Grading Theodore Roosevelt

The mustached and pince nez sporting Theodore Roosevelt would have been created by a novelist had he not actually existed. Energetic, virile, and red blooded, Roosevelt was a naturalist, an adventurer, a soldier, and an author in addition to being President of the United States between September 14, 1901 and March 4, 1909. "Speak softly and carry a big stick; you will go far," he told us. While Theodore Roosevelt did indeed carry a big stick, his actions were often anything but quiet as president. Perhaps it was his tendency toward bravado which makes him so popular among the ivy towered academics who tend to rate presidents. However, one must be able to separate fantasy from reality. An over-sized personality and bold actions might make for a great fictional character, but they do not necessarily make for a good president. In what follows Theodore Roosevelt will be evaluated and graded on the categories of foreign affairs, check and balance against legislative power, Supreme Court nominations, and constitutional restraint.

Theodore Roosevelt's record on foreign affairs, "gunboat diplomacy" as it was dubbed, was bold and exciting but anything but constitutional. His adventures (or perhaps more appropriately, misadventures) in foreign policy included macho saber rattling that while imprudent and childish, was not unconstitutional. These included such shows of military machismo as holding full scale military exercises near the area of an Anglo-German naval blockade of Venezuela, launching the naval fleet to Japan in order to intimidate that nation over a minor immigration disagreement, and commandeering the customs office of the Dominican Republic in order to ensure that it paid its debts to European nations.

However, many of Roosevelt's actions within the realm of foreign affairs went beyond this into the realm of the unconstitutional. Theodore Roosevelt enlarged the Monroe Doctrine to include the policy that the United States would intervene in the internal affairs of any country in Latin America in order to prevent any sort of wrongdoing, instability, or weakness in such nations. Such an executive guarantee without the consent of Congress is in effect an end run around the Constitution, giving the president the ability to usurp the power to the Congress to declare war. As the second American Neoconservative president (his predecessor McKinley was the first), it is no surprise that Theodore Roosevelt so resembled George W. Bush on this matter.

Theodore Roosevelt's bellicose and unconstitutional stance toward Latin America can best be illustrated by the manner in which he stole the Panama Canal zone from Colombia. In violation of a treaty that guaranteed that the United States would defend Colombia's integrity in exchange for railroad rights across the isthmus of Panama, Roosevelt encouraged Phillippe Bunau-Varilla to foment a revolution in Panama and then used the navy to prevent Colombia from delivering troops to put down the rebellion. Following a rapid recognition of Panama as an independent nation, Roosevelt signed a treaty giving the United States perpetual control of the Panama Canal zone with Bunau-Varilla, despite the fact that Panama was sending its own delegation to negotiate. As a French national, he was not authorized to sign a treaty under Panamanian law. This resulted in the theft of the Panama Canal zone.

Furthermore, like President George W. Bush, a later "compassionate conservative" (a.k.a. Neoconservative) who idolized him, Theodore Roosevelt was not averse to the military using torture and other atrocities to put down insurgencies. He inherited a guerrilla war in the Philippines, which the United States had taken as a colony for its Empire in the Spanish-American War during the preceding administration of William McKinley. He and Secretary of War Elihu Root had given the military commanders in the Philippines carte blanche to do whatever was necessary to put down the insurgency. This included waterboarding and even more inhuman torture perpetrated on Filipinos by American soldiers. General Jacob H. Smith had ordered American troops to burn down Filipino villages and to kill all Filipino males above the age of ten. When word of these atrocities emerged, Roosevelt covered them up for up to four months.

Theodore Roosevelt's unconstitutional violation of the Colombian treaty constitutionally signed and ratified, his subsequent further enlarging of the American Empire through dubious means, and his protection of war criminals in the Philippines campaign are all huge black marks on his record on foreign affairs. However, he often did practice what he preached in speaking softly and carrying a big stick. He was far less bellicose than his predecessor, the Neoconservative William McKinley. McKinley had led the country to war in Cuba and created the American Empire by going to war with Spain and taking Hawaii, Puerto Rico, Cuba, and the Philippines as colonies. Despite the fact that many historians believe that Theodore Roosevelt strongly coaxed McKinley into the war, he has to receive a pass on that as prior to Dick Cheney, Vice Presidents did not have much or any power in foreign affairs. Avoiding unnecessary wars with England, Germany, and Japan and not unconstitutionally using his power to create a war with these nations was a showing of military restraint for which he should receive credit. Overall, Theodore Roosevelt receives a grade of C minus in this category.

