Nationalism or Conservatism?: Lessons from 1912

Conservatism today stands at a crossroads. Throughout its long history, conservatism has sought to hold together a commitment to both a substantive vision of the good—family, faith, and nation, a free community of virtue—and to a sustainable means of securing it—the rule of law, limited and accountable government, secure individual rights. At the best of times, these conservative ends and means have held together harmoniously, mutually strengthening one another. But in times of crisis, upheaval, and rapid change, they are prone to peel apart. At such times, the substantive goods worth fighting for might seem to demand that we discard our slow, halting, conservative methods. Hardheaded pragmatists will insist that if we are actually to preserve family, faith, or nation in the face of fundamentally new problems, and of adversaries prepared to fight dirty, then we cannot afford to be too fastidious in our methods. Staunch men and women of principle, on the other hand, will argue that if we abandon our commitment to law and custom, and our well-founded fears about over-active government, we will forfeit any right to be called conservatives; if we succeed in gaining the world it will be at the expense of our own souls.

The tension between such pragmatist and principled impulses, between the populist and the proceduralist wings of conservatism, was thrown into bold relief during the Trump administration. Propelled to power on promises of “making America great again,” Trump himself seemed to harbor few scruples about how exactly that end was to be achieved. But it wasn’t just his zeal to cut through red tape and bulldoze over presidential precedent that caused angst among many card-carrying conservatives. Increasingly, the Trump administration attracted around it (though not necessarily within it) a coherent activist vision of the national government, one unafraid to leverage government power for national greatness, and to use all the tools at the disposal of the modern executive branch, however far they might be from the constitutional vision of the Founders. The Trump-era foreign policy manifested the same “get ’er done” spirit, tearing up old agreements and understandings without compunction if they were seen to hamper America’s freedom of action to secure her interests.

Today, with conservatives out of power, the tenor of the discussion has changed, but the same tensions remain. On the one side are those eager to advance conservative ends by whatever means, even if it means calling the integrity of our electoral system into question; on the other, those determined to cling tightly to the institutions and procedures bequeathed to us, even if they no longer seem likely to secure the goods of family, faith, and nation.

In many ways, this conflict can be seen in terms of the quarter-millennium-old battle between nationalism and conservatism, at least as those terms have often been understood since the French Revolution. Nationalism is committed above all to the sovereignty of the people; conservatism to the sovereignty of the law, against which the people may sometimes chafe. Nationalists are committed to the development of the nation, the actualization of its latent potential. Conservatives are committed to limiting and tethering this power. Nationalists are committed to the needs of the present and the promise of the future; conservatives to the claims of the past. Nationalists want to stress the unity of the body politic; conservatives will stress its plurality. This tension is not, perhaps, irreconcilable; indeed, one of the most exciting developments of the Trump years was the emergence of a movement of “national conservatives,” determined to remind us that it was the nation, the shared community of birth and locus of mutually loyalties, that was the highest good our politics should seek to conserve. No true conservatism worthy of the name can be indifferent to the good of the national community, or so wed to the dictates of dusty old laws and customs that it will ignore the clear and present dangers to the nation’s interests. Still, while the two halves of this polarity may be held together in creative and dynamic tension by great statesmen, the tension remains, liable to burst forth in open conflict.

Perhaps the most instructive instance of such conflict, coming on the heels of one of the most successful “national conservative” syntheses in our history, was the Republican “civil war” of 1912, which pitted former president Theodore Roosevelt against sitting president William Howard Taft in a war of mutually assured destruction that almost destroyed the Grand Old Party at the height of its power. At no time, perhaps, were the rival impulses of national greatness and conservative restraint so sharply defined or given such intelligent expression, each championed by one of America’s greatest statesmen. In their bitter but richly insightful conflict, the essential differences between a nationalism of popular sovereignty and a conservatism of constitutional principle were thrown into clear relief, with the two presidents dividing sharply on which branches of government best secured the American ideal of “consent of the governed.” Whereas Roosevelt championed the executive branch, with its energy and unity, as the most effective channel of the people’s will, the embodiment of a nation undivided and forward-looking, Taft looked to the judiciary, the guardian of the inheritance of law, and the protector of the diverse rights and interests of a sprawling society.

From their unresolved conflict, today’s conservatives can gain fresh insight into the warring instincts that have so threatened Republican Party unity these past five years, and which will continue to challenge the stability of constitutional democracy in every era.

