Posted: March 21, 2013
illiam Howard Taft, the only American to serve in the highest office in the executive branch and the highest in the federal judiciary, had a career as remarkable as it is neglected. After getting his start in Republican machine politics as a federal collector of revenue—"[l]ike every well-trained Ohio man, I always had my plate the right side up when offices were falling"—he spent the rest of his life in one eminent public office after another. He was an assistant prosecutor in Ohio, Ohio Superior Court Judge, Solicitor General of the United States, U.S. Judge for the Sixth Circuit, president of the Philippine Commission under William McKinley, first U.S. civil governor of the Philippines, secretary of war, president of the United States, co-chairman of the National War Labor Board during World War I, and, finally, Chief Justice of the U.S. Supreme Court. In the eight years between leaving the White House and his confirmation to the Supreme Court, he was a professor at Yale Law School and president of the American Bar Association.
Despite this extraordinary résumé, Taft has received scant scholarly attention since his death in 1930, less than five weeks after retiring from the Court. Besides Lewis Gould's recent The William Howard Taft Presidency (2009; which replaced Paolo E. Coletta's The Presidency of William Howard Taft  in the American Presidents series published by Times Books), there are only two other treatments of his term as chief executive: Donald Anderson's 1973 William Howard Taft: A Conservative's Conception of the Presidency, and Henry Pringle's 1939 biography, the only comprehensive treatment of Taft's life and political work. Alpheus Mason's 1964 book, William Howard Taft: Chief Justice, is the only thorough account of Taft's tenure on the Supreme Court. His jurisprudence has received scattered attention in the law reviews, much of it by Yale Law School Dean Robert Post (from whom a book on the subject is supposed to be forthcoming). The exception to this trend has been the plentiful work on Taft's administrative reforms of the Supreme Court. Our modern federal judiciary—centrally organized from the Chief Justice down to the Circuit and District Courts, with nearly plenary discretion over the cases it hears, even the marble temple that houses the Supreme Court—is substantially the result of Taft's institutional vision and lobbying efforts as Chief.
* * *
Jonathan Lurie's new book, William Howard Taft: The Travails of a Progressive Conservative, is a welcome addition to the long-overdue reevaluation of this remarkable political life. Lurie, an accomplished legal and constitutional historian, takes as his starting point a 1916 letter in which "Taft described himself as ‘a believer in progressive conservatism.'" Because of Taft's reputation as an unremarkable politician of the conservative and traditionalist Right, Lurie found this self-characterization fascinating, and his book is an attempt to investigate what Taft may have meant by it. Lurie surveys Taft's life from childhood through his appointment by Warren G. Harding to the Supreme Court in 1921, with particular focus on the personal and political falling-out with Theodore Roosevelt during the latter half of Taft's presidency.
Among its other virtues, Lurie's book is a remarkable act of scholarly concision, covering Taft's lengthy career in merely 200 pages. His facility with a wealth of original sources, including Taft's prolific correspondence, will serve as a useful addition to the original Pringle biography and the rare efforts since. Rather than construct a complete biography, Lurie leads his reader through the illustrative events and actions of his subject's career, stopping along the way to correct the standard indictment of Taft as a member of the stodgy old guard.
Lurie amasses compelling evidence to support the idea that, at the level of policy, Taft's progressive conservatism was no contradiction but a thoughtful, viable approach to applying constitutional principles in a modern nation. Taft was a proponent of women's suffrage decades before the ratification of the 19th Amendment in 1920. As a circuit court judge, he was a sympathetic—if qualified—defender of the rights of organized labor, and revived the enforcement of the Sherman Anti-Trust Act after the famous Sugar Trust case had shut it down. In the Philippines Taft exhibited a comparatively enlightened view of the colony and its people, especially when compared to the sentiments of most of his contemporaries.
* * *
As the 27th president, Taft enforced the Sherman Anti-Trust Act vigorously, racking up substantially more prosecutions than Roosevelt before him. He continued and expanded T.R.'s conservationist programs; advocated tariff reform and even a tariff commission at a time when tariff questions still dominated national politics, and when the GOP was predominantly protectionist; started the U.S. Postal Savings System; signed legislation concerning working hours, inspection, and safety on the railroads; and proposed a federal income tax on corporations and a constitutional amendment to allow it for individuals, which became the 16th Amendment upon ratification in 1913. Finally, Taft worked to introduce a bigger role for expertise in executive administration.
At the level of ideas, Travails's verdict on Taft's progressivism is more equivocal. Lurie rejects anachronistically applying contemporary labels to historical settings that predate them. He also eschews sustained investigation of the political-philosophical content of late 19th- and early 20th-century Progressivism as a guide to Taft's or his contemporaries' politics. In this, Lurie writes that he is following the judgment of contemporary historiography: the diversity of progressivisms during Taft's lifetime thwarts evaluations of any individual as part of a coherent political project with distinct and discernible views of man and government. The common goal shared by Progressives was reform, but opinions about what that meant and how it was to be realized were impossibly diverse. Thus, in Lurie's account, Taft's "progressive conservatism" is confirmed by the policy goals he shared with this broad movement, disproving the settled and inevitably censorious judgment that he was a stand-pat conservative.
