“Within the Law”: The Environment, Monopolies, and Foreign Affairs
President Taft was determined to put President Roosevelt’s policies on protecting the environment, prosecuting the trusts, and keeping the peace on firm legal and constitutional grounds. When his efforts ignited a political firestorm, the judicial president was unprepared to extinguish it.
A disagreement about how to protect the environment provoked the first conflagration. Roosevelt had issued executive orders to protect from development millions of acres of national forest. But in 1908, Congress, influenced by corporate interests, tried to thwart Roosevelt’s conservation efforts by passing a law transferring the power to establish national forests from the president to Congress.1 Roosevelt was undaunted by constitutional formalities. In the waning days of his presidency, working with his secretary of the interior, James R. Garfield, and his chief forester, Gifford Pinchot, he issued a midnight executive order protecting from hydroelectric power development more than a million additional acres of land.2 Roosevelt justified the withdrawal under his “stewardship” theory of executive power, insisting that the president could do anything the Constitution didn’t explicitly forbid.3
Garfield and Pinchot offered no resistance to the president’s wishes, determined as they were to restrict, by any means necessary, the access of giant corporations to forest lands and water reserves. Pinchot, the first head of the U.S. Forest Service, was a moralistic crusader—initially for the conservation of land and later for the prohibition of alcohol.4 He viewed Roosevelt’s efforts to regulate the water power trust as only one battle in the holy war between the people and the monopolies. A future secretary of the interior, Harold Ickes, would dub him “Sir Galahad of the Woodlands.”5 Even after the repeal of Prohibition, as governor of Pennsylvania, Pinchot ended his career moralistically denouncing the evils of alcohol. In an irony that seemed to escape him, however, he designed a state-run monopoly on the sale of liquor that continues to frustrate lovers of intoxicating spirits in the Keystone State to this day.
Taft, too, was committed to conservation, but he was also committed to the rule of law. As he wrote to Pinchot, “I am thoroughly in sympathy with these policies and propose to do everything that I can to maintain them, insisting only that the action for which I become responsible … shall be within the law.”6 Taft promptly asked Congress for federal legislation codifying Roosevelt’s executive orders.7 Congress responded enthusiastically to Taft’s expression of respect for its constitutional prerogatives and restored executive power over land conservation. In the end, Taft would withdraw more land for federal protection in his single term in office than Roosevelt did in two terms, protecting 8.5 million acres and creating ten national parks.8 As the historian Jonathan Lurie notes, Taft called himself a “progressive conservative”9 and meant to preserve rather than threaten Roosevelt’s legacy. But Taft’s achievements would be overshadowed by a dramatic clash between Pinchot and Taft’s new secretary of the interior, Richard Ballinger. And Taft exacerbated the conflict through his legalistic insistence on viewing it in constitutional rather than political terms.
Taft’s appointment of Ballinger, a former state judge and mayor of Seattle, was part of his judicial approach to conservation policy. Ballinger believed that Roosevelt’s executive orders withdrawing land without congressional approval were illegal, and he began to restore some of the lands for private development.10 Taft agreed with Ballinger’s more legalistic approach to conservation, believing, as he did, that the president could exercise only those powers that the Constitution or the law explicitly authorized.11 Pinchot suspected Ballinger, with some cause, as being overly sympathetic to the corporate classes, and the conflict between the men exploded in August 1909 over the disposition of federal coal lands in Alaska. Pinchot insisted that the lands should be leased from the U.S. government; Ballinger maintained that they should be sold outright.
At this point, the tale becomes intricate. A corporate syndicate known as the Clarence Cunningham group (which may have been a front for mining companies owned by the monopolists Morgan and Guggenheim) had submitted claims on the land. The General Land Office at first rejected these claims but then accepted them.12 With Pinchot’s encouragement, Louis R. Glavis, the young chief of the Portland, Oregon, division of the General Land Office, accused Ballinger of laboring under a conflict of interest when he decided to sell off the lands to the Cunningham syndicate. In 1907, when he was head of the General Land Office, Ballinger had shut down Glavis’s investigation into the partnership between Cunningham and the Morgan-Guggenheim Alaska syndicate, which was seeking to develop Alaskan coal. Ballinger then went into private law practice in Seattle, where he earned a modest fee of $250 for providing legal advice to the Cunningham syndicate for an unrelated land office dispute.13 In Glavis’s view, Ballinger, who had been on the Cunningham group’s payroll, had shut down his investigation to favor the financial interests of his former patrons, who had also been contributors to Taft’s presidential campaign.
