The New Neo

[NOTE: Last night I wrote a draft of a post on how Barack Obama’s latest remarks on SCOTUS precedent are an attempt to emulate Franklin Roosevelt in the 30s. I was going to polish it up and submit it to PJ, but I see that Ron Radosh has beaten me to it with this article, which covers much the same territory as mine did. I still may work on mine and publish it somewhere; we’ll see. But in the meantime, read his—and this, which complements it.]

When I was a little kid, I heard that there were some people who didn’t like FDR and thought he’d led the country in the wrong direction.

I couldn’t understand why they’d believe something like that; how could they? After all, my parents had admired him so greatly—and even loved him—for saving the country from the Depression and steering the ship of state during the war. And what curmudgeonly souls could fail to be drawn to that wonderful voice, that energetic sense of positive energy, that jaunty grin?

Later, in school, I learned about FDR’s court-packing escapade. It was shocking, as though one heard that a favorite uncle had embezzled money or tortured kittens. Even then I realized the attempt had been a bad thing—a very bad thing. But for a long time I didn’t integrate it into my knowledge of the Roosevelt I knew about, the wartime leader of my parents’ young adulthood. Nor did I know anything about the theory that many of FDR’s economic policies had lengthened the Depression rather than shortening it.

I’d never read the words of this fireside chat of FDR’s, either—not till now, anyway. I’m sure you know what prompted my little bit of research; I was wondering about the details of FDR’s criticism of the Court.

Well, on reading FDR’s little heart-to-heart talk to the people about SCOTUS, I have to say that compared to Roosevelt Obama’s a piker, a model of restraint. Not only that, but note what a master of propaganda with a folksy touch FDR was, in comparison to Obama. In that respect—getting the tone right to get his message across—FDR was more like Reagan.

It’s worth reading the whole thing to get the flavor of what he’s doing—how he brings the listener in as a co-conspirator in the task of rebuilding America, and how he heightens the sense of urgency and impending catastrophe if he doesn’t get what he wants—but I’ll just post lengthy excerpts for you to read [all emphases mine]:

…I am reminded of that evening in March, four years ago, when I made my first radio report to you. We were then in the midst of the great banking crisis.

Soon after, with the authority of the Congress, we asked the Nation to turn over all of its privately held gold, dollar for dollar, to the Government of the United States.

Today’s recovery proves how right that policy was.

But when, almost two years later, it came before the Supreme Court its constitutionality was upheld only by a five-to-four vote. The change of one vote would have thrown all the affairs of this great Nation back into hopeless chaos. In effect, four Justices ruled that the right under a private contract to exact a pound of flesh [quite a reference, no?] was more sacred than the main objectives of the Constitution to establish an enduring Nation.

…It will take time – and plenty of time – to work out our remedies administratively even after legislation is passed. To complete our program of protection in time, therefore, we cannot delay one moment in making certain that our National Government has power to carry through.

The American people have learned from the depression. For in the last three national elections an overwhelming majority of them voted a mandate that the Congress and the President begin the task of providing that protection – not after long years of debate, but now.

The Courts, however, have cast doubts on the ability of the elected Congress to protect us against catastrophe by meeting squarely our modern social and economic conditions.

…I want to talk with you very simply about the need for present action in this crisis – the need to meet the unanswered challenge of one-third of a Nation ill-nourished, ill-clad, ill-housed.

Last Thursday I described the American form of Government as a three horse team provided by the Constitution to the American people so that their field might be plowed. The three horses are, of course, the three branches of government – the Congress, the Executive and the Courts. Two of the horses are pulling in unison today; the third is not. Those who have intimated that the President of the United States is trying to drive that team, overlook the simple fact that the President, as Chief Executive, is himself one of the three horses.

It is the American people themselves who are in the driver’s seat.

It is the American people themselves who want the furrow plowed.

It is the American people themselves who expect the third horse to pull in unison with the other two.

I hope that you have re-read the Constitution of the United States in these past few weeks. Like the Bible, it ought to be read again and again.