In his seven and a half years in office, Theodore Roosevelt partnered with a Congress that greatly overstepped its constitutional bounds. He showed no willingness to veto their unconstitutional legislation, using the veto power eighty-two times, but rarely on anything substantive. The Elkins Act, enacted February 19,1903, and the Hepburn Act, enacted June 29, 1906, gave the unconstitutional Interstate Commerce Commission the powers to sex maximum railroad rates and impose heavy fines on railroads offering rebates and on shippers accepting them. Such interference with the freedom to contract and of natural economic rights, which the Supreme Court would gradually come to ignore, is a clear overreaching on the part of Congress, illegitimately using the Commerce Clause as a means not to make interstate commerce regular (that is to prevent states from imposing crippling regulations on commerce entering from other states), but as a means to control the railroad industry in a proto-fascistic manner. These bills crippled the railroad industry, making it unable to effectively compete with the trucking industry, and is considered by many economists to be a leading cause of the financial problems that resulted in the Panic of 1907. The Federal Employers Liability Act, enacted in 1908, protected and compensated railroad employees on the job. This act illicitly put the federal government into the insurance business, which is not among its enumerated powers. It is far from clear that giving such subsidies to a small protected class of workers involves "the general welfare," therefore, it seems to run afoul of the Spending Clause.

The one-two punch of the Pure Food and Drug Act and the Meat Inspection Act in 1906 led to the creation of what would become the Food and Drug Administration, yet another example of Congress unconstitutionally delegating its legislative powers to an outside body. These acts used the Commerce Clause again not to make interstate commerce regular, as was intended by the Founders, but to regulate each facet of the manufacture, sale, and transport of food and drugs. These regulations, as all such regulations, merely give large corporations the ability to set the regulations, the cost of which they can afford but which smaller competitors cannot. In the guise of protecting the people, such regulations punish all businesses involved in the industry rather than just punishing those whose products harm consumers, as the tort system would effectively do.

However, the most destructive piece of legislation which President Roosevelt signed was the Aldrich-Vreeland Act, which set up the National Monetary Commission. While setting up such a commission to study and suggest ways of implementing a European style central bank was not itself unconstitutional, the setting up of such a bank was despite what Justice Marshall erroneously said in McCulloch v. Maryland. The power to charter a bank is not among the enumerated powers of Congress in Article I of the Constitution and such a power is not necessary for the exercise of the other enumerated powers of Congress. This legislation planted a seed which would a short five years later grow into the Federal Reserve, the most destructive force in American life today.

Theodore Roosevelt signed bills into law which unconstitutionally increased the power of the federal government through an illegitimate broad reading of the powers of the Commerce Clause. He also signed legislation which began the long decline of economic natural rights. Most disturbingly, he signed into law a bill that planted the seed which grew into the totalitarian banking cabal that would become the Federal Reserve. For these unconstitutional bills, which he should have vetoed, and his unwillingness to veto any constitutionally suspect legislation at all, he receives a grade of D for the category of check and balance against the legislature.

Theodore Roosevelt nominated three justices who were confirmed for the Supreme Court. These justices were Oliver Wendell Holmes, William Rufus Day, and William Henry Moody.

Oliver Wendell Holmes was appointed to the Supreme Court in 1902 and sat on the Court for three decades. Holmes is a household name, which is rare for someone who is a Supreme Court justice rather than some sports or pop culture figure. While Holmes was a moral skeptic, who opposed the very concept of natural rights, his most famous opinions in effect furthered the cause of natural rights in the area of the First Amendment. Holmes is perhaps most famously remembered for the "clear and present danger" doctrine, which he introduced in Schenk v. United States (1919), a case involving a defendant convicted under the Espionage Act of 1917 for speaking out against the World War I draft. He stated in the majority opinion that freedom of expression was guaranteed by the Constitution except in cases where the expression posed a "clear and present danger" of causing harm that the legislature had forbidden, such as "falsely shouting fire in a crowded theatre and causing panic."

However, Holmes' disdain for the concept of natural rights colored his views of economic rights. In Otis v. Parker (1903), he contended that due process of law protected people from unreasonable legislation, but did not protect most economic interests. This tendency to ignore economic rights has grown increasingly influential and has culminated in the veritable destruction of the free market in the United States over time. Holmes' disdain of economic freedom is best illustrated by his pithy dissent in the landmark case Lochner v. New York (1905), which for an all too brief, shining time, protected liberty to contract under the due process clause of the Fourteenth Amendment. Holmes accused the majority of engaging in judicial activism (a charge which today all right wingers seem to bring against any decision upholding the Ninth Amendment natural right to bodily integrity and reproductive rights and which left wingers seem to bring against any decision upholding any sort of economic right) and claimed that the case was "decided upon an economic theory which a large part of the country does not entertain." Of course, even if majortarianism were relevant here, it seems infelicitous to claim that a large part of the United States was Marxist in 1905.

