William Howard Taft

by Jeffrey Rosen

  He didn’t. Roosevelt wrote an article for Outlook magazine arguing that Taft’s trust-busting agenda was too aggressive and that the president was wrongly focused on breaking up corporations through lawsuits rather than subjecting their unfair practices to vigorous regulation under an expanded bureau of corporations. The only way to prevent unfair competition, Roosevelt declared, “is by strict Government supervision, and not merely by lawsuits.” He accused Taft and others who relied exclusively on antitrust enforcement of calling themselves progressives by representing “in reality in this matter not progress at all but a kind of sincere rural toryism,” which would return American business to the eighteenth century. Roosevelt ended with a clarion call for regulating successful trusts rather than breaking them up. “It is practically impossible … to try to break up all combinations merely because they are large and successful,” he declared.89

  This article spurred rumors that Roosevelt would challenge Taft in the 1912 election. The New York World asked, “Has Theodore Roosevelt Now Become Mr. Morgan’s Candidate for President?” And Roosevelt himself later credited this article with “bringing me forward for the Presidential nomination.”90 Years later, in 1920, the Supreme Court would rule that U.S. Steel did not constitute an unlawful monopoly under the Sherman Act, but by that point the political damage had been done.

  On December 5, 1911, Taft delivered his annual message to Congress, discussing at length and in legalistic detail the recent Supreme Court decisions dissolving the Standard Oil and American Tobacco trusts. The president noted with approval that the government had been working for more than twenty years to make the antitrust statute effective, “and only in the last three or four years has the heavy hand of the law been laid upon the great illegal combinations that have exercised such an absolute dominion over many of our industries.”91 Defending himself against Roosevelt’s charge that he was antibusiness, Taft insisted that the Sherman Act applied to the accumulation of “large capital in business enterprises” only when its purpose was to “stifle competition.” Taft added, “Mere size is no sin against the law.”92

  A month earlier, an editorial in the New York Journal of Commerce concluded, “President Taft has not been as loud or spectacular in his attacks upon the ‘trusts’ as was his predecessor in the White House, but he has been consistent, persistent, and unwavering and results have been achieved or at any rate have culminated during his administration that have been distressing to Wall Street.”93 And as the election of 1912 approached, Taft called his antitrust program “firm, consistent and effective,” noting that Roosevelt had brought forty-four antitrust cases in nearly eight years as president while his own administration had brought almost seventy cases in less than four years.94

  Foreign policy was the final area where Taft attempted valiantly, but not always successfully, to put Roosevelt’s legacy on firm constitutional ground. Unlike Roosevelt, he was scrupulous about seeking congressional approval for his foreign interventions, noting accurately that the Constitution gives Congress, not the president, the power to declare war. Taft’s foreign policy was based on the promotion of what others called “dollar diplomacy” and what Taft called the substitution of “dollars for bullets.”95 He insisted that diplomacy should be guided by “the increase of trade relations and commerce,” rather than the unilateral use of force. As Taft put it, he and Secretary of State Philander Knox, who had been Roosevelt’s attorney general, believed that foreign policy “may be well made to include active intervention to secure for our merchandise and our capitalists opportunity for profitable investment which shall insure to the benefit of both countries concerned.”96

  The most vivid constitutional drama involving Taft’s dollar diplomacy arose over Mexico. In March 1911, without consulting his cabinet, Taft mobilized twenty thousand American troops along the Mexican border to protect Americans in Mexico in the face of uprisings against President Porfirio Díaz.97 Taft worried that billions of dollars of American capital invested in Mexico might be at risk.98 But although the Mexican government expected an invasion, Taft was careful to instruct his commanders not to cross the Mexican border without first seeking congressional approval, believing that he lacked the authority as commander in chief to act unilaterally. In the event, as Taft expected, Congress refused to authorize the troops to cross the border, and Taft kept them mobilized as a deterrent without starting a war.

