scholar; Chemerinsky, Erwin, Constitutional Law: Principles and Policies (New York: Aspen Law and Business, 1997), 477–86Google Scholar; Nowak, John E. and Rotunda, Ronald D., Nowak and Rotunda's Hornbook on Constitutional Law, 4th ed. (St. Paul, Minn.: West Publishing, 1991), 356–62.Google Scholar For casebooks that question the accuracy of the Progressive view, see Tribe, Laurence H., American Constitutional Law, 3d ed. (New York: Foundation Press, 2000), 1332–52, 1348, n. 7Google Scholar; Barron, Jerome A. et al., Constitutional Law: Principles and Policy, 4th ed. (Charlottesville, Va.: Michie Co., 1992), 381–89Google Scholar; Kmiec, Douglas W. and Presser, Stephen B., The American Constitutional Order: History, Cases, and Philosophy (Cincinnati, Ohio: Anderson Publishing, 1998), 1090–127.Google Scholar

11. In a lengthy and critically minded introduction to The Constitution Besieged, Howard Gillman grapples with the principle implicit in characterizing Field's jurisprudence as consistent with precedent: namely, that Realism's critical strand, questioning law's determinacy, must necessarily also be rejected. Gillman appears troubled by revisionism's rejection of the Realist critique. He resolves the dilemma by positing that law is capable of a weak determinism, or that “a particular interpretive community comes to treat (ostensibly indeterminate) texts and principles as meaningful and directive” at a level abstract enough that ideas resident in those texts become “meaningful for participants.” Put another way, general principles can decide concrete cases at least some of the time and in the minds of some “interpretive communities.” Gillman, Constitution Besieged, 1–18. Gillman's solution is, to my mind, useful in revealing the conceptual core of revisionism. The Realists maintained not that judges were insincere in their belief in a deterministic legal science but that, fundamentally, a geometrical jurisprudence revealing neutral first principles was impossible to achieve. See Purcell, Edward A., The Crisis of Democratic Theory (Lexington: University Press of Kentucky, 1973), 47–94.Google Scholar

12. For a more textured picture of the interplay between Jacksonianism, political economy, and Gilded Age constitutionalism, see Hovenkamp, Herbert, Enterprise and American Law (Cambridge, Mass.: Harvard University Press, 1991), 67–101.Google Scholar

13. Of course, the revisionist critique has not gone entirely unchallenged. Paul Kens has recently argued that Justice Field's jurisprudence displayed elements both of radical free soil ideology and laissez-faire corporatism. Kens, Paul, Justice Stephen Field: Shaping Liberty from the Gold Rush to the Gilded Age (Lawrence: University Press of Kansas, 1997).Google Scholar This article is intended to complement Kens's work. It also aspires to question, more pointedly than previous scholars have, whether Field was a free laborite or free soiler at all and to suggest that what revisionism has labeled “Free Soil, Free Labor” is difficult to distinguish from laissez-faire in Field's jurisprudence.

14. Twiss, Lawyers and the Constitution, 20–41; Jacobs, Law Writers and the Courts, 27–32; Fine, Sidney, Laissez Faire and the General-Welfare State (Ann Arbor: University of Michigan Press, 1956), 140–44.Google Scholar

15. Jones, Alan, “Thomas M. Cooley and ‘Laissez-Faire Constitutionalism’: A Reconsideration,” Journal of American History 53 (1967): 751–52, 762CrossRefGoogle Scholar; Cooley, Thomas M., A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union (Boston: Little, Brown, 1868).Google Scholar

16. Jones, “Thomas M. Cooley and ‘Laissez-Faire Constitutionalism,’” 755, 762. Jones pointed out that Cooley strenuously opposed railroad lawyers' claim that the Interstate Commerce Commission's setting of rail rates violated due process. See Flint & Fentonville Plank Road Co. v. Woodhull, 25 Mich. 99 (1872); Michigan v. Iron Cliffs Co., 54 Mich. 361 (1884).