Pinchot arranged for Glavis to lay his charges directly before the president. On August 18, Glavis arrived at the summer White House in Beverly bearing a letter from Pinchot supporting his account. Taft reviewed the charges like a judge rather than a politician, reading Glavis’s fifty-page report and consulting the attorney general.14 He also asked Ballinger for a formal response. Ballinger set out for Beverly with Oscar Lawler, a young assistant, and on September 6 they consulted with Taft.15 Taft was already disposed against Pinchot—he had angrily declared the day before, so loudly that everyone in the house could hear him, that “Pinchot is a fanatic and has no knowledge of discipline or interdepartmental etiquette,” adding that he would “not stand for such insubordination.”16 As Taft was conducting his meeting with Ballinger and Lawler, Archie Butt predicted that the president, who “is not-overindulgent toward reformers,” would uphold Ballinger and fire Pinchot, which would in turn alienate Roosevelt and array against Taft “all that set of men who look upon themselves as purists in politics.”17 That is precisely what happened.
Treating Lawler as the equivalent of his own law clerk, Taft asked him to write a memorandum “as if he were President.”18 After reviewing Lawler’s memo, Taft concluded that Ballinger was innocent of fraud or any other wrongdoing. Displaying the Manichean demand for loyalty that sometimes clouded his otherwise judicial perspective, he released a letter on September 13 exonerating Ballinger of all charges. An editorial commented that Taft’s letter characteristically “exhibits … the judicial tone and temper of a magistrate disposing of a case.”19 In a fit of anger that would prove politically unfortunate, however, Taft also fired Glavis for insubordination.20 This was the Taft who had once assaulted a man for insulting his father—a great “hater,” as Theodore Roosevelt once called him—whose obsession with personal loyalty could sometimes overcome his otherwise keen devotion to the rule of law.
Taft insisted that the firing of Glavis was necessary to maintain the administrative discipline that he considered indispensable to an efficient executive branch. “The heads of the Departments are the persons through whom I must act, and unless the bureau chiefs are subordinate to the heads it makes government of an efficient character impossible,”21 he wrote to Nellie during his speaking tour in Oregon in early October. He predicted to Nellie that Pinchot, with his “fanaticism,” was behind the controversy and was perhaps planning a “coup,” and that Taft would one day have to fire him, too.22 Meanwhile, in public speeches, Taft insisted that conservation efforts could be put on solid constitutional footing.23 Taft wrote to Pinchot asking him to remain in government,24 but in a separate letter to Representative William Kent, a progressive Republican, Taft insisted, “We have a government of limited power under the Constitution, and we have got to work out our problems on the basis of law. Now, if that is reactionary, then I am a reactionary.”25 At the same time, the thin-skinned president refused to take responsibility for the political firestorm he had created by firing Glavis. In November he told Archie Butt on the golf course, “I have done nothing that I would not do over again, and therefore I must feel that [the] troubles are either imaginary or else someone else is to blame.”26
The president then asked Attorney General Wickersham to prepare a memo explaining why Taft had exonerated Ballinger. In what would prove to be the most scandalous decision of his presidency, Taft asked Wickersham to backdate the memo to September 11—the date of the attorney general’s initial meeting with the president, to make it appear as though Taft had relied on the full written memo, rather than Wickersham’s more cursory notes on the evidence, before making his decision.27 But Glavis, convinced of his virtue, would not be silenced. In November he published an explosive article in Collier’s Weekly entitled “The Whitewashing of Ballinger.” “Are the Guggenheims in charge of the Department of the Interior?”28 he asked in the article, alleging corruption without providing evidence.29 Finally, at Ballinger’s request, Taft agreed to a congressional investigation, in the vain hope of preserving the unity of the Republican Party.30
Because the self-regarding Pinchot was determined to turn himself into a martyr, the investigation into the Pinchot-Ballinger affair, which riveted Washington from January through May 1910,31 had the opposite effect. As Archie Butt reported the previous November, “I know the President does not want to force Pinchot to resign, yet he will not tolerate insubordination, much less criticism of himself.”32 As late as December 31, when Taft’s brother Charlie urged him at a family wedding to fire Pinchot, Taft responded, “I am beginning to think that is just what he wants to force me to do, and I will not do it,” because he was determined to avoid the “open rupture” with Roosevelt that the firing would ensure.33
On January 6, however, Pinchot forced Taft’s hand. In anticipation of the hearings, the moralistic gadfly wrote to Senator Jonathan Dolliver of Iowa, a leader of the progressive insurgent Republicans, alleging that Taft had fired Glavis without understanding the facts.34 The letter was read into the Congressional Record; the next day, Taft, always prickly on questions of honor and administrative discipline, fired Pinchot for insubordination.35 He reached the decision after agonizing about its political consequences—“he looked like a man almost ill,” Butt wrote on January 7, as Taft was making his decision. “He is weighing Pinchot in the balance but is weighing also the consequences of his own act with Roosevelt.”36
