Theodore Roosevelt busted trusts and saved forests, and the GOP forgot half

Try an experiment at your next Republican dinner. Stand up and say, "Teddy Roosevelt was the greatest outdoorsman ever to sit in the Oval Office," and you will get a round of applause and perhaps a hunting story. Now say, "Teddy Roosevelt sued J. P. Morgan's railroad merger and won," and watch the room get busy with its dessert.

Same man. Same presidency. Same philosophy, in fact. Roosevelt would have been baffled that anyone thought these were separate projects. He called the whole package the Square Deal, and the idea behind it was very simple: the rules have to apply to everybody, the strong as well as the weak, and the things we hold in common have to be handed on in better shape than we found them. Today I want to make the case that conservatives should weigh both halves of that idea. Not to cheer for it wholesale. To weigh it, which is a different thing.

I'll make this an argument in five steps, take on the best objection and then give you a verdict.

Who he was and what he inherited

Theodore Roosevelt became President on September 14, 1901, when William McKinley died of the wounds from an assassin's bullet. He was forty-two. He won a full term in his own right in 1904, kept a promise not to run again in 1908, and backed his friend William Howard Taft as his successor. We will get to how that friendship ended.

The country he inherited was a country of enormous new combinations. Railroads, oil, steel, beef and tobacco had each been gathered into giant firms, and the biggest of them could do things that no seller in a competitive market could do: set prices, squeeze suppliers, and make or break whole towns. The Sherman Antitrust Act had been on the books since 1890, passed by a Republican Congress under a Republican President, Benjamin Harrison, and written largely by Senator John Sherman of Ohio. But for a decade it had been used sparingly. Roosevelt decided to use it.

Premise one: a market with one seller is not a free market

Here is the argument, put the way I would put it to a skeptical friend.

One. A free market works because a buyer can walk away. If you do not like the price, you go next door. That threat is what keeps prices honest and quality up.

Two. When a single firm, or a handful of firms acting together, controls an essential service, the buyer cannot walk away. A farmer in the 1900s who needed to ship grain by rail could be at the mercy of whoever controlled the line.

Three. Enforcing the law against that kind of power is not an attack on the market. It protects the market. A conservative who defends capitalism should be the first to demand that the rules be enforced, because the alternative is to let the strongest player rewrite the game.

Roosevelt was careful on one point that people forget. He did not think that a big company was a bad company. He distinguished between a large firm that won customers by being better and a firm that ran its competitors off by conduct the law forbade. His target was conduct, not size.

The test case: Northern Securities

The case that made his name was Northern Securities. In 1901 a group led by J. P. Morgan and railroad magnate James J. Hill created the Northern Securities Company, a holding company that tied together the Great Northern and Northern Pacific railroads and the Burlington line. Together they controlled the rail traffic of much of the northern tier of the country. In February 1902 Roosevelt's Attorney General, Philander Knox, announced that the government would sue to break it up under the Sherman Act.

Wall Street was stunned. A President had gone after the biggest name in American finance, and the reaction tells you something about how business had come to think of the government.

The government won. On March 14, 1904, the Supreme Court decided Northern Securities Co. v. United States, 5 to 4, and ordered the company dissolved. Roosevelt had put Oliver Wendell Holmes on the Court in 1902, and Holmes dissented, and Roosevelt, who had expected a vote from his own appointee, never forgot it. A President does not always get the judge he thinks he is getting, which is a lesson Republicans have relearned more than once.

The lesson is not that the decision was perfect. It is that the law that Republicans had passed in 1890 was a real law, and a Republican President could enforce it.

The strike that tested the Square Deal

In the summer of 1902, roughly 150,000 coal miners went on strike in Pennsylvania's anthracite fields under John Mitchell and the United Mine Workers. As cold weather approached, the nation faced the prospect of a winter with no coal for heating. Roosevelt took an unprecedented step. On October 3, 1902 he called the mine operators and the union leaders to the White House. The owners, led by George Baer, refused to deal with the union at all. Roosevelt, angered by their stubbornness, let it be known that he was prepared to have the Army operate the mines if needed. Financier J. P. Morgan, who had interests in the railroads that owned the mines, helped broker a compromise. The strike ended on October 23, and an arbitration commission later awarded the miners a ten percent raise and a nine-hour day.

I will not retell the whole story here; it has its own post in Theodore Roosevelt and the 1902 Coal Strike That Gave Us the Square Deal. The point for us is the principle he stated: in the dispute, the public was a third party with a stake, and neither side owned the right to freeze the country. Roosevelt said he wanted a "square deal" for both labor and capital. Whether you like how he did it or not, it was a President acting as an honest broker rather than as the owners' agent or the union's.

Premise two: the rules must reach the railroads

The Hepburn Act, signed June 29, 1906, is the dry-sounding law that mattered most to ordinary shippers. Before it, railroads could charge shippers whatever the market would bear, and the Interstate Commerce Commission could do little but hear complaints. The Hepburn Act let the ICC set maximum rates after a hearing when a rate was found unjust or unreasonable, subject to review in the courts, and extended its reach to pipelines and express and sleeping car companies.

Conservatives should think about this one carefully. Regulating railroad rates is not a free-market policy in its pure form. But railroads in that era were natural monopolies in many towns. A farmer with one rail line had no choice of carrier. When competition cannot work, a conservative has to decide: tolerate the monopoly, or restrain it? Roosevelt chose the second. The law left the courts as a check, and it left the lines in private hands.

Add two more laws from the same session. The Meat Inspection Act and the Pure Food and Drug Act were both signed on June 30, 1906. Their purpose was to keep spoiled or falsely labeled food from reaching your kitchen table. If you believe that fraud is a form of theft and that government's job is to stop theft, those two laws are a short walk from conservative principles.