17. Benedict, “Laissez-Faire and Liberty,” 293, 296.

18. Ibid., 296, quoting Collingwood, R. G., The Idea of History (Oxford: Clarendon Press, 1946), 218–19.Google Scholar

19. Benedict, “Laissez-Faire and Liberty,” 296, 313–26.

20. McCurdy, “Jurisprudence of Government-Business Relations,” 970, 973. “Final solutions” is McCurdy's phrase. Much of my article is a rebuttal of “Jurisprudence of Government-Business Relations,” primarily because the piece is so often cited by scholars who accept the revisionist argument. McCurdy, however, has written numerous articles on Justice Field in the course of his career. In more recent work, McCurdy has been less sanguine about calling “Jacksonian libertarianism” the exclusive fount for Justice Field's judicial philosophy. He has argued, for example, that in early California land law cases, Field most often adopted a legal rule intended to maximize economic efficiency. McCurdy, Charles W., “Stephen J. Field and Public Land Law Development in California, 1850–1866: A Case Study of Judicial Resource Allocation in Nineteenth-Century America,” Law and Society Review 10, no. 1 (Fall 1975): 235–66.CrossRefGoogle Scholar Many of the points elaborated in my essay have already been suggested by his later scholarship. See McCurdy, , “The ‘Liberty of Contract’ Regime in American Law,” in The State and Freedom of Contract, ed. Scheiber, Harry N. (Stanford: Stanford University Press, 1998), 161Google Scholar; idem, “Prelude to Civil War: A Snapshot of the California Supreme Court at Work in 1858,” in The California Supreme Court Historical Society Yearbook 1 (1994): 3; idem, “Stephen J. Field and the American Judicial Tradition,” in The Fields and the Law, Philip J. Bergan, Owen M. Fiss, and Charles W. McCurdy (San Francisco: United States District Court for the Northern District of California Historical Society, 1986), 5; idem, “The Knight Sugar Decision of 1895 and The Modernization of American Corporation Law, 1869–1903,” Business History Review 53 (1979): 304–42.

21. 80 U.S. (13 Wall.) 166 (1871).

22. McCurdy, “Jurisprudence of Government-Business Relations,” 976–78, quoting Dent v. West Virginia, 129 U.S. 114, 121 (1889).

23. For an example of the influence of “Jurisprudence of Government-Business Relations,” see Foner, Eric, Free Soil, Free Labor, Free Men: The Ideology of the Republican Party before the Civil War, 2d ed. (New York: Oxford University Press, 1995), xxxvii.Google Scholar Foner cites McCurdy, among others, for the proposition that Field's dissent in Slaughter-House was principally motivated by free labor ideology. In a book published in 1988, however, before the new introductory essay was appended to Free Soil, Free Labor, Free Men, Foner wrote:

[Field had] become convinced by the Grange, Paris Commune, and other “class” movements, that the federal government must exercise some restraints on unwise action by the states. His argument in Slaughterhouse blazed a trail toward the judicial conservatism of the 1880s and 1890s, when the federal courts became a refuge for those seeking to protect property rights against local restrictions on economic enterprise.

Foner, Eric, Reconstruction: America's Unfinished Revolution, 1863–1877 (New York: Harper and Row, 1988), 530.Google Scholar See also Fiss, Troubled Beginnings, 3–21; Ackerman, Bruce, We the People: Foundations (Cambridge: Harvard University Press, Belknap Press, 1991), 41–44, 81–104Google Scholar; Nelson, William E., “The Impact of the Antislavery Movement upon Styles of Judicial Reasoning in Nineteenth Century America,” Harvard Law Review 87 (1974): 513, 551–52.CrossRefGoogle Scholar

24. Gillman, Constitution Besieged, 19–45, 74, 86–99. The quote is at ibid., 28. Gillman appears uneasy about being lumped in with some revisionist scholars, whom he calls “conservative polemicists.” Nonetheless, he agrees that “the judiciary during the Lochner era was being faithful to a well-established constitutional tradition.” Ibid., 12. Gillman later writes that “[mjarket freedom, or ‘liberty of contract,’ was linked inextricably with the [early American] commitment to faction-free legislation.” Ibid., 114.

25. Fiss, Troubled Beginnings, 389, 392. For general background, see ibid., 3–21, 389–95.

26. For an incisive critique of the “inevitability” of the triumph of corporate capitalism in the twentieth century, see Forbath, William E., “The Ambiguities of Free Labor: Labor and Law in the Gilded Age,” Wisconsin Law Review (1985): 767–817.Google Scholar

27. It is as if Field were from Mars and the Progressives were from Venus. The problem here is that at least early Progressives (theorists like Corwin or historians like Swisher) were not that far removed, in time or core ideological influences, from the subjects of their study. The burden of historical proof, therefore, should be heavy to prove that late nineteenth-century conservative jurists were fundamentally incomprehensible to Progressives. Of course, the most succinct summary of the Progressive critique of laissez-faire constitutionalism occurs in Holmes's Lochner dissent. At least one revisionist scholar solves the problem by claiming that Holmes did not know what he was talking about. Gillman, Constitution Besieged, 131. Michael Les Benedict, though not quite as explicit as Gillman, has suggested the same. Benedict, “Laissez-Faire and Liberty,” 305.

