Skip to content

Theodore Roosevelt and the Case for a Popular Constitution

In early 1912, Theodore Roosevelt began his legendary campaign for a third term in the White House. The endeavor would lead him to break with his native Republican Party and champion the infant “Bull Moose” Progressive Party in one of the most colorful presidential runs to date. Sensing the weight of that year’s struggle, Roosevelt assured his supporters that, come what may, “we stand at Armageddon, and we battle for the Lord.” By campaign’s end, the colonel had survived a gunshot to the chest and achieved one of the greatest third-party performances in American history.

Often forgotten in all the stump-speaking fanfare, however, is what began his campaign in the first place. Roosevelt initiated his presidential challenge by attacking recent decisions of the U.S. Su­preme Court that had struck down popular attempts to regulate busi­nesses. Chief among these cases was Lochner v. New York (1905), which found a law establishing maximum work hours for bakers un­constitutional. Roosevelt first took up the issue in 1910, but by 1912 he was ready to stand on it. In his view, the Court had made the “Constitution a means of thwarting instead of securing the absolute right of the people to rule themselves.”1 Specifically, Roosevelt criti­cized the “peculiar function of the American judge . . . the function of declaring whether or not the people have the right to make laws for themselves.” This special power, today understood as part of judicial review, struck Roosevelt as fundamentally un-American. Through the power’s exercise, judges could potentially declare the Constitution to mean whatever they fancied—a concern as old as the Constitution itself.2 It was far better, in Roosevelt’s mind, to leave this ultimate power where it belonged: with the people. Toward this end, he pro­posed the popular recall of judges and their decisions, and he deemed his stance “the highest and wisest kind of conservatism.”3

It almost goes without saying that conventional wisdom describes Roosevelt’s 1912 campaign as anything but “conservative.” A grow­ing body of scholarship has striven to illustrate how incumbent president William Howard Taft’s stand against Roosevelt in favor of judicial independence that year was the beginning of modern con­stitutional conservatism.4 The columnist George F. Will has argued that any true conservative would have voted for Taft in 1912.5 Indeed, since 1912 the principle of judicial supremacy—that the Court has the final say in interpreting the Constitution—has reigned supreme. No serious, sustained movement has since sought to displace it in favor of popular review, and the conservative movement of the twentieth and early twenty-first centuries has continued to defend judicial supremacy as a necessary pillar of “limited government” constitutionalism. Though a few voices in the wilderness have long warned against the habit, most modern conservatives, ever wary of modern progressivism, have dismissed Roosevelt’s “New Nationalism” or “Square Deal” as just another set of examples of big-government, unconstitutional “progressivism.”6

I take a different view. Notwithstanding Taft’s noble intentions, the victory of judicial supremacy in 1912 has proven an utter calamity for any traditional sense of American conservatism. It might be that the loss is irretrievable. But if there is to be any successful sort of nation-centered conservatism in the twenty-first century, the loss must at least be recognized and assessed. Over the following pages I will demonstrate how, contrary to established opinion, Roosevelt represented a stronger kind of conservatism; how Roosevelt’s defeat in 1912 represented a defeat for American conservatism; how the doctrine of judicial supremacy has worked to defeat nearly every major conservative cause throughout the twentieth and early twenty-first centuries; and how conservative efforts to cope with the problem have only succeeded in identifying American conservatism as an anti-democratic, individualistic ideology, much to the loss of the American cultural fabric. In all of this, I make a case for Roosevelt’s vision of a national conservatism upheld by a popular Constitution. My related argument—that modern American conservatism has succeeded in conserving almost nothing, in part due to its fealty to judicial su­premacy—will no doubt be unpopular. But without a radical change of strategy, more failures lie ahead, both for conservatives and for the country as a whole.

