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168 SE CTION VI

GOSNELL HAROLD -

32. URBAN POLITICAL MACHINES

d disadvalltages of the Gosllell captures the advant~ge~a;1 classic description of old style machine politiCS9~~s. I Many of the functions Chicago politics 111 tbe 1 I cies since the days of the

d b '//lIe/Ita age ll h Id P

Periorme Y govel/ ,if' 'entl)1 by teo 0-I' dl d qUite eu lCI b New Dealzvere ball e , ptain could usually e

I ' TI e precmct ca d d ' litical mac JIIIes,} . Ifare and foourmg de/leIIded on for johs, houshm

g " wdeay ~f urban political . . s In t e Jey .

had economIC tllne . h t ntieth century, a S/11- machines in the first half of t e. we not even holdi11g an

I·, I ,t hoss-sometImes gle po ItIca pm Y . d' {, mal processes of gov- I . if.' dommate t Je l0r e ectzve o"Ice- d h ildi11g personal loy-

emment hy c011tl'Olli11g johs an d: . ess leaders alike. alt I b I doi11g favors for voters an usm .' I Adho:gh the pure po/~icfIl~machiJ1JLor.ga11!&atJ.o11a~ st~f.~ has virtuall)1 disappeared /11 urhan_A:nertca~ Its slgm.1 ca11ce. i11 America11 politIcal- party history IS well ple- served in Gos11ell's work.

THE ROLE OF URBAN POLITICS

What is the balance sheet of machine politics in an urban center such as Chicago during a period of economic crisis? On the credit side of the ledger should be placed the success of the bosses in softening class conflicts. By grant- ing petty favors to various nationalistic and local groups, by taking advantage of the subsidies offered by the national government, by keeping the attention of the voters distracted by factional quarrels and sham disputes, the party ma- chines have kept minor party movements from gaining any headway. From the standpoint of the business leaders, this function of parties has been very use- fu!' Some of the submerged groups may not be so appreciative; but the fact re- ~ains that duri.ng the years 193.0-36 the city was comparatively free from VIOlent labor disputes, hunger rIots, and class warfare. The decentralized, chaot!c, and inadequate character of the governmental organization of the cit)' has discouraged far-reaching demands upon local authorities.

SOllrce: From Harold F. Gosnell, Machi/Ie port' . Ch' " 9' (Chicago: The University of Chicago Press 193) IC5. lcago Model, Chapter 9, pp. 18)-.1 Press. All rights reserved. Reprinted by per' . . ). COPYrIght © 1938 The University of Chicago

miSSion.

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PO LI T I CAL PA RT I ES 169

During th e d e press io n th " " " .. e mac hin e I

rhe \anou s gove rnm e ntal age nc ie h" la s al so acted as a k" d f b H f Eviction ca ses, eme rge ncv hun g s w Ich have had to d; al' " Ihn h

O d " u er °d

r

" d f "' er cases and ' Wit t e Istresse . sometlllleS ca re " "o r In " th e fir st in sta ~~e b emergency cl othing sho rtages were teemen. The re hef ac ti Viti es o f th e . y the wa rd and prec inct co mmit-

e d " " party work course, wer nor ISlnterested b ut h ers were not systema tic a nd o f

d b . " " ' t ey were d "d f ' aske no em a rra s In g qu esti o n d eVOI 0 red tape. Wa rd heelers rhe y could. The d ema nd s o f th e pS, an d they supplied at o nce a ny ma teri a l a id

Id h efl O were su h h h

co u not op e t o mee t mOre tha ll " _ c t at t e pa rt y o rga ni za ti o ns " h a mll1ute tr " - h

rhe impreSS io n t a t th ey kn ew th acti on ot t em, bur th ey did leave The stability o f th e mac hin e e r~pes o f th e reli ef ga me. " " " was reass urll1g t "

setting mnovatl o ns wo uld be tri ed" I I 0 va n ous groups th at no up- ular showed a n am azi ng ly low t 111 OCa governm ent. Wa rd leaders in pa rtic-

urn over co nside " h d " that accompani ed th e econo mi c " " S' " nn g t e stresses a n strallls

cn slS. USlil ess " I" d Id leaders bankers a nd la bo r ch " f k men, Jo urn a IStS, un erwo r

. ' , " Ie s new that th ey co Id h I I machme to do bus ll1ess in th e old wa "" u co unt up o n t e oca in the role of the nation a l overnm y/ n spl~e of cha nges tha t had ta ken place

I d "f . g ent. Inefficiency 111 loca l government could

be to erate I It meant reSistance to the ex te " f h I I b " " I

"d " I" nSlon 0 t e oca pu hc services. The argest m ustna IStS, newspaper propriet b k d bl" k " -"d " ors, an ers, an gam IIlg IIlgs dl not want a state IIlcome tax a modern tax II " " f .. I " ' -co ectlon system, or an expan- SIOn 0 mumclpa serVICes and budgets Party bosses b I k "

h h " . " . were a u wa r agalllst

such c anges. T ose citizens who might have benefited from such modifica- ti~ns of ~he role of local government were indifferent, deficient in promotional skills, misled by the press, and disillusioned by the failure of reform waves to leave many permanent traces.

" ~hi!e the d~pression h~s not eliminated the influence of the spoils tradi- tIOn III City hall, It has drasticall y purged one of the major party organizations. The economic crisis greatl y reduced national and local incomes and made the burden of taxation relatively much greater than it had been in the prosperous twenties. A city can support more than one political machine when real estate values are rising and incomes are going up. During such times the taxpayers are not so tax conscious as in lean times, a nd the general public is more indif- ferent to graft exposures and wasteful expenditure of public funds. In a period of economic depression there is graft enough for onl one machi e. The law of the pendulum in democratic countries operates against the party which is in power when the economic deprivations are first being felt . Those major party factions which were in power at the time of the stock market crash were swept from the public offices. There has undoubtedly been a <:Jecrease in the total amount of political grafting iI!. the city during the past eight ears. Relative to the opportunities ava ilable, there may not be any great decrease; b.u~ there are fewer political mouths to feed out of the public crib, since local p.Qlttlcal .power

has been concentrated in a sin Ie or aniz<!Ia.ll" lJ.l..- Under prm ure from t e financial interests the politic~1 bosses have ~een

compelled, in the last few years, to make drastic economies. Tax collectIo~s have b

. ff" t the local governmental expenses, and the unpaid een msu IClent to mee

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[70 S ECTION VI

I P olitica l ma chine. Th e hank s have

I 0 • grc °Jt °1sset to t le d Public emp oree IS not a .' I Il oc exp enditures we re re uced. I d ' unless rota pu 1 I ' ffo 0 been unwilling to cn nlOne} 0 d gove rnmental e IClency, a nd

o I °lVe not IInprove I \'V'hile many of the econolllies 1. 0 d spoil s there have )ee n some '

I IJ of p°ltronage .111 , there are stillman ), stron g 10 s '1 0 0 0 I b ' ses with less patron age. G reater

h o I I left the po mc.1 os - d h

improvements, w Ie 1 \a.ve d II tiOOI1 S ha s loo sen c t e strangle d

o l1ents an co ec • publicity regar IIl g tax assess.' h d r a lucrative source of campaign

o I I i"tlcnn s once a ove .· 0 0 hold whlc 1 t 1e corrupt po I. °d d h n ovement for th e co nsolidation

I d d f conolll Y ha s al etC I 0 0 0 f 0 fund s. T le eman or e 0 f official respon slhllity or fls- of overlapping authorities and the concentration 0

cal affairs. 0 d 0 0 0 tI re have be en a numb er o f develop- In the field of pubiJc a mini stratiOn le 0 fl f 01 Th

o h d d le sse n the 111 ue nce 0 Sp OI s. ere ments in recent years which 0 ave te n e ot~ I e local tax authoritie s, and has been a trend toward stricter sup~rvl s lo~ ofot ol - Th 111 0 0 I

o I - t political abu ses. e 1I100S sa es the newer form s of taxation are ess op e n 0 - .- f-,---- 0 • h 0 h tax obJoectionable as it is from the th eoretica l POll1t 0 vlew

d , IS a tax Wh O Ihc h

can , 0 0 I 10 leJ k ge Th e avance s w IC ave

be administered With comparative y ...!!!- ea a. ' .

b d ol fO Id f publloc welfare administration have mad e the social

een ma e Ir1 t 1e Ie 0 • • o 0 0 0 f tile precinct committeemen more and more unnece ss ary.

service activIties 0 0 0 0 d 0 0 There have been fewer occa sions when the party offlCwls can step 111 an n:1t1 - gate th e harshness of the law. The growth of sucoh services as parol e, probation, community case work, rehabilitation and public employ~ent bureaus has ~e­ duced the impor~al1~e of the p~cil}ct..captaill-.asJ'Lcommul1lty ag=-nt. These gams have been achieved for them ost part through the efforts of dle state and na- tional governments. The most that can be said for the local machine is that it has furnished no effective opposition to these innovation~ .

( The depression has also brought greater recognition for the ment system in the municipal service. In Chicago the civil service rules were extended to certain park districts by the new Park District Law, to the Sanitary District by legislation in 1935, to the employees of the county assessor by the new taxa- tion legislation, and to some of the other county employees by administrative action. While the Illinois civil service legislation has been reasonably sound, the practical application of the rules has left much to be desired. The spirit of the merit system has been violated by an excessive number of temporary employees, by a vicious system of waivers which nullifies the function of pro- motional examinations, by the old-fashioned practice of "framing" efficient em- ployees, by the retention of inefficient political employees by means of legal chicanery, and from time to time by outright bribery and corruption. Leaders of both of the major parties have sinned against the civil service command- ments. A pre-depression mayor of one party was frankly hostile to the merit

system. Post-depress~o~ mayo~s of another party have given lip service to the system but have admInIstered It as politicians.

o On~ might expect that, when hard times brought a great relative increase In the sIze of the tax burden the taxpayers would de d . d I 0 ' man greater servIce an revo t agaInst the perversion of government by spoilsm Th d ( f b-I" h d h O 0 en. e eleat 0 esta IS e mac Ines In New York and Philadelphia since 1929 . h b . d mIg t e mterprete

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P O LITI C AL PART I ES 171

in su.:h rerl11 s. On rhe other h· I h . . Chicago no re SI)ire f b " .Inll, r '" d"'pn.·ssion ha s given to the citizens of

. . rOI1l oss ru "'. Eco no l11l d ' . . rhe polltl.:al SVStelll ' Ch ' b c epnvauun have faded to break

• 111 Icago ecau se of f . . lack of lead ers hl'p d h h • an un .avorable pre ss situati On, a . , an t '" C aracrer of th d ' . . . .

the depress ion.... e part y IVl slon ar the begll1nll1g of

Th ose co nce rned wirh att"lCk ' h I' . ested in a nUl11be f I " '. II1 g r e po Itl ca l l11 ac hine sho uld be inter-

ro c l a ngt: s 111 rhe electlo I d h ' d . . . The long ball o t th I . I' . . n aws an t elr a I11l11l srratiOn .

, e I11U tip IClty of election s th II ' f hI ' \. precincts and th I k f d ' e sl11a size 0 r e e ec tl o n

h · h I.' d ' e ac 0 a eq uate sa feguard s aga in st fraud are all fa ctors

w IC pa y Irec tl y II1to the ha 1d - f h I" I h

. • I SO t c po !tIca bosses. The e trappings of an arc alc rura l demo cr-Ic)' I ' h ·d I ' . . . f ' ,w llC ass ume t 1e eX istenc e of omnICompetent CItizens uncti o n badl . th . . . . Y 111 e great metropo litan ce nter s such as C hicago New York, a nd Philadelpl ' III ' . h . I . . ' • lIa . 1I1 0 lS as a lung e ballot· and It IS no wonder that the Voters get lost t . k . d . .' . rYll1 g to ma r It, an are wdlll1g to be led by the suave representative s of the pol ' t ' I b - I k h . I Ica osses w 10 ta e t e time to show them sa mple ballots and to explain th . f hI ' . . e mysterIes 0 t e s ate. One o f the be st Illustrations of cul.tural lag 111 the fi eld of politics is th e slow pac e at which positive law is catchtng up wlt.h the unanimous recommendations of political sc ientists, over several generations, with reference to the short ballot. A shorter ballot in ~hicago w?u.l~ .make it much more difficult for the political machine to dodge Its responsibilItIes, and the agitation to secure such a change would build up the antimachine elements.

"Divide and rule" is an old saying in politics. It applies with par.ticular em- phasis to American municipal politics. The old-fashioned city council elected by wards ~s based on the principle that, if spoils are divided into_small enough unit-s,a great many inAiy idy-aLcit.izens can be put under personal obligations to the machine. Thousands of citizens will not vote against the dominant machine because the local ward boss has done such favors for them as fixing their curbs, collecting their garbage, fixing the street lights, or aiding them in securing some governmental service. That ward organization which delivers the most votes is entitled to the biggest share of the spoilsJ rauduleIlt registration in the form of colonization, ballot-box stuffing, alteration of ballots, and falsification of elec- tion returns are practices which benefit warci !,ollticiai1s\ In order to increase the controlled votes they can cornman , they put all sorts of pressure upon their precinct workers, appoint criminals as members of precinct boards of

election, and organize gangs of floaters and ballot tricksters. Electoral corruption and petty graft weaken the faith of the masses in dem-

ocratic methods, and consequently it is necessary to minimize their use if it is desired to strengthen democratic ideology. If e1ec~ion precincts :-vere made larger, the total number of election officials-would be reduced and It would b:

ha-rder(oLtlie-po :mcal-bosses to mampu ~te e.ac my um 0 tee ecrorate. fn Great Britain there are no precinct captams, m part because the .votes are not

counted by small districts but by large areas incl~ding around ~Ifty thousand voters each. In some parts of the United States fairly large precmcts are used,

and in a number of cities ballots are centrally counted.

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172 SECTION VI

the election boards could hines have over , I 'h '

The control which the party ma,c . ' It 1111 t e preCll1ct be reduced by abolishin th , 1 " For many ye ars the city of

, I dOJnluan p.lCncs, 'f f' d ' and of re resen anon ot Uf tWCl.J , ' ', I the baSIS 0 Itne ss an 111- :..:..:..:~:....:..:=.:..::.;:..o.~ , .' I (Jon offJCl<l s on ,." I . Detroit has appoJllted preclflct e ec k rson s with CrJI11ln a records

, ' d" h I been able to eep pe ,I' , tegrity. Other Juns Ktlon S a\e , " ery-c_d.iff.U?~11r JJ1 many areas to

, b d In Chicago It IS v h I off the precinct election oar s: , " h' recincts to serve on tee ec- get properly ..9,ualified persons !Jv~vlthJll t e.J.J" ~tatiOn has not prevented bi-

d h . nt of p'uty represe , ,

tion boards an t e reqlureme <, f ds While the positive law , , ' trate election rau . I ' I

partisan conspiracies to perpe , ' d 'ff _ It because some of the egis ators remedy is well known, its adoption IS b

l :~~~ited from its defects and do not chosen under the present system have e .

k h ' chances of reelection. want to wea en t elr own f ' aJ representation for the present Th b ' , of a s stem 0 proportIOn e su StlW JOn " -;;-ups ~o combine more effectively. Pro-

d plan would ena e the antJmac JIle gr ' I I ' war ' Id ' I the selection of city counel ors-at- arge 111 porrioualrepresentatJon- wou JIlVO ve , fl ' ' h h

, h I h' h uld secure a city councd re ectJllg Wit mat e- accordance Wit a pan w IC wo Th d I '

, h h f the groups in the electorate. e un er ylng ra- mancal exactness t e strengt 0 , f ' .. f h , I f h' ' the desl're to prevent the exclusIOn 0 mJllonties rom t e nona e 0 t IS system IS , 'h ' h

benefits of the state-a rationale based on the democratic pr~mlse t at, In t , e ~b- sence of some means of protection, minorities may be explOlte~ by the m,aI Onty. tP~oDal regresentatiOliwoul~ _do_ away with gerr~m~nder~ng and chlcaner~ 'frfconn;ction with the determlnatToliof ward boundarIes, and It would automat ically take care of any shifts in the population, thus eliminating such a rott~n, b?r- ough as the First Ward in the city of Chicago. Election at r e ,",:ould mlnl~lze organizational elements, since it would lessen the power of the prImary relatIOn- ships established by the ward heelers and magnify the importance of secondary contacts. Thus it would be possibk1or-re.fonn groups lect candidates of their own by means of press_and.radi~uch methods are not feasible in ward battles, inasmuch as neither a metropolitan newspaper nor a broadcasting station can give as much attention to fifty local contests as to a city-wide struggle. Cincinnati, Toledo, and Hamilton, Ohio, have shown that proportional represen- tation can be used to defeat machine control.

If democracy is to survive in troublesome times like the present, it will have to have a firmer foundation than the cohesive power of public plunder. Too often the methods employed by party machines to finance their various activities have given rise to the charge that our democracy is a demagogic plu- tocracy. As long as the parties rely upon contributions from business men who are, see~ing special favors, criminal elements which are seeking protection against Interference on the part of the law-enforcing authorities and office- holder~ who regard their loyalty to the party above that to the st~te, cynicism regardIng the electoral process will be widespread.

The power of money in American municipal politics could be regulated to a much greater e~tent than it is at present. The floodlight of puh!i.ciry, be- f?re and aft~r elections, regarding the sources of campaign funds and elec- tion expenditures has wea~ ul' . '

, ~ .• -~ ~6SS-I: e..!ILa..number of states and cities.

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P OLITI C AL PARTl I' S dd ' , ' 173 In a ItlOn , the reg ulat ' f

f IOn 0 cerr ' o party workers and watch am types of ex pelldl't h ' ers On I ' ures su h h I c lI1e vote where it ha b , e ectl on day ha d ,c as t e liring

, < seen tr d • . , s re uced tI '. practices acts and IIIi " Ie , lvlan y of th e Stat h . le Size of th e ma-

f ' nOIS IS o ne of h ,es ave lI1 adeql use 0 mo ne y in elec ti t e States which I ' late co rrupt - J-ega l reg' ul a t' o ns, la s no law regulating th e

- _" Ions are necessar ' , are, not sufhcl ent , The Ameri y In th e, fIght again st th e soil

to ,lI1c~l~a~e, a lega li stic modec~~ t~~~~~~utl~nal sys tem is suc~ th ,:;~;~~~~;~~:~ naive alt 111 the power of legi slation g a o ut S? clal problems, We have had a chan~,e o~lr hab its an d kee p us good ~on stltutlonal, statutory, and local-to ment ,with the constitutional prohibi he coloss al fa ilure of the " nobl e ex peri - po~tatlon of alcoholic beve rage s ha s tlon of th e manufacture, sa le, and tran s- whICh run contrary to the < f' to so me extent, shattered thi s fa ith . Laws

I b more s 0 an 1m I can on y e enforced at as' I ' Portant e ement of the population I I d ' OCla Cost whICh h'b ' , a ega eVlCe de signed t ' f " , IS pro I Itlve, On th e other hand

d ' h 0 pun y POittlCS IS k bl I ' , cerne Wit seeing that it d wor a e on y If so meone is con- , oes work If mad ' d 'd Important appointing off h' " 11l1e can I ates are elected to the " I' Ices, t ey WIll fInd m th d f '

CIVI servICe laws Even th f e 0 s o r cIrcumventing the lated by unscrup~lous p ~ ~?st perhectl y drafted election law can beJD,anipu-

< 0 ItIClans w 0 are not car f II h- d Th ositive law can do is to I I feu y watc e. e best that

r-?---r'-:,- create a ega ramework h' h k ' o pu IIc office for ' ,- , , W IC ma es t e perversIon civic points of view.PrIvate profIt rISky and whIch facilitates the expression of

If the struggle ag' h ' , , , all1s,t t e p~~ty machIne IS to be successful, more demo-

crat,.c methods fO,r fmancmg political campaigns must be devised, local parties ~Icated to the Ideal of voluntary precinct work must be organized, and the cltiz:ns m~be_ educa.ted to demand se rvices of the government rather than spe~lal ~avors from the politicians. That all of these things are possible to achle~e m the present generation has been demonstrated by a number of cities AmerIcan and European. The will to achieve has been lacking in some places-' high places as well as low places.

Looking at the problem of urban democracy in the United States from a long-run point of view, the picture does not appear as gloomy in all aspects as Thomas Jefferson painted it one hundred and fifty years ago. In the past seventy-five years or so, machine voters have been recruited for the most part from the ranks of the unadjusted foreign-born groups, the unassimilated mi- grants from rural areas, the transient workers, and other such elements. The sinews of campaign warfare came from the robber-bar?ns of American indus- try, particularly the real estate and the utility magnates.\ W.i!h the cutting-off of immigration, the slowing-up of the migration from the farms to the cities, the declining of the birth-rate of the newer immigrant groups, the maturation of the industrial revolution in the country, the growing socialization of the poli- cies of the over t.,-f)ar.ti.c.ular.!y the national government, th~ machines WI have fewer and fewer persons to draw upon as the years go byl That sec- tion of the electorate w IC rea s no daily newspapers, which depends upon petty handouts from politicians, and which is deficient in formal civic training

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174 SECTION VI

. he end of the next seve nty-five y will grow less and le ss. It ma y be that at t I' . ears . . I ' tht· great metropo Itan centers . the problem of building' up CIVIC" mora e 111. h I' . \VIii

I I ' t wa s or as so me WOlve In h not seem so hopele ss as Jefferso n t lOUg 1t I , t e twentieth cenrury now think it is.

THE AMERICAN POLITI CAL SCIENCE ASSOCIATION

33. RESPONSIBLE PARTY GOVERNMENT

Political parties offer the best vehicle through which voters can influence public policy. Recognizing that American political parties have generally tended to be decentraliz ed organizations with weak ideologies, the American Politi- cal Science Association's Committee on Politica l Parties urged in 1950 that the parties be strengthened so that they could be more responsible. Advocates of respo nsible party government bdieLJ.e-thauacb..p.o.liticai arty is obli- gated to provide a clear vision offfie direction 0 future f1i.iEi, tC po icy decisions . Then, by picking candidates from the party whose views most closely resemble their own views, voters are capable of controlling at least the broad directions of governmental policy.

SUMMARY OF CONCLUSIONS

AND PROPOSALS

PART I. The Need for Greater Party Responsibility

1. THE ROLE OF THE POLITICAL PARTIES

1. The Parties and Public Policy

Popular government in a nation of more than 150 million people requires political parties which provide the electorate with a proper range of choice

Source: From American Political Science Association, "Toward a More Re sponsible Two-Parry System: A Report of the Committee on Political Panies," America n Political Science R elllfll' (September 1950). Reprinted by permission of Cambridge University Press .

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POLI TI CA L PA RT I E 175

between altern a tives of ac tion I d . . n Or er to k h . Onsider the relati o ns betweell I ee p t e parties apart, o ne mu st c . eac 1 and II" I' f h rowing empha sIs o n public p I" PU) IC po IC y. The rea sons or t e g 0 IC y In pa rty 1"' b II

. the very operations of mod . po ItlCS are to be found , a ove a , 111 ern government.

2. The New Impo rtance o f Program

The crux of public affa irs li es in th . I r : d e necess Ity for more effective fo rmulati o n of

ge~e~a po ICle s an program s and fo r better integration of all of th e far-flung activities of mod ern government It is in ter . f h J" I . . ms 0 party program s t a t po mca leaders can a ttempt to conso hdate public attitudes toward the work plans of government.

3. The Potentialities of the Party System

The potentialities of t.he two-party system are suggested, on the one hand, by the fact that for all pract/cal purposes the major parties monopolize elections; and, on the other, by the fact that both parties have in the past managed to adapt them~e1ves t~ ~he demands . made upon them by external necessities. It is good practical pohtlcs to reconsider party organization in the light of the changing conditions of politics. Happily such an effort entails an application of ideas about the party system that are no longer unfamiliar.

2. WHAT KIND OF PARTY SYSTEM Is NEEDED?

The party system ~hat is needed must be democratic, responsible and effective.

I. A Stronger Two-Party System

1. The Need for an Effective Party System An effective party system requires, first, that the parties are able to bring forth programs to which ther_c_QIDlIlit- themselves and, second, tha t the parties possess sufficient internal cohesion to carry out these programs. Such a degree of unity within the parties cannot be brought about without party procedures that give a large body of people an opportunity to share in the development of the party program .

2. The Need for an Effective Opposition Party The fundamental requirement ~ountability is a two-party system in ~h~ch the oPPositi?n party a~ts as the ~f the party in power, developing, def~l1I~g and p~esentln~ the p.o~lcy alter-

natives which are necessary for a true chOIce In reach mg. pubhc decl~lons. The OPposition most conducive to responsible government IS an orgal1lzed party OPposition.