Taft objected to Pinchot’s personal disloyalty and lack of constitutional scruples, not to his conservationist zeal; to prove the point, he replaced Pinchot with another nationally acclaimed conservationist, Henry S. Graves, the head of the Yale School of Forestry, which Pinchot himself had founded. And on January 14, he issued a special message urging Congress to pass laws “to validate the withdrawals which have been made by the Secretary of the Interior and the President.”37 But the political firestorm continued: Collier’s published a sensational follow-up attack on Ballinger, accusing him of shutting down Glavis’s investigation to help Taft’s election at the behest of big donors and excoriating the secretary of the interior for issuing an executive order to prevent leaks by forbidding Interior Department staffers from testifying before Congress without his approval. “Can This Be Whitewashed Also?” asked the San Francisco Call. “How Campaign Funds Figured—Administration Badly Tied Up.”38
In the end, the Republican Congress exonerated Ballinger, finding no clear evidence of illegality.39 But the hearings themselves produced a smoking gun that would indelibly define Taft’s presidency. In an effort to defend Pinchot and Glavis with zeal, Collier’s hired as counsel the crusading “People’s Attorney,” Louis D. Brandeis, who would go on to achieve distinction as a justice of the U.S. Supreme Court. The Pinchot-Ballinger hearings made Brandeis’s national reputation as a foe of corruption. The dramatic climax of the hearings occurred when Brandeis, in his cross-examination of Ballinger and others, revealed that Wickersham had backdated his report to give the impression that Taft had relied on all the evidence before making his decision to exonerate Ballinger. Wickersham and Taft made the injury worse by initially denying the backdating before coming clean. Brandeis’s smoking gun gave the impression that, instead of relying on Wickersham’s memo, Taft had exonerated Ballinger based on a one-sided memo written by Lawler, Ballinger’s own clerk, and then adopted Lawler’s words as his own.40
Taft, who was always defensive in the face of criticism, first insisted that he had written the exonerating letter himself but then confessed that he indeed had relied on part of Lawler’s memo,41 telling a reporter that “he had just plain forgotten all about the memorandum.”42 The press and the public were outraged by the president’s apparent deception, and although Congress ultimately exonerated him of wrongdoing, the political damage was indelible. Hampton’s Magazine melodramatically called the Pinchot-Ballinger affair “the gravest demonstration of moral dereliction.”43
Why did Taft tell Wickersham to backdate the memo? For such a scrupulously honest public servant, the decision seems out of character. And yet Taft’s decision becomes more intelligible when viewed from his own perspective. As Taft explained in a letter to Senator Knute Nelson, the head of the investigation, he felt that changing the date would more accurately reflect the deliberative process by which he had reached his verdict.44 Taft wrote that he had closely reviewed Glavis’s charges and Ballinger’s answer, as well as the attorney general’s notes on the evidence, before making up his mind. Because Taft was staying up late writing constitutional orations for his upcoming fall speaking tour, he asked Lawler to prepare a memo supporting his findings. As Taft wrote to Nelson: “During the days I examined the draft opinion of Mr. Lawler, but its thirty pages did not state the case in the way I wished it stated.” Taft considered the criticism of Pinchot and Glavis inappropriate and so “only used a few paragraphs from it containing merely general statements.”45
His conclusions, Taft said, “were based upon my reading of the record, and were fortified by the oral analysis of the evidence and the conclusions which the attorney general gave me, using the notes which he had made during his reading of the record.” Because he wasn’t able to incorporate all of Wickersham’s notes into his memo in time, he asked the attorney general to write a memo and backdate it to provide a more chronological account of the evidence on which Taft reached his conclusions. Taft further explained:
I was very sorry not to be able to embody this analysis in my opinion, but time did not permit. I therefore directed him to embody in a written statement such analysis and conclusions as he had given me, file it with the record and date it prior to the date of my opinion, so as to show that my decision was fortified by his summary of the evidence and his conclusions therefrom.46
By backdating the memo, in other words, Taft insisted he was being more precise rather than less in providing a chronologically accurate trial record, including a full account of the reasons, supported by the attorney general’s notes on the evidence, which he had reviewed before reaching what he viewed as a judicial decision.
Plausible or not, Taft’s explanation was good enough for Congress. After comparing Taft’s letter with Lawler’s memo, the committee concluded that Taft had indeed “studied the answers and record, formed his own conclusions, and wrote or dictated his own opinion, and, as a matter of fact, did not adopt the Lawler memorandum.”47 And at least some journalists accepted the explanation as well. The National Tribune observed that backdating documents was common government practice.48 The Chicago Record-Herald suggested there was “absolutely nothing wrong in in instructing a subordinate to prepare an opinion.”49 But progressive publications such as Collier’s, McClure’s, and Outlook excoriated Taft. Acting more like a vindictive politician than a judge, the president uncharacteristically—and unsuccessfully—tried to retaliate by asking Congress to raise the postal rates on national magazines; he argued that the government shouldn’t subsidize journalists who were failing in their duty to “occupy a disinterred position” as “controllers of public opinion.”50 These clumsy attempts to punish the press led, predictably and appropriately, to even more vigorous reproach.
