Forgotten Americans: Elihu Root

Second in an occasional series:

"No anecdotes are told of Elihu Root"
- James Morrow (1914) via US History Scene

Born in 1845, Elihu Root became a successful New York City lawyer with clients including Jay Gould, Andrew Carnegie and Chester A Arthur (who appointed him US Attorney for the Southern District of New York when he became President in the early 1880s).

Active in the Republican Party, he served as Secretary of War from 1899 to 1904 under Presidents McKinley and Theodore Roosevelt, during his tenure restructuring the National Guard, enlarging West Point and creating the Army War College.  More controversially, he oversaw the suppression of the Filipino insurrection and established the governance structure for this new American acquisition.   As a personal footnote, my grandfather enlisted in the Army six weeks after arriving from Russia in 1905 and ended up being sent to the Philippines, serving six years and being discharged as a sergeant.

After briefly returning to law practice Root rejoined the second Roosevelt Administration in 1905 as Secretary of State, supporting the building of the Panama Canal, and negotiating 24 international arbitration treaties for which he received the Nobel Peace Prize in 1912.

With the end of the Roosevelt administration in 1909, Root was appointed as Senator from New York, serving until 1915.  During and after his term he was also the first president of the Carnegie Endowment for International Peace, leading it until 1925.  After WWI he helped design the World Court and was one of the founders of the Council for Foreign Relations.  Root died in 1937.  And James Morrow was correct, I found no anecdotes about him.

But what prompted THC to write this post was Root's political split with Teddy Roosevelt in 1912 and the resulting chaos at the Republican Convention that year.  Edmund Morris wrote about this episode in the third, and final, volume of his entertaining Roosevelt biography: Colonel Roosevelt.  Morris is wonderful at capturing personalities and their actions (his recounting of Roosevelt's African safari and his daring and life altering expedition down the River of Doubt in the Amazon are worth the price of the book) and enthralled by political machinations but he has little interest in theories of political philosophy or governance which is what prompted the split and gets short shrift in his book.

Roosevelt and Root had been political allies and friends.  Root shared Roosevelt's political progressivism and supported his legislative program but between the end of his presidency in 1909 and the presidential nominating campaign in 1912, Teddy had come to believe that the next stage of the progressive legislative program could only succeed if linked with a progressive constitutional reform program including the broad use of referendums, initiatives and allowing for popular vote overriding of judicial decisions.  At its core was the desire to replace indirect republican representative government with direct democracy or, as Roosevelt put it, "people themselves must be the ultimate makers of their own Constitution".  Elihu Root believed this change would be devastating to the American political system and its people because it meant the majority would could change the fundamental meaning of the Constitution, avoiding the amending procedures of Article V.  For Root it was one thing to advocate for progressive legislation consistent with the Constitution, it was another to attempt to radically change the constitution itself.
 
[For a thorough discussion of Roosevelt's intellectual background and the extent to which it deviated from the views of the Founders and Lincoln, see Jean Yarbrough's recent book Theodore Roosevelt And The American Political Tradition.]

Roosevelt's decision to challenge his protege and the sitting president, William Howard Taft, for the 1912 Republican nomination forced Root to make a hard choice.  At the time, he remarked to a friend:

"I care more for one button on Theodore Roosevelt's waistcoat than for Taft's whole body."

Nonetheless, he felt compelled to support Taft because of the principles involved.  It was a wrenching personal decision (and even more so for Senator Henry Cabot Lodge who had been a very close friend with Teddy since college days).  Root was elected Chairman of the Convention in a hotly contested election and oversaw its tumultuous course, helping to ensure the renomination of President Taft.

After losing the nomination, Roosevelt ran on the Progressive Party ticket, losing the election to Woodrow Wilson but ensuring that Taft would not be reelected.  Despite Taft's defeat, Root (and Lodge) were satisfied that Roosevelt had not taken over the Republican Party:

"This has not seemed to me to make any difference in our duty to hold the Republican Party firmly to the support of our constitutional system. Worse things can happen to a party than to be beaten."

The following year, Root gave two lectures at Princeton University, subsequently published as Experiments In Government And The Essentials Of The Constitution.  THC recently read the lectures (less than 30 pages) in which he articulates why he opposed Roosevelt's constitutional reforms.  It's worth reading today because the views Root expresses are timeless and not dependent on the specific historical circumstances of the early 20th century.

Root starts by reaffirming his belief in the need for new laws to meet modern industrial conditions:

"It is manifest that the laws which were entirely adequate under the conditions of a century ago to secure individual and public welfare must be in many respects inadequate to accomplish the same results under all these new conditions"

 "Many interferences with contract and with property which would have been unjustifiable a century ago are demanded by the conditions which exist now and are permissible without violating any constitutional limitation."

but he goes on to make an important distinction between the process of devising new laws to meet new conditions and modifying the principles upon which government is based.