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176 SECTION VI

II. Better Integra ted Pa rti es

1. The Need fo r a Part y System with Creater Resistance .!5!.-f'!ess ure There is little to sugges t that th e phenomenal growth 0 Interes t o rga J1l za ti o ns 111 rece nt deca des ha s come to its end. The whole developm en t ma kes necessa r}' a rein _ fo rced part y system that ca n cope with th e multiplied orga l~i zed pr ess ures. Co mpromi se among interests is co mpatibl e with th e a im s of a fr ee oc ietyo nl y when th e term s of reference reflect a n ope nl y acknowledged co nce pt of th e

public inte re st.

2. The Need fo r a Party System w ith Suffi cient Pa rty L oyalty Nee ded clarifi- cation of party policy will not ca use the parties to..diHe~ fundamentally or more sharpl y than the y have in the pa st. Nor is it to be ass um ed that in- creasing concern with their programs will cause the parties to erec t between themselves a n ideological wall. Parties have the right and dut y to announce the terms to govern participation in the common enterprise. The empha sis in all consideration of party discipline must be on positive measures to crea te a strong and general agreement on policies. A basis for party cohesion in Con- ?ress ~ill be established as soon as the parties interest thems e lves sufficientl y III their congressional candidates to set up strong and active campaign organi- zations in the constituencies.

III. More Responsible Parties

1. The Nee~ (~r Parties Respo~sible to the PulzliE Party responsibility means t~e responsibIlity of. b,o,th parties to the general public, as enforced in elec- tIOns. Party responsibIlity to the public, enforced in elections, implies that t~ere, b,e more tha,n one party, for the public can hold a art responsible o~IY If It has, a chOice. As a means of achieving responsibility, the clarification o party po 10' also tends to keep public debate on a mo I" I I /' " h ' , , re rea IStic eve re- straining t e inclination of party spokesmen to make b ' d' ments and charges. unsu stantiate state-

2. The Need for Parties Responsible to Th ' M includes also the res onsibilit of art Ie ~lr embe.rsJ>arty responsi,bility enforced in primanes caucuse Pya ers to the party membershl ,as

. ,s an co ' , nal klllds of party responsibTt d ' . e externa an the Inter- minimized if it is generally I I Y ne~ ~othconfhc~. I!ltraparty conflict will be leaders have a common res reco~bn,ll~e t at national, state allillocal party

ponSI I Ity to th " I party leaders have a legitim t ' . e party membership. Natlona

d 'd a e mterest m the " , I can I ates. nommatlon of congresslOna

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3. THE INAD EQU \ " f e y 01-' T HI-' E '

I. Begllll1l1lg Tran s iti o n ' XISTI Ie PARTY SYSTEM

1. Change and Self-E . ' of American soc iep -h", a Il1111a/io ll Marked cl .. ' I . . i ave ne ' 1allges III the

c Imate ot self-exa ', , cessa ril y affn . d h structure and proces es , mlnatl o n .. cr(' t (' pa t

parry system give p , as w('11 as the Cllr r y SVstem. The prevailing OInt to " rent tenden c' d II1Qlllrie s like rI ' les lowa r change in the

1M represe nted by our report.

2. Burden of the Past F substantially h ' onTIal party orga '- ' . , main trends 7 Aat It was before the C ivil ~zatl~n In Its main features i still

o mencan politics have tende~ r~ nd er th ese cIrcumstances th e o outflank the parry sys tem.

II. Some Basic Problems

1. The Federal Basis Th . . I e two parties are 'd liQIla ancLstate party or " organIze on a federal basis. The na- . h gal1lzatlons are la I . d d

Wit out appreciable comm ' rge y 111 epen ent of one another on approach to bl' '

egy. The real issue is not over th f pro ems ot party policy and strat- right balance of forces within this e edertl form of organization but over the of federalism now express d' h type 0 orgal1lzatlon. A corollary of the kind

e 111 t e party system is ' ternal separatism. an excessIve measure of in-

2. The Location of Leader I 'p P ,. h

. . S 11 (\ <1 arty organIzation does not vest leadership of r e party as a whole 111 either a ~inolL .. . -:' p.e.rson or a committee. There IS at pres- ent 0 centra~ . or organ which could claim authority to take up party problems, poliCies and strate .

3. The Ambiguity of Membership No understandings or rules or criteria exist with respect to membership in a party. Those who suggest that elections should deal with personalities bur nor with programs suggest at the same time that

party membership should mean nothing at all.

III. Specific Deficiencies

1. National Party Organs The National Convention, as at present constituted and operated, is an unwieldY0!!!Lepr entative and less than responsible body. The National Committee is seldom a generally influential body and much less a

working body. House and Senate campaign committees do not always have a good working relationship with the National Committee. Although interest in

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178 SECTION VI

h ational party organs a re not So c

10 h s grown, ten. on. q uestions of party po ICy a k 0 imple for them to pay enough att d

o d s to n a e It s en. stituted nor SQ.-com! m.1te a - ti On to these questions.

o b the parties a e.-ddined so badly that 0 I ,. Iternatlve etween - °d d olt 2. Party P at arms 0 h h election ha s deci e eve n III broad

is often difficult to determldne w f

at th ewriting and adoption of national par est Th

. 01 0 proce ure or te o ty terms. e prevcu mg f m the process by which ac tual de 0

o hod nd.too. remote ro CI· platforms IS toO u[ne _a · f the whole party and th e electora o d mand the respect 0 te

T Slohns al refma ehto clodm

be the end product of a long search for a working agree:

e p at orm s ou ment within the party.

3. Intraparty Democracy Too little consideroatia 0 has been given to ways and

f b oo bout a constructive relatIOnship between the party and its

means 0 nngmg a 0 0 0 h f b I k

o the most of popular partiCipatIOn, t e pe r ormance of mem ers. n rna mg American parties is very unsatisfactory.

4. Party Research A party stands as much in need of research as does business enterprise or the government itself.

4. NEW DEMANDS UPON PARTY LEADERSHIP

I. The Nature of Modern Public Policy

1. Broad Range of Policy The expanding responsibilities of modern govern- ment have brought about so extensive an interlacing of governmental action with the country's economic and social life that the need--foJ:cQordinated a~ coh egislative as well as administrative, has become para-

ount. In a democracy no general program can be adopted and carried out without wide public support.

2. Impact on the Public In a predominantly industrial society, public policy tends to be widel inclusive, involving in its objectives and effects very large segments 0 the public or ven the whole country.

3 .. C:0ve~nmental Program Machinery On the side of government, in the ad- ~Intstratlve and the legislative spheres, the twin needs for program formula- tion and for program machinery have long been recognized. The governmental advance toward program formulation needs now to be paralleled in the political sphere proper-above all, in the party system.

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II Rise of Nation-Wide Pol ' . ICy Issues

POLITI C AL PAKTI ES 179

1. An Historic Trend The ch . , I f h anges In th

rhe resu t 0 C anges in the So ' I e nature and sco f b ' , 5

res. Cia structure and' h pe 0 pu Itc poltcy are ta tn t e economy of the United

2. Past and Present Factors Th h _I:~" nf <: 'I' ere as been ' ~ectl~na Ism. Party organizat' d I~ recent decades a continuing de-

I f t ' I ' Ion eSlgned d I ' , , yO ume 0 na lona ISsues must giv 'd to ea with the tncreaslI1g e WI e range t h '

o t e national party leadership.

3. New Interest Groups in Politics Th ' reduced the weight of sectionalism h e eClonomlc and social factors that have new type of interest groups bUI'It avela so resulted in the development of a

, upon arge memb h' ~ h extent than in the past, they operate as if th ers .. ~. a a mu,c l?reater one or the other party. ey were auxtllary orgamzatlons of

5. THE QUESTION OF CONSTITUTIONAL AMENDMENT

1. A Cabinet System? A responsible cabinet system makes the leaders of the majority collectively accountable for the conduct of the government.

2. Strong Parties as a Condition To amend the Constitution in order to create a responsible cabinet system is not a practicable way of getting more effective parties.

3. Adaption within the Constitution The parties can do much to adapt the us- ages under the Constitution to their purposes.

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I I

r80 SECTI O N VI

JVI O RRI S F I O RINA

34. TH E D EC LINE OF RESPONSIBLE PARTY GOVERNMENT

Political scientist Morris P. Fiorina lam ents the declinc o( "responsible party" governmcllt, arguing that strong parties o((er the best o r ollly way (or voters to par~lCIpate meaning(ully in the governing process. Echo/l1g the American Political Sciell ce Association's statem ent on respollsible party government issued 30 years earlier, Fiorina maintains that the consequences (or America n politics o( our seriously weakened political parties include a decline in the ability o( political leaders to act deci- sively, an increase in the importance o( single-issue poli- tics, and a growing alienation o( Americans (rom their political system.

Fiorina 's plea (or more disciplined political parties 0(- (ering coherent programs to the voters was heeded by the Republicans in 1994. The midterm congressional elections that year resulted in major gains for the Republicans. In (act, not since 1954 had the Republicans gained control of both the House and Senate. During the campaign, Repub- lican Representatives Newt Gingrich and Dick Armey per- suaded hundreds of Republican congressional candidates to sign what they called a " Contract With America," in which the signers promised to vote for ten major policy initiatives during the first hundred days of the 1 04th Con- gress. The commitment of so many congressional candi- dates of one party to an explicit party platform was an unusual expression of the classic "responsible party " model articulated by the American Political Science Asso- ciation and supported by many political scientists such as Morris Fiorina. Speaking with one voice, the Republicans were telling the voters: Elect us and we will carry out our part of the contract by enacting the measures we have pledged to enact. In the "responsible party " model, the voters could then reward or punish the Republicans two years later.

SOItree: "The Decline of Collective Responsibility in American Politics" from Daedaills, Vol. 109, No . . 3 (Summer 1 ?80), p. 25-46. © 1980 by the American Academy of Arts a nd Sciences. Reprinted by permission of MIT Press Journals. Footnotes have been renumbered .

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~ . '7 0" F ;~

,

Included ' POLITI C AL PARTI ES .8 L t 111 the .. axes, amend tl . Contract"

budget and t o ,1e CO nstitution t Were pledges to cut 1l1'l/Jose t . 0 requir I

gress, re fo nn tJ r. erm limit e a Ja lanced b k

1e ,eder, I ' s o n memb , f ac 0 1/1' streets .. a crll1linal la . ers 0 Co n- , 'I ' , and Will o rde t .. k CIVI lusti ce restore .. I' 0 ta 'e

, system t / " common .. makmg th e /0 ' Jy lI11/tinv p " sense to the I , , Sl/'lg pa t' 0 Imltlve dm ' Itlgation I' y 1/'1 a civil' nages and

Afth . 1 Sllit pay the co sts of , Oug 1 Speak ' .

these p' p er Gmgrich d 'd . 10 osals before the H I place nearly all of most were passed by the R ouse of Representatives and was much less resp , elJlIblrcan l11aio rit)' th , S OI1SlVe and r. ' e enate

,ew were enacted into law

Though the founding fathers b I' d ' . . I e levI" In th ' natlo~a gov~rnl~lent, they took great ain I" necessIty of establishing a genuinely do thmgs to Its cItizens; what gove p s .to deSIgn one that could not lightly

d h f . rnment mIght dr. '

ire to t e unctions of what we k 0,01' ItS citizens was to be lim- d

now now as th" h Faun ers composed the constitutional litan e. watc man state." Thus the created a federal system they dist ' b d Ydfamlhar to every schoolchild: they

[ d II I ' n ute an blended ' h' the Ie era eve s, and they encoura d h powers wit In and across k d b I

ge t e occupants of th ' , , chec an a ance each other by st " e vanous positions to ambitions would be likely to confl~uctunhng IhnCentives so that one officeholder's

ICt WIt ot ers' The re It' f ' , tutional arrangements predictably hampe ff' d

SU Ing system 0 1I1Stl-rs e orts to un e t k ,,','

and favors maintenance of th rae maJor initiatives e status quo. Given the historical record faced by the Fou d h ' h' , " n ers, t elr emp aSls on con-

strammg government IS understandable. But we face a later historical record one tha,t ,shows two hundred years of increasing demands for government t~ ~ct posl~lvely. ~or~over, developments unforeseen by the Founders increas- mgly raIse the hkehhood that the uncoordinated actions of individuals and groups will inflict serious damage on the nation as a whole. The by-products of the industrial and technological revolutions impose physical risks not only on us, but on future generations as well. Resource shortages and interna- tional cartels raise the spectre of economic ruin. And the simple proliferation of special interests with their intense, particularistic demands threatens to render us politically incapable of taking actions that might either advance the state of society or prevent foreseeable deteriorations in that state. None of this is to suggest that we should forget about what government can do to us-the contemporary concern with the prope~ scope a~d methods of gov- ernment intervention in the social and economIC orders IS long overdue. But

, the modern age demands as well that we worry about our ability t,o make

govern k (. s The problem is that we are gradually losmg that ment wor ,or u . 'f ' ability, and a principal reason for this loss is the steady erosIon 0 responsI-

bility in American politics. ' " ) h Wh d I b this important quality, responslblhty. To say t at

s at 0 mean, y " bl for a state of affairs is to assert that he or Orne person or group IS responsl e , 'or im act on that

they have the ability to take legitimate acttons that have a mal p

..

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182 SECTION VI

I"S responsible, we know h someone " colloquia ll y, w en state of affaIrs. More " h

I "bTt in a democracy IS matc ed whom to b ame"l" . ;he importance of responsl I I" Y d" vidual responsibility suf-

Unfortunate y, " I autocrac y, 10 I "bT " h b the difficulty of attainin~ It. ~ a~ " d "viduallocates responsl I tty 10 t at fi~es" the location of powe~ I"n a SlOg e 10 :bilit is insufficient whe~ever mare " d" ' "d I well But indIvidual respons " y WI can hold a parttcular Con- 111 IVI ua as . I authonty. we h b " than one person shares govern~enta ersonal transgression suc as" :Ibe- gressman individually responsible "for n~ fndividually responsi?le fo r ml~ltary taking. We can even hold a preside the citizenry with a falt accompli. But moves where he presents Congress and "b"l"ty is difficult ro as sess. If one

. " d " "d al responsl I I on most national Issues 111 IVI U Democratic congressman, and

h" randomly accost a M were to go to Was 1I1gton, f" fl"1 "magine the respon se. are 20 t rate 0 111 atton, , berate him about a -percen If 'they' had done what I ve advo-

than likely it would run , "Don't bl~me mde. " h" uld be f1l1e to ay... . " I cated for x years, t 1I1gs wo k thl"s kind of game-plaYIng al too

" " " " I structure ma es " Amencan 1I1stttuttona I h dl"t or blame for nattonal con-"t we must ay t e cre

easy. In order to overcome Id h d" bringing them about: some form of ditions on all those who ha any an 10

II (" sponsibility is essential. " " co ec we re II " sl"bility has ever existed, and can eXist given The only way co ectlve respon " " . " I"

" " " "through the agency of the poltttcal party; In Amencan po l-our 1I1stttuttons, IS " " Id I " b b tics responsibility requires cohesive parties. ThiS IS an 0 c aim to ~ su"re, ut "t ' ge does not detract from its present relevance.' In fact, the contInumg de- I sa " . ff "f " th I" " bl"c esteem for the parties and contInUIng e orts ro re orm em c 1I1e 111 pu I "bT out of the political process suggest that old arguments for party responsl I I~y have not been made often enough , or, at least, convincingly enough, so I Will make these arguments once again in this essay. " . " "

A strong political party can generate collective respons,blltty by creatmg incentive for leaders, followers, and popular supporters to think and act in col- lective terms. First, by providing party leaders with the capability (e.g., control of institutional patronage, nominations, and so on) to discipline party mem- bers, genuine leadership becomes possible. Legislative output is less likely to be a least common denominator-a residue of myriad conflicting proposals-and more likely to consist of a program actually intended to solve a problem or move the nation in a particular direction. Second, the subordination of indi- vidual officeholders to the party lessens their ability to separate themselves from party actions. Like it or not, their performance becomes identified with the perfo"rmance ~f ~he collectivity to which they belong. Third, with individ- ~al"c~ndldate vanatt~n greatly reduced, voters have less incentive to support mdlVlduals a~d more mcentive to suppOrt or oppose the party as a whole. And fourth, th"e Circle" close~ as party-line voting in the electorate provides party leaders with the mcentlve to propose pol,"c,"es that "II h f

" "" WI earn t e support 0 a natIOnal maJonty, and party back-benchers wI"th th I " " " hi" e persona IOcent,ve to co-operate Wit eaders 10 the attempt to comp "1 d d f

whole. I e a goo recor or the party as a

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POLITI P In the Ame ri ca n Conte L RT IIoS 183

. ' F' Xt, Stro n , . ' 1 tWO wa)s . Ir t , th e \' a ll . g pa rti e h II . Ow Cit ' a\'e trad' . when rhe gove rnm e nt is un 'lf' d Ile ns to as es Itl ona ll y c1a rifi r d politi cs

Ie wi ' h re po ' b' I' P artY meant 111 0 re th a n it d ' ll C it Ill Or f nSI I It )' ea il y. at lea t

' . d . Oes ta d . 1 · e a ten wa ' I' ~ " onomlC, an mte rn a t io n a l . a). Clti le n d In ea r ler eras wh en ,\. . ' co nd . nee a ni I S ia n for o r aga m t c h a nge T h Itl o ns th e>, obs . )' eva uate th e soc ial

. ey d en ea nd k ' .' tlJrio n• urba n, a nd d efe nse I" a no t nee d to d 'd ma e a Sim ple deCi'

h po ICles d eC I e wheth h .

superior to r ose ad\'oca ted b ' C a Vaca ted by th eir co er t e energy, 111 - The seco nd w a \' in whi h) a rter-we re any of th ngress ma n wo uld be

. f' ' . . c stro ng p ' . em to be enac red l tram the Ir st. \X he n Cltl le a rtl es cl a nfv A ' .. '

b h ns assess res 'b' . ' men can polIti cs foll ow

P arry mem e rs a ve p e r o na l . . pa n I tllty on th

. h I' I . In Ce ntives t e pa rty as a wh ole The }" ave Itt e to ga m fro m ' 0 see th e pa rt' · I d f ' . . f g uttlll g th eir . , ! eva uate avo rabl y. r3ckIOg him o r lac k of leade rship th e ne .preS ld ent s prog ra m one day a nd at- fare \ 'hen vote rs d o no r diffe rentl'a te xt

h ,. Slllce th ey ha re in th e pres id ent 's

'b'I " d Wit In th SpO~SI I Ity proVI es pa rty me mbers with a e pa rt y. Put s impl y, pa rty re- performance. personal sta ke 111 th eir co ll ecti ve

Admittedl y, p a rty res p o nsibili ty' bl . d · I . h IS a Unt IIl st Th me late y ari ses t a t p a rty res p o n ' b ' I' ntment. e o bj ecti on im-. Sl I It )' co nd ' . .

senratlves to suffer elec to ra ll y fo r a n ' t'I ' emn s Juni o r Democ rati c repre- . . . m a n o n they Id d I' I

unhappv slruatlOn , true but unle ss . cou a Itt e to affect . An • , we accept It C e1ecroral retribution for an infl a tion th Id h' ongre ss as a who le es ca pes

'b ' i" ey CO Il ave done h ' ff Responsl I Ity reqUIres accepta nce of both d ' . samet mg to a ect.

. can mons The ch' . b blunt mstrument or non e at a ll. . OIce IS etwee n a

Of course, the United Sta tes is not Gre a t Britain \V! h . h h' . . h d ' . . we ave nelt er t e mstl- tutlons nor tetra mons to suppOrt a Briti sh b d f 'bl

d . ran 0 responsl e partv gov-

ernment, an I do not see either the po ssibili ty or the . f • h . . nece ssItY or sue a system III America. In the past the United States has enjoyed e~as in which party was a m~ch stronger .force than toda y. And until recently-a generation , ~oughly-partles have proVided an " adequate " degree of collective respon sibil- Ity. ~hey ~ave done so b y co nnecting the electoral fates of pa rty members , via preSidential coattails, for example, and by transforming election s into refer- enda on party performance, as with congressional off-yea r elections.

In earlier times, when citizens voted for the party, not the person , parties had incentives to nominate good candidates, because poor ones could have harmful fallout on the ticket as a whole .3 In particular, the existence of presi- dential coattails (positive and negati ve ) provided an inducement to avoid the nomination of narrowly based candidates, no matter how committed their supporters. And, once in office, the existence of party voting in the electorate provided party members with the incenti ve to compile a good party record. In particular, the tendency of national midterm elect!ons to serve as referenda o n the performance of the president provided a clear IIlduceme~t for congr~ssmen to do what they could to see that their president was perceived ~s a sohd per- form B . I' I I phenomena such as coattail effects and

er. y sttmu atmg e ectora I b" . r"d f d d ee of person a am mon 1I1to ... 1 term referenda, party trans orme some egr

concern with collective performance ....

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SECTION VI

THE

F PARTY DECLINE 0

NTINUIN G I:: D STATES HF UNIT ,

IN T ' II' -'tted op.ani za tion s ' d f co mp l.< '"

vers a rnul{ltlI eo, se t of part y orga niza_ , I_ I 'rill Ihal co - -tely as t 1e - 'If

Party is :t slInp e l 'f ' ' elf Inost cO Ilt;re I It manifests It se mOSt _ , - It IlYlnl est ItS I 10Cl i \eve s, h '

and pro t~S l ,S , ,' " II ' at the state an' .' I f the citizen, Somew ere 111 tioll - that ('Xlst pnncll

p . I

.> I prese nce in the min,' 0, nanife station o f party as ' I -)' 'ho ogl .. a f' 0 I S t 1e I , I ' du slve )' :ts a ps .. f 't'on of the Ifst tW , , will hold to t 11 tradi-

-d p:trtl r a une I "this seC{lon , between. all . _.. The di SC USS ion In f party have Imp o rtant a force in gove rnment", I I _ t the three aspects 0 ' ;ional sc hema. though It IS (' ear t 13 interconnection s,

PARTY ORGAN IZAT IONS d d" nally meant sta te and local , .. ' n ha tra 1tI0 f d

I the United States. parry orgalllz atlo ally has been a loose con e eraey

n , , ' I party gener, , f Party organization, The n.ltIona , ' n for a brief penod every our ye ars, . , h - 'ngs mto actio h' fl of subnational lIll1tS t at S\~I d d ite the somew at greater 111 u-

" ams true to ay, esp , 4 Th h h This charactenzatlon rem f h t' nal organizations. oug sue

d f ' sot e na IO ence and augmente unction 'I there is general agreement that the things are difficult to measure precdls

e y, e a secular decline since their peak

, ' ns have un ergon formal party orga~lzatlo h The prototype of the old-style organiza- at the end of the I1Inetehe~t cefntumrY'approximated today only in Chicago. , the urban mac me a or ,

tlon ;:~;rallong-term trend~ have served to undercut old-style ~arty orgal11za- 'h t m has been steadily chopped back slllce passage of nons, T e patronage sys e , f h ' h h C' 'I S ' A t of 1883 The social welfare functlOns 0 t e parties ave t e IVI ervlCe c . d I

d to the government as the modern welfare state developed. An , ess passe , ' " 'I concretely, the entire ethos of the old-style party orgal11z,atlon IS IIlcr~aslllg y at odds with modern ideas of government based on rational expertise. These long-term trends spawned specific attacks on the old party organizations. In the late nineteenth and early twentieth centuries the Populists, Progressives, and asserted other reformers fought electoral corruption with the Australian Ballot and personal registration systems. They attempted to break the hold of the party bosses over nominations by mandating the direct primary. They at- tacked the urban machines with drives for nonpartisan at-large elections and nonpartisan city managers. None of these reforms destroyed the parties; they managed to live with the reforms better than most reformers had hoped. But the reforms reflected changing popular attitudes toward the parties and accel- erated the secular decli?e in the influence of the party organizations.