Taft’s sin, then, was not obstruction of justice (beyond his initial denial, which was not under oath and which he eventually recanted) but a tendency to surround himself with loyalists and to lash out against those he viewed as disloyal. Taft could have avoided the scandal by admitting that he had backdated the memo and by accepting Ballinger’s repeatedly proffered resignation.51 Instead, he compounded his error by expressing unequivocal support for his secretary of the interior,52 perhaps because the judicially minded president always felt most comfortable resisting the approval of the crowd. In Taft’s mind, political unpopularity was a tribute to his devotion to principle, a measure of success rather than failure. It was in March 1910 that he memorably declared to Archie Butt, “I will not play a part for popularity.”53
Whether principled or blinkered, Taft’s decision to stand by Ballinger and to throw over Pinchot led to a serious breach with Theodore Roosevelt. In April, as the Ballinger hearings were boiling over, Pinchot took a steamship to the French Riviera to meet with Roosevelt, who had just returned from a long safari in Africa. The two men concluded that Taft had betrayed Roosevelt’s legacy by failing to protect the environment, enforce antitrust laws, and lower the tariffs—all charges that proved to be inaccurate. Roosevelt then wrote to Senator Henry Cabot Lodge of Massachusetts, his longtime ally, to complain that Taft had “completely twisted round the policies I advocated and acted upon.”54 As a result, the former president wrote, he could not support the administration in the upcoming congressional elections. After a year of silence, Taft wrote to Roosevelt in May, flagellating himself for his political failures. “It is now a year and three months since I assumed office and I have had a hard time,” Taft wrote dolefully. “I do not know that I have had harder luck than other Presidents, but I do know that thus far I have succeeded far less than have others. I have been conscientiously trying to carry out your policies, but my method for doing so has not worked smoothly.”55
Instead of explaining his decisions about Pinchot and Ballinger, he told Roosevelt—as he had earlier told Congress when proposing tariff reductions—that the former president should simply read his public statements and “look into that wholly for yourself.”56 Taft invited Roosevelt to the White House to heal the growing breach, but Roosevelt declined on the unconvincing grounds that, as Archie Butt reported, “he was opposed to the idea of ex-Presidents visiting Washington.”57 Taft later learned that Roosevelt had been offended by his assurances, in the letter of invitation, that he would never forget what his brother Charlie and Roosevelt had done for him in the 1908 campaign; Roosevelt thought he alone deserved the credit for Taft’s nomination.58
Tensions between the president and his predecessor escalated in the summer of 1910, when Roosevelt opposed Secretary Ballinger’s campaign for a U.S. Senate seat in Washington State. When Nellie Taft learned of Roosevelt’s decision, she observed presciently to the president, “Well, I suppose you will have to fight Mr. Roosevelt for the nomination [in 1912], and if you get it he will defeat you.”59 In August, during a party leadership contest in New York, a candidate supported by Vice President James Sherman defeated one supported by Roosevelt, who suspected Taft of conspiring to humiliate him. “What awful politics!” Butt confided to his diary, writing that Taft and Sherman were “like a lot of children at the game when compared to Mr. Roosevelt.”60 He also observed that Taft’s scheming secretary Charles Norton was goading Roosevelt into challenging Taft for the presidency.
Roosevelt took the bait. He set out west for a three-week speaking tour during which he attacked the Supreme Court as a barrier to progressive legislation and endorsed popular checks on the ability of judges to overturn laws. (Taft was so distressed at these attacks that he hurled a golf club in frustration.)61 On August 31, in Osawatomie, Kansas, Roosevelt delivered his radical “New Nationalism” speech. “This New Nationalism regards the executive power as the steward of the public welfare,” Roosevelt declared. “It demands of the judiciary that it shall be interested primarily in human welfare rather than in property, just as it demands that the representative body shall represent all the people rather than any one class or section of the people.”62
As many Republicans feared, the 1910 midterm elections were a stinging rebuke of Taft and conservatism, and the Democrats took control of the House of Representatives for the first time since 1894, although the Republicans retained their majority in the Senate. Stung by the defeat, which he viewed as a personal repudiation by Republican progressives, Taft turned for solace to an alliance with the standpat Republicans in Congress.
Although Roosevelt and his allies believed that Taft had betrayed Roosevelt’s record on tariff reform, conservation, and antitrust prosecutions, Taft’s achievements in all three areas arguably surpassed Roosevelt’s own. Taft’s dramatic ramping up of antitrust prosecutions was the most visible example of his success. Taft and Roosevelt had different approaches to antitrust, reflecting their different views of the Constitution. Roosevelt championed big government as well as big business: he wanted to create a federal bureau of corporations to regulate trusts, prosecuting the bad ones (whose predatory behavior harmed competition), while supporting the good ones (whose economies of scale helped consumers). The most significant example of this Jesuitical distinction between good and bad trusts had been Roosevelt’s decision as president to bring an antitrust suit against the Northern Securities railroad trust, controlled by J. P. Morgan, but not against U.S. Steel, which Morgan also controlled.
