At the Volokh Conspiracy, Randy Barnett writes:
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.
But when it comes to State of the Union addresses, Roosevelt wasn’t above adding a certain amount of polemics when it suited his mood. From 1944′s SOTU:
One of the great American industrialists of our day—a man who has rendered yeoman service to his country in this crisis—recently emphasized the grave dangers of “rightist reaction” in this nation. Any clear-thinking business men share that concern. Indeed, if such reaction should develop—if history were to repeat itself and we were to return to the so-called “normalcy” of the 1920s—then it is certain that even though we shall have conquered our enemies on the battlefields abroad, we shall have yielded to the spirit of fascism here at home.
As Jonah Goldberg wrote the day after President Obama’s State of the Union address this week:
Somehow that line didn’t make it into my book, but it’s a great illustration of many of my arguments. First of all, the argument is wrong and disgusting and the whole speech marked one of the great low-points of FDR’s presidency and his war leadership (contrary to many contemporary liberals like Cass Sunstein who think it was among FDR’s finest moments). It should also reassure those who think today’s politics are uglier and nastier than ever.
Second, it’s a good reminder that for generations of liberals, the “return to normalcy” in the 1920s was America’s real moment of fascist temptation. But the “return to normalcy” slogan was actually a rebuke against the fascistic regime and policies of Woodrow Wilson (the thought crimes, the propaganda ministry, censorship, the economic rationing, the corporatism etc.) FDR, a Wilson retread, shared the view that all it took for fascism to succeed is for progressives like him to lose control of the state. That idea endures to this day.