T~e ~ew Deal penod temporarily arrested the deterioration of the party ~rg~?~zar:?ns, ~~ least on ,the Democratic side. Unified party control under a

po, Itl~a ~resl ent pr?vlded favorable conditions for the state and local or- gamzatlOns. But fol/oWIng the he d f h because of governme t , yay 0 t e New Deal (and ironically, in part,

, n assumptIOn of subn t' I " ' d clme COntinued. a lona parties functIOns) the e-

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PO llTi CA P In the 1970s two s ' L ARTIES J 85 erIes of f

d " re anize parties 111 America ' arms furth . g. d I'b ' n natl ' I er weak d ' changes e I erately Intended Ona politics Th ~lIe the Influence of or-

, I " to less> . e fIr st \ ,. ' dentla noml11atl11g process [ I en organi - d ' \,IS a senes of legal

d h ' . n tIe D ze party I fI . capture t e national party emocratic " n uence In the pre si-

designed to " open lip" th apl?~ratus and il1l pand y , New Politic s" activi sts

I e po ItlCS f pose a sen> f I C

:l n party- ong more amate 0 pre sidential , ~s 0 ru es changes , ' Ur and nOllllnatlo Th Rbi ' \\'e:lker versions of the Demo , open than the De ' ns. e epu I-

I I era tIC rul h mocratlc part ' d d st:lte electora aws to confo es c anges . In add ' , ,}-:-a , opte d

I ' rm to the D Iflon, modIfIcatIOn s of rhe fe era court~ ) stimulated Republ" emocratic rules changes (enforced b

A second Series of 19 7 0s ref lean rules changes as well y 'h d orms lesse d I ' , . . zations 111 t e con UCt of politl'cal ne t Ie role of formal party 0 ' 'f campai . TI ' rgam-

groWlI1g Ollt 0 the ~ederal Election Ca~ns:, lese are financing regulations 1974 and 1976. In thiS case the ref palg~ Act of 1971 as amended in , f' " f·, orms were al d I ' 10 the 1I1ancll1g 0 campaIgns ' th' ff me at c eanll1g up corruption

, d' , , elr e ects on th ' though many In IVldllals accuratel d' e partIe s were a by-product

'd ,< y pre Icted its . S ' " ' candl ates are now publicly financ d Th naturc. cnous pre sIdential

Party to spend two Cents per eligl'bl e

. ough the law permits the national , e VOter on behalf f h ' ,

obliges the candidate to set up a fl' n ,0 t e nommee, If also ance commIttee se f h '

Party. Between this legally mandat d ' parate rom t e national , e separation and fear of ' I'd' limits or accountIng regulations for example th I h hVlofaftlng spen mg

, h d'd k " , e aw as tee ect of encour- agmg t e can I ate to eep hiS party at arm's I th

The ultimate results of such reforms are eaSe)~tgo p' . 'd: A I I . .. " re ICt. esser party ro e 10 t~e nomlOatlOg ~nd flOanclOg of candidates encourages candidates to or- gamze and conduct IOdependent campaigns, which further weakens the role of parties. Of course, party is not the entire story in this regard. Other modern day changes contribute to the diminished party role in campaign politics. For one thing, party foot soldiers are no longer so important, given the existence of a large leisured middle class that participates out of duty or enjoyment, but that participates on behalf of particular candidates and issues rather than par- ties. Similarly, contemporary campaigns rely heavily on survey research, the mass media, and modern advertising methods-all provided by independent consultants outside the formal party apparatus. Although these developments are not directly related to the contemporary reforms, ,t~eir effect i,s the sam~: the diminution of the role of parties in conducting political campaIgns. And If parties do not grant nominations, f~nd their cho~ces, an~ work for them, why should those choices feel any commitment to their party.

PARTY IN THE ELECTORATE , , takes the form of a psychological attachment.

In the citizenry at large, party b I'k I t identify with one or the Th' . d" ally has een ley 0

e typical Ameflcan tra ltlon , 'f' 'ns are transmitted across gen- h f

.' Such Identl Icatlo at er 0 the two major partIes. . d' ' d al they tend to be fairly sta-

, d .t! in the In IVI U • . . eratlons to some degree~ an ~I 1 the basis of identification lies 111 the ble.6 But there is mountmg eVidence that

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186 Sf ION VI

" thro ug h fa mil y a nd soc ial ' d Vlca rr o uS, f _ , ' , - (d irect a ll a rt y sys te m , 0 l Ourse IS ' d ' 'd I' - " pe rrell Cl's - 0 - urrent P< ,

rn IVI U3 ~ t , ' I ' 1'1 th e PiISt. ur l , I 1(1 th e New Dea l attelnpts ) ' I th e PUtl('S , pe rr o( a l groups Wit 1 , ' " If the Depre Sio n , f th ose wh o ex pe ri enced b, d ' h dI Sloc:lt1 0 Il S ( II po rti o n 0 _ , , , :lse 0.11 t el , T hough onl Y:l ma prOd he ge n era l o urill1 es o f Citi zen

to a lleV iate t It nt, , ' ~ vo ters to ay, t , , I, tl y 'Ire altl Vt bl' I d " t th a t tllll e, the Depress ion l Irec , . hose esra IS l e ,. L

'd . 'f' 'atl'ons mu ch resemble t h tellt o f c iti ze n a ttac hm ents to p'lrty I ('1It1 re. b I' th at t e ex I . A ' there is reaso n to e le ve < I' f 0 111 a late ninetee nt 1 . ce ntury

ga rn, I dec lIl e r < ' d' h' ' ' has undergo ne a o ng-te rm h' 'e bee n a pe ri o d Llrln g w Ich

p.lrtles , D ' I . ppea rs to a\ ' h d I' h' h SA d 'lg'Wl th e Ne w ea a 'I ed But agall1 , t e ec me of Ig . n .. , . ra rr y reve rs . • th e dedin e was arre~ ted , ~ve ll te ;l;j~s(. . . . ., , pa rt}' h'IS reasse rted Itself 111 th e ( bl e di stribution of CIti ze n party

< ( h heretor o re sta d As the 1960s wo re 0 11 , t e, h I direc ti o n o f wea kene a ttach_ ,-. ' b h3nge 111 t e ge ne ra b dl d f'

id entlh ca tl ons ega n to cO , dl976 ind e pe nd ents, roa y e med, ments to the pa rti es , Betwee ll 196.t n th ~ n a third of th e vo tin g -age pop-

df I• I 'lna q ua rtertom o re < h ' d b in crease rom ess t l~, ' ' d f Ii htly more than a t Ir to a o ut a ul ation. Strong id entrh ers dedll1 e rom s g qu a rter of the populati~n. '1' . I has declined in recent years. Why? To I d ' bl pa rty 111 t le e ec tora te ",

n Isputa y, . I d I' Its from the organtzatlonal d eclll1e. Few h electora ec lI1e resu some extent t e, I have the tangible incentives to turn out the arty organrzatr o ns an y onger . ' d p , h ' I , It Candidates run II1dependent campaigns an faithful and assure t elr oya y. I deemphasize their partisan ties w~enever t~ey see an~ short-ter~ e, ectoral

' , d ' If party is increasll1gly less Important 111 the nom illatIon and gam m omg so. . , . " d' , election of candidates, it is not surprlsll1g that such dlmlntshe Importance IS reflected in the attitudes and behavior of the voter.

Certain long-term sociological and technological trends also appear to work against parry in the electorate. The population is younger, and younger citizens traditionall y are less attached to the parties than their elders. The pop- ulation is more highly educated; fewer voters need some means of simplifying the choices they face in the political arena, and party, of course, has been the principal means of simplification. And the media revolution has vastly ex- panded the amount of information easily available to the citizenry. Candidates would have little incentive to operate campaigns independent of the parties if there were no means to apprise the citizenry of their independence. The media provide the means.

Finally, our present parry system is an old one. For increasing numbers of citizens, parry attachments based on the Great Depression seem lacking in rel- ~vanc~ to the problems of the late twentieth century. Beginning with the racial Issue 111 the 1960s, proceeding to the social issue of the 1970s and to the en-

' , ~rgy, envl~onme,nt, and in~ation issues of today, the parties have been rent by mternal dIssenSIOn. SometImes they failed to take stands, at other times they t?ok the wrong o~es from the standpoint of the rank and file , and at most ~I~~ t~ey ha~e faIled to solv~ the new problems in any genuine sense. Since A ,t e partIes have done lIttle or nothing to earn the loyalties of modern mertcans.

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POLITI CAL PARTIES 187

PARTY IN GOVERNMF. T

If the organiz ,1tion 'd " b ' l" f I ' .1 -1- ,'. , -' . clpa I Itles 0 t 1C parties have weakened , and their psy- c 10 oglLal ties to the voters have loo sened, one would expect predictable con- sequences for rI " , " ,

, _ ' 1e p.ut) 111 government. In partICular, one would expect to see :\11 IIlcrt'asll1g degree of split party control within and across the levels of Amer- Ican government. The evidence on thi s point is overwhelming.

At the state level, twenty- seven of the fifty governments were und er divided party control a fter the 1978 election. In seventeen states a governor of one party ?pposed a legislature controlled by the other, and in ten othns a bicameral leg- Islature was split between the parti es. By way of contra st, twenty years ago the number of states with divided party control was sixteen.

At the federal leve l the trend is similar. In 1953 only twelve states sent a senator of each party to Washington. The number increa sed to sixteen by 1961, to twenty-one by '1972, and stands at twenty-seven today. Of course, the senators in each state are elected at different times . But the same patterns emerge when we examine simultaneous elections. There is an increasing ten- dency for congressional districts to support a congressman of one party and the presidential candidate of the other. At the turn of the century it was extremely rare for a congressional district to report a split result. But since that time the trend has been steadily upward. We may well be heading for a record in 1980 as a vulnerable Democratic president runs with 250-odd not-so-vulnerable Demo- cratic congressmen ....

The increased fragmentation of the party in government makes it more difficult for government officeholders to work together than in times past (not that it has ever been terribly easy) . Voters meanwhile have a more difficult time attributing responsibility for government performanc~, and this ?~I~ f~rther fragments party control. The result is lessened collective responslbtllty III the

system ....

SOME CONSEQUENCE OF THE DECLINE

OF COLLECTIVE RESPONSIBILITY

Th k · f party has contributed directly to the severity of several of

e wea elllng 0 h h h

' t problems the nation faces. For some of these, suc as t e gov- t e Importan h ' b '

,. b'l' t deal with inflation and energy, t e connectIOns are 0 VI- ernment s lila I Ity 0 , ' f ' I '

f h blems such as the growlllg Importance 0 slllg e-Issue

ous But or ot er pro, .' , h ' .' , d h 'ng alienation of the Amencan cJttzenry, t e connections

pohncs an t e growl are more subtle.

IMMOBILISM , ' . d endence of the party in government declines, Its abtl-

~s the e1ect l ora

d l IIltl~re:PIf responsibility can be shifted to another level or to

Ity to act a so ec III .

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188 !:>l -II)N \ I , k one's own neck out in an

" to stlC d'ff' I h , Ip s incen(l\e nes more I ICU t, t e ever_ h f ' h Id h 're IS ' h' beco

l .lnot t'r 0 !let· I) er. I t hi Leaders Ip .... ore pronounced and ' ro el11, b -omes ... , .IttCI1IPI ro so ke a given p . solution e~

I I -hort-It'rm I ns .' pres<:nt bi.1 IOwa H t Ie ~ , b\em esse ", . I d " d , ' , glwn pro stltutlona or er IS In an tht' po sibilitv ot olvlIlg an} American con " ' h ' -

No ontO s'<:rinu sly believes that the de Gaulle waltll1g 111 t e \~lI1gS ) , But t ' II (ollJ'c,' rt'linh' we have no ' I hort run costS ordll1anly w1l1 re-

ger 0 co apse" " ', ental s - ' I I" I ' b 'l'tv «1 take action that cannot contlllUa Iy depend on po IIIca ilia I I 1 , I run-we, , , ,

sull in much hight'r costs In the ong A 'can immobllism cannot be dls- , ' h re sent men d

the technological fiX, So t ePA rican people appear to un erstand d I

, th3t the me , I d mis ed lighlk The sa t lIIlg IS . d I ast in prinCip e, appear prepare to the depth of ~ur present problem s an , at e d But they will not have an 0ppor- s.Krifice in furtherance of the long-run gOO h' long-term plans. Although both tunity to choose between tWO or mOl,re suc

n the present state of our politics

, h ' ble po ICles, I ' parties pr0llll se roug , equlta neither can deliwr.

51 G LE-I SSUE POLITI C S

b h I , ' I analysts and politicians have decried the in-

In recem years ot po mca 'I" S 'f , f ' I ' ps in Amencan po ItiCS, ome 111 act

crcased IInportance 0 smg e-Issue grou , , , would claim that the present immobilism in our politic~ owes more to the nse of single-issue groups than to the decline of party. ,A 1i~le thoug~~, however, should reveal that the twO trends are connected. Is smgle-Issue politics a recent phenomenon? The contention is doubtful; such groups have always been active participants in American politics, The gun lobby already was a classic example at the time of President Kennedy's assassination. And however impressive the antiabortionists appear today, remember the temperance movement, which succeeded in getting its constitutional amendment. American history contains numerous forerunners of today's groups, from anti-Masons to abolitionists to the Klan-singularity of purpose is by no means a modern phenomenon. Why, then, do we hear all the contemporary hoopla about single-issue groups? Prob- ably because politicians fear them now more than before and thus allow them to pl,ay a larger role in our politics, Why should this be so? Simply because the par~les are too weak to protect their members and thus to contain single-issue politics.

In earlier times single-issue groups were under gr t h d

' , ea er pressures to reac accommo atlons With the parties. After all the pa t' 'd d'd f ' d d ' , r les nommate can I ates, mance can Idates, worked for candidates and h '

party voting protected d 'd Wh ' , per aps most Important, can I ates. en a conte ' I .

threatens to "get" an off' h Id h h mporary smg e-Issue group Ice 0 er, t e treat b k ' h

group can go into his distrl'ct ' , must e ta en senously. T e , recrUit a pnmary 0 I I '

or both, and bankroll that c' a d 'd E ' r genera e ectlon challenger, n I ate ven If th '

group is not the majority sentiment 'of th , e, sentiment espoused by the the thought of a strong well f' d e dlstnct, few officeholders relish

, - mance opp Th' strong parties existed Party I d onent. mgs were different when

. ea ers controll d h " d e t e nommatlOn process an

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Id f ' I ' POLIT I C. I. Pi\\{"I I [ IS"

wOU Ig It to lllalJ1t,' I - 7 I

, <1111 t 1at to ga vanlze th e part ' < Control. An ' , y Into actio o utsldc challe Issue group repr(' se nt('d I n to protect ' < nge would merely se rve

II ' t 1e dOlJ1' It s prerog ' 0

011 contro II1g th e p' Inant Scnti ' atlve s, nly if a sin"l e- arty o rg , men t 111 ' \ ' <>

that ar('a. a nl zatio n itself . d ' given area co uld it count

N ' an th ereh I

at only did th y e eClOral politic in , (' party o rg , , ISSU(' pr('ssur('s at th e elec an lZat lon have . re a ' , ability to COntrol th(' . toral I('vel, but the p g d (' r ability to resist si ngle-

I agenda a d h . arty 111 gove rnm I d

pO icy-making leve l ,-; I <, < n t er('by Conta i ' I ' ent 1a greater agony over feder I . b oeay we s(,e m condel < Il

d S

lI1 g e-Iss ue pr ss ures at th ('

a a Ortl o n f d ' nne to go th I both sides would 'f un II1g, There ' I' I d rou g 1 an annual

I I d pI e e r to reac h som IS Itt C n ubt th at politicians o n tee eve an settle th e is sue . But in (' r('~ sonable comp rom ise at th e co mmit - way to put the lid on, In COntra st ht oday s d('c(' ntra li ze d Co ngress th ere is no ~entury a ,large portion of th e Re' u~~~onans ten us that in the late nineteenth 111 the tanff and other quest ' p f Ican co nstitu ency wa s far less interested

h h G ' Ions 0 nation I ' w et e,r er~an Immigrants should be a eco nomIc deve lop ment than in guage m their local schools d h permitted to teach th ei r native lan -

" h Id b ,an wether Cath I' d " I' , tants s au e permitted t 0 ICS an IturglCal Protes- national agenda of the period~ cdonsudme alcohol.

9 Interestingly, howeve r th e

IS eVOI of such' A d h ' up on the state level the exc ' Issue s, n w en they do show

d 'k' ' eptlons prove the rule' th d '

an stn mg defeats for the part h '11 ' ey pro uce party splits I y t at a owed them to surface n sum, a strong party that is held acc bl f . , ..

nation-state has both the bT d h ,ount~ e or the government of a pressures. It controls no ~ I ~ty an I t ~ IJ1centlve to contain particularistic " m,manons, e ecnons, and the agenda, and it collec-

nvely realIzes that small mmorities are small ' " h ' h ' mlJ10nnes no matter ow IJ1tense t ey a~e. But as the partIes decline they lose control over nominations and campaIgns, they ,lose the loyalty of the voters, and they lose control of the agenda. Party offIceholders cease to be held collectively accountable for party perf?rm,ance, but they become individually exposed to the political pressure of mynad ~nterest grou~s. The decline of party permits interest groups to wield greater mf\uence, theIr success encourages the formation of still more interest groups, politics becomes increasingly fragmented, and collective responsibility

becomes still more elusive.

POPULAR ALIENATION FROM GOVERNMENT

For at least a decade political analysts have pondered the significance of survey data indicative of a steady increase in the alienation of the American public from the political process .... The American public is in a nasty mood, a cyn-

ical, distrusting, and resentful mood. The question is, Why? ... If the same national problems not only persist but worsen while ever-

greater amounts of revenue are directed at them, why shouldn't the typical

citizen conclude that most of the money must be wasted by incompetent offi- cials? If narrowly based interest groups increasingly affect our politics, why shouldn't citizens increasingly conclude that the interests run the government?

. ,

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190 S ECT ION VI

eady stream of promises but 10 ed to a st 0 0 o 0 ry has Isten h An increaslOg proPOrtion of

For fifteen years th~ Citizen . of follow-throug . differe nce, a fact tha ha s seen very little 10 the way h elections make a o 0 , t the electorate does not bel~eve t at t-1960 decline 10 votlOg turnout. largel y explains the much-dls~ussed pO:ith the political proc ess ~oseos several

Continued public disilluslOnmento t begets further disillu sIOnment. o dO °lluslonmen h O I d d 0 real dangerso For one thmg, lSI 0 0 0 do not trust t elr e a ers an Will d Off

0

It If cltlzens 10 k I Of 0 0 Leadership becomes more I ICU 10 f °lure becomes more le y I C1£I- o f d bt Po ICY al

not give them the benefit 0 a ou . 0 es and governm ent competence 10 f 01 Waste mcreas b d f zens expect the po IC Y to al. I' 0 courages a lesser ree 0 person

o 0 d O ct for po ltlCS en b O 0 , b decrea ses as citizen Isrespe d " ment by a few Ig lJ1terests' e-

o ment An govern 10 h ' 0 to make careers 10 govern 0 0 0 gly decide the c IC e IS true and comes more than a cliche if citizens mcreasm

cease participating for that reason. hod disappointment with particu- Fo II h 0 th real danger t at contmue 0 0 0 0 lOa y, t ere IS e h 0 nto diSillUSIOnment with

la r government officials ultimately metamorp oses I 0 0 I 0 mbers of citizens believe that government IS government per se. ncreasmg nu f h b 0 f h

Old d b t perhaps incapable of any urt er etteflng 0 t e not simp y overexten e u 0 0 0 0 0 d 0 fl Id v nt lOS overextended mefflClency IS pervaSi ve, an me lec-wor . les, governme , 0

tiveness is all too common. But government is one of the few Instruments of collective action we have, and even those committed to selective pruning of government programs cannot blithely allow the concept of an activist govern- ment to fall into disrepute.

The concept of democracy does not submit to precise definition, a claim supported by the existence of numerous nonidentical definitions. To most peo- ple democracy embodies a number of valued qualities. Unfortunately, there is no reason to believe that all such valued qualities are mutually compatible. At the least, maximizing the attainment of one quality may require accepting mid- dling levels of another.

Recent American political thought has emphasized government of the peo- ple ~nd by th~ people. ~ttempts have been made to insure that all preferences ~ecelve a heanng, especI~lly through direct expression of those preferences, but If not, at least through faithful representation CIOtlOze p t o 0 0 0 h 0 o I . n ar IClpatlon IS t e relgn- 109 va ue, and arrangements that foster widespre d 0 0 0 h 0 favor. a partiCipation are muc 10

Of late, however, some politic I whether contemporary thought lac

a como~entators have begun to wonder the people. In stressing partici:ati;~ ~~fflclent emph~sis on governmenot .r0~ Surely, we should be as concerned with ve we lost Sight of accountabtll~" how many participate. What go d 0 ~ohat government produces as With determine who merits their su 0 IS participation if the citizenry is unable to

P o 0 0 PP0rt. artlclpatlon and respons oblo . o I ltly are n t I 0 0 0

a degree of tenSion between the 0 oglcally mcompatible, but ther~ IS to extremes. PartiCipation m 0 ~o, an~ the quest for either may be carned

d O l aXlmlzers fmd h an vlrtua representation s hot emselves involved with quotas

c emes, While re °b o 0 fO d sponsl tiny maximizers can III

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POLITICAL PARTIES

themselves with a closed shop d

k h d un er boss r I 10 \yea en t e emocracy they supposedl uU e. ~oreover, both qualities can produces Hyde Amendments and im \.tderpln. Unfettered participation agenda power to thwart democratic d mo. I Ism. Responsible parties can use

. d eClslon-fo h mocratlc party use what COntrol' h d r more t an a century the De-

.' . . It a to sup h '. partICipatIOn nor responsibility sh Id b press t e racial Issue. Neither values, but that is what has happenoud . e

h pursu~d at the expense of all other

d d e Wit partlc .

past two eca es, and we now reap th IpatI~n over the course of the e consequences In our politics.

NOTES

1. This argument was expounded at the turn of the . Woodrow Wilson and A. Lawrence Lowell It enJ'oyed century by wrltders such as

h· k' f hi' a resurgence at ml -century m the t 10 109 0 sc 0 ars such as E E Schattschnel'der F h h . f h 'bT . . . or a t oroug exegesIs 0 t e party responsl I Ity argument,. see Austin Ranney, The Doctrine of Responsible Party Gover~ment (Urbana: UflI~erslty of Illinois Press, 1962). 2. Dunng the postwar penod the national government has experienced divided party control about half the tIme. In the precedmg half century there were only six years of divided control. . 3. At this point skeptics invariably ask, "What about Warren G. Harding?" The state- ment in the text is meant to express a tendency. Certainly, in the first sixty years of this century we did not see a string of candidates comparable to the products of the amateur politics of the past fourteen years (Goldwater, MacGovern , Caner, Reagan). 4. See Gerald Pomper, "The Dedine of the Pany in American Elections," Political Sci- el/ce Quarterly, 92( 1977): 21-41; John Kessel Presidential Campaigll Politics: Coalitioll strategies al1d Citizel1 Respollses (Homewood, Illinois: Dorsey, 1980), ch. 10; Ausnn Ranney, "The Political Parties: Reform and Decline," .in Anthony King (ed.), The New Americal1 Political System (Washington, D.C.: Amencan Enterprise Institute, 1978), 213-47. Both Kessel and Pomper have discussed the mcreased Importance of the na- tional party organizations in terms of maintenance of connnumg operanons.' ImpOSI- tion of national rules and standards on the local parnes, and so on. I belIeve WIth R h h . d in' all levels of the pany together, there has been a de-

anney, owever, tat, consl er g . I an a aratuses have grown more c1me in organizational strength even as the nanona p Y pp

mfluential. . d considerably during the New Deal era, the 5. Though federal empl?yment .mcreas~ d Th s the erosion of the patronage system proportion covered by CIvIl serv.lCe dechn~l~rs h~ve documented the political basis of Was temporarily halted. In addition,. s~h S Gavin Wright "The Political Economy New Deal spending and program deCl~lons. I e~ "Review of Economics and Statistics, of New Deal Spending: An Econometric Ana YSIS, 56( 1974): 30-38. . Voter (New York: Wiley, 1960), chs. 6, 7. 6. Angus Campbell, et aI., The AmerIca:~ . I'n American National ElectlOlls (New 7 S . . ' R pectIVe votmg . ee Morns FlOnna, etroS . ch. 5. . . Haven: Yale University Press, forthcommg)h' Critical Electiolls alld the Mamsprmgs 8 F . . Wi I Dean Burn am, . or a dISCUSSIon, see a ter 1970) 1'< r .

of American Politics (New York: Nor~on, . A S~cial Allalysis of Mid,llestem OltICS, 9. Paul Kle ner, The CrosS of CII tllre. 2 .. 1850-1900 ~~ew York: Free Press,1970), ~h. S 'stem, 1945-1979 (Washmgton, D.C.. 10. S .. E. Finer, The Ch~nging Br~/sh Par y Y All1encan Enterprise InStitute, 198 ).

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.:!

192 SECTION VI

35.

MAURICE DUVERGER

ELECTORAL BASIS Of THE TWo-PARTY SYSTEM

'dely among democratic Political party systems vary dWSlt tes have only two sig-

, S lIke the Ul1Ite a , J natIOns, ome, 'h 'I others Sl/C} as

I,' I partIes I·/J Ie, nificallf large po Iflca h ' ny smaller parties. I t ' e to ave ma France or Ita y Call 11111 , I ' , , ' D erger s c asslc ex-

French political scientIst MaurIce b tlV d the different planation for these differences was ase, on . electoral systems fOl/lld ill these cOlmtrles. DI,,~e~ger as-

, ' I ' hi ' [ative oUICIals are serted that coulltnes m W J/C egIs II' elected by a simple plurality, whe~e only one representa- tive is elected in each district, WIll have only two large partie.s-:-Thls IS because there, is a g~eat illcen~ive for the various factions to unite behmd a smgle candIdate w~ell that is the best way to win more votes thall the other SIde. In a race for Congress, for instance, splinter groups bac~­ ing their own candidates have almost no chance to wm becallse the candidate who has evell one more vote than all the rest wins. By contrast, electoral systenls ill which parties receive a number 0 district representatives pro- portional to theIr party's vote ten to encourage small parties. Thlls, it is clear that any system of proportional representation that might be adopted in the United States would necessarily weaken the two-party system.

r • • l ,

It is not perhaps unnecessary to remind readers here that the descriptions given in this work are provisional and hypothetical in character, often being based on documentation too restricted and cursory to permit of definite con- clusions. Frequently we have had to draw imaginary lines to link the few shin- ing po~ts sc~ttered in ~he dark: the resultant patterns can give only a \~ry approximate Idea of reality. The development of the science of political parnes (it could perhaps be called stasiology) will no doubt lead to the revision of many of the patterns we have traced. None the less some general phenomena sdeem more or less established, and from them some general conclusions can be

rawn.