Taft, by contrast, believed in vigorous and consistent enforcement of the Sherman Antitrust Act, and his decision to prosecute U.S. Steel would deliver the coup de grâce to his fraying relationship with Roosevelt. Denouncing monopolies during the 1908 campaign in Sandusky, Ohio, Taft had promised even more vigorous enforcement of the antitrust law than Roosevelt, to prevent the formation of monopolies in the first place.63 The trusts stifled competition, he said, by allowing “the aggregation of wealth in plants so great the owners of it were able, by cunningly devised means, to stifle competition, to control prices of goods and shove them up above what the cost of production would justify.”64 To combat these economic wiles, Taft declared, “What we need is to increase the machinery of government, to increase the supervision of these combinations that have the temptation to violate the law … so that these prosecutions can be carried on with great rapidity.”65
As president, Taft made good on his promise. In an address to Congress on January 7, 1910, Taft made the case for the Mann-Elkins Act, drafted by Attorney General Wickersham, which increased the powers of the Interstate Commerce Commission to control the rates charged by railroads and telegraph and telephone companies.66 In his comprehensive and legalistic speech, Taft talked about the need for speedy and uniform review of challenges to railroad rates and also recommended establishing a five-member “United States Court of Commerce.”67 Congress responded enthusiastically to his recommendations and, five months later, passed the Mann-Elkins Act, which Taft promptly signed.
In his speech to Congress, Taft also gave an extended explanation of his view of antitrust law, emphasizing that the government should focus not on the size of the enterprise but rather on the “aggregation of capital and plants with the express or implied intent to restrain interstate or foreign commerce, or to monopolize it in whole or in part.”68 As he had done since his days on the bench, Taft insisted that the illegality of actions by trusts or unions turned on malicious intent, not simply on size.69
Taft criticized the Sugar Trust case, United States v. E.C. Knight Co. (1895),70 where the Court upheld the constitutionality of the Sherman antitrust law but ruled that it did not apply to manufacturing, since manufacturing could not be equated with interstate commerce.71 Taft also implicitly criticized Justice Holmes’s suggestion in the Northern Securities case that the Sherman Act should be read to forbid not all restraints of trade, but only those that the Court decided were unreasonable. The judicial effort to ban only unreasonable restraints of trade, Taft declared, would “put into the hands of the court a power impossible to exercise on any consistent principle … to give them a power approaching the arbitrary, the abuse of which might involve our whole judicial system in disaster.”72
After his speech, Taft anxiously awaited the Court’s pending decision in the Standard Oil case, originally brought by the Roosevelt administration. The suit alleged that Standard Oil of New Jersey, the parent company of John D. Rockefeller’s many-headed hydra, had monopolized the oil refining and shipping trades.73 The Supreme Court finally heard the case in March 1910 but didn’t issue its decision for more than a year. Taft fretted that the delay was postponing Congress’s consideration of his proposal to pass a national incorporation act.74 Finally, on May 15, 1911, the Court handed down its decision.75 Chief Justice Edward White adopted the very argument that Taft had repeatedly criticized—namely, that the Sherman Act should be construed in light of the “rule of reason,” prohibiting only unreasonable restraints of trade. Despite its weakening of the Sherman Act, which does not mention the word “reasonable,” the Court ruled against Rockefeller and ordered the Standard Oil Trust to divest about thirty of its subsidiaries. Although the Court’s reasoning contradicted his own, Taft was happy enough with the result to exclaim, when he heard it, “Bully for that!”76
Taft’s friend Justice John Marshall Harlan criticized the reasoning of the Standard Oil decision along lines similar to those that Taft himself had sketched out to Congress. Harlan cited a Senate report declining to amend the Sherman Act to include the rule of reason on the ground that the amendment would “entirely emasculate” the bill because “the injection of the rule of reasonableness or unreasonableness would lead to the greatest variableness and uncertainty in the enforcement of the law.”77
Two weeks later, on May 29, the Court handed down another important decision, in the case against the Tobacco Trust. The Court, with Chief Justice White once again applying the rule of reason, held that the trust was illegal because of the clear intentions of its corporate founders “to monopolize the trade by driving competitors out of business, which were ruthlessly carried out upon the assumption that to work upon the fears or play upon the cupidity of competitors would make success possible.”78 Justice Harlan again dissented in part, on the ground that the Court had rewritten the Sherman Act and refused to break up the trust, instead sending the hydra back to the lower court for its tender disposition.
President Taft’s devotion to defending the institutional legitimacy of the Court always overcame his devotion to his own constitutional interpretations. He praised the Standard Oil opinion as a “good opinion—the Standard Oil Company will have to dissolve,” even as he confessed that the reasoning of the Court “did not take exactly the line of distinction I have drawn, but it certainly approximates it.”79 And he praised the Tobacco Trust decision with similar casuistry, insisting that there was “no conflict between what I have said and what the court says,” instead detecting “a real resemblance between them that makes me proud.” Although he had previously suggested the opposite, the president now declared that the Court’s decision to read the “rule of reason” into the Sherman Act did not, in fact, permit it to distinguish between “good” and “bad” trusts.80 For the judicial president, defending the integrity of the Court was more important than pressing his own views.