According to Root, we must recognize (echoing Madison's sentiments in Federalist 51) that

"Human nature does not change very much.  The forces of evil are hard to control now as they always have been.  It is easy to fail and hard to succeed in reconciling liberty and order."

In order to achieve this the Constitution provides for limits on government power in order to preserve individual rights.  America was the first polity to take this approach as "The ancient republics, however, put the state first and regarded the individual only as a member of the state . . . they did not think of individuals as having rights independent of the state, or against the state".

Root goes on to say that "It is impossible to overestimate the importance of the consequences which followed from these two distinct and opposed theories of government".  The theory of the ancient republics was behind the French Revolution of 1789 and its heirs which:

"followed the French Declaration of the Rights of Man, with the negation of those rights in the oppression of the Reign of Terror, the despotism of Napoleon, the popular submission of the second empire and the subservience of the individual citizen to official superiority which still prevails so widely on the continent of Europe."

Or, as Margaret Thatcher more pungently put it, the French Revolution produced "a pile of corpses and a tyrant".  One wonders what Root would have said in the wake of the European rise of Fascism, Communism and National Socialism?

The theory of American constitutionalism is:

"it is the very soul of our political institutions that they protect the individual against the majority. [The inalienable rights cited in the Declaration] are not derived from any majority.  They are not disposable by any majority.  They are superior to all majorities.  The weakest minority, the most despised sect, exist by their own right.  The most friendless and lonely human being on American soil holds his right to life and liberty and the pursuit of happiness, and all that goes to make them up by title indefeasible against the world, and it is the glory of American self-government that by the limitations of the constitution we have protected that right against even ourselves.  That protection cannot be continued and that right cannot be maintained except by jealously preserving at all times and under all circumstances the rule of principle which is eternal over the will of majorities which shift and pass away."

"Democratic absolutism is just as repulsive, and history has shown it to be just as fatal, to the rights of individual manhood as is monarchical absolutism."

Root asks for humility in considering what government can, and cannot, accomplish pointing out that:

"A very large part of the litigation, injustice, dissatisfaction, and contempt for law which we deplore, results from ignorant and inconsiderate legislation with perfectly good intentions."

"Law cannot give to depravity the rewards of virtue, to indolence the rewards of industry, to indifference the rewards of ambition, or to ignorance the rewards of learning  . . . We know all this, but when we see how much misery there is in the world and instinctively cry out against it, and when we see some things that government may do to mitigate it, we are apt to forget how little after all it is possible for any government to do . . ."

"The chief motive power which has moved mankind along . . . has been the sum total of intelligent selfishness in a vast number of individuals, each working for his own support, his own gain, his own betterment.  It is that which has cleared the forests and cultivated the field . . .  made the discoveries and inventions, covered the earth with commerce, softened by intercourse the enmities of nations and races . . .  gradually, during the long process, selfishness has grown more intelligent, with a broader view of individual benefit from the common good and gradually the influences of nobler standards of altruism, of just and human sympathy have impressed themselves . . . but the complete control of such motives will be the millennium.  Any attempt to enforce a millennial standard now by law must necessary fail."

Moreover, an unbridled democratic government will ultimately undermine that which it seeks to protect:

"When government undertakes to give the individual citizen protection by regulating the conduct of others towards him in the field where formerly he protected himself by his freedom of contract, it is limiting the liberty of the citizen whose conduct is regulated and taking a step in the direction of paternal government.  While the new conditions of industrial life make it plainly necessary that many such steps shall be taken, they should be taken only so far as they are necessary and effective.  Interference with individual liberty by government should be jealously watched and restrained, because the habit of undue interference destroys that independence of character without which in its citizens no free government can endure . . . Weaken individual character among a people by comfortable reliance upon a paternal government and a nation soon becomes incapable of free self-government and fit only to be governed."

A nation governed by referendum, initiative and the ability to overrule judicial rulings by popular vote cannot sustain itself because:

"If there be no general rules which control particular action, general principles are obscured or set aside by the desires and impulses of the occasion.  Our knowledge of the weakness of human nature and countless illustrations from the history of legislation in our own country point equally to the conclusion that if governmental authority is to be controlled by rules of action, it cannot be relied upon to impose those rules upon itself at the time of action, but must have them prescribed beforehand"

which Roots states is what the Constitution does by limiting the powers of government, distributing those limited powers among the three branches of government, establishing a federal system and allowing for the validity of laws to be judged by the courts. 

The reforms proposed by Roosevelt and other progressives, which would have introduced referendum and a right of popular reversal of judicial decisions, did not come to pass as Root and others feared, but a modified version of the progressive vision was put into place starting with the New Deal Supreme Court which  effectively modified the principles of our government without Constitutional amendment by narrowing the definition of liberty, tearing down the walls separating the branches of government and allowing the growth of the administrative state. More on that in future posts.