The Heyday of National Conservatism

The breakup of 1912 came in the midst of an era of Republican hegemony. Forged in the fires of the American Civil War and tested by the trials of Reconstruction, industrial revolution, corruption scandals, and three assassinations, the Republican Party came to maturity around the turn of the twentieth century. Helmed by statesmen of extraordinary ability and principle—Roosevelt and Taft, to be sure, but also Henry Cabot Lodge, Philander Chase Knox, Elihu Root, and Charles Evans Hughes—the national party was so dominant that it held the Senate for thirty-two of thirty-eight years between 1895 and 1933, and the House and presidency for thirty of those years. Were it not for the great rift of 1912, it seems likely that it would have enjoyed nearly four uninterrupted decades controlling the entire federal government.

Under Presidents Roosevelt and Taft, the Republicans made remarkably wise and effective use of this power, as the United States transitioned from a hemispheric to a world power and overtook Britain as the world’s largest economy. As late as 1910, few could have predicted the impending rift between the two men. Not only were they close friends—Taft being Roosevelt’s hand-picked successor—but their visions of conservative reform and national development had moved almost in lockstep over the previous two decades. Although both men were originally educated in the laissez-faire orthodoxy of the 1870s and 1880s, it did not take them long to realize that such “let-alone” conservatism, if it had ever made sense, was untenable in the age of great industrial combinations that threatened to dwarf the powers of government. In the face of yawning economic divides, labor unrest, and populist upheavals, Roosevelt and Taft both came to recognize that the only authentically conservative course was to take action, reforming the imbalances of power within the nation before revolutionary pressures reached the boiling point. While staunchly defending the rights of private property, both men contended that as artificial creatures of the law, corporations should be subjected to the regulation of laws in the public interest.

And if laissez-faire was no longer tenable in 1900s America, neither was localism. Like it or not, the railroads and trusts had already ensured that American social and economic life would be conducted on a national scale, and the only question was whether political institutions would catch up or be left choking in the dust of the freewheeling corporations. While nostalgic populists like William Jennings Bryan preached a return to a simpler age of self-reliance and individual competition, Roosevelt and Taft both argued that big business was here to stay, and it must be made serve the nation, or else the nation would serve big business. As friends of national economic development, both Roosevelt and Taft supported protectionist tariffs, although Taft succeeded in reducing these to more reasonable levels in 1910. But neither did they want to see economic growth dissolve into crass consumerism. Quoting Edmund Burke in his 1905 annual message to Congress, Roosevelt warned, “Men are qualified for civil liberty in exact proportion to their disposition to put moral chains upon their own appetites; in proportion as they are disposed to listen to the counsel of the wise and good in preference to the flattery of knaves.’”¹

Accordingly, both men used their bully pulpit to try and raise the moral tone of the nation and invited their countrymen to pass laws curbing the power of self-interest and advancing the common good. In the face of deeply entrenched racial injustice in the American South, both Roosevelt and Taft declared their support for black rights and backed these declarations up with politically unpopular stands against lynch mobs and on behalf of embattled black leaders. Roosevelt also inaugurated a national drive for the conservation of the nation’s wildernesses and natural resources that Taft would extend and consolidate during his presidency. Both also saw America as a great potential force for good in a world of imperialism and barbarism, and sought to establish America as a leader in global affairs—using the soft speech of diplomacy backed up by the big stick of a powerful navy.

At the same time, both men shared a conservative vision of how durable change comes about. Confronted throughout their presidencies with fierce agitations against the trusts, the railroads, and the party bosses by reformers impatient with the relatively slow pace of political reform, Roosevelt and Taft repeatedly insisted that it is only the pragmatist, and not the utopian idealist, who can accomplish meaningful reforms over the long haul. Taft argued in his 1906 lectures, Four Aspects of Civic Duty:

this life is all a series of compromises by which little by little, and step by step, progress toward better things is made. All the good in the world cannot be attained at one breath. We must achieve what we can at the time we can, and must let other aims and objects of the highest good abide a different opportunity for their attainment.²

Or, as Roosevelt put it more crisply to the radical journalist Lincoln Steffens, “I believe in the men who take the next step; not those who theorize about the 200th step.”³

For this reason, both men were—until 1912 at least—staunch party men. Recognizing early in their careers that for all its flaws and deep-seated corruption, the Republican Party was the best vehicle for good governance, and that far more good could be achieved by working within it than outside of it, Roosevelt and Taft worked tirelessly on behalf of the party and ultimately succeeded in substantially reshaping it to advance their national conservative vision.