28. Jones, “Thomas M. Cooley and ‘Laissez-Faire Constitutionalism,’” 752. The emphasis is mine.

29. See, for example, Gillman, Constitution Besieged, 66; Benedict, “Laissez-Faire and Liberty,” 319.

30. Munn v. Illinois, 94 U.S. at 136.

31. See Foner, Free Soil, Free Labor, Free Men, xi–xxxix; Eric Foner, Reconstruction, MAIS.

32. Gardiner, Oliver Cromwell, The Great Issue (New York: W. C. Bryant, 1848), 56Google Scholar, quoted in Donovan, Herbert D. A., The Barnburners (New York: New York University Press, 1925), 96.Google Scholar For a description of the Barnburner convention and David Dudley Field's role, see Donovan, Barnburners, 90–97.

33. Donovan, Barnburners, 93–94, 113; Field, Henry M., Life of David Dudley Field (Littleton, Colo.: F. B. Rothman, 1898), 196.Google Scholar

34. The two brothers both studied at Williams College. Stephen Field read law in David Dudley's office for three years and eventually joined the partnership. David Dudley Field was also critical in securing Stephen Field's appointment to the Supreme Court. Field, Life of David Dudley Field, 12, 16, 21–22, 196; Philip J. Bergan, “David Dudley Field: A Lawyer's Life,” in Bergan, Fiss, and McCurdy, Fields and the Law, 21, 29; William G. Mulligan, “A Tribute to David Dudley Field” (transcript of an address delivered at Irvington-on-Hudson, N.Y., Jan. 18, 1961), Harvard Law School Library; Swisher, Carl Brent, Stephen J. Field: Craftsman of the Law (Washington, D.C.: Brookings Institution, 1930), 54.Google Scholar

35. Sedgwick, Theodore Jr, “What is a Monopoly?” in Social Theories of Jacksonian Democracy, ed. Joseph L. Blau (New York: Hafner Publishing, 1947), 220.Google Scholar Originally published in monograph form as What is a Monopoly? (New York: G. P. Scott, 1835).

36. Schlesinger, Arthur M. Jr, The Age of Jackson (Boston: Little, Brown, 1945), 188, 462.Google Scholar Sedgwick wrote of the Locofocos that “[i]t is this Equal Rights party that alone can save the democracy,” although he admitted that some locofoco notions were crude. Ibid., 245.

37. Field, Stephen J., Personal Reminiscences of Early Days in California (Washington, D.C.: n.p., 1893), 3–4Google Scholar; Swisher, Stephen J. Field, 285–86; Kens, Justice Stephen Field, 177–78. For a useful discussion of Field's voyage to Europe, see Graham, Howard Jay, “Justice Field and the Fourteenth Amendment,” Yale Law Journal 52 (1943): 851, 868–69.CrossRefGoogle Scholar

38. Kens, Justice Stephen Field, 177–78.

39. The 1893 edition of Personal Reminiscences in the Harvard College Library is signed by Field and marked, “Gift of the Author.”

40. Kens, Justice Stephen Field, 9.

41. Field, Personal Reminiscences of Early Days in California, 58–60.

42. 9 Cal. 502 (1858).

43. In Justice Terry's case, identifying the independent influence of Free Labor is even more problematic than it is in Field's. Although he was a populist advocate of miner's rights, Terry was also a staunch supporter of slavery. When California Democrats split over the Civil War, Terry sought the nomination of the Lecompton, or pro-slavery wing of that party.

44. 9 Cal. at 505–6, 506, 504, 507. Emphasis in Terry's quote is mine. Compare Terry's writing in Ex parte Newman with Field's in The Slaughter-House Cases, 83 U.S. at 94–131 (1873), and Munn v. Illinois, 94 U.S. at 136–54.

45. 9 Cal. at 507; Meyer, Leland Winfield, The Life and Times of Richard M. Johnson of Kentucky (New York: Columbia University Press, 1932).Google Scholar

46. Johnson, R. M., Report of the Committee of the Senate of the United States, to whom were referred the several memorials on the subject of the transportation of the mails on Sunday (Baltimore: J. Lovegrove, 1829)Google Scholar; Meyer, Life and Times of Richard M. Johnson, 256–63.

