William Howard Taft

by Jeffrey Rosen

  Later that month, the Cincinnati Southern railroad company sued for an injunction against Debs’s colleague F. W. Phelan, accusing him of inciting workers to strike and preventing the railroad from pulling Pullman cars in defiance of its contractual obligations.46 When Phelan defied the injunction, Taft issued a warrant for his arrest for contempt of court, and, in the Thomas case, he sentenced Phelan to six months in jail.47

  In 1889, a vacancy had opened on the U.S. Supreme Court. With focused ambition, the thirty-one-year-old Taft asked Governor Foraker to recommend him for the seat, all the while acknowledging in a letter to his father that his odds were long: “My chances of going to the moon and of donning a silk gown at the hands of President Harrison are about equal.”48 Harrison decided not to nominate Taft to the Court, perhaps because of his youth and inexperience, but instead nominated him as solicitor general of the United States. Nellie was elated, convinced that accepting the job as the U.S. government’s advocate before the U.S. Supreme Court would enable the couple to escape Cincinnati and to consort with a group she lionized as the Washington “bigwigs.”49

  Insecure about his speaking abilities, Taft castigated himself after his first oral argument before the Court. “I did not find myself as fluent on my feet as I had hoped to,” he wrote to his father, adding that the justices “seem to think when I begin to talk that that is a good chance to read all the letters that have been waiting for some time [and] to eat lunch.”50 But hard work compensated for his lack of experience, and from 1890 to 1892 Taft won sixteen of his eighteen cases as solicitor general.51 Taft also distinguished himself by introducing a noble practice in the solicitor general’s office: “confessing error,” or notifying the Supreme Court that, because of a constitutional or legal violation, the government should not have won its case. In 1891, at Taft’s request, the Court reversed a murder conviction in Texas after Taft confessed that it had been based on hearsay evidence that should have been excluded.52 The tradition of solicitors general “confessing error” continues to this day, and it is a tribute to Taft’s honesty and his fervent belief that all conduct by the executive branch should conform to the Constitution and laws of the United States.

  Alphonso Taft was proud, in the end, of his son’s accomplishments. Taft wrote to Nellie that, on his deathbed, Alphonso “looked up at me in the sweetest way imaginable and said to me, ‘Will, I love you beyond expression.’”53 And Taft’s career continued to thrive. By the end of his first year as solicitor general, Taft had befriended Justice John Marshall Harlan, already distinguishing himself as the “great dissenter” from the Court’s decisions denying civil rights.54 He also developed close bonds with President Harrison and Attorney General William Miller.55 And he struck up a close friendship with the new chairman of the U.S. Civil Service Commission—that igneous force of nature Theodore Roosevelt.56

  In March 1891, Congress created a new seat on the U.S. Court of Appeals for the Sixth Circuit, in Ohio.57 Taft’s Republican friends in Cincinnati organized a campaign on his behalf, and Attorney General Miller and Justice Harlan called on President Harrison to endorse him for the seat.58 Nellie was dismayed by the prospect of leaving Washington: “If you get your heart’s desire, my darling, it will put an end to all the opportunities you now have of being thrown with the bigwigs.”59 But Taft preferred the bench to the bigwigs, and in March 1892 he resigned as solicitor general to return to Cincinnati as a federal appellate judge.60 Taft would serve on the Sixth Circuit for eight happy years, while also serving as a dean and professor of property at the Cincinnati Law School.61 “I think he enjoyed the work of the following eight years more than any he has ever undertaken,” Nellie later recalled, including the presidency.62

  Although Taft professed to hate the publicity that resulted from his closely watched opinion in the Pullman case, Nellie relished her husband’s labor opinions for raising his stock in Republican circles.63 And in February 1898, Taft decided another landmark case, United States v. Addyston Pipe & Steel Co., a decision reviving the Sherman Antitrust Act.64 In 1890, with President Harrison’s support, Congress had passed the Sherman Act to prohibit anti-competitive behavior by monopolies. But corporations soon defied it, and the Supreme Court eviscerated it. In United States v. E.C. Knight Co. (1895),65 the Court held that President Cleveland could not prosecute the Sugar Trust as a monopoly under the Sherman Act because Congress had no power under the Interstate Commerce Clause of the Constitution to regulate the manufacture of goods, a purely intrastate activity, as opposed to their distribution across state lines.

