Part of the Forgotten Americans series. This is a reedited and revised version of a post previously published. I decided to republish the post because of developments in recent years. Senator Elizabeth Warren of Massachusetts recently wrote an op-ed calling for the packing of the Supreme Court after denouncing current justices for voting against "widely held public opinion"(1), an echo of Teddy Roosevelt's views during the campaign of 1912, views which prompted his friend and long time political ally Elihu Root to break with him and support Taft. Until recently I was confident that Root's argument remained applicable today, but though I would like to think it does, for the first time in my life I am questioning it. Will his view of America's general principles survive? Or, are they no longer relevant in our current circumstances?
“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.“ - Elihu Root (1913)
"No anecdotes are told of Elihu Root" - James Morrow (1914)
Today Elihu Root is a Forgotten American, but in the early 20th century he was one of America’s most prominent public figures. The story of his political split with his friend Theodore Roosevelt in 1912 remains relevant to understanding the political conflicts of 21st century America and the danger of the recent ascendancy of viewpoints contrary to traditional American principles that would spell the end of our republic and our democracy should they triumph.
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 after becoming 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, creating the Army War College, while overseeing the suppression of the Filipino insurrection and establishing the governance structure for this new American acquisition.
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 me to write this post was Root's political split with Teddy Roosevelt in 1912, the resulting chaos at the Republican Convention that year, and the underlying reasons for that split. 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 along with their actions and adventures (his recounting of Roosevelt's African safari and the daring, life altering, expedition down the River of Doubt in Brazil are worth the price of the book). He's also enthralled by political machinations, but has little interest in political theory, ideas, philosophy, or governance, which is what prompted the Roosevelt-Root dispute and gets short shrift in his book, leaving readers with little understanding of why Roosevelt provoked such opposition (it also explains the great failure of his biography of Ronald Reagan who was, above all, a man of ideas, while having a difficult to penetrate personality).
Roosevelt and Root had been political allies and friends. Root shared Roosevelt's political progressive beliefs 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, recall of judges, and 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 because it meant the majority could change the fundamental meaning of the Constitution, avoiding the amending procedures of Article V, and endangering the minority protections embedded in its provisions. 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.
It was for the same reason that Root opposed the proposed 17th Amendment providing for the direct election of Senators, arguing the Constitution's framers had grasped that "the weakness of democracy is the liability to continual change; they realized that there needed to be some guardian of the sober second thought; and so they created the Senate" with longer terms and indirect election. A Senate directly elected by the people, would be less likely to "protect the American democracy against itself".
In the view of Root, the essentials of human nature remained unchanged, and the insight of Classical philosophers regarding the tendency of all forms of government to degenerate over time:
Monarchy to Absolutism
Autocracy to Oligarchy
Democracy to Tyranny
- remained a valid critique. Root recognized that the mechanisms of the Constitution were designed to try to correct these defects in the newly created democratic republic.
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 of 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. In his convention keynote speech he reminded delegates that the Republican Party was "born in protest against the extension of a system of human slavery approved and maintained by majorities."
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. Only thirty pages in length it is 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."
He then makes 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" while the American Revolution gave us George Washington and the Constitution. One wonders what Root would have said in the wake of the European rise of Fascism, Communism and National Socialism?
According to the theory of American constitutionalism:
"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"
The Constitution attempts to do this 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.
With his defeat in 1912, the reforms proposed by Teddy Roosevelt and other progressives did not come to pass as Root and others feared, but a 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. The modern progressive cult of The Living Constitution would further erode remaining constitutional protections, converting the courts into just another legislative body for enacting policy preferences.
In the 21st century, the Progressive move towards majoritarian rule has taken a new turn with the movement towards a national popular vote and the effective political elimination of the states, a movement more recently intertwined with identity politics and other academic theories, along with a growing scorn for, and desire to repress, any speech they find objectionable, in a way earlier Progressives would have found repulsive and un-American, raising the possibility of a hybrid majoritarian state in which certain groups, elevated under the rules of intersectionality and with the guidance of an Elite Vanguard, would hold the trump cards.