47. Giliman, Constitution Besieged, 42, 44.

48. Theophilus Fisk, Priestcraft Unmasked, quoted in Schlesinger, Age of Jackson, 139.

49. Swisher, Stephen J. Field, 18; Wayland, Francis, The Elements of Moral Science, 2d ed., ed. Blau, Joseph (1837; reprint, Cambridge: Belknap Press, Harvard University Press, 1963), 172–73.CrossRefGoogle Scholar Wayland opined that the carrying of mail on Sunday was a “social” violation of the Sabbath, but that it was not the duty of the state to enforce the Sabbath under its civil powers. For brief descriptions of Wayland's impact on early American economics, see Hovenkamp, Enterprise and American Law, 74–77, and Fine, Laissez Faire and the General-Welfare State, 11, 58.

50. Newman, 9 Cal. at 506–7.

51. Ibid., at 506–10; McCurdy, “Jurisprudence of Government-Business Relations,” 973.

52. Swisher, Stephen J. Field, 88–82, 103, 375; McCloskey, American Conservatism in the Age of Enterprise, 96–100, 111, 120.

53. Graham, “Justice Field and the Fourteenth Amendment,” 855–57; Swisher, Stephen J. Field, 383, 429; McCloskey, American Conservatism in the Age of Enterprise, 98–100. Graham theorized that the Franco-Prussian War and the Paris Commune had caused Field to make an ideological volte-face. For Swisher, who also thought he detected a change in Field's politics after 1870, the “menace of communism” was the culprit.

54. Newman, 9 Cal. at 518–19.

55. Compare the text that follows with Pound, Roscoe, “Liberty of Contract,” Yale Law Journal 18 (1909): 454–87.CrossRefGoogle Scholar Pound observed that “the discussion about ‘equal rights’” was “utterly hollow” to those “acquainted at first hand with actual industrial conditions.”

56. Newman, 9 Cal. at 520–21, 527–28.

57. Benedict, “Laissez-Faire and Liberty,” 319.

58. Compare Field's dissent to the writing of Hale, Robert L., “Coercion and Distribution in a Supposedly Non-Coercive State,” Political Science Quarterly 38 (1923): 470–94.CrossRefGoogle Scholar Hale wrote that “the systems advocated by professed upholders of laissez-faire are in reality permeated with coercive restrictions of individual freedom, and with restrictions, moreover, out of conformity with any formula of ‘equal opportunity’ or of ‘preserving the rights of others.’” Ibid., 101. Compare also Holmes's dissent in Lochner v. New York, 198 U.S. 45, 75 (1905). Justice Holmes wrote that “[t]he liberty of the citizen to do as he likes so long as he does not interfere with the right of others to do the same … is interfered with by school laws, by the Postoffice, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not.” Field explained in Ex parte Newman that “[w]hat contracts are valid, and what are invalid, when they must be in writing, and when they can be made by parol, what is essential to transfer chattels, and what to convey realty, are matters of constant legislation. Some modes of acquisition are subject to licenses, and some are prohibited. The right to acquire property, like the use of it, must be considered in relation to other rights.” 9 Cal. at 527.

59. Favoring the work of Jackson scholar Marvin Meyers, Michael Les Benedict has written that “Schlesinger's argument that Jacksonism was a working-class movement is untenable.” Benedict, “Laissez-Faire and Liberty,” 320, n. 108. Although Meyers's text is useful for understanding the complexities of Jacksonian Democracy and its conflicting appeal to various interest groups, it does not pretend to negate Schlesinger's earlier and equally classic work. Meyers declared early in his book that “[t]he Jacksonian persuasion … is not a magic formula explaining everything Jacksonians said or did” and that “[t]here were Jacksonians of many sorts, whose thoughts and actions make a large and many-faceted historical record.” Meyers, Marvin, The Jacksonian Persuasion (Stanford: Stanford University Press, 1957)Google Scholar, v. Something more than a brief footnote should be required to dismiss entirely Schlesinger's extensively documented argument for Jacksonianism's populist roots. See Schlesinger, Age of Jackson.

60. McCurdy, “Jurisprudence of Government-Business Relations,” 1005.

61. For detailed discussion of Field's influence on California land law, see Kens, Justice Stephen Field; McCurdy, “Stephen J. Field and Public Land Law Development in California.” I am indebted to Paul Kens' work in this area, particularly for his clear explanation of the facts underlying the Frémont and Biddle Boggs decisions.

62. 14 Cal. 279 (1859).

63. 58 U.S. (17 How.) 551 (1854).

