Stephen J. Field: Dissent in Munn v. Illinois

Explanation and Analysis of the Document

By the 1870s railroads were increasingly dominating American economic life. Merchants and farmers were often dependent on rail services to ship their goods to distant markets. There were chronic complaints about excessive and discriminatory freight charges. Resentment over alleged rate discrimination was at the root of the clamor for governmental regulation. Although some of the charges directed at railroads were exaggerated, the railroads did exercise virtually unchecked authority to fix charges and determine the level of service they supplied. In addition to these economic concerns, many observers feared that railroads also enjoyed undue political clout in legislative bodies. Finally, railroads were the most visible symbol of the emerging industrial order and the national market for goods. As such, they were often treated as scapegoats for larger economic frustrations felt by segments of the public.

Growing sentiment against the railroads found expression in the so-called Granger laws passed in a number of midwestern states. These laws established powerful commissions that were authorized to set maximum rates for railroads and related businesses. Arguing that these rate regulations would retard the construction of new lines, the railroad companies engineered repeal or modification of some Granger laws. They also challenged the constitutionality of rate regulations by states in a group of cases that raised key questions about state authority to control charges for use of private property. A crucial line of inquiry was whether the rate-regulation laws constituted the confiscation of property without due process of law, in violation of the Fourteenth Amendment.

In a cluster of decisions known as the Granger Cases, the Supreme Court rejected the constitutional attack on the authority of states to set rates. At issue in the most important case, Munn v. Illinois (1877), was an Illinois law regulating the charges for storing grain in elevators. Chief Justice Morrison R. Waite declares in the majority opinion that “when private property is devoted to a public use, it is subject to public regulation.” Waite agrees that owners of property “clothed with a public interest” were entitled to reasonable compensation, but he insists that the determination of such compensation was a legislative and not a judicial task. “For protection against abuses by the legislature,” Waite observes, “the people must resort to the polls, not the courts.” Adopting a narrow view of the protection given private property under the Fourteenth Amendment's due process clause, he thus seemingly shut the door on judicial review of state-imposed rates.

Field vigorously disagreed, articulating the view that the due process clause of the Fourteenth Amendment protected economic liberty from state regulation. In his dissent he first maintains that property ownership went beyond title and possession and included the right to use and derive income from the property. Field then insists that the due process clause “has a much more extended operation” than courts had previously recognized. The due process norm, he continues, “has been supposed to secure to every individual the essential conditions for the pursuit of happiness” and should therefore not be construed “in any narrow or restricted sense.” He next broadly defines liberty as more than freedom from physical restraint. To Field, liberty encompassed the right of a person to “pursue such callings and avocations as may be most suitable to develop his capacities.” In a key portion of his dissent Field states that property should receive the same “liberal” protection as liberty.

Turning to the question of state rate regulation, Field observes:

If the legislature of a State, under the pretense of providing for the public good, or for any other reason, can determine, against the consent of the owner, the uses to which private property shall be devoted, or the prices which the owner shall receive for its uses, it can deprive him of the property as completely as by a special act for its confiscation or destruction.

Field concludes by insisting that constitutional protection of property was meaningless unless it extended to use and income as well as title and possession. Although Field did not prevail in Munn, his dissent paved the way for heightened judicial scrutiny of railroad rate regulations in the late nineteenth century. Equally important, his expansive definition of liberty and property would prove influential as courts grappled with the scope of the due process guarantee. Field did much to advance the view that due process guaranteed substantive rights.