  Taft also deserves credit for putting constitutional principles above party. When he read a dispatch in May reporting that four Americans had been killed in Mexico, and his wife asked if there would be war, Taft replied, “I only know that I am going to do everything in my power to prevent one. Already there is a movement in the Grand Old Party”—he intoned the words sarcastically—“to utilize this trouble for party ends.… I am afraid I am a constant disappointment to my party. The fact of the matter is, the longer I am President the less of a party man I seem to become.… [I]t seems to me to be impossible to be a strict party man and serve the whole country impartially.”99 Still, bucking the popular cry for war took its toll. During a White House reception in August 1911, after confiding to Archie Butt that he was being pressured to declare war, the president “broke down and wept as I have never seen anyone weep in my life,” as Butt recalled. “His whole body was shaken with convulsive sobs.”100

  In his December 1911 address to Congress, Taft explained his constitutionally scrupulous position: “It seems my duty as Commander in Chief to place troops in sufficient number where, if Congress shall direct that they enter Mexico to save American lives and property, an effective movement may be promptly made.”101 But Taft emphasized that he would not act unilaterally. “The assumption by the press that I contemplate intervention on Mexican soil to protect American lives or property is of course gratuitous, because I seriously doubt whether I have such authority under any circumstances, and if I had I would not exercise it without express congressional approval.”102 An unauthorized invasion, he suggested, might create further bloodshed without dampening the fires of revolution.103 In the end, the Mexican turmoil continued long after Taft left the presidency.104

  In the wake of Taft’s statement, Roosevelt criticized the president for lack of leadership in foreign affairs. After leaving office, Taft joked wanly that Roosevelt divided presidents into “Lincoln Presidents” and “Buchanan Presidents,” alluding to the weak chief executive who took no action to prevent the Southern states from seceding in the winter of 1860–61. (In another example of presidential deference, Buchanan asked Congress to approve his request to deploy troops to Central America; when Congress refused, he, like Taft, meekly submitted.)105 Taft added that Roosevelt “places himself in the Lincoln class of Presidents, and me in the Buchanan class.”106 This reminded Taft of the story of a young girl who comes home and announces, “Papa, I am the best scholar in the class” not because her teacher told her but because “I just noticed it myself.”107 And yet Taft’s constitutionally scrupulous position about the president’s lack of authority to send troops on his own across the Mexican border also called to mind that of Lincoln himself. After President James K. Polk moved troops to the Mexican-American border in 1846, in response to what he claimed was the emergency of a Mexican invasion, precipitating the Mexican War, Lincoln—elected later that year as a constitutionally minded Whig congressman from Illinois—introduced his famous “spot” resolutions, demanding that Polk identify the precise spot where blood had been shed, to prove it was on U.S. soil.108 (The resolutions earned him the nickname “Spotty Lincoln.”)

  Taft and Knox believed that free trade and dollar diplomacy within a clear legal framework would help the American economy by expanding markets for American exports in Latin America and the Far East.109 His maxim: speak softly and carry a free trade agreement. Although the success of dollar diplomacy was mixed, Taft proved to be a visionary in attempting to create treaties and intergovernmental organizations to promote free trade. His most ambitious initiative was his crusade for a fr
ee trade treaty between Canada and the United States, known in the jargon of the day as the Canadian Tariff Reciprocity Agreement. The goal was to apply the minimum rates of the Payne-Aldrich tariff to all trade with Canada.110 On January 26, 1911, Taft sent a special message to Congress urging it to pass the Canadian free trade treaty as soon as possible. Taft praised Canada as a diplomatic ally and an expanding market for American goods: “She has cost us nothing in the way of preparations for defense against her possible assault, and she never will.… I therefore earnestly hope that the measure will be promptly enacted into law.”111

  It wasn’t. Congress refused to act, and Taft threatened to call the House and Senate back for an extra session. On March 4, he made good on his threat.112 A month later, on April 5, Taft, who communicated to Congress with proclamations rather than cajoleries, sent another special message. “I felt assured that the sentiment of the people of the United States was such that they would welcome a measure which would result in the increase of trade on both sides of the boundary line,” he declared.113 He later told a wavering senator, “I regard this as the most important measure of my administration … I am striving to bring about what I think will be an epoch in our country’s history.”114 On April 21, the House finally approved the bill, and the Senate followed on July 22. “It was passed by a vote of about two to one, but largely by Democratic votes,” Archie Butt recorded, adding that Taft “was very much pleased, but would have felt much better had more Republicans voted for the measure.”115 The president signed the Canadian Tariff Reciprocity Agreement on July 26, 1911; the historian David H. Burton has called it the “most significant legislative victory of the Sixty-second Congress,” and perhaps of Taft’s entire presidency.116