Bull Moose Conservatism

Perhaps more than any other president, Theodore Roosevelt was in love with American civilization. That love manifested itself in the two basic qualities that defined Roosevelt’s political life: an unyielding, romantic sense of American nationalism and, as Senator Josh Hawley has described at length, a profound thirst for moral righteousness. His conservatism was not one of free markets and legal procedure, but of honor, duty, family, and nation. He sought to elevate the moral tone of American life, as did many of his fellow “progressives,” now derided by “conservative” luminaries who still see a future in liber­tarianism. Roosevelt’s concern was for America’s soul, and he cared little for the exact form its economy took so long as it worked for honest Americans. Roosevelt understood that a branch that would not bend must break, and that a dangerously stratified economy produced an unstable and vulgar national life characterized by the twin evils of destitution and decadence. Whether it took the form of economic solidarity, careful management of natural resources, the cultivation of the arts and of architecture, or the strengthening of families and religious communities, Roosevelt exhorted his fellow Americans to strive for greatness. Moreover, Roosevelt’s brand of na­tional conservatism, or progressive nationalism (call it what you will), was wildly popular.7 Roosevelt’s position was popular for the simple reason that he believed national life should reflect the higher values of most Americans, and that no power, whether it be judicial or finan­cial, should be able to frustrate that mission. Many modern progressive liberals have attempted to press gang Roosevelt into serving their narratives by airbrushing or cherry-picking his record, as have many adventuring neoconservatives. But Roosevelt’s conservatism was a popular conservatism, and so too was his Constitution.

For Roosevelt, the power to decide constitutional questions through the political process was central to the American system of government. This flexible, ambiguous dynamic had existed for most of the nineteenth century. Questions as to what the government could or could not do—from purchasing land to establishing a national bank, erecting a protective tariff, or enacting moral legislation—were an­swered at the ballot box and in congressional debate at the local, state, and federal level. This popular constitutionalism came under threat at the turn of the century from a federal judiciary bent on placing indi­vidual liberty above the common interest during the period that is commonly called the Lochner era in jurisprudence. The Court began reading new and expansive rights and liberties into the Fourteenth Amendment’s due process clause, among other interpretive tactics, to limit the role popular governments could play in ordering society. Theodore Roosevelt, as firm a believer in the American nation as ever there was, resisted the aggrandizement of court power and spent his last political contest fighting to preserve and reinvigorate a popular Constitution. In this light, Roosevelt should stand as an example for conservatives and indeed for all Americans.8

While many of those who otherwise identify Roosevelt as a con­servative isolate his 1912 campaign as a spout of progressive heresy, it is precisely in his unshackled stint as a Bull Moose Progressive that the deeper nature of Roosevelt’s conservatism is revealed. When modern-day conservatives look back at the policies advocated in the “New Nationalism,” they typically see plans to enlarge the role of the state in the economy and to limit individual liberty and accordingly deem them the antithesis of American conservatism: progressivism. But to do so is to ignore the American tradition of national conservatism that stretches from Washington and Hamilton to Clay, Lincoln, and, yes, Roosevelt. This tradition, while not at all uniform, saw an active role for the state in promoting the general welfare and in pro­moting a vigorous and virtuous national life. Though no band of col­lectivists, these American statesmen were less impressed by arguments of doctrinaire liberal laissez-faire individualism, whether economic or social, and were keen on national projects to establish a “harmony of interests,” as Lincoln’s chief economic adviser phrased it.9

Roosevelt perceived himself as the latest in the line of American nationalists whose conservatism was geared toward cultivation and construction and which transcends the modern dichotomy between economic “Left” and “Right.” Both Lincoln and Roosevelt viewed themselves as defenders of the American workingman. “Capital,” as Lincoln said in his first state of the union, “is only the fruit of labor, and could never have existed if labor had not first existed. Labor is the superior of capital, and deserves much the higher consideration.”10 Roosevelt’s prolabor record needs little elaboration. Both defended the protection of American labor from unfair foreign competition, and both viewed strong, well-paid, growing families as essential to republican life. While modern liberal progressives have often sought to adopt this legacy toward their own ends, they do so only by cen­soring or ignoring the nationalist and moralistic inspiration behind the tradition. Roosevelt supported women’s suffrage, but he also wanted adulterers whipped in public and emphasized the importance of fatherhood and motherhood. In short, the nationalist tradition in America believed that a strong, united nation could use popular gov­ernment to promote a manly, harmonious public life free from threats of moral or economic degradation, whether it be slave power, mono­poly, or undue foreign influence.