Later that year, Taft’s judicial frame of mind led him to make the most legally principled and politically unwise decision of his presidency. On October 26, 1911, his administration filed an antitrust suit against U.S. Steel, the first billion-dollar corporation in the world.81 It had been created by the merger of nearly a dozen steel companies controlled by J. P. Morgan, Andrew Carnegie, and other titans, and it produced one-quarter of the world’s steel.82 The Justice Department charged that the monopolistic powers of the Steel Trust had been increased during the Panic of 1907, when it acquired the Tennessee Coal and Iron Company with President Roosevelt’s blessing. The suggestion was that the acquisition, at what turned out to be a bargain price, threatened competition rather than saving the economy, and that Roosevelt had been duped by J. P. Morgan.83 The headlines the next day proclaimed “Roosevelt Fooled.”84
Roosevelt, furious and defensive, insisted that he had not been misled in allowing the Steel Trust to buy the Tennessee Coal Company,85 stating forcefully that Morgan had told the truth about the need to buy the company to rescue the economy. He added that Taft, as a member of his cabinet, had reviewed the merger and “was enthusiastic in his praise of what was done.”86 But Roosevelt had indeed been duped in 1907, misunderstanding the complicated financial facts in a well-intentioned effort to stave off the panic.87 Taft insisted that he hadn’t known about the suit before the Justice Department filed it, but in Roosevelt’s eyes, Taft’s ignorance made his disloyalty all the worse. Roosevelt’s sister Corinne Roosevelt Robinson told Archie Butt in January 1912 that her brother “could never forgive” the president for filing the steel suit.88
He didn’t. Roosevelt wrote an article for Outlook magazine arguing that Taft’s trust-busting agenda was too aggressive and that the president was wrongly focused on breaking up corporations through lawsuits rather than subjecting their unfair practices to vigorous regulation under an expanded bureau of corporations. The only way to prevent unfair competition, Roosevelt declared, “is by strict Government supervision, and not merely by lawsuits.” He accused Taft and others who relied exclusively on antitrust enforcement of calling themselves progressives by representing “in reality in this matter not progress at all but a kind of sincere rural toryism,” which would return American business to the eighteenth century. Roosevelt ended with a clarion call for regulating successful trusts rather than breaking them up. “It is practically impossible … to try to break up all combinations merely because they are large and successful,” he declared.89
This article spurred rumors that Roosevelt would challenge Taft in the 1912 election. The New York World asked, “Has Theodore Roosevelt Now Become Mr. Morgan’s Candidate for President?” And Roosevelt himself later credited this article with “bringing me forward for the Presidential nomination.”90 Years later, in 1920, the Supreme Court would rule that U.S. Steel did not constitute an unlawful monopoly under the Sherman Act, but by that point the political damage had been done.
On December 5, 1911, Taft delivered his annual message to Congress, discussing at length and in legalistic detail the recent Supreme Court decisions dissolving the Standard Oil and American Tobacco trusts. The president noted with approval that the government had been working for more than twenty years to make the antitrust statute effective, “and only in the last three or four years has the heavy hand of the law been laid upon the great illegal combinations that have exercised such an absolute dominion over many of our industries.”91 Defending himself against Roosevelt’s charge that he was antibusiness, Taft insisted that the Sherman Act applied to the accumulation of “large capital in business enterprises” only when its purpose was to “stifle competition.” Taft added, “Mere size is no sin against the law.”92
A month earlier, an editorial in the New York Journal of Commerce concluded, “President Taft has not been as loud or spectacular in his attacks upon the ‘trusts’ as was his predecessor in the White House, but he has been consistent, persistent, and unwavering and results have been achieved or at any rate have culminated during his administration that have been distressing to Wall Street.”93 And as the election of 1912 approached, Taft called his antitrust program “firm, consistent and effective,” noting that Roosevelt had brought forty-four antitrust cases in nearly eight years as president while his own administration had brought almost seventy cases in less than four years.94
Foreign policy was the final area where Taft attempted valiantly, but not always successfully, to put Roosevelt’s legacy on firm constitutional ground. Unlike Roosevelt, he was scrupulous about seeking congressional approval for his foreign interventions, noting accurately that the Constitution gives Congress, not the president, the power to declare war. Taft’s foreign policy was based on the promotion of what others called “dollar diplomacy” and what Taft called the substitution of “dollars for bullets.”95 He insisted that diplomacy should be guided by “the increase of trade relations and commerce,” rather than the unilateral use of force. As Taft put it, he and Secretary of State Philander Knox, who had been Roosevelt’s attorney general, believed that foreign policy “may be well made to include active intervention to secure for our merchandise and our capitalists opportunity for profitable investment which shall insure to the benefit of both countries concerned.”96
The most vivid constitutional drama involving Taft’s dollar diplomacy arose over Mexico. In March 1911, without consulting his cabinet, Taft mobilized twenty thousand American troops along the Mexican border to protect Americans in Mexico in the face of uprisings against President Porfirio Díaz.97 Taft worried that billions of dollars of American capital invested in Mexico might be at risk.98 But although the Mexican government expected an invasion, Taft was careful to instruct his commanders not to cross the Mexican border without first seeking congressional approval, believing that he lacked the authority as commander in chief to act unilaterally. In the event, as Taft expected, Congress refused to authorize the troops to cross the border, and Taft kept them mobilized as a deterrent without starting a war.
