Colonel Roosevelt - Edmund Morris [68]
Judge Baldwin, by contrast, amounted almost to a caricature of the old paternalist neurosis, on the wane everywhere except on Wall Street and in Brahmin Boston. He believed not only in states’ rights over federal power, but in trusts as always trustworthy, and the rich as “stewards for the public good,” not to mention flogging, castration, and other methods of social control. As such, he was clearly a candidate, not only for governor of Connecticut, but for one of the most devastating weapons in Roosevelt’s arsenal: a no-holds-barred, public “posterity letter.”
Nothing in their previous correspondence could have prepared Baldwin for the missive he received on 2 November: two thousand words long, specific, and packed with argument. Readers of the newspaper transcript had no need to consult African Game Trails for further evidence that the Colonel, in full hunting cry, was a formidable adversary.
He brushed aside Baldwin’s legalistic self-defense (“My criticism of you as a reactionary was based, not upon what you may have said as a law writer, but upon what you did as a judge”) and said that Section Five of the Federal Employers’ Liability Act voided any contract that enabled a common carrier to exempt itself from liability for accidents due to negligence. In indemnifying the New Haven Railroad against any claim from employees mutilated on the job, Baldwin had flouted that structure and in effect decided that “the right to get killed” was a property right sanctioned by the Constitution. “Congress aimed at giving the railroad employee a substance. You construed the act as giving him a shadow by solemnly declaring that to give him substance is to take away his property in the shadow.”
Shadows over substance, words rather than deeds, precedents hampering change, technical injustice precluding practical justice: Roosevelt had been attacking statutory pedantry since his days as a law student at Columbia University. Even in 1881, he had stood out among his classmates, arguing “for justice against legalism,” and complaining about the “sharp practice” of corporate lawyers. As President, he insisted that courts, no less than churches, were places where plain morals had to be expounded. Judges should no more sanction an abusive policy, in the name of the Fourteenth Amendment, than priests should cite the Old Testament in favor of child sacrifice. He had gone so far as to suggest, in his eighth annual message to Congress, that the judicial branch of government was actually a branchlet of the legislative. Now out of office, he was as righteously didactic as ever:
In this opinion of yours … not a line appears which can be distorted into the slightest recognition of the right to life and limb of the employee, into the slightest recognition of the grave perils of the men engaged in railway work; not a word appears in the whole opinion as to the grave importance of the question from the point of view of the thousands of railway men annually killed, and hundreds of thousands annually injured in their dangerous calling.
Roosevelt followed up on 4 November with a near-libelous attack on Baldwin in Des Moines. The judge was too busy with his own gubernatorial race to respond. “I shall waste no more words on him,” he announced, “but intend, when I have leisure … to bring a suit.”
RETURNING TO NEW YORK, Roosevelt found that Stimson was boring audiences into somnolence. “Darn it, Henry, a campaign speech is a poster, not an etching.” His own last speeches, delivered in Manhattan on election eve, were little more than weary croaks.
By the following evening, 8 November, it was clear that the GOP had suffered one of the worst defeats in its history. It had lost control of the House for the first time since 1894, and of the Senate too, unless a small swing group of progressives could be counted as faithful Party members. Even they were chagrined by the defection of many Eastern progressive voters to the Democrats. Beveridge crashed. Ninety-eight Republican congressmen lost their seats. More than half the states chose Democratic