William Howard Taft’s Constitutional Progressivism by Kevin J. Burns

Abstract

In recent years, a number of scholars (including, truth to tell, this reviewer) have sought to rethink and revise the reputation of William Howard Taft. Most, if not all, of us have been cited in Burns’ magisterial study. Funded in part by the ultra-conservative Charles Koch Foundation, his book develops the thesis that “Taft’s commitment to both the Constitution and progressivism” drove his political career, as well as his later tenure on the United States Supreme Court (1921–1930). Burns concludes that “by melding progressive policy preferences with [constitutional] originalism,” Taft managed to make his fundamental conservatism compatible with progressivism, arguing, in fact, that Taft “never faltered in his commitment to progressivism” (5–7). Occasionally provocative and frequently perceptive, the Burns study, all told, is not totally persuasive.Burns has tracked the still-remarkable expanse of Taft’s career with impressive thoroughness. Moreover, although at various intervals during his life, Taft undoubtedly demonstrated what he called his “progressive conservatism,” unlike the linear Taft described in this book, Taft in reality was always a staunch conservative. It is hardly a coincidence that he portrayed himself as a “progressive conservative” and not the other way around. Burns concedes that Taft “rejected any notion of a living constitution and insisted that [it] was an unchangeable legal document” (14). This view contrasts with that expressed by Associate Justice Louis D. Brandeis, a genuine progressive, whose career intersected with Taft’s throughout the latter years of his life. In a dissenting opinion, Brandeis once wrote, “Our Constitution is not a strait-jacket. It is a living organism. As such it is capable of growth … [and] because it possesses the capacity of adaptation, it has endured as the fundamental law of an ever developing people.”1 Taft agreed to join Brandeis’ dissent in this instance, but only if he omitted these three sentences, as Brandeis ultimately did. According to Burns, Taft viewed the essential function of the Constitution as protecting against undesirable adaptation, not facilitating it, hardly a progressive viewpoint.In the famous case of Olmstead v. United States (1928), Taft managed, by a slim majority, to sustain the federal practice of wiretapping—a decision for which Brandeis penned what may be his most famous dissent: “Against that pernicious doctrine this court should resolutely set its face.” Reflecting how far Taft’s conservatism had rigidified by mid-1928, as Chief Justice, he dismissed Brandeis’ attempt to bring federal authorities “within the obstruction of the Bill of Rights and the 4th Amendment.” In spite of Brandeis and “his claques in the law school contingent,” Taft insisted that ultimately “it will be seen that we in the majority were right.” In 1969, however, the Court peremptorily overruled Taft’s “decisive” opinion.2By 1929, as his health worsened, Taft considered it imperative that his more progressive colleagues—Oliver Wendell Holmes, Brandeis, and Harlan Stone—whom he derisively labeled as “the bolsheviki” be kept at bay. He now insisted that “insofar as maintaining the proper conservative jurisprudence, Brandeis is of course hopeless, as Holmes is, and as Stone is.” Although he expressed public praise for the eighty-seven-year-old Holmes, he wrote in private, “I don’t think he has been helpful in keeping the court straight.” Indeed, Taft opined about a Court that would have deigned to follow Holmes, “I don’t think we would have much of a Constitution to deal with.”3In his early years as Chief Justice, Taft had demonstrated an impressive ability to hold his court together, using various techniques that Burns accurately describes. But by 1929, Taft had begun to care more about holding his five- or six-member majority together than simply attaining unanimity: “I think we can hold our six to steady the Court.” With Holmes approaching ninety and Brandeis seventy-three, he wrote, “We can probably solve everything if we can only live, because delay makes for conservatism.”With commendable understatement, Burns concludes that his book “complicates a traditional narrative that has emphasized Taft’s devotion to law and the Constitution at the expense of his progressivism” (177). Burns might well be on firmer ground if he had not over-emphasized that “Taft was seriously committed to both constitutionalism and progressivism.” This thesis does not prevail, especially during the last three years of Taft’s tenure as Chief Justice.