Taft also deserves credit for putting constitutional principles above party. When he read a dispatch in May reporting that four Americans had been killed in Mexico, and his wife asked if there would be war, Taft replied, “I only know that I am going to do everything in my power to prevent one. Already there is a movement in the Grand Old Party”—he intoned the words sarcastically—“to utilize this trouble for party ends.… I am afraid I am a constant disappointment to my party. The fact of the matter is, the longer I am President the less of a party man I seem to become.… [I]t seems to me to be impossible to be a strict party man and serve the whole country impartially.”99 Still, bucking the popular cry for war took its toll. During a White House reception in August 1911, after confiding to Archie Butt that he was being pressured to declare war, the president “broke down and wept as I have never seen anyone weep in my life,” as Butt recalled. “His whole body was shaken with convulsive sobs.”100
In his December 1911 address to Congress, Taft explained his constitutionally scrupulous position: “It seems my duty as Commander in Chief to place troops in sufficient number where, if Congress shall direct that they enter Mexico to save American lives and property, an effective movement may be promptly made.”101 But Taft emphasized that he would not act unilaterally. “The assumption by the press that I contemplate intervention on Mexican soil to protect American lives or property is of course gratuitous, because I seriously doubt whether I have such authority under any circumstances, and if I had I would not exercise it without express congressional approval.”102 An unauthorized invasion, he suggested, might create further bloodshed without dampening the fires of revolution.103 In the end, the Mexican turmoil continued long after Taft left the presidency.104
In the wake of Taft’s statement, Roosevelt criticized the president for lack of leadership in foreign affairs. After leaving office, Taft joked wanly that Roosevelt divided presidents into “Lincoln Presidents” and “Buchanan Presidents,” alluding to the weak chief executive who took no action to prevent the Southern states from seceding in the winter of 1860–61. (In another example of presidential deference, Buchanan asked Congress to approve his request to deploy troops to Central America; when Congress refused, he, like Taft, meekly submitted.)105 Taft added that Roosevelt “places himself in the Lincoln class of Presidents, and me in the Buchanan class.”106 This reminded Taft of the story of a young girl who comes home and announces, “Papa, I am the best scholar in the class” not because her teacher told her but because “I just noticed it myself.”107 And yet Taft’s constitutionally scrupulous position about the president’s lack of authority to send troops on his own across the Mexican border also called to mind that of Lincoln himself. After President James K. Polk moved troops to the Mexican-American border in 1846, in response to what he claimed was the emergency of a Mexican invasion, precipitating the Mexican War, Lincoln—elected later that year as a constitutionally minded Whig congressman from Illinois—introduced his famous “spot” resolutions, demanding that Polk identify the precise spot where blood had been shed, to prove it was on U.S. soil.108 (The resolutions earned him the nickname “Spotty Lincoln.”)
