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Root v. Holmes and Frankfurter

ISSUE:  Spring 1939

Elihu Root. By Philip C. Jessup. Two volumes. New York: Dodd, Mead and Company. $7.50. Mr. Justice Holmes and the Supreme Court. By Felix Frankfurter. Cambridge: Harvard University Press. $1.50.

Mr. Root lived for almost ninety-two years and for all of one thousand and sixty-nine pages. In almost all of these he is excellent company. However, the relatively small section of Philip C. Jessup’s biography, “Elihu Root,” that is devoted to Mr. Root’s life at the New York Bar may seem to a practising attorney unrealistic as presented.

Elihu Root came to the New York Bar in the heyday of ruthless finance with its baronial figures. His genius was seized upon by those who could afford to pay for the best in legal talent and who needed it the most. Mr. Jessup makes an unconvincing attempt to picture Mr. Root as a brilliant Little Lord Fauntleroy in a world of sin. The truth apparent between the lines is that Root was not only clever enough to be sought by these barons but, on occasion, was clever enough to dictate to them. And when he could enforce his will, he acted on the more moral plane. That a practical man of affairs has a higher vision than his fellows and follows it is sufficient. The author need not make him an unconvincing saint to enlist our admiration. From 1899, when Mr. Root entered public life as Roosevelt’s Secretary of War, until his death, he struggled for betterment, even for the reform of evils he had seen at uncomfortably close quarters.

To many of the younger generation it will be news that, as Secretary of War, Root was responsible for the reform of the Army High Command, the organization of the General Staff, the War College and the very difficult job of instituting governments in Cuba and in the rebellious Philippines. After these jobs were well done, he passed to the position of Secretary of State, where, in his undramatic way, he reorganized the consular and diplomatic services, resisting with firm and humorous tact the assaults and threats of congressmen seeking patronage. Then, like John Quincy Adams, he left high office for the Senate, where he served through Taft’s maligned regime and during Wilson’s first two years. Even though a stanch Republican, he saw many tilings eye to eye with Wilson and differed with him more on methods than on aims or on the need of reforms.

Root never had the divine afflatus nor took to standing on soap boxes and beating his chest, so the reader of the older generation will be astounded to see how much he accomplished pro bono publico in the wolf’s hide of a conservative Republican. They are vaguely aware of Root as an international jurist of repute, but will doubtless be astonished to ascertain the just extent of that repute (Nobel Peace Prize 1912) and will hardly think of him as a labor arbitrator chosen by the unions.

In Felix Frankfurter’s book, “Mr. Justice Holmes and the Supreme Court,” there is revealed a new statesman of similar stature but of different ideas, for therein the new Supreme Court Justice sets forth his conception of the Constitution in clean swift English, using Holmes as a protagonist as Shaw might use a character in a play. The book dismisses the larger part of the Constitution as explicit, with little room for construction, and concentrates on the three great sources of controversy—the interstate commerce clause, the power to tax, and the Fourteenth Amendment (prohibiting states from denying equal protection of law or from taking property without due process of law). As the federal government is supreme in its sphere, Mr. Frankfurter believes that the power to regulate interstate commerce is inclusive of everything incident thereto regardless of incidental interference with state matters and would, for instance, hold constitutional a law prohibiting the products of child labor from passing between the states.

On the other hand, he believes that the phrases “due process of law” and “equal protection of laws” have, by construction, been so advanced as to permit the federal courts to invalidate a great many state laws without warrant. Hence the argument of the book (and it is a good one) is against the extension of constitutional authority by construction to limit legislation by the several states or to cut down the exercise by the government of its federal powers.


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