Until 1912, that is. Once out of power, Roosevelt found his pragmatic conservative instincts no longer strong enough to contain his reforming zeal, and he began to chafe at what looked to him, from the outside, like the halting and half-hearted program of the Taft presidency. Increasingly radicalized by the populist wing of the Republican Party and personally alienated from his former friend, Roosevelt abandoned his earlier scruples about party disloyalty and warnings against intemperate idealism and proclaimed a crusade for righteousness as the standard-bearer of the new Progressive Party in summer 1912, declaring, “We stand at Armageddon, and we battle for the Lord.” Taft, for his part, concluded that Roosevelt posed a dire threat to constitutional government, and devoted all his energies to keeping him out of the White House, even if it meant the triumph of Woodrow Wilson. Given Wilson’s spineless response to the outbreak of World War I and disastrous mismanagement of the ensuing peace process, it’s no exaggeration to say that the history of the twentieth century might have been very different if not for the great schism of Taft and Roosevelt in the spring of 1912.

It is easy to chalk this schism up to a difference in temperament—which was real enough—and to the psychological pressures that the idle office of ex-president must have placed on a man of irrepressible action like Theodore Roosevelt. Underneath the volatile personal dynamics of their quarrel, however, lay divergent visions of the nature of popular sovereignty.

“Steward of the People”: The Limits of Presidential Power

The seeds of the 1912 rift had, in fact, been sown several years back, during Roosevelt’s memorable presidency. In his battle against big corporations to conserve the inheritance of the American people, Roosevelt had become especially passionate about conservation of the American West. Standing above the Grand Canyon for the first time in 1903, he declared, “Leave it as it is; you cannot improve it; the ages have been at work on it, and man can only mar it. Keep it for your children, your children’s children, and all who come after you.”⁴ Congress, however, more susceptible to the special interests of mining and railroad companies, resented Roosevelt’s claim for unilateral executive discretion to withdraw public lands from development and place them in national forests. In their 1907 appropriations bill for the Department of Agriculture, Congress inserted a rider that forbade further executive land withdrawals in six western states. Not wanting to veto the needed appropriation, Roosevelt signed the bill, but only after issuing thirty-three “midnight proclamations” protecting 17 million acres of land in twenty-one new national forests, thus “preserving virtually all the land that the amendment had intended to put beyond the president’s reach.”⁵

This incident starkly illustrated Roosevelt’s increasingly cavalier approach to the executive office. As he later summarized his reasoning, the president “is the steward of the people, and . . . the proper attitude for him to take is that he is bound to assume that he has the legal right to do whatever the needs of the people demand, unless the Constitution and the laws explicitly forbid him to do it.”⁶ As Roosevelt saw it, the people had elected him to be the ultimate caretaker of their interests, the supreme arbiter of the general welfare, and he was thus bound “affirmatively to do all he could for the people and not to content himself with the negative merit of keeping his talents undamaged in a napkin.”⁷ Frequently appealing to Hamilton and the Hamiltonian tradition of an activist national government, Roosevelt insisted “that the Constitution cannot be a straight jacket,” and must be allowed to develop with the needs of the people.⁸ As Josh Hawley notes in his Theodore Roosevelt: Preacher of Righteousness, however, Roosevelt actually went well beyond Hamilton, who in his famous defense of the National Bank had focused on the need to broadly construe the lawmaking powers of Congress.

Roosevelt merged his Hamiltonian broad constructionism with a Jacksonian view of the president as the tribune of the people, almost mystically channeling the public will and embodying in himself the consent of the governed. No one could deny that, as president, Roosevelt was a master of discerning and molding public opinion, and he saw this public opinion as providing him authorization to take bold actions few other presidents had contemplated. As Hawley summarizes, “Roosevelt appeared to believe that the president held general powers apart from those granted the federal government in the nation’s fundamental law”⁹: anything that needed to be done for the weal of the people, and left undone by other branches of government, the president could do unless specifically constitutionally forbidden. Indeed, during the crippling anthracite coal strike of 1902, Roosevelt had explicitly entertained the idea of sending in federal troops and nationalizing the mines to prevent a catastrophic national shortage of winter heating fuel. Taft would later recall the incident with a shudder: “The benevolence of his purpose no one can deny, but no one who looks at it from the standpoint of a government of law could regard it as anything but lawless.”¹⁰

Indeed, Roosevelt’s freewheeling leadership style left plenty of headaches for Taft when he entered office in 1908. Inheriting a Congress now on distinctly bad terms with the White House despite a strong Republican majority, Taft had to work hard to rebuild trust between the executive and legislative branches. Worse, Taft retained in the cabinet Roosevelt’s chief forester, Gifford Pinchot, the righteous zealot who had egged on many of Roosevelt’s most aggressive acts of conservation, and who chafed at Taft’s more restrained approach. Pinchot’s eventual acrimonious departure from the administration, more than anything else, started the process that led to the formation of the Progressive Party in 1912 and Roosevelt’s own split with Taft. Indeed, Taft became increasingly convinced during these years that despite their harmonious working relationship from 1904 to 1908, when Taft served brilliantly as Roosevelt’s secretary of war, the two men held fundamentally different views of the presidential office and the Constitution.