Taft and Knox believed that free trade and dollar diplomacy within a clear legal framework would help the American economy by expanding markets for American exports in Latin America and the Far East.109 His maxim: speak softly and carry a free trade agreement. Although the success of dollar diplomacy was mixed, Taft proved to be a visionary in attempting to create treaties and intergovernmental organizations to promote free trade. His most ambitious initiative was his crusade for a free trade treaty between Canada and the United States, known in the jargon of the day as the Canadian Tariff Reciprocity Agreement. The goal was to apply the minimum rates of the Payne-Aldrich tariff to all trade with Canada.110 On January 26, 1911, Taft sent a special message to Congress urging it to pass the Canadian free trade treaty as soon as possible. Taft praised Canada as a diplomatic ally and an expanding market for American goods: “She has cost us nothing in the way of preparations for defense against her possible assault, and she never will.… I therefore earnestly hope that the measure will be promptly enacted into law.”111
It wasn’t. Congress refused to act, and Taft threatened to call the House and Senate back for an extra session. On March 4, he made good on his threat.112 A month later, on April 5, Taft, who communicated to Congress with proclamations rather than cajoleries, sent another special message. “I felt assured that the sentiment of the people of the United States was such that they would welcome a measure which would result in the increase of trade on both sides of the boundary line,” he declared.113 He later told a wavering senator, “I regard this as the most important measure of my administration … I am striving to bring about what I think will be an epoch in our country’s history.”114 On April 21, the House finally approved the bill, and the Senate followed on July 22. “It was passed by a vote of about two to one, but largely by Democratic votes,” Archie Butt recorded, adding that Taft “was very much pleased, but would have felt much better had more Republicans voted for the measure.”115 The president signed the Canadian Tariff Reciprocity Agreement on July 26, 1911; the historian David H. Burton has called it the “most significant legislative victory of the Sixty-second Congress,” and perhaps of Taft’s entire presidency.116
Alas, Taft, who had a habit of shooting himself in the foot, had written a letter to Roosevelt in January predicting that “the amount of Canadian products that we would take could produce a current of business between western Canada and the United States that would make Canada only an adjunct to the United States.”117 Taft’s letter was leaked to the press and the resulting uproar led the Canadian people, in a Brexit-style referendum, to reject the treaty on September 21, 1911. The new Canadian prime minister, a conservative populist, lashed out against the U.S. president as “tricky Taft.”118 Taft was crushed by the defeat of what he viewed as sound policy, but he was indifferent, as always, to the political fallout. In a handwritten postscript to a letter to his brother Horace, he wrote, “I am sorry about reciprocity on account of the real loss to both countries and its defeat. Its political effect I can’t calculate and I don’t care about.”119
Perhaps the most vivid example of Taft’s judicial approach to foreign policy was his dream of setting up what he called in his 1911 message to Congress “an interlacing and interlocking series of treaties comprehending so many countries as to lead to the formation of an international court of judicature.”120 Taft first took up the cause of creating a world court in February 1910, when he accepted the post of honorary president of the newly formed American Society for the Judicial Settlement of International Disputes.121 “I don’t see any more reason why matters of national honor should not be referred to a court,” he remarked, “… any more than matters of property or matters of national proprietorship.”122 Taft believed that only a court with the jurisdiction to arbitrate “all questions” giving rise to international disputes, including questions of national honor—that is, vital interests like immigration policy or the Monroe Doctrine—could end war and promote world peace. Taft and Secretary of State Knox persuaded the French and British ambassadors to the United States to sign arbitration treaties that called for “unlimited arbitration” of all international disputes.123 But Taft failed to consult with any senators, including those on the Foreign Relations Committee. Following the lead of Roosevelt, who insisted that “the United States should never bind itself to arbitrate questions respecting its honor, independence, and integrity,” the Senate in August eviscerated Taft’s proposal for unlimited arbitration treaties with Britain and France by deleting a paragraph that would have referred all international arbitration questions to an international court.124
Taft’s speeches on behalf of the treaties led to his final breach with Roosevelt. On a western tour stumping for ratification of the treaties in the fall of 1911, Taft struggled to connect with audiences. Archie Butt reported in October, “He gives too much detail and not enough general principles, but he will not say things he does not believe.”125 In that spirit of compulsive honesty, Taft declared, “I think that war might have been settled without a fight and ought to have been. So with the Mexican War. So, I think, with the Spanish war.”126 These were, understandably, fighting words to a bellicose former president who had found glory on the battlefields of Cuba in 1898, and on December 26 Roosevelt refused to attend a peace banquet where Taft made the case for the arbitration treaties. The Colonel, as Roosevelt then liked to be known, proceeded to denounce the treaties in Outlook.
Roosevelt’s attack wounded Taft more than any other; he told Archie Butt that “it is hard, very hard, Archie, to see a devoted friendship going to pieces like a rope of sand.”127 The treaties went to pieces as well. In March 1912, the Senate amended the treaties and passed them with significant reservations, excluding from the arbitration court any disputes over the admission of aliens to the United States or to U.S. public schools, as well as any disputes arising under the Monroe Doctrine.128
Because of the nativist clauses singling out aliens, among other provisions, Taft considered the revised arbitration treaties fatally flawed and refused to forward them to Britain and France. Taft was strikingly opposed to discrimination against aliens: he vetoed a bill that would have required a literacy test for immigrants.129 And Taft also opposed California’s ultimately successful efforts to discriminate against Japanese aliens.130 (Roosevelt responded in his autobiography that Taft had been wrong and that the United States should be free to exclude any group of aliens it pleased.)131
But despite the failure of his free trade and arbitration treaties, and his idealistic dream of a world court, Taft’s vision was the beginning of our modern system of international arbitration—a web of bilateral and multilateral treaties from the International Criminal Court to the North American Free Trade Agreement and the World Trade Organization. Years later, recalling the Senate’s emasculation of the treaties, Taft chuckled as he acknowledged that they would have done little to promote world peace in their diminished form: “So I put them on the shelf, and let the dust accumulate on them in the hope that the senators might change their minds, or that the people might change the Senate; instead of which they changed me.”132