This raises a fundamental question. America works to the extent the large majority of its citizens, no matter how they may differ, generally accept common process outcomes or "sometimes you win, sometimes you lose, sometimes it rains" (yes, I'm quoting Bull Durham). This aspirational belief in neutral processes, supported by freedom of conscience and speech, along with equality under the law and due process rights, is the only way Root's vision can be sustained.
I use the term "aspirational" because none of the elements described above will ever work perfectly, but without those aspirations, what is there to guide us? If, as the dominant institutions are now telling us, these beliefs are really artifacts by which white supremacy is maintained and that power, not ideas, are all that matters, where does that leave us? What is the future of a country with more than 300 million citizens, of varied races, ethnic groups and religions if everything is based on the power relationships of those groups?
Moreover, the idea of common accepted neutral processes, only works if it rests upon a bed of common accepted values. Those values may be very broad but as long as they are generally accepted, disputes about how to best achieve and preserve those values can fit within a process driven system. But what happens when those common accepted values disappear, as may have happened in today's America? At that point do those neutral processes potentially become weapons?
Can we confront and defeat the enemies of liberal democracy merely by using the traditional Constitutional tools to achieve the aspirations set forth in that document? Do we now face the scenario written of by Frank Herbert in Children of Dune:
When I am Weaker than you, I ask you for Freedom because that is according to your principles; when I am Stronger than you, I take away your Freedom because that is according to my principles.
Having effectively used our concept of tolerance (as something we owe each other) to seize control of institutions, these forces now seek to destroy the mutuality inherent in that concept and return to the older, medieval meaning of tolerance, as something bestowed by rulers and revocable at their discretion.(2)
Can we effectively oppose them using these long standing general principles, neutral processes and reliance on the Constitutional protections enunciated by Root or does that strategy lead to inevitable defeat if large portions of society refuse to play by the same rules? Does it mean adopting the same techniques in order to defeat those who seek to embed these dangerous principles into our government and culture? If so, how does one ensure that in doing so, we do not become what the enemies of American principles have become? A decade ago, I never thought this question would arise and would certainly have objected to straying from those principles. I underestimated what was happening within those institutions and am no longer certain as to the right answer; an answer that will determine if we will govern ourselves or be governed by others.
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 book Theodore Roosevelt And The American Political Tradition.
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1. The reality is that when Senator Warren refers to "widely held public opinion" what she is referring to is public opinion in her hometown of Cambridge, Massachusetts. Having worked in Cambridge for twelve years and lived in the Boston area for two decades, I can assure you that public opinion in that city bears no resemblance to opinion in most of the United States. What Warren is counting on is that the new judges appointed to pack the Court, trained in law schools that have become increasingly ideological (including, unfortunately my alma mater), and imbued with the notion that judges should act as legislators, devoted to enacting their favorite policies in support of social justice, will vote exactly the way she would.
2. The perplexing aspect of our current situation is that those pushing the New Racism and an authoritarian society are not supported by the majority of Americans (at least according to every public poll I've seen). Yet they have an inordinate impact because of the private and public institutions they control, and their methods, which are designed to disguise what their ultimate goals are and their tactics to cut off any discussion by labeling dissenters as racist, fascist, transphobic et. When it is made clear, they inevitably lose, but they've made the costs of opposition in terms of endangering educational and job opportunities enormous. An example: in 2020 the California ballot included a proposition to remove the provision of the state constitution banning discrimination. The proposition was supported by Progressives, the tech oligarchs, and public employee unions which outspent opponents of the proposition 17-1. Yet the same California voters who by 2-1 supported Biden over Trump, voted 57-43 against the ballot proposition, because they knew it was simply wrong. That result is just one of many reasons the authoritarians are seeking to repress opposition speech in a desperate search for a way to obtain a permanent majority. And a permanent majority is what they seek and what they need. King Abdullah of Jordan told of a meeting with President Erdogan of Turkey, at which Erdogan told him, "Democracy is like a bus, when it gets to my stop, I get off". That is what we face; and many liberals, progressives, and even socialists recognize that danger and are warning against it.
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