SOllrce: From Maurice Duverger, Political Parties. Their " ". Modrrll State (New York: John Wiley & Sons, Inc 1951)'R , OrgamUlllol/ al/d ACIIlI/I)' /II Ihe ,

. epnnted by permission of Armand Cohn,

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POLI T I ,\L I'ARTII·.s 193

The o pponents of "party systems" will find much ammunition in thi s book. The organizatiun uf politic:ll parties is cert:linly not in conformity with ortho- dox noti o ns of democracy. Their intern:ll stru clllre is essentially autocr:ltic :lnd oligarchic: their leaders are not rea ll y appointed hy the members, in spite of ap- pearann's, blll co-opted or no minated by the centr:ll body; th ey tend to form a ruling class. isolated from the milit:lnts, :I c:lste that is more or less exc lu sive. In so far as they arc elected, the party o li ga rchy is widened without eve r becoming a democracy, for the el ection is carried o ut by th e members, who :lrc a minoriry in comparison with th ose who give their vo tes to the party in general elections. Parliament:lry represent:Jtiv('s :Ire increasi ngly subject to the authority of the party inner circle: thi s mea ns that the ma ss o f electors i dominated by the small group of members and militants, itse lf subordinate to the ruling bodies of the party. The argument mu st be carried further: even supposing that partie s were ruled by parliamentary represe ntatives it would be an illu sion to think them democratic. For elections themselves ill-interpret the true state of opinion. Par- ties create opinion as much as they represent it; they form it by (?ropaganda; they impose a prefabricated mould upon it: the party system is not only the re- flection of public opinion but also the result of external technicaUactors (like ballot procedure) which are imposed upon opinio;' (fh; P;;ty system is less a photograph of opinion than opinion is a projection of the party syste~

The general development of parties tends to emphasize their (leviation from the democratic regime. Growing centralization is increasingly diminish- ing the influence of members over leaders, while on the other hand strengthen- ing the influenceo fleaders upon members. Electoral processes are gradually losing ground in the appointment of leaders: co-option or nomination from above, which used to be modestly veiled, are now partially acknowledged in constitutions and sometimes loudly proclaimed as a sign of progress (in Fascist parties). The development of vertical linking and the watertight compartments which are the result restrict the freedom of action of the base and increase the sphere of influence of the apex; they make possible a close regimentation of party members that can prevent any move towards independence of the centre and can preserve strict orthodoxy. Discipline among members is tightened both by these material means and by an even greater effort of propaganda and persuasion which leads them to venerate the Party and its leaders and to believe in their infallibility: the critical attitude gives way to an attitude of ado- ration. Parliamentary representatives themselves are compelled to an obedi- ence which traflsformst em into voting machines controlled by the ~ers of ~. Thus there arise closed, disciplined, mechanized bodies, monolithic parties whose organization outwardly resembles that oLan a-r-my, but whose methods of regimentation are infinitely more adaptable and efficient, being based on a trainin of m ' ather than bodies. Their hold over men is strengthened: r becom~ totalit rian They require of their members closer adherence; they provi e comp ete and final philosophies of the universe. Zeal, faith, enthusiasm, and intolerance are the rule in these modern churches: party struggles turn into religious wars.

J

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194 SECTION VI

, h rties be more satisfactory? That is the real But would a system wit out pa d 'f dOd o , " b b tt r represente I can I ates were to present

question Would opmlOn e e e , h 'b' bl II k . 'd' 'd II b f the electorate WIt out It emg a e rea y to now themselves m IVI ua y e ore 'f h f'

, 'd) WIld I'b ty be better preserved I t e government ound Itself theIr attItu es. wOU I er d ' I" If '

'I 'f 'ndividuals not groupe 10 po mca ormatlons) faced wIth on y a scatterIng 0 I , .

WI I' , completely artificial notIon of democracy forged by we are IVIng on a " "

I 0 the basis of eighteenth-century philosophICal Ideas. Government of

awyers n ' b' , the people by the people," "Government ,of the natIon, y,lts representatIves," these are fine phrases for arousing enthUSIasm and fashIonIng eloquent perora- tions. Fine phrases with an empty ring. No peopl~ has e~er, been kno~n ~o gov- ern itself and none ever will. All government is olIgarchIC: It necessarIly Implies the domination of the many by the few. Rousseau, whom his commentators have forgotten to read, was well aware of this: "In the strict sense of the term, no true democracy has ever existed and none will ever exist. It is contrary to the natural order for the majority to rule and the minority to be ruled." I The will of the people is profoundly anarchic: it wants to do as it pleases. It vaguely con- siders government as a necessary evil: its instinctive attitude towards it is hostil- ity. Alain has given a remarkable analysis of the natural conflict between the governors and the governed. All government implies discipline. All discipline is imposed from without: "self-discipline" is itself the result of education, which implies a prior external disclphne, and Is always very limited. Government and constraint are inseparable, but by definition constraint is external to the con- strained. A people does not constrain itself; it is constrained. It does not govern itself; it, is governed. To proclaim the identity of governors and governed, of constraIners and constrained is an admirable way of justifying the obedie~ of the latter to the former. It is pure abstraction and verbal juggling. "'--

, Tru~ democracy is something different, more modest but more real. It is defIned In the first place as liberty "for the people and for all sections of the peop.le," as the 1793 Constituents put it. Not only liberty for those privileged by bIrth fortune position 0 d ' b I I'b . ' , ',' , r e ucatlon, ut rea I erty for all and thIS Im- phes a certaIn standard f I' , , b ' , ' ,

, ,0 Ivmg, a certam aSlc education some kind of SOCIal equahty, some kInd of I" I 'I'b ' ' , I I'b ' po ItIca eqUl I num. The Marxist distinction between nomma I ertles and real I"b . , I political liberties reco n' I ertles IS on y p~rtly correct; it is true that the I 'f h g Ized by Western regImes remain a formality for a arge sectIon 0 t e masses for lack of d

quate education of ' I I' an a equate standard of living, of ade- , socia equa Ity or of an ade I" I 'I" Y,

they lay become reall'b ' h ' quate po mca eqUl Ibnum. et I ertIes: t ere IS no point' b ' . b '

them. Now the study of 10 egmnmg y suppressmg contemporary pol" t" I h '

ous f t: in countries which h ' d I Ica p enomena reveals one obvl- , ave attame a certain d f ' I ' 'I'

tion and a certain standard of 1"' (E egree 0 matena CIVI Iza- and the white Dominions) lib IV 109 d ~rope, North America, Great Britain teenth century when eco~om~rty adn f' t e p.arty system coincide. In the nine- P " IC an manclal pl' f h ress, of technIques of informaf d owers a one dIsposed 0 t e ing the electorate, democracy d~odn an ~ropaganda and of a means of organiz-

k ' I . I not eXist· the ' f' . t'

wor mg-c ass parties has alone d : nse 0 parties and espeCially 0 ma e pOSSIble I d' . any rea an active cooperatIon

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POLITI CAL PAKTI ES 195

by the whole people in political affairs. Even totalitarian parti es, like the Com- munist party, make a contribution in so me countries to the {'xistem:e of democracy: their suppression in France and Italy would threaten to strengthen (for a time at lea st ) the con servative elements, and so to upset th e equilibrium which ensures a minimum of liberty to every "section of the people" : the existence of more than one party is both the cau se and the reflection of thi s equilibrium.

In countrie s where th e standard of living and education of the people are still much inferior (Asia, Africa, South America) the coincidence no longer oc- curs. Here parties are formal in ch a racter: rival factions struggle for power, using the voters as a soft dough to be knead ed as they will; corruption devel- ops and the privileged classe s take advantage of the situation to prolong their control. Under certain circumstances, the single party may provide a first or- ganization of the masses, enabling them gradually to acquire some political training; the authoritarian regime it produces may suppress feudal systems of all kinds and conditions and create the economic and social conditions re- quired for the future development of political liberty. The structure of the tran- sitional regime must however be such that it will not destroy all hope of later liberal developments.

At the same time the system makes it possible to form a -I:uling class, sprung from the people, to replace the old . On this question~ pluralist and single-party regimes are at one. The deepest significance of political parties is that they tend to the creation of new elites, and this restores to the notion of representa- tion its true meaning, the only real one. All government is by nature oligarchic but the origins and the training of the oligarchs may be very different and these determine their actions. The formula "Government of the people by the peo- ple" must be replaced by this formula "Government Qf the people by an elite sprung from the people." A regime without parties ensures the permanence of ruling elites chosen by birth, wealth, or position: to secure admission to the governing oligarchy a man of the people must accomplish a considerable effort to rise above his initial position; he must also work his way up the ladder of middle-class education and lose contact with the class in which he was born. A regime without parties is of necessity a conservative regime. It corresponds to the property franchise or else to an attempt to cripple universal suffrage by im- posing on the people leaders who do not come from their ranks; it is further removed from democracy than the party regime. Historically speaking parties were born when the masses of the people really made their entrance into polit- ical life; they provided the necessary framework enabling the masses to recruit from among themselves their own elites. Parties are always more developed on the Left than on the Right because they are always more necessary on the Left than on the Right. To sup~hem would be an admirable way for the Right to paralyse the Left. The classic protests against their interference in political life, against the domination exercised by militants over deputies, by Con- gresses and committees over parliament take no account of the capital devel- opments of the last fifty years which have accentuated the formal character of

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196 SECTION VI

. exclusively the instruments he were once b'

ministers and parliaments. Where~s ~ y they have today ecome mstru· of private financial and economiC mteres

tS , h'ch the place of mass parties is

, . amongst wid ments in the hands of the parnes,. f mation represents an a vance

. .' This trans or . I . If becoming II1creaslI1gly Important. . f 'ew the slOg e party Itse rep-

. h' omt 0 VI of democracy, not a retreat. From t IS dP . h luralist systems but considered

'f' . ompare Wit p h" h . resents a progress I It IS not c . ' h' A dictators Ip wit a smgle . h' h f k to It dICtators Ip. d Wit 111 t e ramewor proper • r I ss is nearer to emocracy than

people's party tending to create a neW ru 109 ~ra type which strengthen the party-less dictatorships of the personal or ml Itary

feudal powers in .their control. r re ime but by present-da Democracy IS not threatened by the pa ty g I" h' Yf -,--_..:... . .-- il- . ' h danger does not Ie 10 t e eXistence 0

trends in party interna orgamzaTlOn: t e h' . ~-.--=t.: '1' I" . d totalitar;"D form t ey sometimes as-artles out 111 tile ml Itar , re IgIOUS, an ...... ' . .' .

sume. Two further facts of importance must be emph~slz~d 10 thiS conne~tl~n. All parties have not adopted the same kind of orgamzano? In Gr~at BrItam, Canada, Australia, Northern Europe, the only groups to display thiS tendency are small and uninfluential. The same is true of the United States, where the development of RrimJlries..has-had the result of wt:akeI1ing party ~ganization rather than strengthening it. Closed totalitarian parties of the Bund type still remain the exception throughout the world: if evolution is to lead towards them, it has scarcely yet begun and many factors may check it or deflect it.

From another point of view certain features in these new party structures ensure an admirable training of the political leading strata as well as closer and ~ore faithful con.tact between the mass of the people and their ruling elites; Isolated from their context, these features might increase the democratic na- tur~ of parties .instead ?f destroyin~ it: ~he real way of protecting democracy agamst the toxms that It secretes wlthm Itself in the c f' d I d I

·· .. ourse 0 ItS eve opment oes not Ie m cuttmg It off from modern technique f .. h d

.. Ids or orgamzmg t e masses an recrUItIng ea ers-such an operation would k f . I

. h b' d' . rna eo It an empty vesse a vam s ow- ut m Ivertmg these to its use f th' ' tools capable no doubt of b . d f ,or ey are 10 the last resort mere use them is to refuse to act I~I~tg use or ghood as well as for evil. To refuse to

. were true t at dem . " 'b" h them, this would no doubt mean th d oc"ra~y IS mcompan Ie Wit conditions of the present day All th at ehmocracy IS mcompatible with the h ' d h' . e speec es upo th b f' s Ip an t e evils of industrialization din e ene Its of craftsman-

is done and that we live in an age of 0 not a ter the fact that the artisan's day I" d d mass-prod . a 1st an ecentralized cadre pani f h . UctlOn; regrets for the individu- . . h es 0 t e nmet h

tlons agamst t e vast centralized d d" eent century and impreca- the fact that the latter alone suit t~n Isclplined parties of today do not alter

e structure of contemporary societies.

1. Social Contract, Book III Ch , . IV.

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POLITI C AL PARTIE S 197

E. E. SCHATTSCHNEIDER

36. THE SOCIALIZATION OF CONFLICT

Picking up on tl th f . . .. Je eme 0 responsIble party govern- ment IS polItI cal scientist E. E. Schattschneider's realistic restatement of the role of political parties in democratic theo ry .. He emphasized that dem ocracy is an inherently competItIVe political system where the contending lead- ers and organizations-political parties-define the al- ternat~ves of public policy. The public participates by choosmg among them.

Because he did not think it possible for Americans- or the citizens of any large country-to effectively partici- pate directly in political decision-making, Schattschneider emphasized the importance of the role that political par- ties have in defining choices for the voters.

If we assume that the people "govern," it follows that the governing majority ought to know more than any majority has ever known or ever could know. This is the reductio ad absurdum of democratic theory. We cannot get out of the dilemma by (1) making a great effort to educate everyone to the point where they know enough to make these decisions nor (2) by restricting participation to the people who do know all about these matters. The first is impossible. The second is absurd because no one knows enough to govern by this standard. The trouble is that we have defined democracy in such a way that we are in danger of putting ourselves out of business.

There is no escape from the problem of ignorance, because nobody knows enough to run the government. Presidents, senators, governors, judges, profes- sors, doctors of philosophy, editors and the like are only a little less ignorant than the rest of us. Even an expert is a person who chooses to be ignorant about many things so that he may know all about one.

The whole theory of knowledge underlying these concepts of democracy is false-it proves too much. It proves. not only that democracy is impossi?le; it proves equally that life itself is impossIble. Everybody has to accommodate hImself

E S h h eider "The Socialization of Conflict" from The SemisolJereig1l Peo- Source: From E. . 6coabtts~ ~ Schattschneider and renewed 1988 by Frank W. Schattschneider. pie. CopYright © 19 y .. & C n Reprinted by permission of Harcourt Brace ompa y.

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198 SECTION VI

o I lber of matters about which he o h °ncredlb e nun I f 10 0

to the fact that he deals Wit an I f life not mere Y 0 po Inc So o 0 f all aspects 0 , 0 0

knows very littleo ThiS IS true 0 0 0 the road to I\1samtyo k verythmg IS 0 dO 0 The compulsion to nowe d world by learl1lng to Istl11gui sh

o 0 he mo ern People are able to survive m t h hey do not need to knowo We get a

between what they must know and \~ at t begin to realize that it is not nec- clue to the solution of the probolem w e; w:n automobile or to be an Obstetri_ essary to be an automotive engmeer to ~y I depends on our abilit y to judge

o 0 d h b by Our surVlva clan 111 or er to ave a a - 0 0 blish relations of confidence and things by their results and our ability to esta f hat other people knowo \'Vi

°bOI O h can take advantage 0 w e responsl I Ity so t at we ' 0 0 dOd not lace confidence daily in a tho u- could not live in modern society If we I POI

d Oh 0 t surgeons pilots bank clerks, eng1l1eers, p umbers,

san ways 111 p armaCis s, " I h h 0 0 I 0 01 servants accountants, courts, te ep one operators, tec I1IClans, awyers, CIVI , f d h t f thers

\VIe pass JOudgment on the most complex mech -cra tsmen an a os 0 0 . WI 0 0 anisms on the basis of the results they produce. Economists, try1l1g to explain the operation of the economy, use a political expression whelol they s~eoak of the "sovereignty of the consumer," precisely because they realize that It IS not necessary to know how to make a television set in order to buy one mtelli- gentlyo Democracy is like nearly everything else we do; it is a form of collabo- ration of ignorant people and expertso

Primitive democratic theorists never tire of telling us that democracy was designed to work in New England town meetings, not in a modern national state. The analysis is fatuous. We might as well attempt to return to a handi- craft economy. The crisis is a purely theoretical one because operating demo- cratic political systems have in fact already accomplished what is theoreticall y impossible and are doing it every day. It is only the theory that has broken down. The problem of modern democracy is the problem of learning to live in the modern world.

o We ca~ find our way through the maze if we learn to distinguish between d .. fferent kll1ds of knowledge, between what amateurs know and what profes- SIOnals know, between what generalists know a d h 0 10 k The o 0 0 n w at speCia Ists now. problem IS not how 180 million Aristotles can d b h e

o 0 0 run a emocracy, ut ow w can orgamze a political community of 180 OIl" dO h 0 remains sensitive to their needs Thi 0 ml Ion or mary people sOo t ~t It alternatives and system f . o~ ~so a problem of leadership, orgamzatlOII, the role of leadership :n~ oresPo~sl !lIty

o and confidence. The emphasis is 00

rganlzatlon 111 a d h a- neous generation of something at h emocracy, not on t e spont from this side, it does not look 0 t e ~rbalss roots. If we approach the problem

o Impossl e Th h O 0 0 regime are tremendous, but the h b . e ac levements of the America retical illusions under which w Yh ave

l een brought about in spite of the theo-

Th l eave abored

e peop ~ are involved in public o· 0 open up questions for public 0 ~ffalrs by the conflict system. Confllct~

bl O

10 0 I11terVentlon 0 f 0 t pu IC po ICY anse. Conflict 0 h o· ut 0 conflict the alternatives 0

hOI f 0 0 IS t e occasl f . 0 d- ers Ip. n a ree political syste 0 0 on or poIitlcal organization and lea

m It IS dOff 0 I Icult to avoid public involvement (\t

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POLITI C AL PARTI ES 199

conflict; the ordinar)1 I d

< , reg u ar operations f h versy, an Controversy is cat h ' 0 t e government give ri se to contro-

Th b . . c mg. e egmnmg of wisdom' d .

things the people can do d Ihn eh~ocratlc theory is to di stinguish between the bl d ' , an t e t mgs th I e Isservlce that can b d e peop e cannot do. The worst possi-

l eone to the de . . .

pea m ystical magl'c I ' mocratlC cause IS to attribute to the peo- , a Ol11ntpotence h ' h k .

large numbers of peopl d w IC ta es no cogl1lzance of what very e cannot 0 by th h . h f

the common definition f des eer welg to numbers. At this point What 180 '11' 0 emocracy has invited us to make fools of ourselves

1111 Ion people ca d '. '" . not much more than I ~ 0 spontan~ously, on their own mltlatlve, is very rich man who is uana~~omotlve can do without rails. The public is like a lem is to 1 h e to s.upervise closely all of hiS enterprise. His prob-

Wh earn ow t? c~mpel hiS agents to define his options.

at we are saymg IS that fl ' . . . h con ICt, competition, leadership and organiza- tion are t e es sence of d . I' . ' d . emocratlc po ItICS. Inherent in the operations of a

f emo.cracy are speCial conditions which permit large numbers of people to unction.

~he problem is how to organize the political system so as to make the best p.o~slble ~se. of ~he power of the public in view of its limitations. A popular de- CISion bn~gmg mto focus the force of public support requires a tremendous ef- fort to defme the alternatives, to organize the discussion and mobilize opinion. The government and the political organizations are in the business of manu- facturing this kind of alternatives.

What has been said here has not been said to belittle the power of the peo- ple but to shed some light on what it is. The power of the people is not made less by the fact that it cannot be used for trivial matters. The whole world can be run on the basis of a remarkably small number of decisions. The power of the people in a democracy depends on the imp ortance of the decisions made by the electorate, not on the number of decisions they make. Since the adop- tion of the Constitution the party in power has been turned out by the opposi- tion party fourteen times, and in about six of these instances the consequences have been so great that we could not understand American history without taking account of them.

The most important thing about any democratic regime is the way in which it uses and exploits popular sovereignty, what questions it refers to the public for decision or guidance, how it refers ~h~m ~o the public, h?w the al- ternatives are defined and how it respects the lImitations of the. pUbl.lc. A g~od democratic system protects the public ag~inst t~~ d~mand .th~t It do ImpOSSible h · The unforgivable sin of democratic polItics IS to diSSipate the power of t mgs. . . d . f h h bl

' b " t to triVial uses What we nee IS a movement or t e t e pu IC y puttmg I . . conservation of the political resources of the AmerIcan pe~ple. .,

b h · the people are powerless if the politIcal enterprISe IS not

A ove everyt mg, ., h 'd h .. I' h om petition of political organIzations t at provi es t e

competItIVe. t IS t e c . h' . I

. h h opportunity to make a choice. Without t IS opportul1lty pop- peop e Wit t e . ular sovereignty amounts to nothmg.

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200 SECTION VI b h rmless if it is properly un-

d f " " " n of democracy may Ie :isundersrood . It would be

The common e InItIO ommon y d " d h f

" that it is very c re actually OlOg are emo- dersrood but t e act IS h" we noW a " " f" " "

" '" " to say that some t lOgs d " " nal defiOitlOn . De 10itlons of more Im aginatIve f" h tra ItlO "

" though they do not It t e b made on the assumptIOn that cratIc even " I have een "" d " democracy since the time of Anstot e things that the one oes 10 a the " many" in a democracy do th~ same But obviously the shift from the

" f " d "n an anstocracy. f I " " monarch y and the ew 0 I h"n the number 0 peop e partlCl- " one " to the " many" is not m"erely a c a~:e ~ower is exercised. The 180 mil- pating in power but a c~ange In the tva; ;his is not because the 180 million lion cannot do what a Single ruler ~a"n ~." II impossible for 180 million to are stupid or ignorant but because It IS P YSlca y h "I f th I" " I " f I "t and t e surVlva 0 e po ltica act the way one acts. In the Interests 0 c an y , I'"

d d f ' , , f d mocracy that recogmzes the ImItatIOns that

system we nee a e InItlOn 0 e nature imposes on large numbers. , , ,

A working definition must capitalize on the 11I~ltatlOns of the peo~le as well as their powers. We do this when we say that hberty and leadershIp are the greatest of democratic concepts. Democracy is a competitive political sys- tem in which competing leaders and organizations define the alternatives of public policy in such a way that the public can participate in the decision- making process. The initiative in this political system is to be found largely in the government or in the opposition. The people profit by this system, but they cannot, by th~mselve~, do ~he ,work of the system. We have already had a great deal of ex,per,lence WIth thIS kmd of system. Is it not about time that we begin to recogntze ItS democratic implications?

Conflict, competition organizaf I d h' d , d ' f " IOn, ea ers Ip an responsibility are the mgre lents 0 a workmg definition of d tern in which the people ha h ' emocracy. Democracy is a political sys-

ve a c olce among th I ' peting political organizations a did e a ternatlves created by com- over the traditional definition is ~h e~ ~rs. The ,advantage of this definition that actually happens. It describ at It ISh~peratlonal, it describes something

'bl d es somet 109 £ ' bl I POSSl e emands on the pub!' M " eaSI e. t does not make im- h

IC. oreover It d 'b concern ~ ose achievements are tremend' escn es a going democratic

, The mvolvement of the publ" o~~. kmd of co fl ' h IC 10 pohtlcs i

f h " , n I~t t at almost inevitably , , s a natural outgrowth of the

OtIS Sltuatlo b anses 10 a f ' essence of d n y responsible political I d ree SOCIety. The exploitation

emocracy· the ' I' ea ers and " ' h process ,SocIa lzation of fl" orgamzations IS t e

. con ICt IS th' ' e essentIal democratiC

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208 SECTION VII

"

. NTHONY SUSAN B. A

38. WOMEN AND THE RIGHT TO VOTE

1906) as one of the first Susan B. Anthony (1820- ) U! ,. ht American feminists and the leading women s rl

g d

s advocate of the ninetee11th century. She was a SfOl;~ er in 1869 of the National American Women's ul/rage

. . ·zation to the present-AssociatIOn the precursor orgal1l , "I this speech she force-da)I League of Women voters. n . .

h d ·· t agamst fully argues against all laws t at .lsCrimma e women. Whereas Charles Beard belreved that the Con- stitution reflects the interests of an economic elite, Susan B. Al1thony's argument suggests that because the fo~nd­ ing fathers were all males, the Constitution was written to further exclusively the interests of men.