  In the wake of bipartisan support for trust busting, the government pursued the fight and prosecuted the steel pipe monopoly in the Addyston case. In 1894, the Addyston Pipe and Steel Company had agreed with five other iron pipe manufacturers to fix prices. The government charged illegal combination and conspiracy, but a lower court dismissed the case, noting that the Supreme Court had held that the Sherman Act did not apply to the manufacture of goods. When the case reached the Sixth Circuit, Taft held that the association among the six corporations was illegal because its main purpose was to restrain trade by creating a monopoly, and it did so not by regulating the manufacture of goods but by fixing prices for their sale.66 Taft’s decision made national news—the headline in the New York Times read, “Iron Pipe Trust Illegal: The First Case in Which Manufacturing Combinations Had Been Found Guilty.”67 The Supreme Court upheld Taft’s decision in 1899,68 affirming his emphasis on the illegal motive behind the combination, rather than examining the reasonableness of the fixed prices.69 Relying on Taft’s reasoning, Justice Rufus Peckham, a vigorous libertarian, held that the companies’ liberty of contract had to yield to Congress’s power to prohibit intentional conspiracies to create monopolies.

  Taft distinguished between legal and illegal trusts in the same way he distinguished between legal and illegal union boycotts: by focusing on the question of malicious intent to interfere in what should be a free and fair market where labor and capital can compete on equal terms. The distinction reflected his moralism and distrust of labor unions as well as his moderation. Later, while campaigning for president in 1908, Taft explained in a speech that intentional monopolies could be banned because of the “badges of duress, badges of fraud” inherent in their character, but he clarified that “the mere aggregation of capital for economic purposes” was not illegal.70 He celebrated Addyston as laying down “the principles upon which the Antitrust Law is now being enforced.”71 The case showed, he emphasized, “that the injunction works both ways”—against corporations and labor alike.72

  2

  “We Want Taft”: Civil Governor, Secretary of War, and President-Elect

  In January 1900, as Judge Taft was enjoying the comforts of the federal bench, he received an unexpected telegram from President William McKinley summoning him to Washington.1 There was no open seat on the Supreme Court, and so Taft wondered what the president wanted to discuss. At the White House, McKinley greeted Taft warmly. He told the judge that he had created a commission to oversee civil government in the Philippines, which the United States had annexed at the end of the Spanish-American War. He wanted Taft to join the commission and perhaps even to lead it.2

  Taft was astounded. Years later, he would say that McKinley might as well have told him “that he wanted me to take a flying machine.”3 (Taft often expressed his surprise at presidential appointments by imagining that he had been ordered to take flight.) Taft protested to McKinley that he spoke no Spanish and had questioned the wisdom of annexing the islands.4

  “Why, I am not the man you want,” Taft declared. “To begin with, I have never approved of keeping the Philippines.”

  “You don’t want them any less than I do,” McKinley replied, “but we have got them and in dealing with them I think I can trust the man who didn’t want them better than I can the man who did.”5

  Taft could never ignore a call to duty. But one question mattered to him above all others: Would this mean the end of his j
udicial career? On this point, the president was reassuring. “All I can say to you is that if you give up this judicial office at my request you shall not suffer,” McKinley said. “If I last and the opportunity comes, I shall appoint you” to the Supreme Court.6 The judge who revered Alexander Hamilton and John Marshall was especially excited by the prospect of framing and interpreting a new constitution for the Philippines.7

