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A Tale Told by a President

By Jack M. Balkin

Just sent off this short essay on the State of the Union. Happy to send the full piece to interested readers.

President Barack Obama?s State of the Union address has been described both as ?full of sound and fury? and as ?signifying nothing.? Critics have lambasted the President for insulting the justices who were present for his address. Professor Randy Barnett asked, ?In the history of the State of the Union has any President ever called out the Supreme Court by name, and egged on the Congress to jeer a Supreme Court decision, while the Justices were seated politely before him surrounded by hundreds [of] Congressmen?? Others have indicated that Obama?s rhetoric was moderate and a normal reaction to judicial rulings the chief executive thought wrong. Linda Greenhouse observed, ?The president?s tone was mild compared to the animation in some other parts of the speech.?

Commentators might better appreciate the recent constitutional winter (?of our discontent??) by remembering the Macbeth speaks of ?poor player? who ?struts and frets his hour upon the stage? immediately before his famous observation that life is ?a tale told by an idiot.? Presidents only have a brief time to remake politics in their image. Time is short both because constitutional rules limit the chief executive to a maximum of two four year terms and because, in American politics, the political window for substantial progressive reform tends to close quickly. President Obama in his first year of office attempted to achieve his goals by rallying a bipartisan consensus in favor of health care and other measures. That effort failed. The State of the Union may demonstrate a new willingness to play ?constitutional hardball? with Republicans (see Mark Tushnet's piece in Minnesota). This constitutional hardball was presaged by mere words against the Republican dominated federal judiciary, but was manifested more seriously in the President?s subsequent willingness to circumvent the various veto points, most notably the filibuster, in the national legislative process that had previous enabled Republicans to prevent the passage of health care reform. The majority Democratic Party, Obama?s State of the Union may have declared in retrospect, will no longer permit the minority Republicans Party to rely on preexisting political procedures to prevent or stall progressive legislation.

Full post as published by Balkinization on April 16, 2010 (boomark / email).