Friends and fellow-citizens: I stand before you tonight under indictment for the alleged crime of having voted at the last Presidential election, without having a lawful right to vote. It shall be my work this evening to prove to you that in thus voting, I not only committed no crime, but, instead, simply exercised my citizen's rights, guaranteed to me and all United States citizens by the Na- tional Constitution, beyond the power of any State to deny ....

The preamble of the Federal Constitution says:

We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common de- fense, promote the general welfare, and secure the blessings of liberty to our- selves and our posterity, do ordain and establish this Constitution for the United States of America.

It was we, the people; not we, the white male citizens; nor yet we, the male citizens; but we, the whole people, who formed the Union. And we formed it, not to give the blessings of liberty, but to secure them; not to the half of our- selves and the half of our posterity, but to the whole people-women as well as men. And it is a downright mockery to talk to women of their enjoyment of the blessings of liberty while they are denied the use of the only means of securing them provided by this democratic-republican government-the ballot ....

For any State to make sex a qualification that must ever result in the disen- franchisement of one entire half of the people is to pass a bill of attainder, or an

SOl/ree: From Susan B. Anthony, "Speech in Defense of Equal Suffrage" (1873).

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EL ECTION S AND VOTER S 20 9

eX post facto law, and is therefor 'I' bl ' f I'b e a VIO atlon f h it the essmgs 0 I erty are forever w'thh Id 0 t e supreme law of the land. By

rerity. To them this government ha I, e from women and their female pos- the governed. To them this govern s no ,lust powers derived from the consent of

d ·, ment IS not ad,

is an 0 IOUS aristocracy; a hateful r h emocracy. It IS not a republic. It ever established on the face of the ;llg~r~ y of,sex; the most hateful aristocracy govern the poor. An oligarchy of I 0 ,e, an ohgarchy of wealth, where the rich

earmng where th d d h ' rant, or even an oligarchy of race wher ' e e ucate g~vern r ~ Igno- endured; but this oligarchy of s~x h~ the Saxon rules the Afncan, might be

h I' h ' w Ich makes fathers brothers husband sons, teo Igarc s over the mother and sisters th 'f 'd d h' f ' h Id h ' h d' , e WI e an aug ters 0 every house 0 -w IC or ams all men sovereigns all b' 'd'

, d' d d . , women su Jects, carnes IS- senSlOn , Iscor an rebellion into every home of th t ' e na Ion ....

, Webster, Wor~ester and Bouvier all define a citizen to be a person in the Umted States, entitled to vote and hold office.

The only question left to be settled now is: Are women persons? And I hardly believe any of our opponents will have the hardihood to say they are not. Being persons, then, women are citizens; and no State has a right to make any law, or to enforce any old law, that shall abridge their privileges or immunities. Hence, every discrimination against women in the constitutions and laws of the several States is today null and void, precisely as is everyone against Negroes.

t ..

GEORGE WASHINGTON PLUNKITT

39. HOLDING YOUR DISTRICT

, , , d are scrutinized under a microscope and Pol,t,CIans t~ ay hical conduct-whether personal any suggestIOn of unet news and the lead story on or public-makes fro;t page The most obvious practices television news broa

l , ~aslts. achine-buying votes and

Id ' po Iflca m B of the 0 -tIme h 11 become uncommon. ut stuffing ballot boxes- a e

f tting and keeping voters

h ' . t d means 0 ge 'f b ' more sop Istlca e b t d The practICes 0 rmg- , e una a e . d' '

I'n your camp contmu , congressional IstrICt, II 'ns mto a d ing federal insta attO e campaign contr~butors, an

Providing access to lar g t

onstituents certamly have not . fl to protec c using In uence

disappeared.

• ..,,' . - ....I.~ ... k 'tt of Tamma/ly

r/ll/l 'I

Hall (New York: McClure Phillips,

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J •

212 SECTION VII " , t things runOln again. It, 'II they ge h S

I f them up tJ d polities. W a can tell ho\v clothes were burned up, ~n,( IX _mightY goa e the most grateful people

' , \ttles, (00 1"h poor ar 'h" philanthropy, but It s po , 1 'ng me? e friends 10 t elr neIghbor.

f h > fires )rI h e more many votes one 0 t esc they av I (ell YOU,

in the world, and, c( rn~ I 'rs k v it before the charitable ' I h e In (leI . (I 'nO\ hoods (han (he riC 1, a~ d'strict in wan h ground. I have a special

If there's a fanllly Indmy ~1en are first on t, e that

the poor look up to societies do, and me an my The conseque~ce IS ble-and don't forget him corps (0 look up such cas~s. ome (0 him 10 trOU George W. Plunk itt as a fat 1er, c , , luan I make it a point

I 'd ' f deservtn ,. on e ectlOn 3). et a job or a h I don't have a few Another thing, I can always:, ;eldom happens t at

h d' 't d' uhP

(0 kee on the track of jobs, an It i employer in t e ,1~tnC an In t e I p , d for use. I know every b ~ h habit of say 10 no to me when my s eeve rea y nd they ain't 10 t e

whole city, for that matter, a I ask them for a job. , s of the district! Do I ~orget them? Oh, no!

A d the children-the httle rose k v that a sIght of Uncle George n h nd they nov They know me everyone of t em, a f h are the best kind of vote-getters.

, h ' Some a t em h f h ' and candy means the same t 111? h Avenue rosebud, w ose at er IS a I'll tell you a case. Last year a, little, E~:;:~~ election day and said she wouldn't Republican, caught ,hold of hlsfwhlS And she didn't. let go till he'd promIse to vote or me.

JOE MCGINNISS

40. SELLING CANDIDATES As PRODUCTS

v. O. Key's argument that elections are meaningful be- cause voters are rational has not been universally ac- cepted. An alternative view of voters imagines them to be easily manipulated by advertising techniques, particu- larly on television. In the modern era of «spin doctors," media specialists who work to depict their candidate and political events in a favorable light, it is hard to remem- ber how shocking it was for many Americans to read Joe McGinniss's conclusion that elections were nothing more

Source: 10 : McGinniss, The Sel/in? of the President. Copyright © 1969 by Joe Mac, Inc. Reprinted by permiSSion of Janklow & Nesbit Associates.

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th d " ELECTION S an a VeTtlSlng ca111p , AND VOTEkS 21 3

consumer prod algns sell" " Ucts A M II1g Pol"t ' , not so much Vote fo s cGinniss p' Ici~ns instead of Ical purchase of h ' r a candidate ut It, citizens d M G ' 1111 " I as rn k 0 c mniss describe h' n the ex a e a psycholog_ "handlers " UJork d ~ t e Way in '''h cehrpt that follows , e lit 1968 o.v Ic R' h '

tlOns of their cand 'd to rnanipul IC ard Nix on's image that remain ~ ate So as to ch ate public percep- Kennedy in the 19;0 frorn his carnpai ange h,s negative

race for the Wh ' gn agamst John F. , Ite House

politics, 10 a sense, has always b . Th A

' een a con e mencan Voter insist" game.

I, ' h ' h ' lng upon h' b I' his re IglOn, w 1C promises anoth b IS e lef in a higher d I' , h h er ett \'f or er, C lOgS to illUSIOn t at t e men he chooses to l:ad h,er I e; and defends passionately the

It has been traditional that th 1m are of finer nature than he d d h

e sUccessful r " . succee to ay, e must embellish it P , I po ,Itlclan honor this illusion. To

"Potential presidents are mea' adrtlcu ~rly If he wants to be President. d· G d Sure agamst an 'd I h ' of lea 109 man, 0, father, hero po k' , I ea t at s a combination

avenging Furies thrown in," an ad~ise;;~ ~~~ with ,maybe just ,a touch of the dum late in 1967. Then, perhaps aware th N~rd Nlxo~ ~rote 10 a memoran- discussed improvements that ld h at Ixon quahfled only as father, he

h ' , wou ave to be made-not upon Nixon him-

self, but upon t e Image of him that was received b th Th h

' d'fc y e voter. at t ere IS a I Ierence between the individual d h" . h , an IS Image IS uman

natur~ . Or Amen~an n~ture, at least. That the difference is exaggerated and explOited electromcally IS the reason for this book.

Advertising, in many ways, is a con game, too. Human beings do not need new automobiles every third year; a color television set brings little enrichment of the human experience; a higher or lower hemline no expansion of con- sciousness, no increase in the capacity to love.

It is not surprising, then, that politicians and advertising men should have discovered one another. And, once they recognized that the citizen did not so much vote for a candidate as make a psychological purchase of him, not sur-

prising that they began to work together. , The voter, as reluctant to face political reality as any ~ther klO~,. wa~

h dl '11'" "The deeper problems connected With advertlsmg,

ar y an unwi 109 Victim. h I . . Th Image "come less from t e unscrupu ous- Daniel Boorstin has wntten 10 e I' . b' deceived less from the ness of our 'deceivers' than from our P easure 10 d

emg ,

d . h f h desire to be seduce ... . eSlfe to seduce t an rom t e ve misled ourselves ... about men . . . and

"In the last half-century we ha h We have become so accus- h b f d among t em .. ·· ow much greatness can e oun h for reality We demand them. And tomed to our illusions that we mistake t er h m bigg~r and better and more we demand that there be always more 0 t e ,

vivid." . xtension of our error. The Presidency seems the ultimate e

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I 214 SE n ON VII

II Pres ident sin ce 1952, Whe " " " ,. oed openly to e f B B n

Advern 1I1 g age nCl e h:lH!n " " 1956 the age ncy a atton, arran " c - Il:" c n o n In' hi " f" , Dwig,ht Ei cnhower r:l n ro r re e . ret ai ne r thro ug a u! lI S IrSt four

h" h h d beell 0 11 :I d H II " Durstine :lnd O sborn, w IC:l I CO ll nt , Leonar a, natI onal Re, " . " a reg u a r ac h Yea rs an'epted hI ca mp:l lgn a • , d "d "He a nd your progra ms t e \Val' , " "d .. y I ellvour C.H1 I. , publica n chaIrman, :I I: ~L " " '\ busint·ss ell ir product, I rs ha been th a t , a tec hnIcal so. • h asr twe \"e yea •

The only c han ge ove r t e p. " " ti o n, The ad men were remoVed "" " ' " d has circ um pec

Phl srlC:H1 on ha 11I crea se , a . " " " a Lllte upsta Ir s, ' , ' from the parlor but were gIve n _ f yo un g me n attuned to th e politi.

" h d b t him se lt a gro up a , 0" N Ixo n ga t ere a o u , I " 'd by different routes. ne , William

f I ' " Th " arrived a t li S SI e h " I cal use 0 te enslon. e~ d E' I' I teac he r in a suburb a n Ig l school G " hIe \'e'lr-ol ng IS I " h ' avrn, wa s a t Iny-OI -, ' h~ Rich a rd Nixo n urg rn g 1m to run

"d h"1 d I h " " 196 wh e n e wrote outSI e P I a e p la 111 " ' , TV Gav in wrote o n station ery bar- f P "d d b se hI S ca mpaI gn 0 11 • " or resl ent an a , . I " b ca use he th o ug ht N ixo n would

d f h U" t I of Penn sy va nIa e rowe rom t e mversl) . d b f m a college professo r, pay more attention if the letter see me to e ro

De ar Mr, Nixo n: " ' 19 vo ur plan s for] 968? Mav 1 offer twO sugges TI ons co nce rnll ,

, " h' ca n happen ro vo u politicall v spea kin g, that is 1 Run You can W1l1 • • a t 1I1 g , J '" ' " , , h h h d to "au Orrega y Ga sser rn hI S The Rel/o lt of worse than w at as appene J' "' " f h "

I M "These I"dea s are rhe onlv genu1l1e Ide as; the Ideas ate shlp-t Je asses savs: , k d All ~he rest is rheroric posruring, farce . He who does not really feel wrec e , , "ff " I " h "

himself losr, is losr wirhout remission , . ," You , m e ect, are ost; t at IS why you are the onl y polirical figure wirh rhe vision to see thrngs the way rh~y are and nor as Leftist or Rightisr kooks would have rhem be. Run. You WIll wm ,

2. A tip for relevision: insread of those wooden performances beloved by politi- cians, insread of a glamorboy technique, insread of safety, be bold, Why not have live press conferences as your campaign on television? People will see you daring all, asking and answering questions from reporters, and not simply an- swering phony "questions" made up by your staff. This would be dynamic; it would be daring. Instead of the medium using you, you would be using the medium, Go on "live" and risk all. It is the onl y way to convince people of the rcurh: that you are beyond rhetoric, that you can face reality, unlike your op- ponents, who will rely on public relations. Television hurt you because you were not yourself; it didn't hurt the "real" Nixon. The real Nixon can revolu- tionize the use of television by dynamically going " live " and answering every- thing, the loaded and the unloaded question. Invite your opponents to this kind of a debate.

Good luck, and I know you can win if you see yourself for what you are; a man who had been beaten, humiliated, hated, but who can still see the truth.

A Nixon ~taff member had lunch with Gavin a couple of times after the letter was received and hired him.

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William Gavin Was b EL ECTION S uary of 1969. rOUght to the Wh' . AND VOTE RS 215

Harry Treleaven h ' Ite Hous , d ' , Ired as eas aspe h

1967, Imme lately Went t creative d' ec writer in Jan-

P roblems. One Was hi's I 0 work on th Irector of ad '

ack f hen Vertl ', "Can be corrected t 0 umor. 10re seriou s of ~Ing ~n the fall of

viouS about it. Romney'o a degree," Irel IXon s personality I s cornball eaven w

witty, et a pro write the w d attempts h rote, "but let's n b Treleaven also worr ' dor s." ave hun him. If we' ot e too ob-

b h ie abo N' re gOIng to be

"he can e elped greatl' Ut IXon's I k y Inthi ac ~

words to say that will show ~,respect by how h:varmth, but decided that Buchanan wrote about RFK IS emotional' I IS handled ... , Give him

, h talk' Invo veme ' h That swat we have to in'e Ing about the s ,nt In t e issues., . ,

"He should be prese~t Cdt. : . . tarvlng children in Recife. d ' Th" e In sOme k' d stu 10. e Situation should look In of 'situation' rath '

Some of the most effect' 'd unstaged even if it 's n "er than cold 111 a 'I . f Ive I eas bel d Ot .

editona wnter or the New YI k onge to Raymond K P , f d

. or Herald Ii 'b . nee, a ormer an most promInent speech ' , rt une, who became N' , b

h f h ' Wtlter In the c' Ixons est

muc 0 t e Inaugural address. ampalgn, Price later composed In 1967, he began with the '

. assumption that "Th reason IS to support prejudice not t' .' , e natural human use of I , h' , a arnve at OPinIons" Wh' hid C USlOn t at ratIonal arguments would "ani be " , IC e to the can-

to make the emotional leap or what th I y, effective If we can get the people . ' eo oglans call [the] 'I f f ' h ,,,

f t Pn~e s~~g~sted atta~ki~g ~he "personal factors" rather ~~;nOth:I'\istorical Ra~ horsd N": IC were t e aSls of the low opinion so many people had of JC ar Ixon.

"These tend to be more a gut reaction," Price wrote "unarticulated non- analytical, a product of the particular chemistry betw;en the voter a~d the image of the candidate. We have to be very clear on this point: that the re- sponse is to the image, not to the man. . .. It's not what's there that counts, it's what's projected-and carrying it one step further, it's not what he projects but rather what the voter receives. It's not the man we have to change, but rather the received impression. And this impression often depends more on the medium and its use than it does on the candidate himself."

So there would not have to be a "new Nixon." Simply a new approach to

television. f ' d f d' ~" "What, then, does this mean in terms of our uses a time an a me la.

Price wrote. , 'whatever time RN needs in order to "For one thing, it means IIlv

d estl

h n

g " of the nation's future that he

. h' in t at VIsion work out fi~m'y .. ~ IS .own ~, rucial. ... " " wants to be Identified With. ThiS IS C ears in public life, RIchard Nixon

So at the age of fifty-four, after.twent~ Y f fme to "work out firmly in his was stii, felt by his own staff to be III nee h

O t ~e wants to be identified with."

h 'on's future t a

own mind that vision of t e natl

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, I 216 SECTION VII

I take th e time and the money ,, ' ggests t lat we • , , I ' "Secondly," Price wrote, It su er with film and televI SIOn tec 1I1lQues,

to experiment, in a controlle~ m~I1I~ 'those co ntrolled uses of the television h ' pIl1POll1tIl1g with particular emp aSI S on , e we want to get acro~s ' . :

medium that can best conve~' the /mag lement of distortIOn, 111 terms of its d ' ' If ntroduce s an e 'h' h h ' "The TV l11e IUm Itse I bl ' ' al ways 111 w IC t e Image is

, d f he often su 11111\1, ' , effect on the candIdate an ,0 t, partial image-thus ours IS the

" 'bl S gOIl1g to convey a , h received. And It II1evlta Y I . I art that gets across IS t e part We task of finding how to control ItS use so t le p

want to have gotten acrosS . . . , . II . t rested in making an effo rt to Un- "Voters are basic-lil y lazy, baslcl y unp"~ e te "Reason requires a high

. b " nce wro . derstand what we're talkIl1g a out .... ~ s' on is easier. Reason pushes the

, . I' f ntratIOI1' IInpres I' , degree of dlsClp II1 e, 0 co nce , d 'd that he agree or disagree; Impression viewer back, it assaults him, I,t en:an s k' < . n intellectual demand ....

h· ' ' I' 111 wIthout rna II1g a can envelop 1m, ~nvlt~ 11m d" d that he make the effort of replying. We When we argue wIth hlln we eman I th 's is the most difficult work seek to engage his, intellect, and for n:~ystr~~~~de cl~ser to the surface, more of all. The emotions are more eaSI, ,

malleable .... " 'd d" turation w'th So for the New Hampshire primary, Pnce recommen e sa I,

f'l " h' h h ndl'date can be shown better than he can be shown m a I m, 1\1 w IC t e ca h h b . be edl'ted so only the best moments are sown; t en a person ecause It can, " ,

'k arading of the candidate in the flesh so that the guy they ve gotten IntI- qUlc p I' , . mately acquainted with on the screen takes on a Ivmg presence-not saymg

anything, just being seen. . . . , "[Nixon] has to come across as a ~erson, larger t?~n hfe, the stuff of leg-

end. People are stirred by the legend, mcludmg the h~m~ legend, not by .t~e man himself. It's the aura that surrounds the charismatiC figure more than It IS the figure itself, that draws the followers. Our task is to build that aura .....

"So let's not be afraid of television gimmicks ... get the voters to like the guy and the battle's two-thirds won."

So this was how they went into it. Trying, with one hand, to build the illusion that Richard Nixon, in addition to his attributes of mind and heart, considered, in the words of Patrick K. Buchanan, a speech writer, "commu- nicating with the people ... one of the great joys of seeking the Presidency"; while with the other they shielded him, controlled him, and controlled the at- mosphere around him. It was as if they were building not a President but an Astrodome, where the wind would never blow, the temperature would never rise or fall, and the ball never bounce erratically on the artificial grass.

They could do this, and succeed, because of the special nature of the man. There was, apparently, something in Richard Nixon's character which sought this shelter. Something which craved regulation, which flourished best in the d~rkness, behind cliches, behind phalanxes of antiseptic advisers. Some part of hIm that could breathe freely only inside a hotel suite that cost a hundred dol- lars a day.

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ELECTIONS AND VOTERS 21 7 And it worked. As he

d moved sere I h was new ca ence to Richard N' , ,ne y t rough his primary campaign there h rt A d ' IXon s speech d ' ' ea . n, a new Image of him 0 an motion; new confidence in his

TV both reflected and ' n the television screen. h I k d I'k ,contrIbuted to h ' e 00 ' e I e a winner on th IS strength. Because he was winning

h d ' e Screen. Becau h dd " on t e me lum he had f d h se e was su enly proJectIng well TI f eare e went ab h' h le one ed upon the oth b' '1 ' " o lit IS ot er tasks with assurance. R bl

' er, 1II dmg to ' h' epu Ican convention b d an astol1ls Ing peak in August as the

, M" egan an he emerg d f h' I' I ' mg to laml not so much t b , " e rom IS rega ISO atlOn, travel- trolled, TV. 0 e nomInated as coronated. On live, but con-

WALTER DEA

41. CRITICAL REALIGNING ELECTIONS

American presidential elections have been classified ac- cording to which party wins and what coalitions of Americans identify themselves with those parties. Using these measures, elections may be "maintaining" (party loyalties remain stable and the majority party wins), "deviating" (basic party loyalties remain stable but the majority party loses), "converting" (the majority party wins but major shifts can be seen in who supports the party), and "critical" or "realigning" (the majority party not only loses the election but also loses its stand- ing as the majority party). Walter Dean Burnham's analysis of critical realigning elections suggests that major upheavals occur cyclically in the history of American politics and that each is associated with a significant increase in intensity in which large numbers of voters change their party identifications. It seems that the Democratic victory for Bill Clinton in 1992 did not represent the beginning of a cycle of realign- ment in sources of support for the parties, but rather a

S . F m Crl'tl"cal Elections and the Mainstream of American Politics by Walter Dean Burnham, ollree. ro U db " f W W N & Copyright © 1970 by W. W, Norton & Company, Inc. se y permIssIon 0 . . onon Company, Inc,

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218 SECTION VII

o R publican domillation of mere deviation /II the recent e the White House.

o . 11 recognized that American electoral For many decades It has been ?en~~ad y °te its apparent diverse uniformity

10 0 0 0" 11 of '1 pIece CSpI f h 0 pO ItICS IS ~ot qUIte a 0 • nt Ion .-range con se qu enc es or t e politi- Some electIons hav.c more I111porta d g "decide" substantive issues 10

I I I I rs an seem to n cal system as a w 10 etlan ot le, I eement among hi storians that I ' There has been ong ag

r a more c ear-cut wa). . • 96 d 1932 for ex ample were funda the elections of 1800,1828, 1860, 18 A' an 0 el'ectoral")oliti~ s -

o 0 0 I Irse of mencan < t • mental turnmg pOInts m t le COL , 0 I 0 I "A Th

o 0 1955 of V O. Key s semII1a artlc e, eory S1I1ce the appearance 111 0: d O h 0

of Critical Elections," political sC IentIstS have mov~ to gIve t IS concept , It lOW seems tIme to attempt at least

quantitative depth and meanII1g. . . . I 0 ' 0 f 0 0 o 0 t of tile structure function, and ImplIcatIons 0 CrItIcal an II1tenm assessmen , ff 0 • I· f I A erican political process. Such an e ort IS motivated rea Ignment or t le m, < . . ' f f

. . I b I thor's view that crItIcal realIgnments are ° unda- 111 partICu ar y t le au < • • 0 II d "

I . t only to the system of polItIcal actIon ca e the menta Importance no American political process" but also to the cl.arificatioo ns of so~e aspe~t~ of its operation. It seems particularly important II1 a perIod of obvI~us poittlcal upheaval not only to identify these phenomena and place them II1 tIme, b~t to integrate them into a larger (if still very modest) theory of movement In

American politics. Such a theory must inevitably emphasize the elements of stress and abrupt

transformation in our political life at the expense of the consensual, gradual- ist perspectives which have until recently dominated the scholar's vision of American political processes and behavior. For the realignment phenomenon focuses our attention on "the dark side of the moon." It reminds us that poli- tics as usual in the United States is not politics as always; that there are discrete types of voting behavior and quite different levels of voter response to political stimuli, depending on what those stimuli are and at what point in time they occur; and that American political institutions and leadership, once defined (or redefined) in a "normal phase" of our politics, seem to become part of the very conditions that threaten to overthrow them ....

In its "ideal-typical" form, the critical realignment differs from stable alignment eras, secular realignments, and deviating elections in the following basic ways.

1. The critical realignment is characteristically associated with short-lived ?ut ver~ intense disruptions of traditional patterns of voting behavior. Major- Ity partIes b.e~ome minorities; politics which was once competitive becomes no?-COmpetltl~e or, alternatively, hitherto one-party areas now become arenas of mtense partisan competition; and large blocks of the active electorate-mi- norities, to be sure, but perhaps involving as much as a fifth to a third of the voters-shift their partisan allegiance.

