Friday, August 17, 2012

Goldstein on the Liberty League and Unpopular Constitutionalism

Jared A. Goldstein, Roger Williams University School of Law, has posted Unpopular Constitutionalism: The American Liberty League and the Importance of Constitutional Villains. Here is the abstract:
In 1936, much like today, a first-term President faced opposition from a movement that charged that the President’s key policies were unconstitutional and un-American. Like the Tea Party movement, the American Liberty League of the 1930s generated massive media attention by calling the President a radical socialist who sought to foist alien policies on an unwilling public. Unlike President Obama, however, President Roosevelt welcomed the confrontation, making the dispute with the American Liberty League a central focus of his reelection campaign. Created and run by a small group of prominent businessmen, the Liberty League was a political gift, giving Roosevelt the perfect foil to make the case for the New Deal.
This Article tells the story of the fight between Roosevelt and the American Liberty League and argues that it should be recognized as a crucial episode of popular constitutionalism, in which the American people were asked to choose between fundamentally competing constitutional philosophies. This story corrects the narrative put forward by Bruce Ackerman and others that in 1936 the American people faced a choice between the constitutional positions of the President and the Supreme Court. In fact, Roosevelt chose to take on the Liberty League and not the Court because he recognized that persuading the public of the constitutional validity of the New Deal required an opponent that would sustain public attention by continuing to fight back and which could easily be made the villain in a grand constitutional drama.

The story of the American Liberty League adds an important chapter to scholarship on popular constitutionalism, which has devoted considerable attention to social and political movements that succeeded in changing the understood meaning of the Constitution, while neglecting the role of losing sides in constitutional contests. As the story shows, public consensus on constitutional questions may arise just as much from a conviction that one side is wrong as from the conviction that the other side is right. It is perhaps only a slight exaggeration to say that the apparent public consensus in favor of the modern administrative state arising from Roosevelt’s landslide victory owes as much to rejection of the constitutional nationalism of the American Liberty League as it does to an embrace of the New Deal.
Professor Goldstein's posting of his paper provides the occasion I've been waiting for to share the lyrics of a song parodying the League that I found in a New Deal lawyer's papers.  ("Our patriotic fervor burns/To mitigate our tax returns" is worthy of Calvin Trillin.)  The full lyrics appear after the jump.

Hymn of the Liberty League

Jouett Shouse (Library of Congress)
(Tune: Gilbert and Sullivan’s “In Good Queen Bess’s Glorious Reign”)

Americans! Come save the land
Of Washington and Jefferson.
We danger feel for U.S. Steel
And other liberties the Fathers won.
We fear the country’s selling short
The dodderers on the Supreme Court;
And offer to replace the Nine
With Shouse and Raoul Desvernine.

Come use the service of the League
To undermine the nation’s laws–
Our model brief will give relief
When local lawyers cannot pick the flaws.
The queerest people through us speak...
Mill hands at fourteen bucks a week
Retain those guardians of the good
Cravath, deGersdorff, Swain[e] and Wood.

“Due process” is the guardian of
The type of liberty we love–
The freedom to protect the few
Who have against the many who have not.
Be Free!–to gather in the swag,
But cloak your booty with the Flag
And hide the nature of your fights
By calling on the Bill of Rights.

In ties that bind united we–
A money consanguinity–
We have in mind the ties that bind
The workers to long hours and penury.
Our bond unites strange company–
You hardly would expect to see
The Happy Warrior, Al the First,
In bed with William Randolph Hearst.

Du Ponts and Raskobs take your stand:
Uphold the freedom of our land
To make wash sales–in spite of jails
That catch the small speculative brigand.
Our patriotic fervor burns
To mitigate our tax returns.
Americans this cause espouse.....
Please send your checks to Jouett Shouse.