William Howard Taft

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

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

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

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

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

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

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

One who so lightly regards constitutional principles, and especially, the independence of the judiciary, one who is so naturally impatient of legal restraints, and of due legal procedure, and who has so misunderstood what liberty regulated by law is, could not be safely intrusted with successive presidential terms. I say this sorrowfully, but I say it with the full conviction of truth.7

After unburdening himself of this fervent address, Taft retired to the presidential railroad car, where a journalist found him with his head in his hands. “Roosevelt was my closest friend,” he exclaimed, looking up with anguish. And then he began to weep.8

Behind the scenes, though, Taft was undaunted. He worked with Republican political bosses to secure his renomination through the various state conventions rather than relying on the handful of direct primaries. Six states in the North and West held primaries at the beginning of the election year; six more states would join them before the Republican Convention in June. Forced to submit himself to the direct consideration of the people, Taft campaigned vigorously: after winning the Massachusetts primary, he told a crowd in Maryland, “I am a man of peace and don’t want to fight. But when I do fight I want to hit hard. Even a rat in a corner will fight.”9 After alarming the public with this unfortunate image, he lamented the “hypocrisy, the insincerity, the selfishness, the monumental egotism, and almost the insanity of the megalomania that possess Theodore Roosevelt.” Roosevelt reciprocated by calling Taft a “puzzlewit” and a “fathead”10 as well as “a flubdub with a streak of the second-rate and the common in him.”11

In the end, Taft won the New York and Massachusetts primaries, but lost to Roosevelt in California, Minnesota, Maryland, Nebraska, New Jersey, Ohio, Pennsylvania, and South Dakota. (Both men failed to carry their home states.) Senator Robert La Follette took North Dakota and his home state of Wisconsin. All told, in the states that held direct primaries, Roosevelt won 1,157,397 votes and 278 delegates; Taft, 761,716 votes and 48 delegates; and La Follette 351,043 and 36 delegates.12 But 254 delegates were still contested, and the rest of the delegates would be allocated at the Republican Convention in Chicago in June. A candidate needed the votes of 504 delegates to win the nomination.

At the beginning of that month, the Republican National Committee awarded 235 of the contested seats to Taft and only 19 to Roosevelt, depriving the former president of dozens of delegates (the precise number remains disputed) to which he plausibly claimed he was entitled.13 Days before the convention opened on June 18, Roosevelt declared, “I’m feeling like a bull moose!” and called on the credentials committee to allocate more than 70 of the additional contested seats to him rather than Taft.14 In the Chicago Coliseum, Roosevelt gave the most melodramatic speech of his career, culminating with the messianic battle cry, “We stand at Armageddon, and we battle for the Lord.”15 In response, twenty thousand of his supporters sang “Onward, Christian Soldiers.” Taft had the wit to appoint as chairman of the convention the conservative New York attorney Elihu Root, who was close to both Taft and Roosevelt. Root delivered a keynote address promising that the Republican Party would uphold the integrity of the courts and the Constitution.16 Root then settled the matter by awarding 71 contested delegates to Taft rather than Roosevelt. This prompted Roosevelt supporters to express their conviction that their champion had been steamrolled by repeatedly exclaiming “toot toot” and “choo choo.”17 Taft was promptly nominated on the first ballot, with 561 votes to Roosevelt’s 107 and La Follette’s 41. Protesting the lack of progressive representation on what was now branded as a conservative ticket, 344 delegates refused to vote.18 Roosevelt and his delegates walked out and held a rump convention of their own, where the former president exhorted his supporters to remember the commandment “Thou Shalt Not Steal.”19 The new party would soon be called the Progressive Party and was popularly known as the Bull Moose Party, after one of Roosevelt’s favorite expressions.

Did party bosses loyal to Taft steal the Republican nomination from Roosevelt? Taft’s biographer Henry Pringle concludes that the answer hardly matters, given the party rules in place at the time. “Whether thirty votes were stolen or seventy-two or none has no real bearing on the outcome in Chicago during those humid days of June, 1912,” Pringle concludes. “The Republican party was in the hands of the forces which favored Taft’s renomination.”20 Taft, for his part, criticized the direct primary, as opposed to the convention system, as encouraging the election of demagogues rather than moderates.