2. Critical elections are characterized by abnormally high intensity as well.

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ELECT( h"" " ONS AND V a. T IS mtenslty typical! " OTERS 2.19

h · d" y spills 0 " I"ting mac mery unng th Ver Into th wr " f e uph e party . 'on behavIOr rom the integrat' ~ava l and resul . nominating and platform-

[I " . f " IVe no" ts In m' h' . cerna OCI 0 power In the m " fin as well . alor S ifts in conven- 111" 0 d " alOr pa L as In tr f . f realignment. r marily acce d rtY 100St heav'l fans ormatlons in the

0 " pte .. I I Y a fe d b rocesses, mstead of performin h "ru es of the game" cte y the pressures

~ontribute to polari za tion . g t elr usual integrative a;e fl outed; the party's b. The rise in intensity is " Unctions, them se lves

" I "" . associated' h logical po anzatJons, at first w " h" Wit a con sid bl " '.

h I " It In one 0 era e Increase In Ideo-between tern. Ssue di stances betw r more of the mal'O " d " d " een the " r parties an then

eleCtIons ten to Involve highly s I' " parties are markedly " d d d b I' a lent ISSue- I Increase ,an tiona I an sym 0 IC overtones far m h c Usters, often with strongly emo-

I" " 0 " ' Ore t an I . [oral po ItICS. ne cunous property f . s CUstomary In American e1ec- f I" 0 establIshed I d h' " [he stress 0 rea Ignment seems to b ea ers Ip as It drifts into

" h" h " If e a tendency t b dogmatic, w IC itse contributes g I 0 ecome more rigid and reat y to the e I '" . realignment. . . . xp OSlve bursting stress" of

c. The rise in intensity is also nor II b " voter participation for the time Thl"sm~ ~f~o e ~ound In abnormally heavy

. slgm Icant inC . r" I b" lization is not always or uniformly present t b rea~e In ~o Itlca mo I-

I"" I " h ' 0 e sure. It IS particularly true of rea Igmng cyc es Wit a strong sectional thrust that th h" h d I e areas w IC are pro-pelle most strong y to one party or the other tend t b h " h" h

d " 0 e t ose In w IC

turnout oes not Increase much, or even declines SI"ml"la I h"'" " " "" " . r y, W I e Increases In partICipatIOn du~mg the 1928~36 p~riod were very heavy in most of the coun- try, they were slIght or nonexistent In the South, because the restrictive struc- ture of local politics which had been created at the turn of the century was not disturbed until long after World War II. Moreover, the net effect of the New Deal realignment was to make the South even more lopsidedly Democratic than i[ had been before. With such exceptions, however, there has still been a general tendency toward markedly increased participation during realigning eras.

3. Historically speaking, at least, national critical realignments have not occurred at random. Instead, there has been a remarkably uniform periodicity

in their appearance. . . . " " " " 4. It has been argued, with much truth, that Ame~l~an political parties a~e

essentially constituent parties. That is to say, the pohtl~al-party "sub~ystem IS sited in a socioeconomic system of very great heterogeneity ~nd diverSity. For a variety of reasons (to be discussed in greater detaillat~r) thlsfP~rty sys~em hads

. . h rforming the functions 0 integration an tended to be preoccupied Wit. pe" d ft antagonistic subgroup- ~automatic" aggregation of highly dlv~rs~ an t o:ern for development of mgs in the population to the near exc USlon 0 c " . . . the European sense. modern" mass orgamzatIon ID" I f the dynamics of this constituent-

Critical realignments emerge dlre~~ y ~om and with implications which fu . . A . n polItics 10 ways "h " I nctlon supremacy ID menca '11 Iy note that SlOce t ey lOVO ve " I H we WI on " "

Will be analyzed subsequent y. ere d e of the term, they are 1Ot!- '. . . h broa est sens " I f

ConstItutional readJustments ID t e formations m large c usters 0 d f Il wed by trans mately associated with an 0 0

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220 SECTION VII

d ' · I f md alternation s in policy ad ' po licy. This produces co rrespo n 11Ig Y pro Ol" < n In- . , ' ' I - o f AmerIcan government. In h flut'n ces th e grand IIl stltutiona structures , Ot Cr

, I . tl'tll ent acts: th ey arIse from eme words, realI gnments are them se YeS cons , , rgent , , , h ' I d tel)' controlled by th e organl za tton Or ten sIons 111 socIety w IC 1, not a equa , " OUt_

f' I' ' I ' I te to a fl 'lsh pomt· th ey a re Iss ue-o rle puts 0 party po ttl CS as usua , esca a <', ' nted pht'nomena, centrally associated with, th~se ,t~n S lon s a,~d mure, o r less leading to reso luti o n adjustments; th ey res ult 111 slg l1lflGlnt tran sform a ti o ns 111 the gen- eral shape of poli cy; and they have rel a tivel y profo und afteref~~cts o n the roles pl ayed by in stitutional elites. They are involved With red~ fll1ltt on s o f the uni- verse of voters, po litical parties, and the broad buundarres of th e politically poss ibl e.

To recapitulate, then , era s of critical rea lignm ent are mark ed by short, sharp reorganization s of the ma ss coalitional ba ses of the maJ o r parties which occur at periodic interval s on the national leve l; are often prece ded by major third-party revolts which revea l the incapac ity of "politics as us ual" to inte- grate, much less aggregate, emergent political d emand; are close ly asso ciated with abnormal stress in the socioeconomic system; are marked by ideological polarizations and issue-distances between the major parties which are excep- tionally large by normal standards; and have durable consequences as con- stituent acts which determine the outer boundaries of policy in general though not necessarily of policies in detail. '

KATHLEEN HALL JAMIESON

42. DIRTY POLITICS

~/though it, n:ay ~/ways have been an accurate descrip- tIOn of pobtlcal lIfe, Kathleen Hall Jamieson 's concise sta~ement that ':what is known is not necessarily what is belreved, u:hat,ls ,shown is not necessarily what is seen, and what IS sard IS not necessarily what is heard " had by the 1 ~80s an~ ! 990s become the guiding principles for Amerzcan pobtlcal campaigns,

!amieson re~ounts how the Republicans used dra- matIc ~nd qU,estlO~able political spots to blame the De- • mocratlc preSIdentIal candidate, Massachusetts Governor

SOl/rce: From Dirty Politics' Deception D' , Copyright © 1993 by Kathl~en H II J " Istractlon, and Democracy by Kathlee n Hall Jamieso n,

a amleson Reprinted b " f " p , y permIssIon 0 Oxford Um verslt)' ress,

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M ' I ELECT ' • I e Jael DUkakis ON~ AND VOT ERS Wltlfte Hurt o ' (or allut ' , ' II, to re ' Vlng a, ,

'-a ll 1/'111 fl ed k 'd cClve a IVe k (Col/ vlC/ ed d I " I /lap and e 'end p, _ II/U~ erer

te elllSIOIl s/Jot the a rape, J II a no l~s ellIring which 17; that Bush b I' I/ll Ouneer _ IU (all'IUIIS 30 I e leVes il ~ays OVe r -seculld

p Ja to of DUkakis I I the death /Jel I a photo o( Blish Po - , tl d ' rJe sa)1 tJ la ty N , ~e 7e eath PIs 1at not / " e.tt, Over a d ' ena ty b on y du , D egree 111urde ' /.it as "OV es lIkakis o/J- .. , rers to h <> erl/or he" 1/ I ,7e n, Oller a I ' ' I aVe lUeekend p a OlUed (irst-

llugs Jot ( " asses I , an/louncer say "0 0 WIllie Hort ,rom /lYIS OII . .. dered a bo " s, /Ie IIlan lUas W'II ?n, a black man, the

, _ y III a robbe " Ie Horton I a lite sentence H ry, stabbing him 19 ' , IV 10 mllr- Priso n Ho t ' (l o rton receilled 10 k tl/n,es. Despite . r On d k ' lUee 'el d he, ' Idnapp d 1 passes (rom t e ~~n O1~d repeatedly raping

e h a YOI//~g cou/J/e, stabbing

7e Pictures and ' IS gtr Irtend . .. were d ' SCrtpt of the d

eSlgned t o create th a, campaign clearly Duk~kls Was personally res e perceptIon that Governor conVIcts who C01111111'tt d ponslble for furloughing 268

I 'I e acts of 'I w 11 e out of prison I VIa ence, even murder d 'd . n COntrast of ' can I ate George B h ' COurse, Republican

, us Was to b crl111e and C0111pass ' e seen as tough on

lonate tOward ' , spot was produced and b VIctIms. Because the , run y Am' £ mdependent group th t ertcans ,or Bush, an B h a was not formally p f h us campaign, he could and d'd ' art ate while at th ' I tech111cally dIsavow it Both Ho t e sa111~ tl

h 111e benefiting from its subtle racism

, r on an t e television spot became dam' . fisu~ throughout the 1988 presidential campaig~~a~: or orton, he went back to prison, where he told re- por~ers that ,Bush "111ay just be a cheap political Oppor- tUntst. I ,can t help but question his moral judgment. "

ja"!,eson 's analysis of this successful Republican cam.~Qlgn spot raises serious ethical issues and troubling poftttcal questions regarding the increasingly sophisti- cated art of manipulating public perceptions of political candidates.

22'

William Horton and Michael Dukakis are now twinned in our memory. The fact that the memories are factually inaccurate does not diminish their power. Dukaki~ did not pardon Horton nor did the furloughed convict kill.

Although it does recount the facts of the Horton case, this chapter is not one more rehash of who did what to whom in the 1988 campaign. Instead, it sets a Context for the book by examining how voters and reporters came to know what they know of politics. It argues that, i~ politics ,as in life, what, is known is not necessarily what is believed, .what IS ~hown IS not necess~nly what is seen, and what is said is not necessanly what IS heard. It then exammes

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222 SECTION VII

h . I . d he psychological quirks that ow 10 the Horton case consultants exp olte t characterize humans. .

Th . k . I d k I'k tendency to gather up and mterrelate ese qUlr s mc u e a pac -rat Ie. h ' bl d . . f . f ' d" . n to welg accessl e, ramatlc 10 ormation rom vanous places, a ISPOSltlO . . d h · . . I' f mation and a predtlectlon for ata more eavlly than abstract statlsnca m or , I . . "f t" ettmg fears shape perception of what consntutes ac.. .

At the same time we have conventionalized journaltstlc norms that reward h ' . I' vl'sual and take the form of messages t at are dramatic, persona, conCise, '. .

narrative. In 1988, the psychological dispositions. of the pu~ltc coupled wtt.h the news norms to produce an environment in which an a~yplCal but dra~atlc personification of deep-seated fears would displa~e other Issues ~nd domtn~te the discourse of the campaign. That dramatic, visual, personaltzed narrative told the "story" of William Horton.

VOTERS ARE PACK RATS

The role that ads, Bush rhetoric, news, and audience psychology played in transforming William Horton's name for some into a symbol of the terrors of crime and for others of the exploitation of racist fears shows the powerful ways in which messages interact and the varying responses they evoke in individu- als. Like pack rats, voters gather bits and pieces of political information and store them in a single place. Lost in the storage is a clear recall of where this or that "fact" came from. Information obtained from news mixes with that from ads, for example.

Although Bush had been telling the tale on the stump since June, in the second week in September 1988, the Horton story broke into prime time in the form of a National Security Political Action Committee (NSPAC) ad. The ad tied Michael Dukakis to a convicted murderer who had jumped furlough and gone on to rape a Maryland woman and assault her fiance. The convict was black, the couple white.

The ad opens with side-by-side pictures of Dukakis and Bush. Dukakis's hair is unkempt, the photo dark. Bush, by contrast, is smiling and bathed in light. As the pictures appear, an announcer says "Bush and Dukakis on crime. " A picture of Bush flashes on the screen. "Bush supports the death penalty for first-degree murderers." A picture of Dukakis. "Dukakis not only opposes the death penalty, he allowed first-degree murderers to have weekend passes from prison." A close-up mug shot of Horton flashes onto the screen. " One was Willie Horton, who mu.rdered a boy in a robbery, stabbing him nineteen times." A blur.ry bla~k-and-whIte photo of Horton apparently being arrested appears. "Despite a Itfe sentence, Horton received ten weekend passes from prison." The wo;ds ."kidnapping," "stabbing," and "raping" appear on the screen wirh Horton s plc~ure as the announcer adds, "Horton fled, kidnapping a young couple, stabbmg the man and repeatedly raping his girlfriend." The final pharo

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gain shows Mich ae l DUkaki a , '" s. The Du kakls on erllne. announc" "r nOtes "~

When the Bli sh C<ll1lpaig , " . eekend pri son passes. d H n s rev I ' 5 viewers rea Orton frOI1l th p 0 Vlng dOor" , d b

a~d-white B~sh ad opened Withe btc ad into the fU:lu u ~~an to air on October

O f convicts clrcllllg through a eak Prtso n scenes I gh ad. ThI S stark black -

revolvi . t t en cut t . II'ving rooms. By carefully I' u ng gate and ma h' 0 a processIOn Xtapo ' . rc IIlg to d h " false inference that 268 fir st-d Slllg word s and pict . whar t, e natIOns

d k ' d egree murd ures, t e ad IIlvlted the rape an I nap . As the bleak ' I erers were furloughed b D k k' k ' h d d VISua saY u a IS to Duka IS a vetoe the death I ppeared, the anno 'd h . , pena ty and . uncer sal t at

murderers not eltglble fo r parole Wh ' l gIven furlough s to "first-d 'd . I e out egree

kidnappmg an rap e." , many committed other crimes like The furlough ad contains thr f I

Th ee a se stateme t d ' , inference. e structure of the ad ,n san IIlVltes one illegitimate I, ' bl f prompts Itsteners t h " f' derers not e IgI e or parole" as th d 0 ear Irst-degree mur-

whom committed crimes? First_deg e

antece d

ent referent for "many." Many of ree mur erers n t I' ' bl f

of whom went on to commit crimes I'k k'd ~ e Igl e or parole. Many I e I napplIlg d ) F' d murderers not eligible for parole. an rape. Irst- egree

But many unparoleable first-degree murde d'd f h d ', rers I not escape. 0 the 268

furloug e convIcts who Jumped furlough dur' D k k' , f' h d mg u a IS s Irst two terms, only four a ever been convicted first-degree murderers not eligible for pa- role. O~ t?ose four not "many" but one went on to kidnap and rape. That one was WIlham Horron. By flashing "268 escaped" on the screen as the an- nouncer speaks of "many first-degree murderers," the ad invites the false in- ference that 268 murderers jumped furlough to rape and kidnap. Again, the single individual who fits this description is Horton. Finally, the actual number who were more than four hours late in returning from furlough during Dukakis's two and a half terms was not 268 but 275. In Dukakis's first two terms, 268 escapes were made by the 11,497 individuals who were given a total of 67,378 furloughs. In the ten-year period encompassing his two com- pleted terms and the first two years of his third term (1987-88), 275 of 76,455 furloughs resulted in escape. .

This figure of 275 in ten years compares with ~?9 who e,scaped m the three years in which the program was run by Dukakls s Repubhcan predeces-

sor, who created the furlough p~ogram. I . d Aft the Bush campaign's Still the battle of drama ag.amst data c~~~n~:lf 'wee~~, in the third week of

furlough ad had been on . the aIr f~r ~o ~f Horton began airing. One showed October, PAC ads. feat~rmg the vlct;:sed b the furloughed Horton. "Mike the man whose fIancee had been d ~. es forever," said Cliff Barnes, Dukakis and Willie Horton change ~ur IV

II ' fe

term without the possibility . "H was servlOg a' b k

speakmg in tight close-up. e . h'm a few days off. Horton co e D kakls gave I . d M

of a parole when Governor u b t n slashed and terrorize. y .' h I was ea e , , . k k' Into our home For twelve ours, h' I'b ral experiment failed, Du a IS

. . d When IS I e WIfe, Angie, was brutally rape .

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224 SECTION VII

simply looked away. He also vetoe~ the death penalty bill. ~egardless, 0:, the election, we are worried people don t know enough about MI~e Dukakls.

The second ad was narrated by the sister of the teenager ktlled by Horton. "Governor Dukakis's liberal furlough experiments failed. We are all victims. First, Dukakis let killers out of prison. He also vetoed the dea~h penalty. Willie Horton stabbed my teenage brother nineteen times. Joey dIed. Horton was sentenced to life without parole, but Dukakis gave him a furlough. He never returned. Horton went on to rape and torture others. I worry that peopl~ here don't know enough about Dukakis's record." The words that recur In the two ads are: "liberal," "experiment," "rape," worry that "people don't know enough about Dukakis," "vetoed the death penalty."

Taken together the ads created a coherent narrative. Dukakis furloughed Horton (PAC ads), just as he had furloughed 267 other escapees (Bush revolv- ing door ad). Horton raped a woman and stabbed her fiance (crime-quiz and victim PAC ads). Viewers could infer what must have happened to the victims

of the other 267 escapees. 2 The narrative was reinforced by print and radio. The "get out of jail free

courtesy of Dukakis" card reappeared in 400,000 fliers mailed by the Bush campaign to Texans. "He let convicted rapists, murderers and drug dealers out of prison on weekend passes," said the flier. "And even after-while out on furlough-they raped and tried to kill again. "3

ALAMO PAC, a political action committee based in San Antonio, Texas, produced one ad that paralleled the claims of the furlough ad but focused on drugs. While showing a drug dealer at a high school, the ad noted that Dukakis had vetoed mandatory prison terms for convicted drug dealers, had fought the death penalty for drug "murderers," and supported weekend fur- loughs for drug convicts. A second ALAMO PAC ad showed a burglar, pre- sumably freed under a furlough program, creeping into a darkened bedroom.

Clips from Bush's speeches that appeared in the news reinforced the Horton-Dukakis link. In Xenia, Ohio, in early October, Bush talked in what the New York Times described as "vivid detail ... about the notorious case of Wi~lie Ho~ton." Press accounts vivified the case by supplying details and occasIOnal pIctures of Horton. The New York Times described Horton as "the murderer who left the Massachusetts prison system on a weekend fur- lough, only to be c,aug~t"a year later ~fter he ,raped a Maryland woman and brutally beat her ftance. 4 At a rally m Medma, Ohio, Bush referred to the Massachusetts g~vern~r ~s "the ~urlough king." In Trenton, New Jersey, Bush note? that the vlcttms of cnme are given no furlough from their pain and suffermg." 5

, The sister of one of Horton's victims and the man Horton had assaulted ~hIle on furlo~gh, began holding press conferences just as PAC ads featuring t em were be?mnmg to air. In Texas, newspapers devoted front-page space to Donna Fourmer Cuomo h ld b k'll d dr · , w ose seventeen-year-o rother Horton supposedly ;h e , an C Iff Barnes, then the fiance of the woman the escapee had raped,

e press tours were underwritten by a two-million dollar fund raised by the

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ELE,CTIONS

C O1[1lirree for the Presiden AND VOT ERS 225

o d h .. " cy, the p onsore t e Victim" ads rO-Bush I) I' ,

sp 1988 b d' a Itlcal A ' In , roa cast news . Ctlon COmmitt · 6 h ' f . Stones II ' ee t at

VI congenes 0 Images Th a led se (Ie f f I h d . e ads in I gments fro h photOS 0 ur oug e convict \V"lr c uded clips f m tree ads to create dorton "murdered," and th hi lam Horton cI rom the furlough ad still fl d h e usband f ' ose-ups of th' ' 'Ictims an t e murdered teen . a a Wom H e Sister of a man

v d Th ager's s' an Orto d .AcClure an omas Patters' ISter recOunted th ' n rape . Horton's IV' h On s pia' elr stori S' R b nd neWS, we ave known th ' neenng study f h es. II1ce 0 ert a at VleWe ' ate rei at h' f d

other/ .a phenomenon McClure and rs ImpOrt segments of on Ions Ip 0 a s ThiS phenomenon is well I Patterson call "meltdo ~, story II1to an-

Mulholland. "I think during the exp

am.ed by former NBCwpn. 'd R b d

' campaign th resl ent a ert tie confuse . I m expecting any day n e average viewer starts to get a lit-

S f h ow to see WIt" H jeans ... , ome 0 t e ads start to I k I"k I Ie Orton endorse a line of length, 30 seconds .... Television ,00 .. e news stories, they're the same

b h ' . IS not lust se d . viewer etween t IS IS news this . . parate In the minds of the . . II f ' IS commerCial a d h' .

Sometimes It a gets uzzed up becau . II ,n t IS IS entertainment. . I' f se It a comes i t h h h same 1m e piece 0 glass." 8 not e orne t rough the

The "melting down" of these ima es ex I . . the Bush campaign's use of Willi H

g P ams the controversy surroundmg

d am orton. In late fall 1988 a rising chorus of

Democrats can emned George Bush and h'ls Rbi' h dl '11' H "d . . epu Ican an ers for the

"WI Ie orton a. Felgnmg cherubic innocence B h' , d . f ' us s surrogates pOinte

out that no picture 0 the black murderer and rapist Horton had ever appeared in a Bush-sponsored ad.

From Bush strategist Lee Atwater to Bush media advisor Roger Ailes, Bush's aides were telling the literal truth. The scowling convict's mug shot ap- peared only in the ads of presumably independent political action committees. But the psychological impact was similar. In his stump speeches, Bush rou- tinely raised the case of the furloughed convict without mentioning his race. But once a viewer had seen the PAC ad or a news clip about it, the images of Horton, his victims, and the circling convicts were likely to meld into a coher- ent narrative reinforced almost daily by Bush's recounting of it in his campaign

speeches.

NOT ALL INFORMATION

IS CREATED EQUAL

. k' b th opposed the death penalty and fa- Democratic nominee Michael Duka IS h 0 . chosen by the Republicans to vored furloughs. It is no accident that t e Ima~as a black male. By explaining symbolize the Massachusetts furlough system

bl k but because he "slashed" a

h b e he was ac I d d t at they used Horton not ecaus, h R blicans tacitly acknow e ge M h · f cee t e epu d h ' aryland man and raped IS lan, h d first-degree mur erer-w lte the atypicality of the case. No other fUhr.l~ugu; During the primaries a double Or black-either murdered or raped w leO .

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•

226 SECfI ON VII

ht and return ed . As one of th ' I h hut was ca ug· .' h e

d rer did ,'lImp tur ollg E I _ TribIllle s se n es no tes, t e Bush mur e M ' . -husett s _ag e . d " ,\Uthors of the Lawrence, .\ SS .I~ I ' '-rimin'll had It wante. We did a . I . 'I'Cl,d a w lite L "H .' . t' campaign .:ould lave Sf t t: .. II Sue Forrest. e W.lS a or mer cop

I . rderer reca s f I h P'lg'e I sto ry on a w lite mil' tor)' on five ur oug cases. FOur ' , d M ' lIeagues wrote a s d TI ' , who was turlollghe. }' co· ,. F trooper Arman )errem killed

. "'f I Horton. orlller 987 h . were willte. Th,' h t \ was , . 01 December 11, I ,e lumped . , d ·\ policeman. I bl' d hi s buslIless partner .\n . t red The Repu Ica ns opte for a

. . I I, t r he was recap u · I f work detail. A mont) .\ e , d bl ck villain over t le sto ry 0 a white

, . . I ' trang'ers an a a . h B h street cnme !llYO vll1g s . ' . d - . rance money. Smce t e us cam- d h k' lI d a fnen tor msu . h cop-gone-ba w 0 ' I e ' . f " formation on the furloug program,

paign relied on the Eagle-Tril}//Ile or Its 10

it presumably knew of the se cases. . ' "e of the furlough program. Nor . presentative II1stanL

Horton was not a re . . I United States, where murder, assault, were hi s crimes tYPICa l of cnme 111 t le ' I 110t interracial.

I · f rapes are II1traraCla , and near )' I\Ille out 0 ten b' that the Horton case had "come b I 0 ber Bush was 0 servlOg

Yet y .He cto , tel y I believe-the misguided outlook of . b I" e 'md represent-accura , '.

to s)'m 0 IZ .• h ' t crime,, 9 In my judgment, a slOgle aberrational mv opponent w en It comes o· h bl' b ' . " d k b the Republicans the press, and t e pu IC to e typIcal lOCI ent was ta en y , . f h f'l f '. d D k k' , h' ndling of it seen as symptomatic 0 teal ures 0 ot Crime, an u a IS sa. . h

liberalism because dramatic, personalized evidence carnes more wel~ t psy-

h I ' II , than do statistics. Moreover, the Horton case played both mto the c 0 oglca } " f ." d' h widely held presupposition that Democrats are so t on cnme an mto t e conventions of network newS.

NEWS NORMS FOCUS ON DRAMA,

STRATEGIC INTENT, AND EFFECT

The Horton narrative fit the requirements of news. Unlike the "soft" news found in feature stories of the sort pioneered by Charles Kuralt on television, hard news is about an event that treats an issue of ongoing concern. Because violent crime is dramatic, conflict ridden, evokes intense emotions, disrupts the social order, threatens the community, and can be verified by such official sources as police, it is "newsworthy." 10 If one believed Bush's version of the facts, a convicted murderer who should have been executed had been fur- loughed to rape, torture, and murder again. In newscasts, the villain Horton appeared incarnated in a menacing mug shot. To personalize and dramatize, the news camera showed him in close-up; the less inflammatory visuals in the controversial PAC ad were shot mid-screen. Appearing in tight close-ups both in n~ws ~nd in the ads, the sister of the teenager Horton allegedly killed and the fIance and now husband of the woman he raped told of their torment and urged a vote against the second villain in the story, Michael Dukakis.