Thus, when Roosevelt looked at Supreme Court decisions like those in United States v. E. C. Knight Co. (1895), Allgeyer v. Louisi­ana (1897), Lochner v. New York (1905), and Adair v. United States (1908), each of which interpreted laws and constitutional principles in new ways that limited what popular governments could do, all in the name of individual economic liberty, he saw judges violating the traditional sovereignty of the American people. This abuse, combined with President Taft’s perceived inability to correct it and other impo­tencies, was the prime factor that moved Roosevelt to run against his old friend and successor in 1912.11 In his famous address “A Charter of Democracy,” Roosevelt likened the constitutional situation to that following the infamous Dred Scott decision, which asserted the nationalization of slave­holders’ rights in the lead-up to the Civil War. “It was Buchanan who treated the courts as a fetish,” Roosevelt declared, and “who protested all criticism of the judges for unjust and unrighteous decisions.” Meanwhile, Roosevelt identified himself with Lincoln, “who appealed to the people against the judges when the judges went wrong.” Lincoln, Roosevelt argued, “was the real up­holder and preserver of the Constitution, for the true progressive, the progressive of the Lincoln stamp, is the only true constitutionalist, the only real conservative.” The purpose of the Constitution, in Roo­sevelt’s reading, was to ensure “genuine popular self-government,” and any attempt to use it against this end was to thwart its intended meaning.12 Indeed, with Dred Scott in mind, Lincoln himself had argued in his first inaugural address that “if the policy of the Government upon vital questions affecting the whole people is to be irrev­ocably fixed by decisions of the Supreme Court . . . the people will have ceased to be their own rulers.”13 For Roosevelt, as it was for his hero, progress and conservation were not at odds but rightly func­tioned together. His conservatism was a conservatism of substance over prescribed form and legalistic procedure. He asked his audience to choose the broad conservatism of Lincoln and Roosevelt over the narrow conservatism of Buchanan and Taft. To prevent further judi­cial usurpation, he argued for a vague power of popular recall over judges and judicial decisions that became the most controversial issue of the campaign.

Taft, of course, thought differently. Taft stood on a platform that defended the “independent judiciary” against Rooseveltian “extrem­ists,” who he said “are not progressives—they are political emotionalists or neurotics.”14 Though he disagreed with decisions like Lochner on a personal level, he defended the Supreme Court’s authority to make them and maintained judicial supremacy in constitutional inter­pretation. Nearly all conventional conservative wisdom has stood with Taft. But modern-day conservatives who would assume the Taftian position should bear two things in mind. First, while a modern conservative may deride all forms of “progressivism,” Taft himself claimed to be a true progressive just as much as Roosevelt claimed to be a conservative; neither man saw an inherent contradiction in the terms. Second, Taft was not the only man in the 1912 race who defended the Court against Roosevelt’s calls for popular accountability. Woodrow Wilson, the progressive Democrat who would ultimately win in 1912, and who many modern-day conservatives consider one of the worst presidents in history, adopted many of Roosevelt’s policies into his own “New Freedom,” but—crucially—maintained a belief in the positive role of the independent Supreme Court. “Each generation of statesmen,” Wilson had written in Con­gressional Government, “looks to the Supreme Court to supply the interpretation which will serve the needs of the day.”15

Wilson, like Taft, was a judicial supremacist who believed con­stitutional interpretation stopped at the supreme bench. He merely saw it as an instrument with progressive, innovative potential, where­as Taft believed it should be used in a conservative, traditionalist fash­ion. Though it is unlikely either man could have foreseen the hercu­lean role judicial supremacy would later play in reshaping American society, their defense of it would forever compromise the power of the American people to control their own destiny. Any conservative, then, who would envisage himself standing with Taft must also con­sider himself standing alongside Wilson with regard to the question of who should determine the Constitution’s meaning and forever con­sign himself to praying for timely judicial vacancies.

Portrayed as a deranged radical by Taft Republicans and Wilson Democrats, and denied the support of established party machinery, Roosevelt went down to a distant second-place defeat, garnering over 27 percent of the vote. Along with his campaign also went the popu­lar, nationalist tradition he championed. Judicial supremacy was confirmed and, barring a few abortive stabs at reform by Robert M. La Follette and William E. Borah in the 1920s, debate shifted away from whether the court was accountable to the people and toward the question of who should serve as a constitutional philosopher-king. New constitutional debates would follow the pattern begun by the 1916 nomination of Louis Brandeis to the Supreme Court and en­trenched by Franklin D. Roosevelt’s court-packing scheme of 1937, where the concern was over the ideological composition of the judici­ary, not the ultimate power it wielded. Today, constitutional politics takes place almost exclusively within the consensus of judicial supremacy and is defined by a partisan battle over who can stack the bench with as many sympathizers as possible. Not only has this eroded the dignity of the Court, but it has been a disaster for any substantive form of American conservatism—and, I argue, it might already be fatal.