Articulating the difference in his 1916 book Our Chief Magistrate and His Powers, Taft gave voice to his firm belief in the sovereignty of law—which for America meant above all the Constitution:

The true view of the Executive functions is, as I conceive it, that the President can exercise no power which cannot be fairly and reasonably traced to some specific grant of power or justly implied and included within such express grant as proper and necessary to its exercise. Such specific grant must be either in the Federal Constitution or in an act of Congress passed in pursuance thereof.¹¹

This did not mean that Taft accepted a Jeffersonian straitjacket any more than Roosevelt did. On the contrary, Taft revered the great Federalist John Marshall as “probably the greatest judge that ever lived”¹² and followed his constitutional theory later in his own jurisprudence on the Supreme Court. But Marshall’s principles had only justified wide discretion in the means of carrying out constitutionally given powers; those powers were themselves still limited. As Kevin Burns summarizes in his recent William Howard Taft’s Constitutional Progressivism, “By distinguishing between a president’s powers and his duties, Taft showed that the Constitution created a strong yet limited executive; although the president may employ the powers necessary to carry out his duties, his duties are finite, defined and circumscribed by the Constitution.”¹³

Taft argued forcefully that such legal restraints on the executive’s power ultimately empowered rather than limited him, since it prevents him from acting rashly and ensures that his actions will carry the full weight of the law behind him. In this, Taft stood in a tradition that went back far beyond Marshall to the English jurist Sir John Fortescue. “To be able to do evil, as the king reigning royally [i.e., the absolute monarch] can more freely do than the king ruling politically [the constitutional monarch], diminishes rather than increases his power,”¹⁴ Fortescue had written in the 1460s, and the same principle, Taft believed, applied to presidential power in the 1900s. Repudiating Roosevelt’s high-handed approach to land conservation, Taft worked with Congress to gain the authorization that Roosevelt had claimed by mere virtue of his office. The resulting Pickett Act, says Burns, “gave the president explicit statutory authority to do the very things Roosevelt had done illegally.” Thus, “Taft’s respect for law and willingness to cooperate with Congress ultimately resulted in expanded executive discretion.”¹⁵

Behind their rival conceptions of presidential power lay distinct concepts of the American nation that the president was meant to serve. Indeed, their 1912 showdown represented in some ways the two halves of a profound ambiguity in the American political tradition, one that is captured neatly in the two meanings of the English word “people.” Today, most often, this word is used as a plural of “person,” and designates a collection of individuals. In an earlier time, it was much more likely to be used as a singular, the translation of the Latin populus—the entire political community, conceived of under a singular corporate agency. Which is it the purpose of constitutional government to represent: people—in all their plurality, diversity, and competing interests—or the people as a nation, a community of shared birth, shared interests, and shared purpose?

On the first understanding, a representative government will be as pluriform as its constituents, with representatives chosen—ideally, at any rate—from all classes and interest groups, and the national legislature serving as a forum to hash out these divergent interests, compromise, and embody those compromises in law. The executive, on this understanding, is simply the agent of the legislature—the agent called upon to put into action the tangled mess of these resulting compromises and warring interests. Taft appears to have understood American democracy in this sense, as a tool for taking the views of different classes and maximizing the happiness of individuals. Thus he wrote in Popular Government (1913),

“[E]xperience sustains the view that every class of citizens in a community…is more certain to look well after its own real interests than any other class, however altruistic. Hence a government in which every class has a voice, that is, a popular government, is more certain to do justice to each class and make proper provision for its welfare…. We love what is called democracy not because of the name but because of what it accomplishes. We are in favor of a rule by as many of the people in a democracy as will secure a good government and no more. The result will be good because it secures the happiness of the individual.”¹⁶

Moreover, on this understanding, the congressional gridlock so common to American politics is to be celebrated, not lamented. It represents the slow digestion of warring interests needed to produce good law: “May we, therefore, not regard the inaction of one session of Congress as deliberation in a matter requiring it rather than as a basis for the claim that the Legislature wishes to defeat the will of the people?”¹⁷ The glory of the Constitution, Taft believed, lay in its checks and balances, for by these no branch of government, claiming to serve the good of the people as a whole, could lawlessly oppress a minority.