William Rufus Day was appointed to the Supreme Court in 1903 and served for nearly twenty years. Day was noted for his Progressive mistrust of big business, siding against big business in cases against Standard Oil, American Tobacco, and Union Pacific. However, he often defended against the unconstitutional expansion of powers under the Commerce Clause, writing majority opinions in Ware & Leland v. Mobile County (1908), which held that contracts for sales of cotton for future delivery that do not oblige interstate shipments are not subjects of interstate commerce, and the landmark case Hammer v. Dagenhart (1918), which held that laws regulating child labor are beyond the Congressional power enumerated in the Commerce Clause.

Day was a mixed bag, at best, on First Amendment rights. While he sided with the unanimous majority in Schenk, which held that speaking out against the draft was protected by the First Amendment if such speech did not pose a "clear and present danger" of harm, he voted with the majority a year later in Abrams v. United States (1919). In Abrams, two defendants had been convicted under the Espionage Act of 1917 for printing leaflets denouncing the sending of American troops to Russia and denouncing the American effort to impede the Russian Revolution. The majority, including Day, upheld the convictions of the defendants and the twenty year prison sentences they received and overturned the "clear and present danger" standard of Holmes in favor of the "bad tendency" standard (which Holmes' standard had replaced in Schenk). According to the bad tendency test, the government may restrict freedom of speech if that speech is believed to have a sole tendency to incite or cause illegal activity. "A sole tendency" is clearly a much less stringent standard than "a clear and present danger," hence, Day and the majority eroded the clear protections of the First Amendment ("Congress shall make no law ...") for a time.

Day was also a mixed bag on economic rights. In Lochner, he sided with the Harlan dissent, which was an intermediate position which, while recognizing the existence of the liberty to contract and the appropriateness of Fourteenth Amendment due process for that right, contended that states could use their police power to regulate this right to protect the public morals or the public safety. The burden of proof, Harlan and Day contended, was on the party attempting to show that such a statute was unconstitutional.

William Henry Moody was appointed to the Supreme Court in 1906, where he served for only four years. In his short tenure, Moody left his mark as a friend of increased unconstitutional Congressional power under the Commerce Clause where he wrote for the minority in Employers Liability Cases (1908), arguing that Congress had the power under the Commerce Clause to legislate management's relationship with employees. He was also no friend of civil liberties, holding in Twining v. New Jersey (1908) that the Fifth Amendment right against self incrimination was not incorporated via the Fourteenth Amendment to apply to the states.

Theodore Roosevelt's three appointees to the Supreme Court were a mixed bag, but tended to oppose natural rights and Constitutional liberties more often than they defended them. Therefore, he receives a grade of C minus for the category of Supreme Court nominees.

Theodore Roosevelt ran rough shot over the Constitution and the notion of limited government promulgated by the Founders just as he did over the enemy at Kettle Hill. Roosevelt believed that presidential power was only limited by specific prohibitions, not subscribing to the Constitutional notion that the only powers of the president are those specifically enumerated in the Constitution. He demonstrated this belief at nearly every turn. For example, he used the might of the executive branch in intervening in a coal miners' strike in Pennsylvania in 1902 despite being told by the governor that the federal government's assistance was not needed. He established the FBI despite there being no specific grant for such an organization to step on the toes of local and state law enforcement. A vicious racist, Roosevelt turned the traditional standard of innocent until proven guilty on its head in military cases involving black soldiers, requiring them to prove their innocence instead in court martial cases. Finally, he expanded not just the political size of government, but also its geographic size, using executive orders to establish national parks, placing over 230 million acres of land into public trust. More troubling than the acts themselves were the use of unconstitutional executive orders to enact many of them. While executive orders had been used before, Roosevelt started the trend of presidents using them whenever and wherever possible, even to get around the duly enacted legislation of Congress. For Theodore Roosevelt's disregard for the Constitution and limited government, and for his active efforts to expand presidential power at the expense of the Congress, the states, and the people, he receives a grade of D in the category of constitutional restraint.

Theodore Roosevelt provides a perfect example of a president who traditionally receives high marks from historians, other scholars, and the American public due to his dynamic persona rather than his actual job performance. Like all presidents, he swore an oath to defend the Constitution, yet he disregarded or circumvented the Constitution whenever he sought it as advantageous. While this rugged and energetic figure may have all the qualities to make him a compelling character, he has none of those qualities necessary to make him a good president. With grades of C minus, D, C minus, and D in the categories of foreign affairs, check and balance against legislative power, Supreme Court nominations, and constitutional restraint respectively, Theodore Roosevelt was a poor president.