For Puerto Rico Taft More Bully Than Teddy

By Howard Hills

Wall Street Journal book review praises revisionist biography glossing over William Howard Taft’s legacy of failed territorial law and policy in Puerto Rico and other unincorporated territories.

In late March of 2018 it was easy for Puerto Ricans plunged into darkness and threat of a public health crisis to miss the Wall Street Journal’s book review by critic Gerard Helfrich about a new biography of William Howard Taft. This rigorous but uncelebrated tome about William Howard Taft ingeniously is entitled William Howard Taft.

The Taft life story was written by Jeffrey Rosen, who is President & CEO of the National Constitution Center. The NCC is a historical museum in Philadelphia established by act of Congress to promote knowledge of the U.S. Constitution. Rosen uses his bully pulpit as head of this federally established government chartered corporation to write legalistic editorials often only pretending not to reveal his political opinions. Of course, even to the extent his legal scholarship may be politicized Rosen’s work is always promoted in the name of keeping the spirit of the U.S. Constitution alive.

The law requires the NCC to be non-partisan, and there is bipartisan representation on the Board of Trustees. But one could argue Rosen and the NCC staff default in favor of a somewhat left of center narrative.  Even so, the NCC regime under Rosen consistently demonstrates the intellectual agility and political finesse to create the illusion of even-handedness to appease centrist Republicans on the Board.

The WSJ review of Rosen’s book on Taft is even further left of center. Like the book itself, the review is so esoteric that WSJ editors probably didn’t even read it. Just as the NCC Board of Trustees probably didn’t read Rosen’s book, or notice indicia of revisionist bias if they did.

Helfrich utterly fails to identify – because he obviously identifies with – the intellectual if not ideological agenda of book author Rosen. As a result Helfrich can offer zero insight into why Rosen thinks it’s important to idealize the public service legacy of Taft at the expense of both President Theodore Roosevelt and historical realism.

Even the oddly contrived subtitle “Taking the Bully Out of the Pulpit” betrays how uncritically the WSJ book critic embraces the revisionist agenda author Jeffrey Rosen. Of course, when Roosevelt used the term “bully pulpit” to describe the presidency he was not using “bully” as a reference to boorish and domineering behavior Helfrich and Rosen no doubt would call “toxic masculinity.”

Roosevelt was using the word “bully” to mean grand and empowering in a positive sense that enables a President to evoke American optimism. For TR the word “bully” conveyed the idea of national exceptionalism that purveyors of liberal guilt dread as the harbinger of all types of dreadful nationalist extremism.

The negative form of the word “bully” to denote anti-social aggression is the appropriate usage to describe how Taft treated the people of the Philippines when he was an imperious and pompous colonial overlord there. He also proved himself a judicial “bully” by stripping away the historical and constitutional meaning of statutory U.S. citizenship for the people of Puerto Rico in his infamous ruling in the 1922 case of Balzac v. Puerto Rico, as discussed below.

Yet, the awkwardly bungled subtitle for the WSJ review is just the first in a series of historically questionable assertions about Taft and Roosevelt by both reviewer Helfrich, as well as book author Rosen.

Rosen’s deeper themes are characterized by Helfrich as a timely response to “new populist forces seeking to undermine constitutional democratic principles in the U.S. and abroad.” This clearly is code for anti-Trump partisanship that no doubt goes unnoticed, or perhaps even resonates well at NCC Board of Trustee meetings. Fine, we are not in the business of being critics, apologists or defenders regarding Trump’s modeling of presidential comportment, just noting Helfrich’s tone-deafness on what would constitute genuine non-partisanship for the head of NCC.

Rather than quibble over NCC’s stewardship of its own standards, we are hunters of truth about the realities of U.S. territorial history. Thus, we turn to the historical realities. Beginning with the fact that as Governor of the Philippines under McKinley, Secretary of War under Teddy Roosevelt, President and Chief Justice of the U.S. Supreme Court, Taft played a largely unrecognized lead role in derailing and deviating from the anti-colonial tradition of American territorial integration.

Taft was single-handidly responsible for America’s deviation from the principle that the U.S. Constitution should apply to U.S. citizens in territories under U.S. sovereignty but not in a state.  That legal precept dates back to the Northwest Ordinance of 1987 as a founding document of the Republic.

Thus, we know better than to sit still for the misleading accounts of Taft’s “restraint” in the exercise of power, or to ignore unfounded denial by Rosen of his proclivity to manipulate legal and political principles, thereby infringing on separation powers to impose his personal will. We are not going to gloss over Taft’s own self-described belief in the imperatives of American imperialist rights and duties to rule less civilized peoples without consent of the governed.

As gleaned and translated from Rosen’s book for WSJ readers by Helfrich, we are told Taft’s “diffidence” and self-effacing modesty is a better role model for a good President than “activist” Teddy Roosevelt. We also are told Taft “puts the constitution above all” and abhorred any deviation from the presidential powers limited by the Constitution.

Rosen’s narrative emerges as one that touts the myth of a highly intelligent Taft too principled to be a shrewd politician, uncomfortable with the prerogatives of executive power he exercised as President, more suited for judicious deliberation in his “final act” as Chief Justice of the U.S. Supreme Court.

All of this is revisionism exalting subjective interpretation of purportedly superior character and expression of noble personality. This caricature is at odds with objective historical facts about the actual record of actions by Taft as Governor of the Philippines, Secretary of War, President and Chief Justice.

To restore intellectual honesty to the historicity of Taft’s legacy, it is not enough to suggest readers take the time also to read The Imperial Cruise by James Bradley.  That unorthodox little upstart of a book challenges and profoundly disturbs apologists for both Taft and Teddy Roosevelt, which commends it as an antidote to Rosen’s revisionism.