Roosevelt, however, would declare in his famous “New Nationalism” speech of 1912 that nationalism “is impatient of the utter confusion that results from local legislatures attempting to treat national issues as local issues. It is still more impatient of the impotence which springs from overdivision of governmental powers, the impotence which makes it possible for local selfishness or for legal cunning, hired by wealthy special interests, to bring national activities to a deadlock.”¹⁸ Implicit in this conception, and presupposed in the idea of nationalism, was a far more unitary concept of the people and an idea of the common good as something more than the mere net result of competing individual and class interests. As Hawley writes,

Roosevelt conceived the national state as nothing other than the people acting in concert. . . . [I]ndividuals came to know themselves as a unified body politic—they became a people, an ethnos, in the full political sense of the term—when they participated in the joint exercise of political power. A common political identity rooted in a common state made separate individuals one political person, with one set of shared political interests.¹⁹

This unitary sovereign nation, if it was in any way to achieve its full potential, must express itself through a single representative, someone who embodied the people in their unity, rather than their plurality. This was clearly, for Roosevelt, the role of the president (an insight also grasped by the early Federalists Washington, Adams, and Hamilton, although they had been much more restrained in the implications they drew). It was on this basis that Roosevelt derived his sweeping understanding of executive power: “The New Nationalism regards the executive power as the steward of the public welfare,”²⁰ he declared in his 1912 speech, making explicit what was implicit in his earlier presidential actions. Indeed, in his final annual message to Congress, in 1908, Roosevelt had already outlined his emerging new constitutional understanding, one which saw checks and balances as a threat to representative government, rather than their bulwark. “Concentrated power is palpable, visible, responsible, easily reached, quickly held to account; power scattered through many administrators, many legislators, many men who work behind and through legislators and administrators, is impalpable, is unseen, is irresponsible, cannot be reached, cannot be held to account.”²¹ Only if the national executive had enough leeway to make big mistakes could he effectively be held account by the people of whom he was the steward; and only a national executive with enough leeway to take bold action could effectively channel the sovereignty of the people and make his nation great. As Herbert Croly would write in his 1909 The Promise of American Life, a statement of political vision that Roosevelt would enthusiastically make his own, “The authority and responsibility residing ultimately in the people must be delegated; and it must not be emasculated in the process of delegation. . . . It ought to be organized on the principle that he shall have full power to do either well or ill, but that if he does do ill, he will have no defense against punishment.”²²

In short, the two men held increasingly divergent perspectives on the purpose of American government and how it could best express the consent of the governed. For Taft, the essence of American democracy lay in its constitutional order, an elaborate machinery for managing, digesting, and balancing diverse interests, out of which could flow a general welfare that might not completely satisfy anyone, but would gradually advance the national life. Law, not will, was sovereign. For Roosevelt, American democracy—if it was to realize its promise at home as well as among the nations of the world—must channel the inchoate will of the people to a single, vigorous focal point, a leader capable of cutting through red tape and truly enacting the national interest. The living nation, not its ossified law, was sovereign.

 “A Government of Lawyers”: Popular Sovereignty and Judicial Recall

Given these divergent visions of sovereignty and law, it is little surprise that the most intense flashpoint in Taft and Roosevelt’s 1912 clash centered on the role of the judiciary. From its inception, an ambiguity in the locus of sovereignty had long bedeviled the American constitutional system. Ostensibly, sovereignty lay in the people, to be sure, and yet the Constitution as fundamental law dictated the terms of how that sovereignty could be exercised, substantially limiting the power of popular majorities, no matter how large. Theoretically, the people could amend the Constitution, but only if they duly followed its prescribed process, which interposed high barriers indeed to prevent popular agitations from re-molding the fundamental law. Arguably, once ratified, the Constitution itself had been clothed with sovereignty, now alienated from the people themselves. Thomas Jefferson, alarmed at this realization, would late in life argue that the Constitution should have an expiration date, periodically returning full power to its constituents. Indeed, once the principle of judicial review was thoroughly enshrined by John Marshall’s Supreme Court, one could plausibly complain (as Jefferson was quick to) that ultimate sovereignty had passed from the people to unelected judges. Croly, although no fan of Jefferson, echoed the same complaint a century later, grumbling that when conservatives “talk about a government of law, they really mean a government of lawyers,”²³ in whose interests the will of the people was being systematically thwarted.

