Last updated 09/07/24: Online ordering is currently unavailable due to technical issues. We apologise for any delays responding to customers while we resolve this. For further updates please visit our website: https://www.cambridge.org/news-and-insights/technical-incident
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 05 August 2009
Current American problems with respect to the treatment of minority groups have led to the return to popularity of the terminology of a philosophy of inherent rights. Although in popular debates the concepts of “civil rights” and “basic rights” are used loosely, without much regard for a comprehensive jurisprudence, they recall a philosophy of law at odds with pragmatism, a philosophy whose roots go back to ancient Stoicism, and a philosophy consistently maintained and applied by a Justice of the Supreme Court, Stephen Johnson Field, during his thirty-four years on the highest court. In the currents of popular legal opinion a few decades ago, all notions of “rights” tended to be scorned by publicists in legal and political thought, in favor of the more factual studies of power and interest groups. This was done in the name of pragmatism and realism. Although such pragmatic thought continues to hold sway in the economic areas of law and politics, in the area of the law of persons there is a tension between recognition of group demands and formal, moral appeals to law and equality. And where the pragmatists and activists of a generation ago placed their hopes for progress on the flexibility of arbitration boards and administrative tribunals, the locus of hopes, power, and controversy has now shifted to the system of formal law and, in particular, to the Supreme Court. In this shift, the position of Justice Field has likewise shifted: anathema to the proponents of basing all law on considerations of economic interests, because of his “sterile formalism,” he has recently been quoted extensively by Chief Justice Warren in a crucial opinion, and if on the Court today, would be considered an “activist.”
1 Cooper v. Aaron, 358 U.S. 1 (1958)Google Scholar.
2 In The Commerce Clause (Chapel Hill, 1937), pp. 106–110Google Scholar, Justice Frankfurter noted that the history of the Supreme Court in the 1880's was largely the history of the duel between Field and Waite.
3 For example, Cummings v. Missouri, 71 U.S. 277 (1866)Google Scholar.
4 16 Wall. 36 (1873).
5 94 U.S. 113 (1877).
6 The best recent study of Stoic philosophy is in Toulmin and Goodfield, The Architecture of Matter, ch. 2. Cicero is in line with the Stoic tradition when he distinguishes an ideal society of equality, in his de Legibus, from the politics and crises of actual society, in his de Republica. The natural law applies only in the former.
7 “No person shall be … deprived of life, liberty, or property, without due process of law.”
8 There were two cases involving the same parties, called the first and second Slaughterhouse Cases. The second followed the first by ten years, and is noteworthy only for the presence of a dissent by Justice Field in which he is still arguing with the majority doctrine of the first: 111 U.S. 730, 755 (1883).
9 Miller's majority opinion, Slaughterhouse Cases, 16 Wall. 36, 82.
10 Field's dissenting opinion, 16 Wall. 36, 102.
11 Ibid., p. 109.
12 See dissents in Bartemeyer v. Iowa, 18 Wall. 129, Income Tax Cases, 157 U.S. 429, and second Slaughterhouse Cases, op. cit.
13 94 U.S. 113 (1877).
14 Ibid., p. 118.
15 Ibid., p. 145.
16 Crucial is his dissent in Pensacola Telegraph v. Western Union, 96 U.S. 1; see also Paul v. Virginia, 8 Wall. 168; Horn Silver Mining v. New York, 143 U.S. 305; San Mateo v. S.P.R.R., 13 Fed. 145.
17 Wardell v. S.P.R.R. 15 Wall. 454.
18 Santa Clara v. S.P.R.R., 118 U.S. 394.
19 Connecticut General Life v. Johnson, 58 S. Ct. 436, 303 U.S. 77.
20 Crosskey, W. W., Politics and the Constitution (Chicago, 1953), pp. 42–45Google Scholar.
21 Dissent, , Fong Yue Ting v. U.S., 149 U.S. 698 (1893)Google Scholar.
22 Ibid., p. 712.
23 For example, Galvan v. Press, 347 U.S. 522 (1953)Google Scholar.
24 144 U.S. 323.
25 A survey of the current situation may be found in Kohvitz, Milton, Bill of Rights Reader (Ithaca, 1960)Google Scholar.
26 Case dismissed 7 Wall. 506.
27 40 Cong., 2d Sess., 863–65.
28 Cummings v. Missouri, 71 U.S. 277.
29 In re Pacific Railway Commission, 32 Fed. 241.
30 In re An Fong, 3 Sawyer 144; Ho Ah Kow v. Nunan, 5 Sawyer 552; In re Quong Woo, 13 Fed 229; In re Ah Sing, 13 Fed 286.
31 Brown v. Topeka, 347 U.S. 483 (1954)Google Scholar.
32 Cooper v. Aaron, 358 U.S. 1 (1958)Google Scholar.
33 Ibid., p. 7.
34 Ibid., p. 11. This entire paragraph is taken from Field's opinion in Ex Parte Virginia, and it is quoted by Chief Justice Warren as derived from that case, without any notice of the fact that the opinion was written by Field, and is characteristic of both his philosophy and his style.
