Guest Essayist: Daniel A. Cotter


The United States Constitution is silent on the subject of corporations.    After the Civil War, as American society began to quickly evolve from agrarian to industrial, politicians from both major parties raised concerns about the rise of corporations, banks, and businesses, and the need for protection of the individual.  Against this backdrop, two important political figures emerged on the national scene.  William Jennings Bryan was a leader of the Populist Party (which would merge with the Democratic Party in 1896) who unsuccessfully ran for President in 1896, 1900 and 1908.  Republican President Theodore Roosevelt proposed a number of “progressive” initiatives through his “Square Deal” program and other policies and positions.  Other essays in this series cover the various Presidential elections in which Bryan and Roosevelt were their parties’ nominees. This essay compares the progressive and populist views of Roosevelt and Bryan, respectively.

Bryan and Populism

The Populist Party, also known as the People’s Party, was formed in 1891 and focused primarily on agrarian issues and attracted support from farmers, while criticizing capitalism and favoring labor over the corporate interests.  Bryan was a leader of the Party and in 1891 he won election to the United States House of Representatives from Nebraska’s 1st District as a Populist candidate.  Bryan served two terms in the House, establishing himself as an enemy of the gold standard and of banks, while earning the nickname “The Great Commoner” because of his belief in the common man.

Bryan fought hard in the Presidential elections of 1896 and 1900, losing each time to President William McKinley.  Although Bryan ran as a Democrat, he made sure that the Democratic ticket included populist ideas in its platform.  During the 1896 campaign, Bryan gave more than 500 speeches, creating the “stump speech” tour common among presidential candidates today.  Bryan’s most famous speech was delivered on July 8, 1896 at the Democratic National Convention in Chicago, where he advocated “free silver” while at the same time attacking the gold standard, concluding “you shall not crucify mankind upon a cross of gold.”   The “Cross of Gold” speech secured Bryan’s nomination by the Democratic Party and is considered one of the great political speeches in our history.

In 1908, Bryan ran for the third and final time for President, pitted against Roosevelt’s handpicked successor, William Howard Taft.  Bryan and the Democrats ran on a platform that alleged the Republicans were in favor of big business and monopolies and not the people, using the slogan “Shall the People Rule?”  Bryan suffered his worst Electoral College defeat of his three runs, losing 321 to 162.  In Bryan’s three Presidential contests, he received a total of 493 Electoral College votes, the highest total of any candidate not to become President.

Roosevelt and the Square Deal

After William McKinley was assassinated shortly after his second term began in 1901, 42 year old Vice-President Roosevelt became the youngest President in our nation’s history.  Shortly after taking office, Roosevelt introduced his domestic policy, the “Square Deal.”  The Square Deal was a pledge taken by Roosevelt that no group would be favored but that all would be treated fairly by the President and his administration. The policy received its name from a Roosevelt quote, “I shall see to it that every man has a square deal, no less and no more.”

Roosevelt was a Republican who believed strongly in progressive initiatives and political reforms.  The Square Deal consisted of the “three Cs” of policy: 1) control of corporations; 2) consumer protection; and, 3) conservation of natural resources.  Roosevelt during his Presidency addressed the first “C” through his trust busting efforts, including taking action against J.P. Morgan’s Northern Securities Company, expanding the role of the Interstate Commerce Commission, and signing the Elkins Act authorizing the ICC to impose heavy fines on railroads that offered shippers illegal rebates.

As for the second “C,” Roosevelt signed a number of acts to protect consumers, including the Meat Inspection Act (a direct response to Upton Sinclair’s book, The Jungle) and the Pure Food and Drug Act.  On the final prong, Roosevelt made the first designations of National Monuments under the National Monuments Act, including the Grand Canyon.

The Difference Between Populism and Progressivism

Both populism and progressivism were aimed at the perceived favoring of business and political interests over the individual.  Populism was developed in the late 1800’s by farmers and agrarian interests who believed industrialists, including bankers, were forming policies and protecting business interests at the expense of farmers.  Populism sought to address these inequities by changing the economic system.  Progressivism emerged at the dawn of the 1900’s and was a political movement objecting to perceived slights to the middle class by the rich.  Populism focused on changes to the economic system, while progressivism was focused on changing the political system.


As President, Roosevelt was able to implement much of his Square Deal.  On the other hand, Bryan and the Democrats were not as successful in advancing their positions without executive power.  An example of a constitutional blow to populist values was the Supreme Court decision, Lochner v. New York, in which the Supreme Court declared that “liberty of contract” was implicit in the Due Process Clause of the Fourteenth Amendment and held that bakers did not need protection from working excessive hours.

Dan Cotter is a Partner at Butler Rubin Saltarelli & Boyd LLP and an Adjunct Professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies.  He is also Immediate Past President of The Chicago Bar Association. The article contains his opinions and is not to be attributed to Butler Rubin or any of its clients, The Chicago Bar Association, or John Marshall.


1 reply
  1. Ralph T. Howarth, Jr.
    Ralph T. Howarth, Jr. says:

    Railroads brought us Time Zones and Corporate Management. Due to the necessary coordination of delivery and pick-up times, multiple schedules and supply lines, access to water and fuel for train powertrain boilers, and the inherent co-location of train stations and depots, we gained coordinated time and coordinated management. The coordinated management then gave rise to corporate america as the time schedule of trains became the same time schedule of industrial throughputs: if a train shipment failed to come in on time, 100s of workers may have no work that day.

    In a few more decades SCOTUS will abandon its “Liberty of Contract” doctrine here while introducing its “Doctrine of Incorporation” based on the 14th Amendment. Both are claimed to come from the civil right of Due Process included in the 14th that equates to procedural rights you have while defending yourself in court. But neither Liberty of Contract nor Incorporation Doctrine has anything to do with procedural rights in the courtroom. The former pertains to curtailing state intervention into manufactures and labor economic activities as the court presumed that the 14th amendment gave license to break-up the old state mercantilist economic policies that were common in the founding era. The latter pertained to the court presuming the federal bill of rights are made applicable to state laws for social reasons in the guise of economic reasons, and even upon private actors under the later “public interest” doctrine that will later evolve to the present day “public accommodation” doctrine.


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