It may be open to debate (but not much), but the prevailing modern philosophy of modern times is that the end justifies the means . . . which translates into “might makes right.” If you don’t agree with that assessment, think about it for a moment. If someone wants something badly enough and is willing to run roughshod over everything and everybody in his or her way to get it, then — if he or she is strong enough to get it — that proves the means used were fully justified, regardless of where the chips fell. It worked; therefore, it was good.
 |
| Plato (as if we really knew . . .) |
The idea that might makes right is very ancient. Plato put the philosophy in the mouth of a (probably) made-up character, Kallikles the Sophist, in one of his dialogues. That the end justifies the means is at the heart of Machiavelli’s political philosophy, even if he didn’t explicitly say so, and is the basis of realpolitik. Despite its antiquity, Christianity calls the idea “modernism,” while in the civil realm it’s called “positivism.” In law, it’s called “legal positivism,” and boils down to the idea that the law is whatever the judge says it is . . . as long as he has the power of the State to back him up. The end justifies the means because might makes right.
Even people who are not legal positivists sometimes let their desires get the better of their sense of right and wrong. Take, for example, the rift that occurred between Theodore Roosevelt and Judge Peter Stenger Grosscup in 1907 . . . which came at just the critical time to fatally cripple the progressive effort to keep power in the hands of ordinary people and out of the hands of the wealthy elites and the State.
 |
| Judge Peter Stenger Grosscup |
Grosscup, one of the leading legal minds of the late nineteenth and early twentieth centuries was one of Roosevelt’s “Trust Busters,” and judge of the U.S. Seventh Circuit Court of Appeals in Chicago. In contrast to today’s prevailing legal positivism and judicial activism, Grosscup’s jurisprudence had a natural law and original intent orientation. This was increasingly unpopular given the growing influence of positivism in the 1890s.
Although Grosscup’s position was consistent with the founding principles of the United States, legal positivism had gained a foothold early on. As William Winslow Crosskey related in Politics and the Constitution in the History of the United States (1953), judges had illegitimately leveraged Marbury v. Madison (1803) to expand judicial review to preserve and extend slavery. In the wake of Scott v. Sandford (1857) and the Slaughterhouse Cases (1873), the idea spread that in positivist law as well as in modernist religion, the end justifies the means.
 |
| Samuel Gompers |
That is why Grosscup is best-known, not for his social justice work, but for two things that seem the antithesis of social justice, the Pullman strike, and the Standard Oil rebate case. Grosscup was the judge who, at the request of the Attorney-General’s office, and in company with Edwin Walker and Thomas Milchrist over the protests of John Peter Altgeld, the governor of Illinois, signed off on an opinion maintaining that if federal troops were needed to protect the mail, it was legal to do so.
Evidence suggests Grosscup personally considered this imprudent, but it was legal, and — the key point — he did not believe a judge had the power to change or make law, especially to conform to his personal preferences or beliefs. This outraged Samuel Gompers, who declared Grosscup an enemy of the worker.
Less well-known is Grosscup’s decision in the Standard Oil rebate case. In 1907, Roosevelt’s administration won what seemed to be a great victory over the trusts in the campaign to break up Standard Oil. John Davison Rockefeller’s Standard Oil represented everything the president detested; it was, to Roosevelt, quintessentially un-American.
 |
| Kenesaw Mountain Landis |
Unfortunately, Judge Kenesaw Mountain Landis of the United States District Court for the Northern District of Illinois (later Baseball Commissioner) was a little too anxious to please Roosevelt. He made substantive and procedural errors in the case. On appeal, Grosscup overturned Landis’s decision and remitted the $29,240,000 fine. This did not affect the other charges brought against Standard Oil, which was broken up in 1911.
Grosscup’s decision outraged Roosevelt. As far as Roosevelt was concerned, Grosscup had betrayed the progressive cause by finding in favor of the worst of the trusts on a legal technicality and obscure points of law.
This was unjust. Grosscup had complained for years that the Sherman Antitrust Act of 1890, under which Standard Oil was being prosecuted, was inadequate. He claimed that in some instances the Sherman Act led to the very situation it was intended to eliminate.
Grosscup continued to make this point even after his retirement in 1911. His frequent animadversions on the problems associated with the Sherman Act may, in fact, have been a factor in Congress passing the Clayton Antitrust Act in 1914.
 |
| The good Roosevelt (sometimes) |
The decision led to a breach with Roosevelt. This was a disaster. Grosscup was one of the strongest and soundest progressive voices for broad-based capital ownership. He understood the social, legal, and economic importance of widespread private property in capital. Roosevelt was the man best able to lead a revolutionary program that had the potential to dwarf even the impact of Lincoln’s 1862 Homestead Act, with the added feature that it would have been sustainable. Land, after all, is finite, while there is no effective limit to industrial or commercial capital.
Although Grosscup and Roosevelt eventually reconciled, the damage had been done, and progressivism was dead in the water. Within a few years it had degenerated into what it is today, a euphemism for radicalism.
#30#
