Have you ever heard of the American Liberty League? Think of it as the latter-day Tea Party that challenged FDR’s new deal on constitutional grounds. Jared Goldstein, who has written about the Tea Party and the challenge to the Affordable Care Act, has a new piece juxtaposing the American Liberty League and the Tea Party: Unpopular Constitutionalism: The American Liberty League and the Importance of Constitutional Villains:
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.