In July, Taft lamented to Nellie that Roosevelt “is utterly unscrupulous in his method of stating things, and his power of attracting public attention is marvelous. I think he has really convinced a great number of people of the United States that we committed gross frauds, that I am the receiver of stolen goods in taking the nomination.”21 A month later, Taft complained to his wife again, calling Roosevelt “the fakir, the juggler, the green goods man, the gold brick man that he has come to be.” The president accused his predecessor of “seeking to make his followers ‘Holy Rollers,’ and I hope that the country is beginning to see this.… So far as personal relations with him are concerned, they don’t exist.”22 During the campaign that followed, Taft would maintain, remarkably, that he preferred the election of Woodrow Wilson, the Democratic nominee, to the election of Roosevelt, even though he recoiled from Wilson’s “general radicalism” and criticisms of the Constitution and found his acceptance speech “purring and ladylike.”23

In his heart, Taft viewed both Roosevelt and Wilson as threats to the Constitution. Unfortunately for Taft, his attempts to defend the Constitution against assaults from both sides were drowned out by a debate that proved more galvanizing to voters: the debate between Wilson’s New Freedom and Roosevelt’s New Nationalism. That debate asked whether centralizing or decentralizing corporate and government power was the best way to tame the trusts and protect the economic interests of the middle classes. The Jeffersonian Wilson, guided by his economic advisor Louis Brandeis, who had denounced “the curse of bigness” in business and government, insisted on regulating competition by breaking up the banks or preventing them from consolidating in the first place. The Hamiltonian Roosevelt, influenced by Herbert Croly, the editor of the New Republic, called for big regulatory bodies to oversee the big corporations.24 And the constitutionalist Taft called for vigorous enforcement of the antitrust laws to break up the most egregious trusts; he also defended the importance of independent courts to keep big government as well as big business within legal and constitutional bounds. In the battle between the competing visions of Roosevelt and Wilson,25 Taft’s constitutionalism struggled for attention as a countertheme to the major fugue.

All three platforms framed their programs in constitutional terms. Roosevelt’s Progressive Party advocated publicity of campaign donations, minimum wage and maximum hour laws, and other reforms. “We hold with Thomas Jefferson and Abraham Lincoln that the people are the masters of their Constitution, to fulfill its purposes and to safeguard it from those who, by perversion of its intent, would convert it into an instrument of injustice,” the Progressive platform declared.26 Taft’s Republican platform, by contrast, unequivocally emphasized judicial independence, declaring: “The Republican Party reaffirms its intention to uphold at all times the authority and integrity of the Courts, both State and Federal, and it will ever insist that their powers to enforce their process and to protect life, liberty and property shall be preserved inviolate.”27 As for Wilson’s Democratic platform, it connected constitutional principles to economic reform. “We declare it to be a fundamental principle of the Democratic Party that the Federal government, under the Constitution, has no right or power to impose or collect tariff duties, except for the purpose of revenue.”28

As the Democratic platform suggested, the election was also a battle over the tariff. “We favor the immediate downward revision” of “the high republican tariff,” the Democrats declared, and “we denounce the action of President Taft in vetoing the bills to reduce the tariff in the cotton, woolen, metals, and chemical schedules, and the farmers’ free-list bill, all of which were designed to give immediate relief to the masses from the exactions of the trusts.”29 The Republican platform countered, “We reaffirm our belief in a protective tariff,” although “some of the existing import duties are too high, and should be reduced.”30 And the Progressive Party essentially split the difference, endorsing “a protective tariff which shall equalize conditions of competition between the United States and foreign countries, both for the farmer and the manufacturer, and which shall maintain for labor an adequate standard of living.” It also condemned “the Payne-Aldrich bill as unjust to the people” and the Democratic platform for being “committed to the destruction of the protective system through a tariff for revenue only, a policy which would inevitably produce widespread industrial and commercial disaster.” With a faith in experts shared by all three candidates, the Progressives, like the Republicans, called for “a non-partisan scientific tariff commission, reporting both to the President and to either branch of Congress.”31