The Illusion of Conservative Judicial Review

Today conservatives are often persuaded that an independent judi­ciary is essential in defending their own preferred rights, like the right to bear arms or the freedom of religion. This is a trap. The current popular understanding of the near-absolute Second Amendment is a modern conception best embodied in the decisions of District of Columbia v. Heller (2008), which affirmed an individual’s, not a militia’s, right to bear arms against federal incursion, and McDonald v. City of Chicago (2010), which incorporated that right against the states. Regardless of its prudence, it is certainly an innovation; if the Court can invent a right, it can also take it away.

Meanwhile, the present defense of Christian religious liberty rep­resents a rearguard action in a long retreat from cultural dominance. “Freedom of religion” was originally used to depose the Christian majority. Now it is their last refuge. Consider the recent decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018). That decision did not protect baker Jack Phillips’s right to refuse service on religious grounds; it merely found that the Colorado Civil Rights Commission was not acting with neutrality toward religious belief, as previous decisions by that commission suggested that Phil­lips was treated with special hostility for his beliefs. In other words, Phillips was found to have no particular right to refuse service. It is easy to imagine a different court composition drastically narrowing the opinion in Heller, just as it reversed itself from Plessy to Brown. And the Court might just as easily have found that the Colorado commission was acting with neutrality and thus Phillips would have to bake a cake against his beliefs. If the Court simply ruled to curtail Second Amendment rights or to make Christian bakers bake cakes against their values (which is easy to imagine in the not-so-distant future), are conservatives simply to accept the verdict and hope for better nominations later? Not only does that make a farce of constitutional politics, but it is also a plan for defeat.

Judicial supremacy has almost always gone against the values of popular American conservatism and furthered the country’s cultural transformation. While the immediate constitutional debate of the Pro­gressive Era revolved around economic concerns, given the era’s deep economic stratification, the context and terms of that debate were upended by the Great Depression. An entire new suite of political priorities was introduced by a post–World War II environment under­girded by widespread economic prosperity and confidence. There­after, the defining, substantive constitutional revolution of the twen­tieth century, and the one which conservatives have lost at nearly every turn, has primarily been cultural and social, not economic. The Court has been the favorite and most effective weapon of cultural revolutionaries who could not win an open and popular contest.

By their nature, democratic majorities exist in tension with laissez-faire individualism, whether economic or cultural. For this reason, liberal individualists have found their friends in institutions with the potential to act in anti-popular ways, like the Supreme Court. Modern proponents of Lochner-style libertarianism and progressive-liberal advocates of Roe v. Wade (1973) thus have something in common. Both fear popular government and both fear conservative nationalism. Modern left-progressive (as distinct from Progressive Era progressive) cultural victories have come overwhelmingly through the court sys­tem, not the ballot box. Meanwhile, conservative deference to judicial decisions, though dignified in its origins, has usually resulted in victo­ries for business interests and a timid, lackluster defense on cultural issues. The effect of this political dynamic has been an erosion of the traditional cultural landscape and the emergence of a new “anti-culture.”

A common retort to arguments defending popular majorities is that the necessary defense of minority rights, especially civil rights, requires judicial supremacy, with Brown v. Board of Education (1954) as the knockout example. But that decision hardly justifies the prin­ciple of judicial supremacy. On the contrary, Brown is the ulti­mate example of overturning previous Court precedent, in this case over­turning the tradition set up by Plessy v. Ferguson (1897), which had established the doctrine of “separate but equal.” If the Court correct­ed an evil with Brown, then, it was an evil promulgated by the Court itself. And it should be recalled that the flagship ac­complishments of the Civil Rights Movement were legislative, not judicial, coming in the form of the Civil Rights Act and Voting Act of 1964 and ’65, which were built on broad-based changes in popular opinion.

On Sovereignty

The question is whether the ultimate authority rests with the Court or with the people. If conservatives want to defend their values, then they would be much wiser to turn to the latter—if it is not already too late. To prove this point, let us consider the general way the Court, not the people, has killed a traditional, conservative social order and look at some cases where judicial power was used to over­turn popular conservative policies. Cohesive societies rely upon a discriminatory power of setting social norms that can involve “hard” legal prescription, backed by state power, and softer social prescription, enforced by the weight of public opinion. While “soft” prescription can be powerful when left alone, it can be modified, enhanced, or reversed when met with hard prescription. For instance, a community may softly prescribe that citizens observe the Sabbath, or wear certain cloth­ing in public, but the hard prescription of law and force in sup­port or in opposition to these customs can grant them potency or destroy them within the year. Law and custom are seldom far sepa­rate for long. Because in America, as in much of the developed world, the legislative power lies in the hands of popularly elected officers, the hard prescriptive power is primarily popular, at least in theory.

