Colonel Roosevelt - Edmund Morris [67]
The liability law was one of the most progressive achievements of Roosevelt’s presidency. He had seen it strengthened just before he went out of office, and was furious to find that a provincial judge had thrown it out of court. Railroad lobbyists were now seizing on the Hoxie decision as an argument in favor of deregulation, and sending copies of it to conservative candidates across the country. Baldwin himself was running for governor of Connecticut on the Democratic ticket, and suggesting that the New Nationalism was an authoritarian plan for the dismantling of states’ rights. Back of it, he warned, lay the desire of a dangerous man to radicalize the Supreme Court. “So far as I am aware, ex-President Roosevelt has had no special training for undertaking such a task.”
The judge was clearly spoiling for a fight, and Roosevelt was quick to oblige. As he explained to Elihu Root, “When I’m mad at a man I want to climb right up his chest.” Speaking extempore in Concord, Massachusetts, to a supportive crowd, he accused Baldwin of holding that the Constitution gave industrial employees the right to sign contracts that later prevented them suing for loss of life and limb.
Baldwin, incensed at newspaper reports of the speech, denied that personal feelings had influenced his Hoxie decision. In an open letter addressed to Roosevelt, he insisted that he had ruled according to legal precedent—specifically, the “fellow-servant” defense hallowed by common law—and pointed out that his own campaign in Connecticut touted workmen’s compensation. “I trust that your remarks at Concord were misinterpreted; if not, you certainly were misinformed. If you did, in fact, make the charge against me, or one substantially of that character, I write to request that you would retract it.”
In a return open letter of his own, Roosevelt stood by the substance of what he had said. “I feel that it is in the highest degree retrogressive (or, if you prefer the term, Bourbon and reactionary), to take the view that the fellow-servant rule … rests … ‘upon consideration of right and justice.’ ”
The exchange was an obvious first skirmish in an ideological battle whose repercussions would probably extend far beyond the current campaign. At stake was the classical, or “mechanical” jurisprudence of Baldwin and his constructionist counterparts on the Supreme Court versus the “sociological” jurisprudence of William H. Moody and other progressive legal thinkers. The common law itself needed to be redefined, either as the unchanging thing it had seemed to be through most of the nineteenth century, or as Justice Oliver Wendell Holmes, Jr. (another Roosevelt appointee), had famously proposed, as a codification of “the felt necessities of the time.”
Nobody “felt” the changing demands of American society more viscerally than Theodore Roosevelt in the fall of 1910. Herbert Croly intellectualized them; Moody and Holmes gave them constitutional sanction; La Follette and Pinchot formulated them as dogma; writers as various as Upton Sinclair, Theodore Dreiser, and William Allen White gave them literary expression. But Roosevelt was unique in the force of his conviction that these “necessities” must be translated from desire into political reform—unique, too, in his ability to persuade voters of the possibility of such reform. He “felt” so strongly that he was prepared to temporize, pleading for Republican unity, as progressivism burgeoned into the fundamental issue of the next presidential election. “One thing always to remember in politics,” he told White, “is that it takes a long time to overcome inertia, and that, when it has been overcome, it takes an equally long time to stop