Lurie does concede, however, that the ex-president may have taken a conservative turn upon his ascension to the Supreme Court. Although the jurisprudence and conduct of Chief Justice Taft is beyond the scope of Lurie's book, this last admission leaves one to wonder if it isn't equally plausible that Taft entertained a consistent philosophy of government throughout his political career. After all, in Gould's book on Taft's presidency—a work Lurie expresses admiration for in his preface—Taft's conservative turn on the Supreme Court is the natural result of his temperament and political philosophy. It is strange not to account for the conservatism he evinced on the Court, especially because joining the Court fulfilled a life-long ambition, while Taft agreed to run for president as a matter of duty. The mere acknowledgment of a later, less progressive Taft, justifies seeking to reconcile his conservatism with his Progressive policy goals, rather than treating the culmination of his career as a departure from all that had gone before.
* * *
By the turn of the 20th century, there were disparate manifestations of Progressivism—in agrarian populism, the labor movement, and Social Gospel Protestantism, to name only some—but all of them serving as sources for what soon would become a national political movement with distinctive characteristics. These included: the confident incorporation of scientific expertise into public administration, especially in public agencies independent from normal politics; a new conception of the presidency as popular leader, able and expected to transcend the old separation of powers; and a new "sociological" approach to the adjudication of property rights that favored deference to legislative experimentation over the inflexible protection of the natural right to property. On these fundamental questions, Taft disagreed with his two Progressive opponents in the 1912 presidential campaign long before he returned to the judiciary in 1921.
Lurie correctly contends that Taft shared with Progressivism an affinity for the role of expertise in executive administration, offering as examples a proposed tariff commission and Taft's commission on efficiency, the latter of which led to presidential proposals for a more streamlined budgetary process. Nonetheless, while Woodrow Wilson was writing as early as the 1880s about separating politics from administration, Taft insisted that any tariff commission with independent power to set rates would be unconstitutional. A useful and legitimate tariff commission could present its findings to the political branches for consideration. Taft's budgetary reform proposals, requiring each cabinet officer to submit a budget directly to the president, could be described as a modest Hamiltonian innovation by the constitutional administrator in chief.
* * *
Although Lurie does not pursue the matter in depth, he does show Taft's and Roosevelt's divergent views on the purpose and powers of the president. In antitrust and conservation policy, Roosevelt favored bold and public action over a procedurally stable rule of law. Taft wanted to enforce the letter of the law in antitrust to provide clear signs to businesses about the bounds of legitimate activity. Roosevelt expressed frustration with Taft's methodical prosecution of violators in court, preferring a few high-profile busts or even a new trust-busting independent regulatory commission. When it came to conservation, Roosevelt acted to expand federal land-holdings by executive order. Taft, by contrast, worked with Congress to secure federal land through legislation. In both instances, Taft's respect for proper procedure and the separation of powers had the added benefit of being much more effective. Students of the history and development of the presidency will see here early indications of what would become a more public critique of Roosevelt's Caesarist conception of the presidency in Taft's 1915 book, Our Chief Magistrate and His Powers.
It is true that Taft's disagreement with Progressivism about the legislative limits on experimentation with private property became most pronounced during his career as Chief Justice. Especially after 1926, the Court became increasingly divided, with Taft and his more conservative colleagues on one side and Oliver Wendell Holmes, Jr., Louis Brandeis, and John Clarke on the other. (Brandeis and Clarke were both Wilson appointees.) But the thinking about property that would become explicit in dissents by Holmes, Brandeis, and Clarke can be found earlier than that, in Roosevelt's New Nationalism speech in 1910, shortly before the break with Taft. In that speech, Roosevelt drew the distinction between human and property rights, and offered the opinion that "every man holds his property subject to the general right of the community to regulate its use to whatever degree the public welfare may require it." Taft refused to accept that "whatever degree" modifier in many jurisprudential disputes between 1921 and 1930. His rejection of the subordination of property rights to the hazy imperatives of public welfare was not, however, a late addition to his political thought. One finds it as early as his years on the Sixth Circuit, and in a commencement address to the University of Michigan Law School's graduating class in 1894. At the end of that speech—good common lawyer that he was—Taft explained that at the time of the Magna Carta, the right of property was the common man's refuge from powerful hereditary wealth. In modern times, democracy had empowered the many poor, and so property protections might often defend the rich, if only by default. The pre-democratic provenance of property rights notwithstanding, Taft's argument amounted to a Madisonian defense of them as a guard against factions' unjust inclination to expropriate.
These considerations suggest Taft's progressive conservatism was a governing philosophy that saw the amendment process as the proper avenue for major constitutional revision, while acknowledging that the existing Constitution allowed legislation to keep pace with the expansion of interstate commerce and to update old common law rules against restraint of trade. This constitutionalism was able to accommodate the application of scientific measurements to presidential information-gathering, even as a unitary executive budgetary process could be devised to guide Congress on the priorities and cost of a growing executive branch. Finally, this constitutionalism had the capacity to apply the old principles of republican government to an industrially transformed America without sacrificing fidelity to the old common law and to the natural rights to life, liberty, and property.
These criticisms are not meant to detract from a fine work of scholarship. There remains much work to be done, and Lurie's efforts will assist it.
* * *
For Correspondence on this review, click here.