  Alas, Taft, who had a habit of shooting himself in the foot, had written a letter to Roosevelt in January predicting that “the amount of Canadian products that we would take could produce a current of business between western Canada and the United States that would make Canada only an adjunct to the United States.”117 Taft’s letter was leaked to the press and the resulting uproar led the Canadian people, in a Brexit-style referendum, to reject the treaty on September 21, 1911. The new Canadian prime minister, a conservative populist, lashed out against the U.S. president as “tricky Taft.”118 Taft was crushed by the defeat of what he viewed as sound policy, but he was indifferent, as always, to the political fallout. In a handwritten postscript to a letter to his brother Horace, he wrote, “I am sorry about reciprocity on account of the real loss to both countries and its defeat. Its political effect I can’t calculate and I don’t care about.”119

  Perhaps the most vivid example of Taft’s judicial approach to foreign policy was his dream of setting up what he called in his 1911 message to Congress “an interlacing and interlocking series of treaties comprehending so many countries as to lead to the formation of an international court of judicature.”120 Taft first took up the cause of creating a world court in February 1910, when he accepted the post of honorary president of the newly formed American Society for the Judicial Settlement of International Disputes.121 “I don’t see any more reason why matters of national honor should not be referred to a court,” he remarked, “… any more than matters of property or matters of national proprietorship.”122 Taft believed that only a court with the jurisdiction to arbitrate “all questions” giving rise to international disputes, including questions of national honor—that is, vital interests like immigration policy or the Monroe Doctrine—could end war and promote world peace. Taft and Secretary of State Knox persuaded the French and British ambassadors to the United States to sign arbitration treaties that called for “unlimited arbitration” of all international disputes.123 But Taft failed to consult with any senators, including those on the Foreign Relations Committee. Following the lead of Roosevelt, who insisted that “the United States should never bind itself to arbitrate questions respecting its honor, independence, and integrity,” the Senate in August eviscerated Taft’s proposal for unlimited arbitration treaties with Britain and France by deleting a paragraph that would have referred all international arbitration questions to an international court.124

  Taft’s speeches on behalf of the treaties led to his final breach with Roosevelt. On a western tour stumping for ratification of the treaties in the fall of 1911, Taft struggled to connect with audiences. Archie Butt reported in October, “He gives too much detail and not enough general principles, but he will not say things he does not believe.”125 In that spirit of compulsive honesty, Taft declared, “I think that war might have been settled without a fight and ought to have been. So with the Mexican War. So, I think, with the Spanish war.”126 These were, understandably, fighting words to a bellicose former president who had found glory on the battlefields of Cuba in 1898, and on December 26 Roosevelt refused to attend a peace banquet where Taft made the case for the arbitration treaties. The Colonel, as Roosevelt then liked to be known, proceeded to denounce the treaties in Outlook.

  Roosevelt’s attack wounded Taft more than any other; he told Archie Butt that “it is hard, very hard, Archie, to see a devoted friendship going to pieces like a rope of sand.”127 The treaties went to pieces as well. In March 1912, the Senate amended the treaties and passed them with significant reservations, excluding from the arbitration court any disputes over the admission of aliens to the United States or to U.S. public schools, as well as any disputes arising under the Monroe Doctrine.128

  Because of the nativist clauses singling out aliens, among other provisions, Taft considered the revised arbitration treaties fatally flawed and refused to forward them to Britain and France. Taft was strikingly opposed to discrimination against aliens: he vetoed a bill that would have required a literacy test for immigrants.129 And Taft also opposed California’s ultimately successful efforts to discriminate against Japanese aliens.130 (Roosevelt responded in his autobiography that Taft had been wrong and that the United States should be free to exclude any group of aliens it pleased.)131