Individual or class freedom from hard prescription is a right. Sometimes limiting social prescription (i.e., expanding rights) is a desirable and necessary thing; sometimes it is not. It requires judg­ment. But when a society is stripped of its power to prescribe, it unravels and dies. It becomes like a garden without a gardener, or a symphony in which everyone brings their own preferred sheet music. One of the leading causes of death for the traditional American social order has been a proliferation of individual rights and the language of rights since the mid-twentieth century. The chief exponent of this multiplication has been the United States Supreme Court and its subordinate courts, egged on by organized special interests and their attorneys. The Court’s main instrument, though not its only one, for expanding individual rights has been the due process clause of the Fourteenth Amendment, which forbids “any State” from depriving “any person of life, liberty, and property without due process of law.” Though the Lochner Court mostly used this clause to expand the “liberty of contract,” in the hands of other justices it has had an illustrious career in inventing all sorts of rights.

Now, while the work of the Warren Court and the sexual revolu­tion is nothing new to most social conservatives, a broad sketch of the Court’s breaking of the popular prescriptive power warrants illustra­tion. The liberalization of American society has largely been imposed by the incorporation of the Bill of Rights through the Fourteenth Amendment’s Due Process Clause so that its protections apply not only against the federal government but also against the states, as well as the general expansion of substantive due process protections through the same clause. The broad language of the constitutional amendments has provided unlimited possibilities for judges to rewrite the nature of “constitutional” government, now an ancient conservative complaint. Formal incorporation began with the First Amendment in decisions like Gitlow v. New York (1925) and De Jonge v. Oregon (1937). Though the decision in Gitlow initially seemed to be a loss for free speech, it laid the groundwork for accepting free speech as an incorporated right for radical political dissidents. By 1937, such a view commanded the support of a unanimous Court, including the conservative “Four Horsemen.” The process accelerated in the 1940s as the Court’s composition became more liberal, and flew into over­drive in the 1960s and early ’70s during the tenures of Chief Justices Warren and Burger. By the end of the century the culture had been remade, and the change continued despite apparent conservative victories at the ballot box. The tardy incorporation of the Second Amendment in 2010 was more of a conservative admission that “if you can’t beat ’em, join ’em.”

Now most Americans simply presume the Bill of Rights has always applied to the states as well as the federal government and believe the amendments have always conferred near­ly unlimited free­dom. The controversial decisions of the 1960s and ’70s now shine with the patina of orthodoxy and enjoy the protection of stare decisis. The views of fringe radicals in the 1950s now dominate American society and its Constitution. What is more, this is now how many Americans, on both the left and right, think political change happens—that society naturally becomes more secular, more liberal, more “progressive” over time. But this is only a “natural” drift when the power of social prescription is actively suspended and subverted in pursuit of abstract liberal ideals.

Consider a few cultural ligaments as they were stripped away by the union of a minority interest and Court opinion. The popular power to affect the moral tone of society through censorship of obscenity was peeled away successively with Roth v. United States (1957) and Memoirs v. Massachusetts (1963), which enabled the “Golden Age of Pornography,” and was only salvaged somewhat with the opinion in Miller v. California (1973). Now it is common for children to be exposed to pornography before age twelve so that we can live in a society of “free speech.” The people lost the power to establish communal values when school prayer and Bible readings were taken out of public schools in Engel v. Vitale (1961) and Abing­ton School District v. Schempp (1963), respectively, under an expansive reading of the Establishment Clause. This posed a long-term blow to America’s mainline Protestant Christian culture, which relied on the public schools. Since then the interest-group-based campaign to secularize American culture has conquered the public square, going so far as to prohibit student-led, student-initiated prayer at football games in the decision of Santa Fe ISD v. Doe (2000). Now any vaguely religious language is regarded with suspicion when uttered in the public square, while mockery of faith is a matter of course in popular media. With support from conservative and liberal justices, flag burning became protected “speech” under Texas v. Johnson (1989), which overturned popular laws in forty-eight states. Griswold v. Connecticut (1968) famously forced the legalization of contraception within marriage, but also introduced the mystical “penumbras” and “emanations” of the Bill of Rights that included the “right to privacy.” This new right would eventually morph into a protection of abortion in Roe v. Wade (1973), which overturned numerous popular, democratic statutes against abortion. This is but a small sampling of the raft of cases that liberalized and secularized American society, which most students are taught to regard as part of the beneficent and natural “march of rights,” if they are aware of them at all.