After winning the Republican nomination from a rival he considered an illiberal demagogue, Taft initially seemed indifferent to winning the general election.32 By July 22, he took on a self-pitying tone: “The Bull Moose continues to roar as much as ever, but I don’t think he frightens as many people. Sometimes I think I might as well give up so far as being a candidate is concerned. There are so many people in the country who don’t like me. Without knowing much about me, they don’t like me—apparently on the Dr. Fell principle.”33 (“I do not like thee, Doctor Fell,” went the old nursery rhyme, “The reason why—I cannot tell.”) Taft insisted defensively that he was indifferent to popular disdain: “The truth is that it is not the height of my ambition to be popular, and I have become quite philosophical with respect to the dislike the people may feel for me, because generally I can attribute it to some misrepresentation.”34 On July 24, he wrote to Nellie about a trip that his son Bob and daughter Helen were taking to Glacier National Park, and joked that they should “enjoy all the privileges they can on this trip because they may not continue to be the son and daughter of a President for very long.”35

Whatever his ambivalence about the campaign of 1912, Taft’s constitutional passions and competitive spirit were roused in his speech on August 1 accepting the Republican nomination. His address focused on the Republican Party’s commitment to defending the Founders’ Constitution and on the injustices he had suffered from “a reign of sensational journalism and unjust and unprincipled muckraking.”36

Taft then gave a comprehensive accounting of his own accomplishments. He had kept the promise of his 1908 acceptance speech, he stressed, to give “special attention to the machinery of government with a view to increasing its efficiency and decreasing its cost.”37 Citing budget figures to make the point that he had moved the government from deficit to surplus by cutting $50 million in expenses and increasing revenues with the Payne tariff and corporation tax,38 Taft went on to say that he had reorganized government with the help of “an Economy and Efficiency Commission, consisting of the ablest experts in the country.”39 In foreign relations, “we have maintained peace everywhere and sought to promote its continuance and permanence,” although he complained that the Senate had amended beyond repair his proposed “broad treaties for the promotion of universal arbitration.” In Mexico, Taft said, his self-restraint in refusing to provoke war by sending troops over the border, despite populist calls for an invasion, had saved hundreds of millions of dollars and thousands of lives.

On free trade, he said, the Payne-Aldrich bill “furnished the opportunity for insisting on the removal by foreign countries of discriminations in that trade,” raising America’s exports and imports to “a higher figure than ever before in the history of the country.” Taft said that he had kept the promises of the Republican platform of 1908 by calling a special session of Congress to reduce the tariff, and as a result “prosperity has been gradually restored since the panic of 1907.” Finally, Taft said that the Supreme Court’s decisions in the Standard Oil and American Tobacco cases had for the first time given the antitrust law “an authoritative construction which is workable and intelligible.” Taft concluded his address by expressing confidence that the people would ultimately vote for the preservation of the Constitution rather than its destruction.40

“I shall not go out to make speeches,”41 Taft wrote to Nellie in July, attempting to maintain the tradition that overt campaigning was beneath the dignity of a sitting president. But he made an exception for the gramophone, which once again allowed him to speak to voters from the comfort of his summer home in Beverly. On October 1, 1912, Taft recorded excerpts from his acceptance speech called “Popular Unrest,” along with six other discs, for the Victor Talking Machine Company. Here is the relevant passage on the Constitution:

After we have changed all the governmental machinery so as to permit instantaneous expression of the people in constitutional amendment, in statute, and in recall of public agent, what then? Votes are not bread, constitutional amendments are not work, referendums do not pay rent or furnish houses, recalls do not furnish clothing, initiatives do not supply employment or relieve inequalities of condition or of opportunity. We still ought to have set before us the definite plans to bring on complete equality of opportunity and to abolish hardship and evil for humanity. We listen for them in vain.42