  But despite the failure of his free trade and arbitration treaties, and his idealistic dream of a world court, Taft’s vision was the beginning of our modern system of international arbitration—a web of bilateral and multilateral treaties from the International Criminal Court to the North American Free Trade Agreement and the World Trade Organization. Years later, recalling the Senate’s emasculation of the treaties, Taft chuckled as he acknowledged that they would have done little to promote world peace in their diminished form: “So I put them on the shelf, and let the dust accumulate on them in the hope that the senators might change their minds, or that the people might change the Senate; instead of which they changed me.”132

  5

  “Popular Unrest”: The Election of 1912 and the Battle for the Constitution

  On February 21, 1912, after delivering a speech called “A Charter for Democracy” at the Ohio Constitutional Convention in Columbus, Theodore Roosevelt made the decision to challenge William Howard Taft for the Republican nomination for president. The speech, a radical attack on judicial independence and on constitutional checks on the passions of the people, defined the election in Taft’s mind as a crusade to defend the Constitution and the rule of law against the pure democracy threatened by Roosevelt, who was increasingly sounding like a demagogue.

  “I believe in pure democracy,” Roosevelt began. “It is a prime duty of the people to free our government from the control of money in politics,” he continued, and “unless representative government does absolutely represent the people it is not representative government at all.” As a result, he demanded, “as weapons in the hands of the people, all governmental devices which will make the representatives of the people more easily and certainly responsible to the people’s will.” Roosevelt endorsed a series of populist reforms, including elected state judiciaries, presidential primaries based on “direct nominations by the people,” and direct election of U.S. senators, adding, “I believe in the initiative and the referendum, which should be used not
to destroy representative government, but to correct it when ever it becomes misrepresentative.”1

  What most alarmed Taft and other constitutionalists was Roosevelt’s attack on judicial independence. He assailed Supreme Court justice William Moody by name for ruling against “a railway man named Howard, I think.” The former president sounded most radical when he endorsed the right of the people to overturn state court decisions they thought incorrect or to recall state judges with whom they disagreed. “When a judge decides a constitutional question, when he decides what the people as a whole can or cannot do, the people should have the right to recall that decision if they think it wrong,” Roosevelt declared.2

  In the Cleveland train station, on the way back from Columbus, Roosevelt announced his candidacy for president. “My hat is in the ring,” he said. “The fight is on and I am stripped to the buff.” Days later, he distributed a letter from eleven Republican governors asking him to challenge Taft, along with his reply: “I will accept the nomination for President if it is tendered to me, and I will adhere to this decision until the convention has expressed its preference.”3 That evening, before a White House dinner, Taft was handed an Associated Press report on Roosevelt’s statement, which he read and passed along to his guests.

  “I told you so four years ago, and you would not believe me,” Nellie exclaimed, breaking the silence.

  “I know you did, my dear, and I think you are perfectly happy now,” Taft replied. “You would have preferred the Colonel to come out against me than to have been wrong yourself.”4

  Although Taft believed that Roosevelt would beat him at the Republican Convention in June, he was roused to fight on behalf of the cause he cared most passionately about: preserving judicial independence and the Constitution. On April 25, during a long address in Boston, Taft declared that “the charter of democracy” Roosevelt proposed in Ohio “advocated a change in our judicial system” that “would be dangerous to the body politic.” The recall of judges and their decisions, he said, “would necessarily destroy the keystone of our liberties by taking away judicial independence, and by exposing to the chance of one popular vote, questions of the continuance of our constitutional guarantees of life, liberty and property and the pursuit of happiness.”5 If only his own ambition were at stake, Taft said, he would ignore Roosevelt’s charges that he was under the thumb of “an aristocracy of party bosses,” but “I represent a cause” and “the cause is that of progress of the people in pursuit of happiness under constitutional government.”6 Taft answered eleven of Roosevelt’s charges (numbered as in a legal brief!), ranging from “unfair charges as to bosses” to “repudiates his own trust record.” He then concluded his address with a passionate defense of judicial independence.