Although never naming the Taft administration as his target, Croly surely had it squarely in his sights. After all, there has been perhaps no American president so judicial in his outlook as William Howard Taft. A renowned Ohio and federal judge before his tenure in Roosevelt’s cabinet, Taft had been twice offered a position on the Supreme Court when vacancies opened up in 1905 and 1906, but reluctantly turned it down out of a sense (encouraged by Roosevelt) that the executive branch needed him more at that time. In 1921, he finally ascended to the Court in the position of Chief Justice, a post where he served with renown for the last decade of his life. Throughout his long career in public life, Taft defended the judiciary as the bulwark of civilization and freedom. In his acceptance speech for the Republican nomination in 1908, Taft had declared, “The administration of justice lies at the foundation of government. The maintenance of authority of the courts is essential unless we are prepared to embrace anarchy.”²⁴

Taft rarely said a thing that he did not mean, and when presented with a bill for Arizona statehood in the summer of 1911, he roundly vetoed it, seeing in its constitution an assault on an independent judiciary and thus the rule of law. In particular, its provision for popular recall of judges he deemed “so pernicious in its effect, so destructive of independence in the judiciary, so likely to subject the rights of the individual to the possible tyranny of a popular majority, and, therefore, to be so injurious to the cause of free government.”²⁵ The Arizona recall provision did not come out of thin air. On the contrary, several other Western states had already adopted similar constitutional provisions—though none quite so radical as Arizona’s—part of a growing Progressive Era groundswell of popular antipathy to the judicial branch, which was increasingly seen as a tool of big business. For the past couple of decades, many superior judges, often alleging the due process clause of the Fourteenth Amendment, had struck down numerous industrial regulations for worker welfare as unconstitutional, and thwarted pro-labor measures on the grounds of individual rights of contract. The tide had begun to slowly turn as benches (including that of the Supreme Court) were slowly replaced by more Progressive appointees, but in 1912, popular hostility to the courts across much of America was at the highest pitch since the Dred Scott decision. Taft, while sympathizing with some of the complaints and encouraging courts to be more reform-minded, fiercely resisted what he saw as the lawless trend toward an untrammeled democracy like that of the French Revolution. He seemed at times frankly bewildered that his fellow countrymen could entertain such ideas, writing in Popular Government, “The proposition for a recall of judicial decisions by a popular vote is so utterly at variance with any procedure that ever was suggested in respect to civilized government that it is hard to deal with.”²⁶

Great then was Taft’s consternation when he opened his newspaper in late February 1912 to read that Theodore Roosevelt, his erstwhile friend, boss, and comrade in conservatism, had championed just this proposition in a speech in Columbus, Ohio. In this speech, which convinced Taft to mobilize against Roosevelt in the election and determined one of its key battle lines, Roosevelt fulminated against “any theory that would make of the constitution a means of thwarting instead of securing the absolute right of the people to rule themselves and to provide for their social and industrial well—being.” Declaring himself a believer in “pure democracy,” Roosevelt insisted that “Constitution—makers should make it clear beyond shadow of doubt that the people in their legislative capacity have the power to enact into law any measure they deem necessary for the betterment of social and industrial conditions.”²⁷ Instead of thus making law the instrument of popular sovereignty, the judiciary had conspired to make it a chain upon the sovereign people, with the result that now judges, rather than legislators, were the real law-makers. In order to put power back in the hands of the people, Roosevelt proposed a mechanism whereby, if a state court declared a law unconstitutional, the people of that state could overturn the verdict at an upcoming election—thus reserving the final right to interpret the meaning of their own constitution.

Most of the Republican leadership, including Roosevelt’s longtime allies Henry Cabot Lodge, Elihu Root, and Philander Knox, were aghast at the proposal, which seemed to mark a reversal of Roosevelt’s lifelong conservatism. In a famous 1901 speech, after all, Roosevelt had declared in words that would have warmed Taft’s heart, “The first essential of civilization is law. Anarchy is simply the handmaiden and forerunner of tyranny and despotism. Law and order enforced with justice and by strength lie at the foundations of civilization.”²⁸ As President, he had skillfully managed public opinion and often ridden its wave to significant policy victories, but he also asserted his independence from it: “I do not represent public opinion; I represent the public. There is a wide difference between the two, between the real interests of the public, and the public’s opinion of these interests.”²⁹ Now, however, he was determined to put the determination of the public interest firmly in the hands of a popular majority, authorizing them to both make and interpret law.