What links all of these cases is that in each the power of popular cultural prescription was curtailed and the general erosion of tra­ditional American society was extended. In each case this was done by judges, not voters, reading further and further into the vague, liberal, individualist language of constitutional amendments. Usually, the decisions were wildly unpopular at the time they were made and would not have won a popular vote.

Yet instead of a popular solution to constitutional perversion, most conservatives have sought jurisprudential solutions to the pre­dicament. Following this logic, the problem is that bad judges have made poor decisions and abused their power. Thus, we need good judges to judge well and give proper deference to popular deci­sion-making. The result of these sentiments has been an impressive organ­ization of conservative legal thinkers behind interpretive meth­ods of “originalism” and “textualism” in institutions like the Federalist So­ciety, but the substantive record of these efforts is far less impressive.

Of course, we do need good judges who judge well, especially when judicial supremacy is a political reality. But social conservatives have been dealt a brutal reminder this year of the limits of selecting “good” judges. The decisions reached with the support of nominally conservative justices in Wolf v. Vidal (2020) and Bostock v. Clayton County (2020) have illustrated once again that winning elec­tions and appointing judges has yet to achieve results for conservative Americans. The decision in Bostock, with its opinion written by Jus­tice Gorsuch, is especially dismaying in its ridiculous mutation of the Civil Rights Act. Some, like Adrian Vermeule, have recently recommended that conservative jurists take a more assertive, bold approach to gain ground for “common good constitutionalism” through new interpretive methods, using liberal-progressive tactics against liberal­ism.16

At some point in high-level constitutional decision-making, the judgment of what the Constitution means is arbitrary. By definition, the highest law cannot be determined by law, and thus must represent the will of some sovereign. But what might a popular check even look like? One solution recommended during the time of Chief Justice John Marshall, and again by Senator William Borah in the 1920s, was to raise the number of justices necessary to strike down a law. But this is insufficient for obvious reasons. Seven justices may just as easily ignore the will of the American people as five, as the Warren Court can attest. Nor would this solution give popular majorities much chance at correcting errors once made. Roosevelt and his fellow progressives proposed the vague power to recall bad judges and judicial decisions through referenda. Owing to his defeat of 1912, however, these propositions never got far past state judges and deci­sions. Recall of specific judges seems unnecessary when impeachment is possible for character violations and when popular revision of opinions is made possible. Judges should still be able to make judg­ments, good and bad, after all, and it would be detrimental to the justice system if judges felt their jobs were constantly threatened. Anti-judicial terrorism is not the goal. Senator Robert La Follette’s proposal in the 1920s was to enable Congress to uphold any federal law struck down by the Court through legislative majority. This solution is in the right direction but should be expanded. On its own, La Follette’s solution would do little to alter decisions that strike down state legislation en masse, which is where most social legislation takes place and where the violation of popular sovereignty is deepest.

In theory, the people could have several avenues for popular review. There ought to be both congressional and state-directed routes that mirror the paths to a traditional constitutional amendment. To appropriate Calhoun’s coinage of Concurrent Majority for far different purposes, we ought to introduce the Dissenting Majority. Either a clear majority of Congress or a majority of state legislatures should be able to vote to overturn a Court decision that strikes down popular legislation. Two-thirds of Congress, or perhaps thirty of the fifty states, could vote to overturn a ruling like Roe or Vitale and enable states to pass laws restricting abortion or to pass moral legislation. Of course, such a change would not only serve partisan ends, but should hold much appeal to all Americans opposed to judi­cial overreach. Americans who oppose decisions like that of Citizens United v. Federal Elections Committee (2010), for example, would also have a popular channel to change the law. If nothing else, it would help move the locus of constitutional battle away from Court nominations and into the public arena where it belongs. Such an arrangement would also grant a more legitimate air to attempts to revise Court decisions and use the legitimacy of popular government to overrule the faux legitimacy of stare decisis. Individual judicial decisions would become far less consequential if they could be revised by the people, and judges could worry more about doing their actual job. Instead of holding supreme power over constitutional interpretation—power that has become the object of realpolitik calculations—justices would become the first and most dignified constitutional interpreters sufficient for the vast majority of legal decisions, most of which do not concern the public in any pressing way.