  Still, after leaving the meeting, Taft agonized as usual about his preference for the security of the bench over the indignities of political combat. “I confess that I love my present position,” he wrote to his brothers. “Perhaps it is the comfort and dignity and power without worry I like.”8 The question summed up what would become his personal dilemma over the next eight years: he yearned to be chief justice, but his wife and his brothers were determined to make him president. Taft resolved that he could not give up life tenure on the bench without being given authority as well as responsibility, and so he accepted the assignment on the condition that he lead the commission.9 Nellie later acknowledged that her husband’s resignation from the circuit court was “the hardest thing he ever did.”10

  On April 17, 1900, the Tafts and their three children set out from San Francisco for the Philippines on the USS Hancock with the four other members of the Philippines commission: a former Confederate general, a New England judge, a University of Michigan zoologist, and a University of California historian.11 This colorful delegation stopped off in Tokyo, where the commissioners were received by the Japanese emperor and empress. On June 3, the American commissioners arrived at Manila Bay to a frosty reception from General Arthur MacArthur. Recently appointed as military governor of the islands, the general insulted the commissioners by refusing to greet them in person.12 MacArthur commanded the sixty-five thousand American troops who were attempting to quell the Philippine guerrilla insurrection that had begun in 1899, and he resented the intrusion on his powers. Taft framed the dispute in constitutional terms, defending the president’s authority to delegate power to civil or military authorities as he saw fit.13 The commission opened for business in September 1900, with Taft as its president. Five months later, Congress declared the insurrection over and transferred power from military to civilian authorities.14 On June 21, 1901, McKinley appointed Taft civil governor of the Philippine Islands. (He was also known as the governor-general.) The Taft family moved into the stately Malacañan Palace, and Nellie was “well pleased with the idea of living in a palace,” as she confessed in her memoir, “however unlike the popular conception of a palace it might be.”15

  For Taft, the chance to live in a palace was less enticing than the chance to act as a solon, a constitution maker bringing the blessings of liberty to a grateful people. In the spirit of American federalism, Taft decentralized power and added Filipino representatives to the Philippine Commission. And he scrupulously implemented the Philippine Organic Act of 1902, the law passed by Congress to govern the islands, which extended to the Filipino people a list of the rights guaranteed in Article I of the Constitution, including the right of habeas corpus, which allows prisoners to challenge the legality of their detentions. The act also extended to the Philippines most of the guarantees of the U.S. Bill of Rights, with two significant exceptions: the right to bear arms and the right to trial by jury.16 In testimony to Congress, Taft explained why he agreed that it would be “a great mistake” to extend to the Filipino people these basic means of defending their own liberties. The right to jury trial and the right to bear arms, he declared, “should be withheld from the people until they learn a self-restraint that can only be learned after practice, and the advantage of the example of self-government which, by a gradual course, we hope to give them.”17

  Taft’s testimony summed up his fervent if paternalistic view that only those who took the time to acquire self-discipline through education were capable of self-government. He concluded, therefore, that the Constitution did not always follow the flag into conquered territories such as Puerto Rico and the Philippines. The Supreme Court had recently decided the same question in the Insular Cases (1901), which held that the Dingley Tariff, a landmark American statute imposing tariffs on a series of manufactured goods, did not extend to the Philippines. Taft applauded the decision, both because he felt that the tariff would hurt the island’s economy and because he felt that the Filipino people should be granted the full rights of the Constitution only when they were ready to exercise them responsibly.

