Legal Commentary

FDR Knew Better

By Randy Barnett

Jack Balkin thinks FDR?s lengthy analysis of the Constitution in his address to Congress is equivalent to President Obama?s drive-by 72 word inaccurate polemic about Citizen?s United. But Jack is a master of appreciating context?not to mention modern media?and the context here makes all the difference. In addition to being a substantive constitutional critique, which the President Obama?s remarks assuredly were not:

FDR did not launch the attack on live national television, with the justices there under the glare of cameras, having given them no advanced warning of the impending attack on the Court. (I sincerely doubt Supreme Court justices attended state of the union addresses in those days.)

FDR did not foment the Democrats in Congress who surrounded the six seated justices?and the Attorney General a few feet away?to spring to their feet applauding his critique of the Court (note Harry Reid and Dick Durban enjoying themselves directly behind the justices).

FDR did not even mention the ?Supreme Court? but referred to ?The Judicial Branch? many paragraphs in.

I know that if Jack were treated in this manner, he would know he had not been tripped over, but kicked. And kicking the justices on national television is not being respectful to them.

But let?s go to the tape (notice the empathetic look of concern by the page):

This was simply wrong behavior. Here is my more extended take on the matter in today?s Wall Street Journal (unfortunately now behind a subscriber wall) which stresses that it is perfectly OK for the president to criticize the Supreme Court?just as it is perfectly OK for a congressman like Joe Wilson to criticize the president for being inaccurate. FDR apparently knew how.

Full post as published by The Volokh Conspiracy on January 29, 2010 (boomark / email).