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E LEe-n ON S , I The story struc ture o f A ND \ OTE RS 227

" " news I I "iolenr CrIme IS Co mmitted b " end s itself t \ "d ) One " d" " 0 repor " a proragomst a n a n a ntago ni st in In "Ivldual aga inst :ng th at personalizes" A disorder agaIn st th e fo rce of la ' T thI S case a viII " th ers. A good Stor)' has

"d " .... , w. he " " aIn and ," , icall y to I enn. ) a p ro bl em to d " tYPIca l news " a \"ICtlm , the forces of

h " , escnb " ' Story IS 0 " d C'lre t e protago nI Sts a nd S he It In a nar " , rga l1lze dramat-, , et t e ratlve ot " " " iorervle\\ s) , a nd to crea te So n m against each h rI SIn g ac ti on. to 10-

ro data, and it ma kes a n I'te le SOrt of re solution Th Otf er (usuall y in short ma St " . IS Orm " h likelv to gain a nd ho ld a n a d " Ory In the mOS t lit I at gI ves co erence

: h R " u lence." II Th era sense, a Story th at is media by t e e pubh ca ns met th " e Horton story off d h

The fir st netwo rk Sto rv t eSe criteri a. ere to t e new s " . a air On th H

198 7 ) uses Inter vIew s to set OUt h e Orton case (C BS 0 b 2 ' t e Contour f • ecem er ,

rime cnme sh ow. " The man who d So wh at could have been a prime- ' f mur ered

19 74 wa s given a url o ugh " rep D my seventeen-year_old brother in , Orts onna Cu " "

pie deserve a second cha nce to g h omo. To thlllk th at these peo- , et OUt t ere and " h

they're not gOIng to do something t b We lust ave to hope that : 0 some od\' else ' "' ,. ,

UVing to get M assachusetts to ban h fl ' IS-It s crazy. Cuomo IS • suc ur ough h

prompts her ac tivity ? Horton wh h s, note s t e reporter. What given a furlough. " He en)'oyed hom, s edassume,s was her brother's killer, was

, e en)ove tOrturlllg pi " h h b d of the woman raped by Horta "Th ' h eop e,' says t e us an

r d h ' " n. , , ere, t ere, all the begglllg and pleading re- all) egge ,t IS gu y ?n. ~uk,akIs IS quoted saying that after the Horton case, the state tIghtened ItS gUldelm,es. But that's not good enough for the woman raped by_ the furloughed conVict. Commenting on the claim that the Massa- chusetts turlough system has a 99.9 percent success rate, she says, "If 99.9 per- cent are proven good and there's 1 % that's bad, then that tells me the system does not work. I'm a human being and my life has almost been destroyed, and I almost lost m y life, not only my husband's life. " There is someone who shares her view. " For the Maryland judge who sentenced Horton," says the corre- spondent, " a furlough or even a return to Massachusetts was unthinkable." "The man should ne ver breathe a breath of free air again," says the circuit court judge. " He is devoid of conscience and he should die in prison."

As the news reports unfold the story, ~ersonal det~ils give textur~ to th~ identities of the victim while Horton remaInS a menaCIng mug shot. 1 don t think any of you can understand what it's like to be ti~d up in a basement and I, " b' vI'olated and beaten " says ClIff Barnes (CBS, July 20, Isten to your wile emg , 88 "H 1988) "He's a big gu y " says the rape victim (NBC, January 21 , 19 ); e

. , ed me in the face with a gun and he k,nocked me to overpowered me and slugg 'd b k" " It was like a mghtmare, you the groun~ and . he tied me be~m h;Xid ~~ joey is out on furlough and he .is know, seemg thiS man after W at h I ses" says Donna Cuomo. And In

just free to go to a mall or ~h~tev~: I:\~_;~d-~rder judge who finally locked the backdrop of the narrative IS t thing about their [Massachusetts'}

., "I' don't know any I h Horton up for Ine. Just , b on furlough or paro e or w atever system 1 have no assurance that he wohnt e rs" (NBC January 21,1988).

. f 0 or tree yea , the devil it is in the matter a tw

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228 SECTION VII

o 0 bill outlawing furloughs for cases like After Apri' whell Dubkls sIgns thle, The victims revive the storyline

o 0 to pro) ems. k O A R Horron's the narratIve rtlllS III 0 I ")' from Duka IS. epublican_ ' 0 1 0 k°]l'toranapoo"" II and hence news IJItt'rl'st ) as II co I 0 equest wall ( attract Coverage

o I . res that t lelr rOd 0 0 0 " . sponsored natlona tour ensu I Dllkakls a J1lJJ1lstranon, sa}'S o 0 , d frolll t le • "My wife and I ha\Oe never lear I, ' to LIS for what happened to Us." Barnes "There's never been even an aPBo 0, g) lIed on Dukakis to apologize to ' . d t" us 1 ca "111 Ohio," adds the correspon en'd °c mistake" (ABC, No.vember 7

o 0 f . he calle a tragI d" ' the vICtims or a progr.llll I 'y to what happene to us, says

I b even °In apo og 0 1988). "There las never een " 't' been accused of beJJ1g an aberra_ Barnes. "Whenever it's been broug It up I S h Ocll is a blatant lie." Note that

01 0 ful system, WI. tion or one fal ure JJ1 a success 0 I t tlleirs is not an isolated case his

0' ut eVIdence t la 0' when Barnes asserts Wit 10 I 0 0 s the chorus faultJJ1g Dukakis for claim goes unchallenged. Then Bus 11 to°GIOIn lor never acknowledged that his

I 0 0 "A f I know t le oven not apo ogIZJJ1g. s ar as 0 0 " NBC October 7, 1988). In the cam- furlough program was a tragIC mlstakoe ( d' crying the Dukakis record in a paign's final weeks, Barnes reappears Ibn news e, h d and terrorized and my

o d "F I I I was eaten s as e , , synoptic a. or twe ve lours '0 b 28 1988) lI d" has (NBC cto er, .

wife Angie owas bru~a y rape, e s Yo 'ndbite after another. "Willie Into thIS narrative context, Bush fIts one sou . 0

o 0 01 f d gUIOlty by a lOury of hIS peers for murdermg a Horton was JJ1 lal, oun 0 0 0 Id k Od fter torturing him" (There IS no dIrect eVIdence that seventeen-year-o ' I a . 0

H k 011 d F 0 Nor \vas there evidence of torture. But neither of those orton I e ourl11er. . . . 0 facts will be brought out in network news.) "What dId the D.emocr~tlc gover- nor of Massachusetts think he was doing when he let convIcted fIrst-degree murderers alit on weekend passes?" asked Bush. "In no other state owo~'d a cold-blooded murderer like Willie Horton have been set free to terronze mno- cent people" (CBS, June 26, 1988). . 0 •

Whenever a soundbite about Horton made ItS way 1I1to news, the requIre- ment that reporters create a context evoked the whole Horton story. As a result, it was told and retold. "Dukakis accused the Bush campaign of exploiting the case of Willie Horton," noted Chris Wallace, adding "the Massachusetts pris- oner who brutalized a couple while on furlough" (NBC, October 19, 1988). "The literature," which Dukakis is dismissing as "garbage," says, "quote: 'All the murderers and rapists and drug pushers and child molesters in Massachusetts vote for Michael Dukakis,'" notes ABC's Sam Donaldson (October 19, 1988). "And it refers to Willie Horton, the Massachusetts prisoner who brutalized a Maryland couple while our on furlough .... " "The Bush campaign has scored big with TV ads on crime," says CBS's Bruce Morton, "especially on a Massachusetts furlough program under which murderer Willie Horton on fur- lough CO~~itted rape and assault" (October 21, 1988) . . . T~e VIVId language in which reporters recounted the "Horton story" mag-

mfJed Its recall; by framing his rebuttal in statistics about the effectiveness of

the f~r1ough program, Dukakis used abstractions against tangible, visual, per- sonaiJzed thr~at.. Because they prompt visualization and create conceptual hooks on which mformat ' b h. dOl)'

< Ion can e ling, evocative words are more rea I

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hEc-t'IONS embered th a n mOre abst AND VOT ERS 229

rem I' ract on d to capsu Ize Bush's ch es , The viv'd

lise f c arges Co I I , conc re iotS 0 rererence to repOrters' Up ed With te nature of th e words

pO .' h f wOrds 111 el1l One f ,hIS IS t e case, Or exa m I' s 0 ads add visual

atedly has attacked Dukak' P

e, when Broka\\i ' pe . IS on th . says "Th V' ) , loUg h program , speC Ificall y ace ISS ue of the Mas e Ice I reSIdent re- ~acked a man and a woma Sonvlcted killer 0 f salchu sett s pnson fur-

a.. ,n . Ol1le n ur ough h b II A study out today says that mo new perspective on th w 0 ruta y were granted las t year to fiftY-thr~: :~~n two h~ndred tho:~al~~U~ut~:~~h~~ rhat there were few pro blems The d usa nd pnsoners in thl's g d . stu y s h Country an furlough success rate o f nin et y-nine oin a~s t at Massachusetts reported a 1988). Concrete lan g ua ge is more P t nine percent" (NBC October 12

H 'f f evocative th ..' , Posed to orton s ace or weeks b h an statI stIcal abstractions. Ex-

h · y t e saturatIon I I p>A C ers nOW saw t e conVICts through the stor 0 - eve l"\ campaign, view- In news and ads, the Dukakis y ~ Horton.

d d · campaIgn did as B k h d d respon e to evocatIve narrative with l"f I '. ro aw a one- paign accused Bush of exploiting a trag ~ e ,~ss statls~lcs. "The Dukakis cam- claimed the Governor has a tough ant~ y~ notes ldlsa Myers. "A spokesman

f · . -cnme recor with more cops th

beat, Ive times as many drug offenders beh ' db' d ?n . e h d 13 " In ars, an overall crime III Massac usetts own percent (NBC, October 7, 1988)

But the overall thrust of the coverage was uncove" " d "'11" f1ng strategIc IIltent an effect. If WI Ie Horton IS a central issue in October of 1988 " ' . , comments syn- dicated colummst Mark ShIelds, "then Michael Dukakis's chances of a man- date for 1989 are pretty limited" (CBS, July 20, 1988). "What if the big word at the end of October is not Willie Horton but drugs," asks lesley Stahl of a Democratic consultant. "We win," he responds. "And so," she adds, "the Re- publicans will keep pushing the Horton line. Bush intends to keep up the pressure, which might even include a campaign commercial starring Willie Horton's victims." The power of the underlying story of violence and victim- ization is intensified as the piece closes. It is the victim who seems to be sum- marizing the story.

Angela Barnes: "I'm so mad at this justice. There's none. There's no justice."

Lesley Stahl: "lesley Stahl. CBS. Atlanta."

In the final weeks of the campaign, Dukakis gained so~e contro~ over the . h' . offered reporters a strategy peg ex-

Horton narrative when IS ca.mp~lgn h D 'd Brinkley show Dukakis's I " h RbI ' , otlvatlOn On t e aVI , p ammg t e epu Icans m '1 ' f Horton was racist. But here

. II d h the Repub Ican use 0 runnmg mate a eg~ . t at .' of the narrative. "Yesterday on ABC, too the charge ehclted recItations . d h thinks there is an element of Dukakis running mate Lloyd Bents.en .sal f ~i1Iie Horton, now the star of

. . h' t ' nued cItation 0 h' l f raCIst appeal 10 Bus s con I h d a white woman w I e on ur- television ads. Horton, a black ~an,: wA~~a~ctober 24, 1988). The Repub.li- lough from a Massachusetts pnson ( , about black murder convIct

. I . t in TV spots . cans "also denied any racla IOten

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230 ECTI ON VII

d l ~ n :lnd st:lbbcd her hu sband, hOth d M:lryhn WOIl.. C \X illie Horwll, wh o rapt' . a "f M:lssachuserrs" (A B , Oc tober 2S

' 1 II rlOll" h rolll ' , whitl~, whilt' o n prl su n "

1988) , ' l' 'J \en nature of the Horton case eased it The pl'rso n:ll, dramath:, .:onl Id-rl l s 'lbt.rred by th e fact that it spok

' 19S!; The pru.:e ss W:l , " e into netwo rk news 111 • , . . d -o ule' be co mmunICated ll\ tele_

h ~rII11e-an L to an ongoing news t elll ~ As NBC's Ken Bo de exp,lain ed, "Bush's tough graphIC SOllnd and slghtbm s., f _ , I t most Ca lifo rnwn s see o n th eIr news talk on crime work s beca use It It s W la

each da y" (NB ,O.:tober 28, 1988): 'lte with voters, its pla ce in the news O H . "lse began to re so n, . , nee orton S L" I ' ed the p ercepti o n that Bush Wa

I, > Th hct 0 1 Horton exp all1 s lI1eup wa s se~un: . e, d ' So for example, after indicating that h ' ne rea so ne rt'porters. , ' f h

toug on, crn " I' h se d the Horton case even I e weren't .. Bush's aides say they wou ( ave u , b b ' "A k black " ~isa Myers cl oses a story late in the campaIgn ,y, 0 se rvll1g, , ey

, , . h b en to drive up negative Opll110nS of Dukakls, to part hof Bu. sh S,sbtrate,g)T' Ilalst st~ategy clearly has worked and senior Bush aides cast 1m as a I er ,I . • • 'h' '

h h Illuch Dukakis whines about It t ey aren t gOing to say t at no matter ow change now" (NBC, October 24, 1988) ....

THE PSYCHOLOGY OF THE

BUSH USE OF HORTON

Did the Horton case, while atypical and inflammatory, tell a larger psycholog- ical truth? Is it possible to lie-by claiming that Horton murdered on furlough when he did not, inviting false inferences about the number of Horton-like in- stances that had occurred in Massachusetts, and encouraging unwarranted fears about blacks raping and murdering whites-and still tell a psychological truth? No. Had he been a federal prisoner, the death penalty that Bush favored for drug kingpins would not have executed Horton. Under the terms in effect under the Reagan-Bush administration, Horton would have been eligible for furlough.

To reporters who called him in his Maryland prison during the campaign, Horton claimed, as he had at his trial, that he did not stab the youth he and two others were convicted of killing. Indeed, one court official indicated that another of the threesome had confessed to being the killer; the confession was disallowed because the suspect had not been read his Miranda rights. Under Massachusetts' felony rule, the prosecution did not have to ascertain which of the three committed the murder, only that all three were in some way involved. ~orton claimed to have been in the getaway car. The prosecutors didn't know If. Horton had held the knife; there was "reasonable doubt"; but, by virtue of hiS presence at the scene, they did know he was an accomplice. As parties to the robbery that occasioned the murder, all would be convicted.

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d El.ECTIONS

Had a eath penalty AND VOT ERS 23 1 I d

State h der that e to Horton's Co ' ,andled the '

d Th nVICtlo' eVlden been execute. e reason ' , n In Mass h Ce on the robb d 782, 797 (1982)j, the U S SiS slIuple. In 198~c , Usetts, Horton w~~tdan mhur-

h II . . uprem C In £Ilm d not ave

a case t at para eled the 0 ' e Oun had' ,till v. Fl orida [458 U S , h d b ne In M Invahda d . .

question a een an accesso assachusetts L'k te a death sentence in f ry to a bb . I e H a person party to a elo ny th ro ery. Und h Orton, the convict in

b at result ' er t e doct' h if it cannot e proven that h s In a murd' , nne t at said that d

e comm ' er IS . gUilty of h capital mllr er. Invoking the Ei Itted it, Enmund ha t e murder even punishment, the Supreme C ghth Amendment' b d been convicted of

Those who see releva O~rt set aside the deathS an on disproportionate , nce In the Horto sentence.

would appomt to the high COUrt' , n case argue that a I'b I D criminals than of the accused Andlll,stiches more disposed to pro;e etra

th e,mhocrat

f Th

. In t at ar c e rig ts 0 Horton case. e rollback of the ' h gument resides the final irony of th

C Id rig ts of th e Supreme ourt cou ultimately mean that th e ~c~used under the conservative Horton'S colleague might have bee d d e ongtnal confession obtained from but not a Dukakis court Horton n ,eehme acceptable. Under the rules of a Bush

II ' mig t not have b ' d

murder at a . And hence he would h been conVlcte of first-degree sooner than he was under the "Iibe I" ave ,een o~ the streets permanently,

ra court s reqUirements.

All narrative capitalizes on the human ' d d' , , . A' capacity an ISpOSltion to con-

struct stones. compellmg narrative such as the H t I' 'f ' or on saga contro sour 111- terpretatlon. a data b~ offenn~ a plausible, internally coherent story that resonates With the audience while accounting causally for otherwise discor- dant or fragmentary information. 12

When news and ads trace the trauma and drama of a kidnapping and rape by a convicted murderer on furlough, the repetition and the story structure give it added power in memory. Visceral, visual identifications and appositions are better able to be retrieved than statistical abstractions.

Repeatedly aired oppositional material carries an additional power. Mate- rial aired again and again is more likely to stay fresh in our minds. The same is

true for attacks. Cognitive accessibility is upped by tho~e message traits that characterize

th R bl ' , f Horton' the dramatic the personally relevant, the fre-

e epu Icans use 0 . , h' I' '

I d' I'm 13-the menacing mug sot, Clrc mg convicts,

quent Y, rep~a~e toplcdor c ai, I ncaring perpetrator-the Massachusetts empathiC victims-an seemmg y u

governor. . ' ton our quirks as consumers of political When it came to WIlham Ho\, d against the Democrats. In our

information worked for the Repub Ic~ns an ter power and influence than psychic equations., something nasty ~sl gtr.emaull' " negative information car-

I . "socia s I, , '

something nice. When eva uatl~g ,14 Additionally, negattve mforma- , . . formatIOn. , 15 d ' '

f1es more weight than pOSitive mi' t'ng impreSSIOns an IS easier " to a ter eXls 1 , n

tion seems better able than pOSItive . . ative emotion result m better reca to recall.16 Televised images that ehclt neg

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23 2 SECTION VII

I Ir 'ntacks are bencr rcmen) 17 As a reSl ,', '" . k' po si tive ones, fidate. IN And (hSS~HlSfled, dis.

than tho se that evO C in" for a callt I' I h ' " reasollS for vat t> t their pol II1g pace t an their

bered than POSJ[lVC • . likely to appear a a provi ng voters arc 1110re , , . p ~ to, I 'ghbors. IY d' sposi tion to sc nHlIllze thcm for more sa ns le( nel, f pen our I , I

,. "S tInt induce fear (am l 011SI'11g personal IIl.VO vement and jVlessag~ . , lear ar· f ' I gl'c When the me ssage IS I '1 1U In the language 0 cognitive gaps 111 0 • 'c eva uanol . ,

interest in it minimize system:HI " ffect such as fear may ovcrrldc cogni. I I f 11e,'a n ve a I I "fLj 'lrge eve sOt> psyc 10 ogy, .

tive processing. ,,21 "f f crime, identifies that fear with a,'n.£les ear 0 , f B

The Horton story m.? f ' II viating thc anxiety-vote or ush . , fl fire way 0 .1 C , 'f

Dukakls and 0 lers a sure I f rrative share IS a capacity to ocus ' f ~ 1pea an( na . ,

What successful use 0 ear a~ • f 'I'ty while rendering others Impfausi. , etatlOn 0 re.) I , b h '

audiences on one IIlterpr. , ' o'vs 12 simple autonomiC e aVlOrs , d attentIOn n.1I'r • , ,

ble. When fear IS arouse " £'II d es inhibited,2 3 and creative thought are facilitated, complex, effort- I e on

dampened. 14

t communication can affect our proba- h d ' d ed by exposure 0 T e moo m uc I I d Tversk y25 asked college students to read

b'l ' 'd ts as wei Jo 1I1son an , f I ItY,lU, gmen . bl d as if they were newspaper stones. A ter read- ~escnpnons t~alt Where assde~~ts \v;re asked to estimate how frequently those II1g the matena , t e stu 'f' d (f'

, . f 50 000 eople would experience speci IC angers e.g., Ire, wlthm a group 0 , p , d Wh h" " leukemia, traffic accidents) within a one-year peno. en ~ e newspaper

d 'b d h 'I t death of a male undergraduate, the estimates these col-escn e t e VIO en , lege students offered increased for all of t?e ris,ks, inclu~1I1g those that were fundamentally dissimilar to the type descnbed 111 the article. When the stO? concerned a happy event that occurred to a young man, the frequency esti- mates decreased.

Here is the answer to the question Peter Jennings put to Michael Dukakis near the end of the campaign. Why, wondered Jennings, for those we talk to across America, is "Willie Horton" so powerful an image (ABC, November 4, 19BB)? The answer is that the fear the story inspired minimized the likelihood that it would be evaluated analytically and its atypicality noted; repetition of its riveting details in ads and news invited us to generalize from it. So, when the Bush furlough ad stated "many first-degree murderers" as the phrase "268 escaped" appeared on the screen, the inference that 268 "Willie Hortons" had been released to kidnap and rape was all but inevitable.

The power of the Horton mini-series was magnified as it unfolded soap- opera-like in news and ads; broadcasts that focused On the tale's strategic in- tent, an? effect co~ldn't effectively challenge its typicality. And since statistics don t displace stones nor data, drama, the native language of Dukakis didn't summon persuasive visions of the cops he had put on the street or the murders and rapes that hadn't been committed in a state whose crime rate was down.

Abet~~d by ~ews report~, amplified by Republican ads, assimilated through the ;~gnJtJve qUIrks of audiences, William Horton came to incarnate liberalism'S faIlures and voters' fears.

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NOlES 1 I have co mpiled these fi or't of the Furlough Proggures frOIll "T'abl p ralll "M I; e 4

233

1991. ' assachu' p, 15, of "19 2, Those who read newspaper ac setts Departmen~: Annual Statistical Re-

\\rJS the only furl o ug hed Massach COUnts of the f f Correction, January crime, Most furloughed esc a Usetts first d urlough pro C'lpees hadn't escaped at a ll ~pedehs cOllllllitted egree Illurdere;~ahm learned that Horton , h f I h S n ad aUto th f v a Comm' d (rom t e ur oug , ee Kathl returned I I' t, A qUa Irte a violent

the Worst Ever," Washil1gtol1e~n Hall Jalllieso:o,,~ntarily but m~;: t~t the reported es- 3. Dave McNeel y, "Bush D kOs~,. OCtober 30' 19 Or TeleVised Me d an two hOllrs late

AIiStill Americal1-Statesm~'1 ~ a ~ COlllmerci~1 :8, C 1, C2, n amy, ThiS Year Is 4, Maureen Dowd, "BUsh Por~:~ se~25, ]988, ~3,ecoming HOttest Campaign Isslle"

York T/lnes, October 8, 1988 9 Y IS OPPonent S ' 5_ Gerald M, Boyd, "B ush 's' A' k as ympathetic to Criminals" N

Times, October 11, ] 988 12 ttac on Crime Appe I ' ew M 'k H 'I ' - a s to the E . 6, leal ey, "Crime Victillls C motions," New York

October 11, 1988, B3, ondellln DUkakis "A ' I J P , ustm Ame' S 7, See a so: , . Robinson D D ' rlcal/- tatesman,

I "N H ,. aVIS H S h' Te eVlslon ews: ow Alert Is th A 'd" a Ill, and T. O'Tool "C . Education in Journalism, Boston ; 98

u O lence?" Paper presented ~~ th o~prehenslon of

S. "MacNeiVLehrer NewSHour''' N . e SSOClation for 9. "Top Democrats Accuse Bu~h C ovem~er 8, 1988.

Times, October 24, 1988, 10. ampalgn of Inflaming Racial Fears," New York 10. One study found that crime was the th ' d I papers. Sanford Sherizen, "Social Creat' Ir a?~st category of news covered by news- Print," in Deviance and Mass Media ed IO~h 0 I r~.e ,News: All the News Fitted to 20S,215. ' . ar es IllIck (Beverly Hills: Sage, 1978),

11. Kathleen Hall Jamieson and Karlyn Kohrs C b II I Advertising, Politics and the Mass Media 3rd edam(CeI~ ' ntec'PI/,a

f y ~L ldnf/uence: News,

33. ' . ant, a I .: wa sworth, 1992),

12. Cf. Ha~den White, "The yalue of Narrativity .in t~e Representation of Reality, n in On Na!"ratlVe, e~. W. J. T. MItc~ell (Chicago: UniverSIty of Chicago Press, 1981),23; Pau~ Rlcoeur, Time and NarratIVe, trans. Kathleen McLaughlin and David Pellauer (Chicago: University of Chicago Press, 1984-86), Vol. 1, 74ff.; Jerome Bruner Actual Minds, Possible Worlds (Cambridge, Mass.: Harvard University Press, 1986). i do not wish to imply that narrative is an illegitimate way of knowing or that narrative neces- sarily works in service of our predispositions and fears. As Bennett and Edelman note, "If stories can be constructed to wall off the senses to the dilemmas and contradictions of social life, perhaps they also can be presented in ways that open up the mind t? cre- ative possibilities developed in ways that provoke mtellectual stru~le, the resolutIon of contradiction, and the creation of a more worka~le ~uman order (w. L Bennett and M. Edelman, "Toward a New Political NarratIve, Journal of CommUlllcatlon 35

[1985J, 161-62). . 'f arrative see W. R. Fisher, Human Com- For a discussion of rhetoncal fun,ctIOnS? n , f 'South Carolina Press, 1987);

rnunication as Narrative (Columbia: Umver~l~ ~onstruction of Public Morality,'" C. M. Condit, "Crafting Virtue: The ~;e;~~I~ G. Kirkwood, "Storytelling and Self Quarterly Journal of Speech 73 (1987), -S' . 'es " Quarterly JOllrnal of Speech 69 C f C nication trategl , d h R

on rontation: Parables as ommu " St ry' Narrative Form an t e eagan (1983),58-74; W. F. Lewis, "Telling Amenc;3

s (1~87), 280-302; M. C. McG~e and Presidency" Quarterly Journal of spee,ch t .. Journal of ComntlllllcatlOl/ 35, J ' , P bhc Argumen , . S. Nelson, "Narrative Reason III u

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l

Sf I ON VII 234 " , rh e Narra ri ve Pa rad igm: Three

I I "O n Lil11 l(1n

8 g 9

) 39- 54; V. W. Turn er, " Social CDast - R Row :I n( • I 56 ( 19 . 4 I 6H B W , ra

( 198 -) 139- 5 ; . ' M O ~r<IP IS ' 7 (1 980) . I - ; . a rnlck ~lh ' Srud ie;" () /II/IIlIlIiCd/i?~11 v~~ - rili(,JI InQllllrYj m w l of Sp eech 73 (198 7 ), 172-8) e • , b It I 1<:: 111 . Q rler )' 01 f P ' , <-mas and Stunt'S a VI h Sror v." I/(J b:l rdi .. Na ture () rlllllllg Effecr .

d' . Anot er , d \XI Lo m . , ' M son N.Jrrati ve P:t r:1 ,Igm. J A B~lrgh , an ' J . I 10g)l: t e(J rlllIlg . em o r y. and Cog , 13. S('e E. T. Higg in s. 'I t', E X/~erilllenf(/11 ~Y( I}IOex plored in S. POpklll, T he Reasonnl.