As the social capital that sustained a traditional social order continues to erode, however, the window is closing on the viability of any recovery. If a substantive conservatism is going to make it through this century, then conservatives are going to have to think with as much aspiration as liberals and leftists. That is why those who would salvage a traditional American society for posterity ought to look to the example of Theodore Roosevelt in 1912 and seek a popular conservatism that fights for a Constitution that truly serves the nation. In this struggle we should remember the words of Presi­dent Garfield, the “preacher president,” in his inaugural address: “The voters of the Union, who make and unmake constitutions, and upon whose will hang the destinies of our governments, can transmit their supreme authority to no successors save the coming generation of voters, who are the sole heirs of sovereign power.”17

This article originally appeared in American Affairs Volume IV, Number 3 (Fall 2020): 191–204.

1 Theodore Roosevelt, “A Charter of Democracy,” delivered at Columbus, Ohio, Feb. 21, 1912.

2 Anti-Federalists who opposed ratification questioned the extent of a judge’s interpretive authority, see Brutus XI, Jan. 31, 1788.

3 Theodore Roosevelt, “Judges and Progress,” Outlook 100, no. 1 (January 6, 1912), 40–48.

4 For a more orthodox interpretation of conservatism in 1912, see Johnathan O’Neill, “The Idea of Constitutional Conservatism in the Early Twentieth Century,” Constitutionalism in the Approach and Aftermath of the Civil War (New York: Fordham University Press, 2013); William Schambra, “The Election of 1912 and the Origins of Constitutional Conservatism,” Toward an American Conservatism: Constitutional Conservatism during the Progressive Era, ed. Joseph Postell and Johnathan O’Neill (New York: Palgrave Macmillan, 2013), 95–120; Sidney M. Milkis, “William Howard Taft and the Struggle for the Soul of the Constitution,” Toward an American Conservatism, 63-94.

5 George F. Will, “The Best Way to Tell if Someone is a Conservative,” The Washington Post, May 25, 2018.

6 Paleoconservatives like Patrick J. Buchanan have long made the lonely case for populist, nationalist, non-neoliberal conservatism, but more recently some voices on the right have taken interest in Roosevelt’s conservative credentials, see Joshua D. Hawley, Theodore Roosevelt: Preacher of Righteousness (Yale University Press, 2008); Francis Fukuyama, “The Right Must Learn to Love the State Again,” Financial Times, July 20, 2012; Daniel Ruddy, Theodore the Great: Conservative Crusader (Regnery, 2016). Michael Lind’s own brand of “democratic” or “liberal nationalism” also has some words on the subject.

7 British political history offers us the term “one-nation conservatism,” the conservatism of Disraeli, though the term today stands much abused and diluted.

8 I have made a much fuller historical case for the triumph of judicial supremacy in 1912 elsewhere, see, forthcoming, Logan Stagg Istre, “Bench over Ballot: The Fight for Judicial Supremacy and the New Constitutional Politics, 1910–1916,” Journal of the Gilded Age and Progressive Era (forthcoming).

9 Henry Charles Carey provided the intellectual weight behind much of the “American System” of economics, the theory of which he laid out in The Harmony of Interests: Agricultural, Manufacturing, and Commercial (1851).

10 Abraham Lincoln, First State of the Union Address, December 3, 1861.

11 For one excellent account of the Taft-Roosevelt split, see Gary Murphy, “‘Mr. Roosevelt Is Guilty’: Theodore Roosevelt and the Crusade for Constitutionalism, 1910–1912,” part 1, Journal of American Studies 36, no. 3 (Dec. 2002): 441–57.

12 Theodore Roosevelt, “A Charter of Democracy.”

13 Abraham Lincoln, First Inaugural Address, delivered March 4, 1861.

14 Henry F. Pringle, The Life and Times of William Howard Taft, vol. 2 (New York, 1939), 765–66.

15 Woodrow Wilson, Congressional Government: A Study in American Politics (Boston: Houghton Mifflin Co., 1913), 311.

16 Adrian Vermeule, “Beyond Originalism,” Atlantic, March 31, 2020.

17 James A. Garfield, “Inaugural Address,” March 4, 1881.

Sorry, PDF downloads are available
to subscribers only.


Already subscribed?
Sign In With Your AAJ Account | Sign In with Blink