Introduction to TR's Political Thought
In early 1912 Theodore Roosevelt began his legendary campaign for a 3rd term. Roosevelt told supporters “we stand at Armageddon and we battle for the Lord.” Roosevelt began by attacking the recent decisions of the Supreme Court to strike down popular attempts to regulate businesses.
Especially the 1905 Lochner v. New York decision that found a law establishing maximum work hours for bakers unconstitutional. Roosevelt believed the Court made the “Constitution a means of preventing the absolute right of the people to rule themselves.”
Roosevelt hated the notion a judge could declare whether or not the people have the right to make laws for themselves.” TR saw this as un-American. Judges could potentially declare the Constitution to mean whatever they wanted. Roosevelt believed it was best to leave this ultimate power with the people where it belonged.
TR proposed the popular recall of judges and their decisions. Roosevelt called this “the highest and wisest kind of conservatism.” We the people. That was an odd since Roosevelt’s 1912 campaign was not “conservative.” Taft’s stood against Roosevelt in favor of judicial independence.
Political observers believe 1912 was the birth of modern constitutional conservatism. George Will believes a true conservative would have voted for Taft in 1912 because the principle of judicial supremacy reigned supreme. The Court has the final say in interpreting the Constitution.
In the 20th and 21st centuries judicial supremacy is considered a necessary pillar of “limited governmental” constitutionalism. 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. Roosevelts spent his last political contest fighting to preserve and reinvigorate a popular Constitution.
While many identify Roosevelt as a conservative in 1912 you see the unshackled Bull Moose revealing a deeper nature of Roosevelt’s conservatism.
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 Roosevelt. Both Lincoln and Roosevelt viewed themselves as defenders of the American workingman.
Lincoln in his first state of the union said, “Capital 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. Roosevelt’s pro-labor 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.
Roosevelt supported women’s suffrage, he wanted adulterers whipped in public and emphasized the importance of fatherhood and motherhood. The nationalist tradition in America believed 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.
When Roosevelt looked at Supreme Court, he saw judges violating the traditional sovereignty of the American people. This abuse, combined with Taft’s perceived inability to correct it was the prime factor that moved Roosevelt to run against his old friend and 1912 successor.
In his famous address “A Charter of Democracy,” Roosevelt likened the constitutional situation to that following the infamous Dred Scott decision that asserted the nationalization of slaveholders’ rights in the lead-up to the Civil War.
Roosevelt said, “It was Buchanan who protested all criticism of the judges for unjust and unrighteous decisions.” Roosevelt identified himself with Lincoln, “who appealed to the people against the judges when the judges went wrong.” Lincoln and Roosevelt argued, the purpose of the Constitution was to ensure “genuine popular self-government,” TR said any attempt to use it against this end was to thwart its intended meaning. TR and Lincoln pointed to Dred Scott.
Lincoln himself argued in his first inaugural address that “if it’s 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.”
For Roosevelt and Lincoln progress and conservation were not at odds but rightly functioned together. Roosevelt's conservatism was a conservatism of substance over form and legalistic procedure. To Roosevelt the question was to choose the broad conservatism of Lincoln 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 stood on a platform that defended the “independent judiciary” against what he saw as Roosevelt “extremists,” who “are not progressives—they were either political emotionalists, or neurotics.”
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 Taft 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 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. Wilson looks to the Supreme Court to supply the interpretation which will serve the needs of the day.”
Wilson, like Taft, was a judicial supremacist who believed constitutional interpretation stopped at the supreme court 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.