Premise three: public land is a trust

Now the other half of the Square Deal. Roosevelt, an enthusiastic hunter and a founder of the Boone and Crockett Club in 1887, believed that the nation's land and wildlife were being used up faster than they could be replaced.

The groundwork predated him. In 1891 Congress, under President Benjamin Harrison, passed the Forest Reserve Act, which let the President set aside forest reserves from the public domain. Roosevelt took that tool and used it as no one had before. With his chief forester, Gifford Pinchot, he created the Forest Service in 1905 and expanded the national forests to well over a hundred million acres. He asked Congress for the Reclamation Act of 1902 to bring irrigation water to arid Western land. In 1903 he made Pelican Island in Florida the first national wildlife refuge.

And on June 8, 1906, he signed the Antiquities Act, which lets a President proclaim national monuments on federal land. The first was Devils Tower in Wyoming, in September 1906. Two years later he used the Act to protect the Grand Canyon.

Pinchot's philosophy was that resources should be used wisely, for the greatest good over the long run. Forests should be cut, but in a way that keeps them growing. Notice that the word conservative and the word conservation come from the same root. It is not an accident. If your principle is to hand down what you received, with interest, that principle does not stop at the property line.

I'll stay out of today's fights about how much land the federal government should own, and how the land should be managed. Those are real debates, and the question of who owns the oil under a farm is covered in Who Owns the Oil Under Your Farm, and Why America Answers Differently. What I'll say is that the Republican tradition of conservation includes hunters and anglers who funded wildlife restoration themselves, a story told in The 1937 tax that gun owners backed and that rebuilt America's wildlife, and that the broader Republican environmental record is richer and more complicated than either side tends to admit; see Six Myths About the Republican Record on Conservation and the Environment.

The strongest objection: he stretched executive power

Here is the best case against Roosevelt, and it comes from within his own party. Roosevelt believed that a President could do anything the needs of the nation demanded unless the Constitution or a law forbade it. He called this his stewardship theory and set it out in his autobiography in 1913. William Howard Taft, who knew him well and was a judge by temperament, held the opposite view: that the President can exercise only the powers the Constitution or a statute actually grants. Taft wrote a book defending it after he left office.

The objection has teeth. Think about what the stewardship theory allowed. Roosevelt threatened to run the coal mines with the Army. He set aside land by proclamation, and in 1907, when Congress limited his power to create new forest reserves in six Western states, he used the days before the limit took effect to designate millions of acres more, which his critics called midnight forests. He acquired the Panama Canal Zone in 1903 through a revolution he did nothing to discourage, and later boasted that he had taken it and left Congress to debate it. A conservative who believes in limited, enumerated powers has to flinch at some of this. If a President you like can govern that way, so can a President you do not.

So how do I answer it? Three points.

First, much of what he did was within statutory authority that Congress had given him: the Forest Reserve Act, the Antiquities Act, the Hepburn Act. He was using powers Congress granted, if vigorously. Second, Congress pushed back when it wanted to, as the 1907 limit shows. A system in which the other branch can still check you is working. Third, and this is the point I would press hardest, the test of a principle is whether you would accept it when the other side holds the office. Anyone who cheers the stewardship theory when Roosevelt uses it on railroads should ask whether he would cheer it for a President he distrusts. For a framework to judge any claim of presidential power, try Justice Jackson's Three-Box Test for Presidential Power, Put to Work.

The break of 1912

Roosevelt and Taft fell out over, among other things, a Taft administration antitrust suit against U.S. Steel in 1911 that touched a merger Roosevelt had tacitly blessed in 1907. In 1912 Roosevelt challenged Taft for the Republican nomination, lost in a credentials fight at the Chicago convention in June, and walked out to form the Progressive Party, nicknamed the Bull Moose Party after he told reporters he felt as strong as a bull moose. On October 14, 1912, a gunman shot him in Milwaukee and he went on to give his speech anyway. The split in the Republican vote handed the White House to Woodrow Wilson, who won with about 42 percent of the popular vote. Roosevelt finished second, and the sitting President Taft finished third with eight electoral votes. The full story is in Taft, Roosevelt and the Convention Fight That Split the Party in 1912.

The lesson for a party is the old one: you can win the argument and lose the election if you split your side to do it.

The verdict

Roosevelt was not a libertarian and he was not a socialist. He was a Republican who thought that a strong country needs honest rules and a long memory, and I'd say he mostly got the balance right. Where he went too far was in the way he claimed power, not in the goals he named.

The easy thing is to take the half you like. Free-market conservatives can quote the part about self-reliance and strenuous life. Outdoorsmen can quote the part about parks. I would rather make you uncomfortable with both. If you believe in markets, you have to believe in enforcing the rules that keep them honest. If you believe in conserving what we have, you have to take seriously the idea that the ground under our feet is a trust, and you have to be willing to say who the trustee is.

The bottom line

• The Square Deal had two halves: enforce the rules on the powerful, and keep the commons in trust. A Republican who quotes only one is quoting a man who did not.
• Roosevelt's trust-busting went after conduct, not size. The standard worth defending today is the same: punish abuse, not success.
• His stewardship theory of presidential power is the part to handle with care. Ask whether you would endorse the same power in the hands of a President you distrust.
• When someone tells you conservatism has nothing to say about land and wildlife, point them to the hunters and farmers who have paid for conservation for more than a century.
• Read the Hepburn Act, the Antiquities Act and the Northern Securities decision for yourself, at Congress.gov and the Supreme Court's website, before you repeat a slogan about any of them.