In Taft’s other records, he defended his economic achievements and the Constitution. In “On Prosperity,” he said that the tariff policy of the Democratic Party would “halt and paralyze business.” In a speech on peace, he repeated his call for a world court. In “President Taft on a Protective Tariff,” he legalistically insisted that he had fulfilled the promise of the platform of 1908 to revise the tariff at an extra session of Congress. “An extra session was called and the tariff was revised,” Taft said defensively. “The platform did not say in specific words that the revision would be generally downward, but I construed it to mean that.” He responded to criticism that his vigorous antitrust prosecutions had been bad for business. “The answer to the charge is first, that as long as the statute is upon the statute book, it’s the sworn duty of the President and his assistant to see that the law is executed.” And in a fervent address called “Who Are the People?” Taft expressed the wan hope that the people would resist Roosevelt’s and Wilson’s populist siren calls and vote to defend “our popular constitutional representative form of government with the independence of the judiciary as necessary to the preservation of those liberties that are the inheritance of centuries.”

On October 14, an assassination attempt against Roosevelt only increased the former president’s popular appeal; he bravely declared, “It takes more than that to kill a bull moose” and then finished delivering his ninety-minute speech. Two weeks later, on October 30, Vice President Sherman died of kidney disease; when Taft chose Columbia University president Nicholas Murray Butler to replace him on the ticket, the public reacted with indifference, since everyone anticipated Taft’s defeat. “I do not know,” Henry Adams exclaimed waspishly, “whether Taft or the Titanic is likely to be the furthest reaching disaster.”43 But until the end, Taft vainly hoped for victory and a reconciliation with Roosevelt.44

On Election Day, Taft won the fewest electoral votes ever received by an incumbent president, and Roosevelt won the most electoral votes ever received by a third-party candidate.45 Taft carried only two states—Utah and Vermont—receiving 8 electoral votes, while Roosevelt carried six states, with 88 electoral votes. But in the three-way race, Wilson won an Electoral College landslide, with forty states and 435 electoral votes. In the end, Wilson won 42 percent of the popular vote; Roosevelt, 27 percent; and Taft, 23 percent, with 6 percent going to the Socialist candidate, Eugene V. Debs. The Democrats increased their majority in the House and took the Senate from the Republicans.

In the wake of his decisive defeat, Taft was gracious and relieved. After wiring his congratulations to Wilson, he wrote to a friend, “The vote in favor of Mr. Roosevelt was greater than I expected, and to that extent the result was a disappointment.”46 But Taft was hardly surprised. “In my heart,” he wrote, he was “making preparations for the future to be lived outside the White House.”47 He told a reporter from the New York World of his gratitude for the presidency and his still lively judicial ambitions. “I am very glad to have had the opportunity to be President,” he confessed. “My tastes had been and still are judicial, but there is a very wide field of usefulness for a President.”48

Days after the election, Taft set off for a meeting in New Haven, Connecticut, where the president of Yale University offered him the Kent professorship of law on the spot. (As a Yale official later recalled, Taft joked “that he was afraid that a Chair would not be adequate, but that if we would provide a Sofa of Law, it might be all right.”)49 In December, he sent his last written address to the opening of Congress. In a striking expression of constitutional frustration, he recommended that Congress require the members of the president’s cabinet to attend sessions of the House and Senate and answer questions about legislation, as they had done in the early days of the Republic. “This rigid holding apart of the executive and the legislative branches of this Government has not worked for the great advantage of either,”50 he confessed. After the new year, Taft sent two final special messages to Congress—the subjects were fur seals, on January 8, and transportation in Alaska, on February 6. In these final weeks of his presidency, Taft’s mood began to lighten. “The nearer I get to the inauguration of my successor,” he wrote to a friend, “the greater relief I feel.”

On February 25, 1913, a week before Wilson took the presidential oath, Taft wrote a letter to the Yale Daily News. “I am coming back to Yale,” he declared, expressing anxiety that the senior undergraduates might test his “ignorance and forgetfulness” of the law. But “despite these dangers,” it gave him “great pleasure” to return because

there is need that our young men should appreciate the Constitution of the United States, under which we have enjoyed so many blessings and under which we must work out our political and economic salvation. And this need is especially keen in a day when that instrument is regarded so lightly by a class of fanatical enthusiasts seeking short cuts to economic perfection, on the one hand, and by unscrupulous demagogues who to promote their own interests do not hesitate to promote disrespect and even contempt for the Constitution and the laws enacted under it on the other.51

The assaults of Wilson and Roosevelt continued to sting.