As Taft saw it, far from being progressive, this vision of popular sovereignty was profoundly regressive, reversing centuries of advances in constitutional government:

“Now, when there is a recrudescence of the idea that the judge is a mere agent of the sovereign to enforce his views as the only standards of justice and right, we naturally recur to the theory that judges should hold their office at the will of the present sovereign, to wit, the controlling majority or minority of the electorate. The judicial recall is a case of atavism and is a retrogression to the same sort of tenure that existed in the time of James I, Charles I, Charles II and James II.”³⁰

To be sure, Taft exaggerated the radicalism of Roosevelt’s proposals. After all, in his Columbus speech, Roosevelt had explicitly distanced his proposal from the willy-nilly recall of individual judges enacted in Arizona, and declared his support for the more conservative removal procedure of Massachusetts. Moreover, his suggestion for a popular referendum on judicial decisions was specifically restricted to decisions of the state high court, and was explicitly subordinated to the final determination of the U.S. Supreme Court. And it was, after all, proposed in the context of an Ohio constitutional convention, in which the representatives of the state had gathered to amend their state constitution in accordance with strict constitutional procedures; Roosevelt was hardly calling for the masses to storm the Bastille.

Indeed, it seems clear that here, as in many of his former policies, Roosevelt saw himself as actually acting the part of a wise conservative seeking to defuse popular resentment before it boiled over in more dangerous revolutionary measures. Writing to Henry Cabot Lodge in 1910 regarding the nomination of Charles Evans Hughes to the Supreme Court, Roosevelt worried, “I only hope that he has awakened to the fact that unless we are content to face disaster to the judiciary in the future, there must be a very radical change in the attitude of our judges to public questions.”³¹ For Roosevelt, constitutional amendments to enable the people to soberly evaluate judges’ rulings were the best way to prevent a more vicious and sweeping popular reaction against the courts. And, far from a call for the destruction of all constitutional government, Roosevelt’s proposal really represented nothing much more radical than the model of Britain’s common-law constitutionalism, in which Parliament acted as final arbiter of the constitutionality of its own actions.

To Taft, however, the unique genius of the American constitutional system lay in its principle of judicial review: “The greatest advantage of our plan of government over every other is the character of the judicial power vested in the Supreme Court.”³² With his trained lawyer’s mind, Taft quickly recognized that even Roosevelt’s comparatively modest proposals represented a fundamentally different vision of sovereignty, in keeping with Roosevelt’s increasingly nationalist ideals. And indeed, as the 1912 campaign went on, Roosevelt began to blur the lines he had established between state and national judicial recalls as he pursued the logic of his new nationalism.

For Roosevelt, the idea of judicial recall was part of an effort to free the living nation from the dead hand of the past, to endow the national people with the power to determine their destiny and make their laws work above all for the general welfare, rather than the protection of individuals. For Taft, on the contrary, it was the genius of conservatism to uphold the law as the defender of the interests of minorities and the rights of individuals. Taft was convinced, moreover, that such judicial protection of private interests redounded in the long run to the benefit of the public: “personal liberty, including the right of property, is insisted upon because it conduces to the expansion of material resources which are plainly essential to the interests of society and its progress.”³³ Although committed to the improvement of the lot of the common man, Taft was convinced that less glamorous and more incremental measures, such as reforms of judicial procedure, would prove the most durable means of improving the quality of national life. Increasingly for Roosevelt, however, it was not merely particular abuses of judicial power, but what he saw as the unaccountable supremacy of judicial power itself that needed reform. Whereas a powerful presidency, Roosevelt had argued, would draw its authority from the people and enact their will, a powerful judiciary, claiming the authority of precedent, was liable to systematically thwart that will.

No Permanent Reconciliation

The conventional wisdom is that, while Taft may have lost to Roosevelt in the popular vote of 1912, he triumphed in the long term as the more authentic standard bearer of conservatism. And indeed, it is hard not to see in Roosevelt’s idealistic Progressive crusade and fulminations against the rule of law anything other than vanguard of the activist liberal state that would put conservatives on the defensive for much of the twentieth century.

But not so fast, cautions Logan Stagg Istre in an incisive recent essay for American Affairs. If anything, argues Istre, “Notwithstanding Taft’s noble intentions, the victory of judicial supremacy in 1912 has proven an utter calamity for any traditional sense of American conservatism.”³⁴ Although in his own time, the individual rights on behalf of which Taft intended judges to wield their vast law-defining powers most often took the form of “conservative” property rights, the precedent proved dangerous as courts became more culturally progressive. From the 1950s onward, the dominant trajectory of the federal judiciary has been to weaponize the Constitution in defense of individual rights and against any power of communities to protect public moral norms, a trajectory increasingly embraced by liberal and “conservative” judges alike. In most cases, Istre points out, the rights thereby promulgated into law would almost certainly not have enjoyed popular legislative support at the time. In trusting the future of the country to the good sense of the people, Roosevelt was the more perceptive and authentic conservative, argues Istre. Since the American people tend to be more committed to the conservative goods of faith, family, and nation than high court judges, perhaps the conservation of the nation would have been more secure if sovereignty had remained, as Roosevelt contended, in the hands of the people.