64. Kens, Justice Stephen Field, 79; Frémont, 58 U.S. at 565.

65. Biddle Boggs, 14 Cal. at 304–14.

66. Ibid., 304, 312, 313.

67. Ibid., 314.

68. Kens, Justice Stephen Field, 85–86; Swisher, Stephen J. Field, 83–88.

69. 14 Cal. at 374, 375, 379.

70. Ex parte Newman, 9 Cal. 502, 528 (1858).

71. Biddle Boggs, 14 Cal. at 379.

72. Though common law doctrines of first appropriation would still apply if putatively public land was never claimed under a valid grant. Ibid., 375.

73. McCurdy, “Stephen J. Field and Public Land Law Development in California,” 241.

74. See, for example, Moore v. Smaw, 17 Cal. 199 (1861), finally establishing that California land grants included mineral rights. Though the opinion included language critical of monarchical privilege, the holding of Moore favored large grantholders over independent miners and was unquestionably hostile to Free Soil principles. Field's justification for the outcome in Moore was, again, his view of the economic efficiencies involved. Ibid., 212–13, 222–24. See also Ferris v. Coover, 10 Cal. 589 (1858), holding that a grantholder who mistakenly established boundaries larger than his grant allowed would be permitted to keep the entire tract, and to eject squatters, until the government had acted to take the surplus into the public domain. Ferris v. Coover “had serious implications for people who had settled within or near floating grants.” Kens, Justice Stephen Field, 77.

75. Davis, Winfield J., History of Political Conventions in California, 1849–1892 (Sacramento: n.p., 1893), 460Google Scholar; Kens, Justice Stephen Field, 73–74.

76. See, for example, Ho Ah Kow v. Nunan, 12 F. Cas. 252 (CCD. Cal. 1879); In re Ah Fong, 1 F. Cas. 213 (D.D.C. Cal. 1874). For a discussion of these cases, see Swisher, Stephen J. Field, 205–39; Kens, Justice Stephen Field, 197–235.

77. Santa Clara v. Southern Pac. R.R., 18 F. 385, 402–5 (CCD. Cal. 1883); San Mateo v. Southern Pac. R.R., 13 F. 722, 746–48 (CCD. Cal. 1882) (companion cases).

78. Swisher, Stephen J. Field, 307.

79. Field, Stephen J., “Address at the Centennial Celebration of the Organization of the Federal Judiciary,” in Some Account of the Work of Stephen J. Field as a Legislator, State Judge, and Justice of the Supreme Court of the United States, 2d ed., ed. Gorham, George C. ([New York?]: n.p., 1895).Google Scholar

80. The Slaughter-House Cases, 83 U.S. 36, 36–43 (1873).

81. See, for example, Lonn, Ella, Reconstruction in Louisiana after 1868 (New York: G. P. Putnam's Sons, 1918), 42–43Google Scholar; Warren, Charles, The Supreme Court in United States History (Boston: Little, Brown, 1922), 258.Google Scholar For a contrasting view, see Hovenkamp, Enterprise and American Law, 116–24. Hovenkamp argues that the traditional view of Slaughter-House emerged from the racism of the Dunning School, which depicted postwar African-Americans as unqualified for self-government.

82. Swisher, Stephen J. Field, 416.

83. McCurdy, “Jurisprudence of Government-Business Relations,” 976, quoting Durbridge v. The Slaughter-House Co., 27 La. Ann. 676, 676 (1875).

84. Hovenkamp points out that “[n]o one has uncovered evidence that… the Louisiana legislature was bribed.” Enterprise and American Law, 122–24. It is certain, in any event, that butchers in and near New Orleans had long disposed of waste directly into the Mississippi. The central slaughterhouse was seen as a method of ending the sanitation problem and was likely modeled on a similar arrangement, also organized through a corporation provided exclusive privileges, in New Jersey. Centralized slaughterhouses already operated in New York, San Francisco, Boston, and Philadelphia. See Labbé, Ronald M., “New Light on the Slaughterhouse Monopoly Act of 1869,” in Louisiana's Legal Heritage, ed. Haas, Edward F. (Pensacola, Fla.: Perdido Bay Press, 1983), 143–61.Google Scholar

85. 83 U.S. at 83, 60, 61–62, 63.

86. Ibid., 63, 65, 81.

87. Ibid., 81, 66.

88. Gillman, Constitution Besieged, 64–67; McCurdy, “Jurisprudence of Government-Business Relations,” 976–79; Benedict, “Laissez-Faire and Liberty,” 327–28.