In the final days of his administration, Taft vetoed two federal laws on constitutional grounds. On February 28, he vetoed the Webb-Kenyon Act, regulating the interstate transport of alcohol, objecting that it unconstitutionally delegated to the states Congress’s exclusive power to regulate interstate commerce. (The Senate overrode his veto the same day, and the House quickly followed.) And on the morning of March 4, 1913, Woodrow Wilson’s inauguration day, Taft had one final constitutional duty he was determined to perform. He sent to the House a veto message refusing to approve an appropriations bill on the ground that a provision allocating $300,000 for the enforcement of the antitrust law stipulated that no part of the money should be spent to prosecute any business combination created for the purpose of “increasing of wages, shortening of hours or bettering the condition of labor.”52 Taft called the provision unconstitutional “class legislation of the most vicious sort,” as well as a covert attempt to legalize the secondary boycott, which he had questioned as a lower court judge fourteen years earlier. For the judicial president who had never stopped pining for the bench, Taft’s last official act had a poetic symmetry.

Later that day, after Wilson was sworn in, Taft and Nellie set out by train to visit Augusta, Georgia, for a well-deserved vacation. Not long after, Taft returned to New Haven to take up his teaching duties at Yale. He was fifty-five years old. The Tafts lived, fittingly enough, in the Hotel Taft, constructed by his brother on the New Haven Green, and then settled into a comfortable house at 367 Prospect Street.53

Relieved to be liberated from the stresses of the presidency, Taft returned to his Paleo diet. In a single year, he lost the 75 pounds he had gained during his presidency.54 On December 12, 1913, he told the New York Times that he had weighed exactly 340 pounds on March 4, but now “tipped the scale at exactly 270.8 pounds.” “I have lost exactly 69.2 pounds of flesh,” he proudly declared.55 Taft more or less maintained this weight for the rest of his life, and his sleep apnea disappeared. Now alert rather than somnolent in public, he enjoyed a remarkable burst of productivity and wrote a series of important lectures and books without a research assistant,56 beginning in 1913 with Popular Government: Its Essence, Its Permanence, and Its Perils. He was a popular and conscientious professor at Yale, speaking from notes rather than reading his lectures, and an exam from his constitutional law class included questions such as “What is the power, exactly stated, which the Judicial branch of the Government exercises in respect to acts of Congress?”

Popular Government arose from a series of lectures that defended constitutionalism and representative government and criticized direct democracy.57 “Now popular government is not an end,” Taft wrote emphatically. “It is a means of enabling people to live together in communities, municipals, state and national, and under these conditions to secure to each individual and each class of individuals the greatest measure of happiness.”58 The Framers of the Constitution, he noted accurately, did not believe “that the majority could always be trusted certainly to accord to the individual just and equitable treatment in his pursuit of happiness.”59

Popular Government is an extended explanation for why Taft refused, as president, to court popularity for its own sake. He believed that the president, Congress, and the judiciary should filter public opinion to promote thoughtful deliberation by the people. While Taft sympathized with the progressives’ goals of ending corruption, he argued that “the method they propose”—the initiative, referendum, and recall of judges—“and the bitter class spirit they encourage are dangerous in the extreme, and if carried to their logical result will undermine just and enduring popular government.”60

Recalling the “disastrous results” of the “pure democracies in ancient times,” Taft argued that similar proposals now “to dispense with all the limitations upon legislation contained in the Constitution” and to “leave to the initiative and the referendum, without regard to the character of the law, or what it affects, and without limitation as to individual rights, the absolute power to legislate according to the will of the people”61 would lead to ruin in the United States, as it had in Rome. Taft endorsed James Madison’s definition of republicanism, which he described “as a popular representative government,”62 and he emphasized that law should reflect considered public opinion but not populist whim.