Indeed, it seems clear that Taft’s legalistic outlook sometimes clouded his vision of the national interest. Trusting optimistically in the ability of judges to harmonize competing rights claims for the greatest good, Taft would later champion Woodrow Wilson’s League of Nations and the creation of international courts with power to bind the actions of sovereign nations to principles of international law. This would seem to confirm Roosevelt’s fear that for Taft, the sovereignty of law had become an abstraction that would enchain the sovereign nation. For Roosevelt, in both foreign policy and in domestic policy, the nation must remain free to determine and act upon its own interests. This divergence, like debates over the scope of presidential power and the respect to be paid to the judiciary, has found expression again in the age of Trump, with one wing of the GOP wanting America to brazenly assert its national interests and another wing anxiously wringing its hands over the violation of international law.

But while it is perhaps clear in retrospect that a national conservative cannot wholeheartedly embrace Taft’s proceduralism, there is also little question that Roosevelt’s vision of nationalism had by 1912 veered off the rails of the Anglo-American constitutional tradition. It is possible that, had he won a third term, Roosevelt himself would have wielded the vast powers he claimed for essentially good ends, but very unlikely that American government would have been well-served over the long term by such demagogic gratification of popular agitation against the rule of law.

On mature consideration, perhaps, we should conclude that neither man, high though they may stand in the pantheon of American statesmen, fully grasped the genius of the constitutional tradition they inherited. Roosevelt deplored the small-minded lawyers who dominated Congress and the courts, viewing them as out of touch with the nation’s present needs, and barriers to its future greatness. Increasingly he saw law—and especially past law—in its negative aspect as a restraint on the sovereignty of the people, something that would prevent the nation from being most fully itself. Too often, Taft played right into these caricatures, upholding an elitist ideal of the judge as the embodiment of impartial reason, ready to render to each his own, and the law as simply the guardian of individual rights. Although in some senses a nationalist, Taft’s judicial mind seems rarely to have glimpsed the mystic visions of American nationhood that animated his ebullient predecessor. But what Taft should have argued, and what Roosevelt should have seen, is that the agency of the American nation—as an intergenerational community of shared birth (natio)—was bound up in the inheritance of its law. Far from being merely the dead hand of the past, the constitution was the living voice of the nation, the means by which Burke’s grand partnership between generations expressed itself.

As Richard Hooker, Burke’s great inspiration, explained in 1593,

A law is the deed of the whole body politic, and if you consider yourselves any part of it, then the law is even your deed also. . . . Just as any man’s past deed belongs to him as long as he lives, so also the act of a public society of men done five hundred years ago continues to belong to it, since societies are immortal. We lived in those who went before us, and they continue to live in those who follow them.”³⁵

According to this older tradition, the law is not merely a guardian of individual rights, but the embodied agency of the nation, renewed in each generation. There can be no appeal to the “consent of the governed” that ignores the form in which this consent has been transmitted to us. Roosevelt’s understanding of the nation was far too presentist or even futurist: in service to the needs of the moment, or even more the beckoning call of future national greatness, the sovereign people must be able to break through the shackles of the past that reactionary judges were forcing upon them. Taft’s understanding of the law, meanwhile, was much too abstract, a kind of transcendent reason that carried its own authority, even if out of touch with the life of the nation. The correct understanding is one in which the law does express the sovereignty of the nation, but the nation as a community of living and dead; the law carries the authority of the past not because the past always knows best, but because it is the voice of our fathers and mothers, whom we are called to honor if we are to retain a sense of our own identity.

Such an understanding will not fully resolve the rival impulses that divided Roosevelt and Taft and that continue to divide conservatives a century later: the noble instinct to empower a nation to assert its agency and secure its interests, and the prudent concern to restrain its sometimes short-sighted passions through respect for precedent and procedure. There is indeed, perhaps, no permanent reconciliation—a constitutional republic will always harbor both impulses in a state of dynamic tension. Yet armed with such an intergenerational vision, and a determination to reforge the bonds between the national past and the national present, today’s national conservatives can resist the temptation to pit the rule of law against the life of the nation—recognizing that neither can have life or meaning apart from the other.

This article is an American Affairs online exclusive, published February 3, 2022.

Notes