89. Swisher, Stephen J. Field, 420.

90. McCloskey, American Conservatism in the Age of Enterprise, 113–14.

91. 83 U.S. at 87, 84, 89.

92. Ibid., 93, 97, 101–6.

93. Ibid., 110, n. 39.

94. Orestes Augustus Brownson, “The Laboring Classes,” in Social Theories of Jacksonian Democracy, ed. Blau, 301. Originally published in Boston Quarterly Review, July 23, 1840.

95. Gillman, Constitution Besieged, 67, 66.

96. Smith, E. Irving, “The Legal Aspect of the Southern Question,” Harvard Law Review 2 (1889): 358, 375CrossRefGoogle Scholar, citing Mugler v. Kansas, 123 U.S. 623 (1887); People v. Marx, 99 N.Y. 377 (1885); Powell v. Pennsylvania, 127 U.S. 678 (1888); State v. Addington, 12 Mo. App. 214(1882).

97. Shattuck, Charles E., “The True Meaning of the Term ‘Liberty’ in Those Clauses in the Federal and State Constitutions Which Protect ‘Life, Liberty, and Happiness,’” Harvard Law Review 4 (1891): 365, 366, 385.CrossRefGoogle Scholar

98. Ibid., 388, 385, 392, 365.

99. 96 U.S. 1 (1877).

100. Ibid., 9, 11, 12.

101. Ibid., 15–16, 18.

102. McCurdy, “Jurisprudence of Government-Business Relations,” 994, 993–95. See also McCurdy, “Stephen J. Field and the American Judicial Tradition,” in Bergan, Fiss, and McCurdy, Fields and the Law, 5–9.

103. 146 U.S. 387 (1892).

104. Indeed, despite Field's alleged hostility to monopoly, he appears always to have al lowed utility monopolies to pass constitutional muster. See, for example, New Orleans Gas Co. v. Louisiana Light Co., 115 U.S. 650 (1885). For a discussion of these contradictions, see McCurdy, Charles W., “Federalism and the Judicial Mind in A Conservative Age: Stephen J. Field,” in Power Divided: Essays on the Theory and Practice of Federalism, ed. Scheiber, Harry N. and Feeley, Malcom M. (Berkeley: Institute of Governmental Studies, 1989), 31.Google Scholar The apparent logical inconsistencies in Field's thought may be explained by the Fuller Court's insistence on placing the responsibility for corporate regulation in the hands of states rather than the federal government. McCurdy, “Knight Sugar Decision,” 306–14. Field's rhetori cal inconsistencies—his attack of monopoly in one decision and embrace of it in another—are less easily resolved.

105. 96 U.S. at 16.

106. Ibid., 23.

107. 157 U.S. 429(1895).

108. 158 U.S. 601 (1895).

109. An exception is Fiss, who devotes nearly a chapter to Pollock. Fiss, Troubled Beginnings, 75–100. McCurdy dismissed the case in one sentence, stating that “Field believed … that partial and unequal tax laws effectively transferred property from one socioeconomic group to another in contravention of the fundamental precept that property could not be taken for private use.” McCurdy, “Jurisprudence of Government-Business Relations,” 991. Benedict failed to mention the case at all. Progressive historians, by contrast, lavished attention on Pollock. See, for example, Paul, Conservative Crisis and the Rule of Law, 159–220.

110. 157 U.S. at 559, 575, 558–74.

111. Ibid., at 582–83.

112. 158 U.S. at 636–37.

113. 157 U.S. at 592, 586–92.

114. Ibid., at 592–93, 593, 595, 596, quoting Cooley, Thomas M., A Treatise on the Law of Taxation Including the Law of Local Assessments, 2d ed. (Chicago: Callaghan and Co., 1886), 295.Google Scholar

115. 157 U.S. at 596.

116. Ibid., at 607.

117. For a biography of David Ames Wells, former United States Special Commissioner of the Revenue and New York Revenue Commissioner, see Joyner, Fred Bunyan, David Ames Wells: Champion of Free Trade (Cedar Rapids, Iowa: Torch Press, 1939).Google Scholar

118. Field to Wells, 11 May 1895, Small Manuscript Collection, Harvard Law School Library; Wells, David Ames, “The Income Tax: A Popular View of the Case,” New York Tribune. 9 May 1895, 3.Google Scholar

119. Field to Wells, 23 May 1895, Small Manuscript Collection, Harvard Law School Library.

120. The Slaughter-House Cases, 83 U.S. 36, 96 (Field, J. dissenting).

121. 157 U.S. at 607.