  Broadly, the debate in the United States over whether the Constitution followed the flag reflected a larger moral debate. Jeffersonian anti-imperialists, such as the Democratic presidential candidate William Jennings Bryan and the Republican senator George F. Hoar of Massachusetts, insisted that imperialism abroad, like slavery at home, denied the conquered people the natural, God-given rights of equality and liberty promised by the Constitution and the Declaration of Independence.18 Hamiltonian imperialists, such as the progressive Republican senator Albert Beveridge of Indiana, insisted that Americans were divinely entitled to govern the Philippines without the people’s consent.19

  Taft, as usual, stood between the two constitutional extremes. He told Theodore Roosevelt, “I did not agree with Senator Hoar and his followers, that the Philippines were capable of self-government or that we were violating any principles of our government or the Declaration of Independence so far as they were concerned, that I thought we were doing them great good.”20 At the same time, he disagreed with Beveridge that America had a duty to civilize what the senator considered an inferior race without their consent. Instead, Taft maintained that the Filipinos should be granted as much involvement in all three branches of government as their level of education allowed. As he declared in his inaugural address as civil governor, delivered on July 4, 1901, his ultimate goal was to make the “islands ripe for permanent civil government on a more or less popular basis.”21

  Taft patronizingly referred to Filipino people as “our little brown brothers” and believed that the majority of them were “utterly incapable of self-government and should the guiding hand of the United States be withdrawn, chaos, conscription and corruption would follow inevitably,” a view he attributed to the chief justice of the Philippine Supreme Court.22 But he was less condescending than the imperialists and the U.S. military, which marched defiantly to the words: “He may be a brother of William H. Taft but he ain’t no friend of mine!”23 Recognizing that the Filipinos were sensitive to slights, or any implication of inferiority,24 Taft insisted on treating them as social equals. The Tafts hosted a public “at home” reception every Wednesday in the governor’s palace and advertised it in the leading newspapers. By asking the Filipinos “personally and persistently to ‘be sure and come Wednesday,’” Nellie recalled, “we prevailed on a good number to believe they were really wanted; and after a little while there began to be as many brown faces as white among our guests.”25

  Taft’s democratic initiative was so successful that he became surprisingly popular among the Filipino people. In fact, on many levels, Taft was a striking success as civil governor. He thrived in an atmosphere where he could serve as both chief executive and chief judge, enforcing congressional statutes like a benign magistrate. He encouraged the commission to hold open hearings on new legislation, which he helped to draft.26 Without a legislature to check him, or political rivals to criticize him, Taft could have taken liberties in shaping the Philippines as he saw fit.27 But Taft applied his old habits of judicial deference in fulfilling his executive duties, and he worked to implement the goals of Congress and the president, rather than imposing his own.28

  Under Taft’s leadership, the commission revised the old Spanish tax code, built new roads and harbors, established a health department, police force, and independent judicial system—the judges were divided between Americans and Filipinos, as Taft put it, to “enable the Filipinos to learn and administer justice.”29 Most significantly, reflecting his views about the importance of education in making self-gov
ernment possible, Taft built a series of public schools that, within years, taught more native Filipinos to speak English than Spanish. Nellie wrote that Taft’s establishment of first-rate public schools received more “enthusiastic support and co-operation” from the Filipino people than any other of her husband’s projects.30 “Whatever may be said about the American Constitution,” she declared happily, “there can be no dispute about the fact that education follows the flag.”31

  Back in the United States, Theodore Roosevelt was feeling emasculated as William McKinley’s vice president. “I had a great deal rather be your assistant in the Philippines … than be vice-president,” he wrote to Taft in August 1900.32 After hearing of Taft’s promotion to civil governor, he wrote a prophetic profile of Taft in Outlook magazine, noting that “the first Governor of the Philippines ought to combine the qualities which would make a first-class President of the United States with the qualities which would make a first-class Chief Justice of the United States.” Roosevelt concluded, “The only man … who possessed all these qualities was Judge William H. Taft, of Ohio.”33 Taft reciprocated Roosevelt’s praise, writing to the vice president, “I have no doubt that you will be the [presidential] nominee in 1904.”34 Roosevelt did not wait long. On September 14, 1901, William McKinley died eight days after he had been shot by an assassin at the Pan-American Exposition in Buffalo. Roosevelt learned at dawn that he was now president of the United States.