Nor is it enough to recommend that readers go to the Foreword by former U.S. Attorney General Thornburgh, or to the discussion of Taft’s jurisprudence at Chapter 9, in the book Citizens Without A State, for a different perspective on Taft’s role in the failure of federal territorial law and policy in the 20th century.

A link to PR51ST blog posts on Taft and his infamous ruling in the 1922 Balzac – or a discussion of Justice Harlan’s dissent in that case – is not where the discourse challenging Rosen’s thesis ends.

Instead, we remind readers it was Taft who presided over lavish dinner parties in Manila as Governor of the Philippines in the style of British viceroys in India, while the U.S. Army waged war on the independence movement. Tens of thousands of Filipino civilians and independence fighters were killed before nationalist leaders surrendered. After which the U.S. declared the intention to grant independence to the Philippines, once the culturally inferior primitivism of the people had been corrected by American tutelage in principles of Anglo-Saxon heritage.

We have to remember that as Roosevelt’s Secretary of War, Taft hosted the President’s daughter Alice Roosevelt and 40 members of Congress on an ocean liner tour of Japan, Korea, China and the Philippines. Bradley is not the only observer to argue Taft’s diplomatic missteps included foreign policy blunders that encouraged Japanese aggression and destabilized Asia.

We have to remember that Taft ignored the rule of stare decisis (the doctrine of precedent) that requires the U.S. Supreme Court to follow settled law unless a decision to depart from it is credibly supported by fact and law. The standard and burden for departing from precedent was not satisfied in the 1922 case of Balzac v. Puerto Rico. The separation of “citizenship” for nationals in the unincorporated territories from protection under the U.S. Constitution is the legacy of Taft’s strong-arm tactics and aggressively activist jurisprudence in the Balzac case.

Why is author Rosen so indifferent to this truism that he glosses over Taft’s biggest failure during what Rosen described as Taft’s “last act” in public life as Chief Justice?

Rosen also extols the administrative and political management skills of Taft. As if the presidency would be better in the hands of career bureaucrats and technocrats like…well, Rosen.  If Rosen’s work on the Gore v. Bush case is any indication, one suspects Al Gore is the kind of “competent and efficient” government “expert” Rosen think we should have elected.

Yet, Rosen also glosses over the scandal in Taft’s Department of the Interior, one of the most powerful agencies in the nation. Ever hear of the Ballinger scandal?

The truth is Taft presided over a Department of the Interior where a Wall Street syndicate exploiting Alaska hand picked federal territorial officials beholden to the Guggenheim/Morgan empire. Those Department of the Interior agents of Wall Street ensured Alaska would remain an unorganized territory under the U.S. Navy for decades. When transfer to civilian authority became politically necessary, a very small appointed federal civil administration with 13 people was established to govern the vast regions of the territory.

Those 13 bureaucrats were very easily corrupted and controlled by the Wall Street syndicate that ran fishing and mining monopolies out of San Francisco. When it was exposed and became a national scandal Taft was slow to act, and the reforms he proposed were too little too late. That contributed to his defeat at the hands of the man who made Taft President, none other than the same Teddy Roosevelt whom Rosen politely disdains. As a third party candidate Roosevelt prevented Taft’s re-election and made Woodrow Wilson the President.

This dimension of its history denotes chaos and incompetence in the Taft presidency, not an exception to the seamless good order in the Taft administration as Rosen claims. And Rosen is wrong about appointment to the Supreme Court being the second act after the White House.

A better view is that the first act for Taft after being a judge and Solicitor General was appointment to go abroad as an opulent diplomat reigning over the Philippines. The second was Secretary of War. True he didn’t even want to be President, his wife made him do it. That was his third act and it was a miserable failure because he did everything technically right but by his own measure achieved mediocrity. Rosen argues the virtue of mediocrity, fitting since his book on Taft is itself an exercise in mediocrity.

Anyway, Taft’s tenure as a law professor at Yale was a fourth act and his appointment to the Supreme Court was a fifth. What he did to Puerto Rico in the Balzac case a year after arriving at the court was an extension and repetition of what he did to the Philippines in his first act. In the Balzac ruling he practiced a very personal tyranny using his sharp but biased legal mind to harness the power of law against the rule of law.

The only compelling insight in Rosen’s thesis is ironically that Taft seems to have rationalized his failed presidency by viewing opposition as a barometer of how well he adhered to principles. That rationalization works even better as increased popular opposition mounts. By adopting the view that his so-called “efficient” but failed leadership was a virtue, Rosen argues this demonstrated his acceptance of the limits of executive power.

Yet, when he got to the court in his first year he engineered the Balzac ruling in a manner that transgressed against the limits on the court’s power. Clearly, he preferred the bench to elected office because he had no limits on his power and could be unrestrained in imposing his will. As he did, for example, by ignoring the meaning of the court’s ruling that citizenship extended the protections of the the U.S. Constitution to Hawaii and Alaska, in order to assign a constitutionally perverse status doctrine on Puerto Rico.

Taft coveted the unrestrained power of the court because he answered to no one. He used the court as his bully pulpit, a lifetime appointment where he did not answer to the people and did not have to face opposition. As Chief Justice he had no peers even on the court, and if his ruling in the Balzac case on Puerto Rico is any example he was able to twist arms and impose his will even on some of the greatest jurists in American history.

At least Oliver Wendell Holmes had the integrity, when compelled to go along, to concur in the result of Balzac but not the reasoning in Taft’s opinion. Rosen glosses over that fact as well.

Howard Hills served as counsel on domestic and international territorial affairs in the Executive Office of the President, National Security Council and U.S. State Department. He is author of Citizens Without A State.

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