…Having in mind that in succeeding generations many other problems then undreamed of would become national problems, [the framers] gave to the Congress the ample broad powers “to levy taxes … and provide for the common defense and general welfare of the United States.”

That, my friends, is what I honestly believe to have been the clear and underlying purpose of the patriots who wrote a Federal Constitution to create a National Government with national power, intended as they said, “to form a more perfect union … for ourselves and our posterity.”

For nearly twenty years there was no conflict between the Congress and the Court. Then Congress passed a statute which, in 1803, the Court said violated an express provision of the Constitution. The Court claimed the power to declare it unconstitutional and did so declare it…

But since the rise of the modern movement for social and economic progress through legislation, the Court has more and more often and more and more boldly asserted a power to veto laws passed by the Congress and State Legislatures in complete disregard of this original limitation.

In the last four years the sound rule of giving statutes the benefit of all reasonable doubt has been cast aside. The Court has been acting not as a judicial body, but as a policy-making body.

When the Congress has sought to stabilize national agriculture, to improve the conditions of labor, to safeguard business against unfair competition, to protect our national resources, and in many other ways, to serve our clearly national needs, the majority of the Court has been assuming the power to pass on the wisdom of these acts of the Congress – and to approve or disapprove the public policy written into these laws…

In the face of these dissenting opinions [which FDR had just quoted from], there is no basis for the claim made by some members of the Court that something in the Constitution has compelled them regretfully to thwart the will of the people.

In the face of such dissenting opinions, it is perfectly clear that, as Chief Justice Hughes has said, “We are under a Constitution, but the Constitution is what the judges say it is.”

The Court in addition to the proper use of its judicial functions has improperly set itself up as a third house of the Congress – a super-legislature, as one of the justices has called it – reading into the Constitution words and implications which are not there, and which were never intended to be there.

We have, therefore, reached the point as a nation where we must take action to save the Constitution from the Court and the Court from itself. We must find a way to take an appeal from the Supreme Court to the Constitution itself. We want a Supreme Court which will do justice under the Constitution and not over it. In our courts we want a government of laws and not of men.

I want – as all Americans want – an independent judiciary as proposed by the framers of the Constitution. That means a Supreme Court that will enforce the Constitution as written, that will refuse to amend the Constitution by the arbitrary exercise of judicial power – in other words by judicial say-so. It does not mean a judiciary so independent that it can deny the existence of facts which are universally recognized.

…What is my proposal? It is simply this: whenever a Judge or Justice of any Federal Court has reached the age of seventy and does not avail himself of the opportunity to retire on a pension, a new member shall be appointed by the President then in office, with the approval, as required by the Constitution, of the Senate of the United States.

…There is nothing novel or radical about this idea. It seeks to maintain the Federal bench in full vigor.

…Like all lawyers, like all Americans, I regret the necessity of this controversy. But the welfare of the United States, and indeed of the Constitution itself, is what we all must think about first. Our difficulty with the Court today rises not from the Court as an institution but from human beings within it. But we cannot yield our constitutional destiny to the personal judgement of a few men who, being fearful of the future, would deny us the necessary means of dealing with the present.

This plan of mine is no attack on the Court; it seeks to restore the Court to its rightful and historic place in our Constitutional Government and to have it resume its high task of building anew on the Constitution “a system of living law.” The Court itself can best undo what the Court has done.

…During the past half century the balance of power between the three great branches of the Federal Government, has been tipped out of balance by the Courts in direct contradiction of the high purposes of the framers of the Constitution. It is my purpose to restore that balance. You who know me will accept my solemn assurance that in a world in which democracy is under attack, I seek to make American democracy succeed. You and I will do our part.

Sorry for the length of the quote. But the speech was such an organic whole, such a masterpiece of insidious propaganda, that I could hardly bear to cut anything. I still recommend that you read the entire thing, because only then can you see what a genius FDR was at clothing his power grab in the raiments of sanctimonious protection of the checks and balances of the Constitution. Wow.

History is not a set thing, dull and dry, encased in cobwebs. As Twain said, it may not repeat itself, but it sometimes rhymes. And those verses have a lot to tell us.