, ' "jOUflt<1 0 · " Isv we . Ing :ttt·gon za ti on. T h' heuri s(lc IS a 99 1 )

lioll II ( 19.S5 ) .. 59-'::;s ity l ~f Chi cago p~ess~ \ .. p~litica l Beha v i o r 4 ( 1982 ), 353-77. Vo l er (C hK a.¥o. Urn , in Po htic:.1 Per~ep(lo~h crs in po litical BehavIO r, " Arner; , 14. R. La u. Neg:Jtl Vlty , fo r Negarl vlty e can R. Lau. "Two Explanati ons -) I 19- 38 . " f ' , I '

( p, /" I Science 29 ( 198) • d Irs Impli ca ti o ns o r 100tla hlteractlon "

Jourllal o O ltl((J " TI . N :1 ri vity Effec t an , 15. K. Kellermann. 1C eg 198 4),3 7-5 5. , " . C ' all'o ll MOllo~mp"5 5 1 ( I d "Attenti o n to Te leV ISio n. Psychologic I O n/II/IIIII( v , d J Sl:h eu er" >' { f. . a 16. B. Reeves, E. Thorson, .In . es" in PerspectIVes on Media E" ects, eds. j. Bryant Theories :lnd Chronomerrlc Me.:lt~~r~nce Erlba um, 1986 ),25 1-79 . , and D. Zillm :l nn (Hill Sid e, N:j. . "Emorio n and Memory Res p"o nse fo r Negative Politi. 17. J. ewh age n and B. Reeves, 198 8 Pres idential Campalg~. Pa per presented to the cal Adverti sing: A Stud y of rhe I' d Mass Co mmUOIcatt o n, Was hmgton DC Association for Educa tion 111 Jo urn a Ism a n , . .,

1989. . J R ' " Comparing Positive a nd Negative Political Ad· 18. fvI' A:. Shapi ro and R. ~. . ;~~e~'nternational Communic a tio n Association, San vertlSlI1g. · Paper preselnre tos hi der M McCombs, a nd W. Wanta, " Inside the F ' 0 1989 See a so J. c eu , . N P , , ra nCl sc, , p' . H Political Advertising and TV ews nme VIewers to

Agenda Setting rocess . ow d h A ,. f Ed ' Th

' k Ab I d Candidates " Paper presente to t e SSOClatlon or ucatlon 10 • out ssues an . . D C 1989

in Journali sm and Mass Communica!ion, Washmg~on, '. ". . . 19. S. Kernell , " Presidential Populanty a nd Negative .Votl~g. An ~Iternat!ve Expl,a?a. rion of the Midterm Congressional Decline of the PreSIdent S Party, Amertcan Polztlcal Science Review 7 1 (1977),44-66. 20. Christopher Jepson and Sh,elly Chaiken,. "C,hron!,c !ssue-Specifi~ Fe,ar Inhibits, Sys- tematic Processing of PersuasIve CommuOlcatlons, In CommUniCatIOn, CognItIon, and Anxiety, ed. Melanie Booth-Butterfield (Newbury Park , Calif.: Sage, 1990),61-84. 21. A. Lang, "Involuntary Attention and Physiological Arousal Evoked by Structural Features and Emotional Content of TV Commercials," Communication Research 17 (1990),2 75-99.

In processing messages we rely not on statistically warranted inferences but on rules of thumb, or heuristics, that have certain predictable biases. These rules of thumb carry nonprobab!istic presupp~sit~~ns about how things work. Even after explanations show, the o~eratlon and unrelIabIlIty of a heuristic, we continue to apply it. Under- standmg theIr f?r"? and mode of operation has become an important concern of schol- ars of commUnIcatIOn.

h ' ~o7~~~ers, dby contralst, ~ely on algorithms. An algorithm is a solution procedure w IC ,I 0 owe correct y, YIelds a correct answer

The rule of thumb most relevant t' . ' Ease of retrieval increases th I'k I'h °d my concerns here is the availability heUrIstIC. event occurring. Because air ~ I e I o~ that we will misjudge the probability of the group at one time for exam~tne c~as I es are presented in vivid detail and kill a large than reports of h~ndreds of e, a SIng e plane crash is likely to be better remembered I d h " passenger car accid t F h' . kin-cue t at It IS safer to ride in h en s. rom t IS, some mlsta en Y co

the availability heuristic eval a

car t ..a~ to fly. In the words of Tversky and Kahneman, event~ . .' . by the ease with ~hr~h \ e fre~uency of classes or the probability of HeUrIStIC for Judging Freq re evant ISsues come to mind" (" Availability: A 207-232, at 207.). uency and Probability," Cognitive Psychology 5 [19731,

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ELECTION S ... ND VOTERS 235

A Easterbrook, "The Effect of Emotion on the Utilization and the Organization Jl· J. '. r" psychologICal Reulew 66 (\ 959), \ 83-20 \. ~ n~haVIO , S · I F '1' . ~ of.,.. B Zajonc," oCla ao ItatlOn, Sciellce 149 (1965), 269-74. ~ l3. R· ]' Neweth, "DIfferential Contributions of Majority and Minority Influence, 24. C. I~ ical Reuiew 93 ( 1986), 23-32. . . " ps),cho] Johnson and A. Tversky, "Affect, Generalization, and the Perception of RIsk, 25. E. I' of PersOIzality alld Soc zal Psychology 45 (1983),20-31. joJlrlla

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23 6 SECTION VII

.... • SECTION VII

REVIEW QUESTIONS

that because the founders were all B A hony 's argument- h 1. Does Susan . nt d men the right to vote-suggest t at even

men, they found it rational to ery ~~ . Is cannot or do not adequately repre today it might be true that electe bO I tela;l Would this be a good argument fo-

h' h they do not e ong. ." r sent groups to w IC . system;l For affirmative action in var some type of group-~ased :e~resentatlon . - ious sectors of Amencan hfe.

. .' f h "to hold your district," can you identify 2. From his ~escnpptllon k~ , o~ w of "human nature"? Is he right? Does he George Washmgton un Itt s vie .' h b d bl"

h ;l A pie capable of actmg m t e toa er pu IC Interest

overstate t e case. re pe? ;l ;l if it conflicts with their pnvate mterests. Are you.

3. Joe McGinniss's explicit recognition that political campaigns are basi.cally like advertising campaigns to sell soap or cere~l shocked ma~y Amencans when it appeared in 1969. Were political campaigns eve: anythmg e.lse? Have politicians simply become more sophisticated? What IS so offenSive ~bout McGinniss's thesis anyhow? Don't you learn a great deal about candidates

from political advertising?

4. What are the four types of elections in Walter Dean Burnham's classifica- tion scheme? Did the 1992 election of Bill Clinton mark a cycle of realign- ment? Did the ensuing series of scandals have an impact on that cycle?

5. After reading Kathleen Hall Jamieson's account of the use of the Willie Horton case in the 1988 presidential campaign, do you think that the Repub- licans acted unethically? Was the Willie Horton campaign nothing but a way of "selling" a candidate? How fair or unfair was the Horton campaign? If a ce- real company attacked a competing cereal company's product as accurately/in- accurately as the Republicans depicted Governor Dukakis' role in the Horton case, would you find that to be "acceptable" advertising?

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IX

MASS MEDIA

2.59

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• ,.. ...:. 4,_ ..... ~ ~ .. ~_._

-.~-~'

260 SE CTION IX

GE ORWELL GEO R _

47. LANGUAGE AND POLITI CS

olitical "spin doctors " who In the modern era of P . of political can-

. I br perceptIOnS work to mampu ate pu IC . . t think that such didates and political events It IS easy 0 0 II' {.

. ' I 'act George rwe s ILI- chicanery is of recent orzgm. n I" I d d I

. . d I uage conc u e ong ago mous essay on PO/ztICS an ang d k I' . d igne to ma e les that "Political language . . . IS es " I h sound truthful and murder respectable. nasmluc als

. I't ' s almost exc uSlVe y Americans experzence po I IC . h h h d f po/,

'tical leaders and the descrzp-t roug t e wo~ s 0 . f I't' I nts by reporters and commentators, tlOn 0 po I Ica eve .,

the use of language continues to playa cruczal role m determining who wins and loses electIOns and how Americans will define political events at home and abroad. Orwell's classic recognition that "The great enemy of clear language is insincerity " remains as sig- nificant today as when he wrote it. The public z:'.ould be well advised to heed Orwell's message that polztlcallan- guage always has as its goal persuasion rather than clar- ity, and that "political chaos is connected with the decay of language. "

In our time it is broadly true that political writing is bad writing. Where it is not true, it will generally be found that the writer is some kind of rebel, ex- pressing his private opinions and not a "party line." Orthodoxy, of whatever color, seems to demand a lifeless, imitative style. The political dialects to be found in pamphlets, leading articles, manifestos, White Papers and the speeches of undersecretaries do, of course, vary from party to party, but they are all alike in that one almost never finds in them a fresh, vivid, home-made turn of speech. When one watches some tired hack on the platform mechanically re- peating the familiar phrases-bestial atrocities, iron heel, bloodstained tyranny, free peoples of the world, stand shoulder to shoulder-one often has a curious feeling that ~ne is not watching a live human being but some kind of dummy: a feelmg whICh suddenly becomes stronger at moments when the light catches the speaker's spectacles and turns them into blank discs which seem to

SOUTce: Excerpt from " Politics and the English Language" b G 0 II C . ht © 1946 by Sonia Brownell Orwell and renewed 1974 by Sonia OrweYl1 Reorge drwf e . hoPytllg e Shool' . EI h d Olh E . eprmte rom IS vo urn mg an ep ant an er ssays by permission of H B

arcourt race & Company.

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have no eyes behind th A 0 0 uses th o,t k O d to I elll . nd thl.s IS not a ltoge th er fa nciful. A spea ker wh o

" In 0 p lraseo l I 0 0 0 • into am h O Th ogY l as go ne sO lll e di sta nce towa rd s turnll1 g hlln se lt

b oo ac me. e appropnate noises a re comin g out of hi s la rynx bur hi s

ram IS not II1 volved 0 I 0 ' If th h h

0 as It wou d be If he were choos ing hi s word s fo r him se lf. e speec e IS Ill a k 0 0 I 0

. h 109 IS o ne t lat he IS acc ustomed to mak e ove r and over agam , e may be almost 0 f h I 0 0 0 h

h unco nscI OUS 0 w at le IS sayll1g as on e IS w en one

utters t e response s in h I A d I 0 ' 0 of o dO b 0 c urc 1. n t li S reduced state of co nSC IOusne ss, I not 111 Ispen sa Ie, IS at an y rate favorable to political co nformity. d t In our time, political speech and writing are largely the defen ce of the in -

e enslble. Thmgs like the continuance of British rule in India, the Ru ssian purges and deportations, the dropping of the atom bombs on Japan, can in- deed be defended, but only by arguments which are too brutal for most people to face, a.nd which do not square with the professed aims of political parties. Thus political language has to consist largely of euphemism, question-begging and sheer cloudy vagueness. Defenceless villages are bombarded from the air, the II1habltants driven out into the countryside, the cattle machine-gunned, the huts set on fire with incendiary bullets: this is called pacification. Millions of peasants are robbed of their farms and sent trudging along the roads with no more than they can carry: this is called transfer of population or rectification of frontiers. People are imprisoned for years without trial, or shot in the back of the neck or sent to die of scurvy in Arctic lumber camps: this is called elimina- tion of unreliable elements. Such phraseology is needed if one wants to name things without calling up mental pictures of them. Consider for instance some comfortable English professor defending Russian totalitarianism. He cannot say outright, "I believe in killing off your opponents when you can get good re- sults by doing so." Probably, therefore, he will say something like this:

"While freely conceding that the Soviet regime exhibits certain features which the humanitarian may be inclined to deplore, we must, I think, agree that a certain curtailment of the right to political opposition is an unavoidable concomitant of transitional periods, and that the rigors which the Russian peo- ple have been called upon to undergo have been amply justified in the sphere of concrete achievement."

The inflated style is itself a kind of euphemism. A mass of Latin words falls upon the facts like soft snow, blurring the outlines and covering up all the de- tails. The great enemy of clear language is insincerity. When there is a gap be- tween one's real and one's declared aims, one turns as it were instinctively to long words and exhausted idioms, like a cuttlefish squirting out ink. In our age there is no such thing as "keeping out of politics." All issues are political is- sues, and politics itself is a mass of lies, evasions, folly, hatred and schizophre- nia. When the general atmosphere is bad, language must suffer. I should expect to find-this is a guess which I have not sufficient knowledge to verify-that the German, Russian and Italian languages have all deteriorated in the last ten or

fifteen years, as a result of dictatorship . But if thought corrupts language, language can also corrupt thought. A bad

usage can spread by tradition and imitation, even among people who should

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262 SECTI O N IX

I I have been d isc uss in g is in and do kn ow better. The deba sed la nguage t Jar t '~/'able ass umption, leaves

, h I'k a not un/us If' h ' h some ways very conventent. P rases I e a co nsideration W IC we mu ch to be desired, w ould serve no good purp ose, mpta ti o n, a packet of as- should do well to bear in mind, are a conttnu~u~ ~e es say a nd for certa in you pirins always at one's elbow. Look back thr?ug

d th IS Y f~ ults I a m protesting

will find that I have again and again comI~lItte t e ve~let de a ling with condi- against. By this mo rning's post I have recelve~';efr~~P elled " to write it. I open tions in Germany. The author tells me that he h PI . "[The Allies] have

h f' tence t at see. it at random , and here is almost t e Irst sen f tl'on of Germany's , h" dical trans orma

an OppOrtuntty not only of ac levtng a ra 'd r' onalistic reaction in social and. political structure in s~ch a waY,as to avtun~:~~ns of a co-operative Germany Itself but at the same time of laytng the 0 , £ I bl

' "£ I ' II d" to wnte-Iee s, presuma y, and unified Europe. " You see, he ee s Impe e I'k I h

d h ' ords I e cava ry orses an-that he has something new to say-an yet IS w 'h f 'I' d ' I' II into t e amI lar reary pat-swenng the bugle group themse ves automattca Yd '

" " , d b d d phrases (Jay the 'oun atzons tern. ThIS mvaslOn of one's mm y rea y-ma e , f' , , , I. ' ) I b evented if one IS constantly on achIeve a radIcal transformatIOn can on Y e pr

, d h h naesthetizes a portion of one's guard agatnst them, an every suc p rase a brain.

I said earlier that the decadence of our language is probably curable. Those who deny this would argue, if they produced an argument at all~ that language merely reflects existing social conditions, and that we cann~t mflu- ence its development by any direct tinkering with words and constructIOns. So far as the general tone or spirit of a language goes, this may be true, but it is not true in detail. Silly words and expressions have often disappeared, not through any evolutionary process but owing to the conscious action of a mi- nority. Two recent examples were explore every avenue and leave no stone un- turned, which were killed by the jeers of a few journalists. There is a long list of flyblown metaphors which could similarly be got rid of if enough people would interest themselves in the job; and it should also be possible to laugh the not un- formation out of existence, to reduce the amount of Latin and Greek in the average sentence, to drive out foreign phrases and strayed scientific words, and, in general, to make pretentiousness unfashionable. But all these are minor points. The defence of the English language implies more than this, and perhaps it is best to start by saying what it does not imply.

To begin with it has nothing to do with archaism, with the salvaging of ob- solete words and turns of speech, or with the setting up of a "standard English" whi~h must never, be departed from. On the contrary, it is especially concerned WIth the scrapptng of every word or idiom which has outworn its useful~ess. It has nothing to do with correct grammar and syntax, which are of no Importance so long as one makes one's meaning clear 0 'th h 'd-

f " . , r WI t e avO! ance 0 Amencamsms, or WIth having what is called a "go d I "0 h d ' ,

0 prose stye. n the other an It IS not concerned with fake simpll'cl'ty d th

. I' h · an e attempt to make wrttten Eng IS colloqUIal. Nor does it even impl . £ , d' Y In every case preler-

nng the Saxon wor to the Latm one though it does I' I ' h £ , mp y USIng t e Iewest

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------.- §'''' treT'rt6Y';, t -' '(@'T-r '

and shortest word s th at will c ' _ - let the mea ning I l over a il e s rncanlJlg, What is above a ll needed IS to c l Oose t l e \Va d I I I

th ' d - - r, a ne nor t le ot her way abou t. In prose, t le worst mg o ne can 0 With d - f t b

' - - Wor s IS to surrender to them, When yo u think a a cancre e a Je ct, yo u th IJl k dl I h

' h b - Wor ess y, a nd then, if yo u wa nt to desc rib e th e t mg you ave een vlsualizi b bl --

d h f - - ng yo u pro a y hunt a bo ut till yo u flJld th e exac t

war stat see m to It It Wh I - k - _ I- d ' en you t lin of so methlJl g a bstract yo u a re mo re mC me to use wo rd s frOIll th d -

- h - - e starr, an unl ess yo u make a co nsc Io us effo rt ro Prevent It t e eXisting dial -II h ' - -, " ec t WI come ru s IIl g III and do th e Job for yo u, at the expen se of blUffing o r e I ' - - - b

ff ' ven c l a nglllg yo ur mea nlllg, Probabl y It IS errer ro

Put a usmg words as lon g ' bl d ' - I , as PO SS I e an ge t one s mea nlllg as c ear as one can through pictures o r sensa tions, Afterwards one can choo se-not simply accept-, the phrases that will best cover the meaning, and then switch round and deCide what Impression one's words are likely to make on another person, ThiS last effort of the mind cuts out all stale or mixed images, all prefabricated phrases, needless repetitions, and humbug and vagueness generally, But one can often be in doubt about the effect of a word or a phrase, and one needs rules that one can rely on when instinct fails, [ think the following rules will cover most cases:

(i) Never use a metaphor, simile or other figure of speech which you are used to seeing in print,

(ii) Never use a long word where a short one will do, (iii) If it is possible to cut a word out, always cut it out. (iv) Never use the passive where you can use the active. (v) Never use a foreign phrase, a scientific word or a jargon word if you

can think of an everyday English equivalent. (vi) Break any of these rules sooner than say anything outright barbarous.

These rules sound elementary, and so they are, but they demand a deep change of attitude in anyone who has grown used ro writing in the style now fashionable. One could keep all of them and still write bad English, but one could not write the kind of stuff that [ quoted in those five specimens at the be- ginning of this article.

I have not here been considering the literary use of language, but merely language as an instrument for expressing and not for concealing or preventing thought. Stuart Chase and others have come near to claiming that all abstract words are meaningless, and have used this as a pretext for advocating a kind of political quietism. Since you don't know what Fascism is, how can you struggle against Fascism? One need not swallow such absurdities as this, but one ought to recognize that the present political chaos is connected with the decay of lan- guage, and that one can probably bring about some improvement by starting at the verbal end. If you simplify your English, you are freed from the worst follies of orthodoxy. You cannot speak any of the necessary dialects, and when you make a stupid remark its stupidity will be obvious, even to yourself. Political language-and with variations this is true of all political parties, from Con- servatives to Anarchists-is designed ro make lies sound truthful and murder

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f solidity to pure wind. One cann . ppearance a 'h l' at respectable and to give an a ~t least change one s own a)lts and

' b tone ca n Phd ' change this all in a moment, u' f

'eers loudly enoug ,sen SO me Worn_ from time to time one can even~ I kObne ~ Achilles' heel, hotbed, m elting POt our and useless phrase-some lac ' fa' of verbal refuse-into the dustbi~ acid test, veritable inferno or other ump where it belongs.

THEODORE H. WHITE

48. THE KENNEDy-NIXON TV DEBATES

Journalist Theodore H. White (1915-1~86) .wrote a se- ries of bestselling books describing presIdential elec~/ons from 1960 through 1972. His Making of the. Presld~nt books set a new standard for political reportmg, whIch had the juiciness of an inside story, the intimacy of a bi- ography, and the perspective of history. . .

This excerpt from the first in the serzes offers an In- sider's look at the first modern nationally televised presidential debates between Richard M. Nixon and John F. Kennedy. While Vice-President Nixon made the mistake of actually trying to debate, Senator Kennedy concentrated on style and on projecting the correct pres- idential image_ People listening to the debate on radio thought that Nixon had won, bllt Kennedy's style won him the television audience and the election. The lesson of Nixon's experience in 1960 has been learned by all presidential candidates who have followed: Look good on television or lose!

Both candidates had had representatives in the CBS studio from 8:30 in the morning of the day of the debate.

Mr. Nixon's advisers and representatives, understandably nervous since they could not communicate with their principal, had made the best prepara· tion they could. They had earlier requested that both candidates talk from a lecturn, standing-and Kennedy had agreed. They had asked several days

Source: From The Making of the President: 1960 by Theodore White. Copyright © 1961 by Atheneum Pu.bhshers. Repnnted by permission of Atheneum Publishers and the estate of Theodore Wh,te.

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c 7 c

earlier that the two ca nd ' d b h h .' II I I ates e sea ted fa rther aparr fro m eac h ot er t an ongma Y p anned-a nd that had been ag reed on too . ow o n th e day of th e debate the y pa id meti cul o ' . ' . d b ' us attenti on to eac h de taIl. T hey were worn e a o ut the deep eye shadows in N ' ' f . d . . .... Ixon s ace and th ey requested and adJu ste twO tin y spothghts ( mkles" in telev isio n parla nce) to shine direc tl y in to hi s eye we ll s and Illummate the darkness there; they as ked that a table be pl aced in front o f the moder~tor" and this was ag reed to a lso; they requested that no shots be taken of Nixon s left prof tie during the debate, and thi s wa s also ag reed to.

The Kennedy adVI sers had no requ ests' th ey see med as co cky and confi - dent as their chief. '

Nixon entered the studio about an hour before air time and in spec ted the setting, let himself be televi sed on an interior camera bri efly for the inspection of his advisers, then paced moodily about in the back of the studio. He beck- oned the producer to him at one point as he paced and asked as a personal favor that he not be on camera if he happened to be mopping sweat from hi s face. (That night, contrary to most reports, Nixon was wearing no theatrical make - up. In order to tone down his dark beard stubble on the screen, an adviser had applied only a light coating of "Lazy Shave," a pancake make-up with which a man who has a heavy afternoon beard growth may powder his face to conceal the growth .)

Senator Kenned y arrived fifteen minutes after the Vice-President; he in- spected the set; sat for the camera; and his advisers inspected him, then de- clared they were satisfied. The producer made a remark about the glare of the Senator's white shirt, and Kennedy sent an aide back to his hotel to bring back a blue one, into which he changed just before air time. The men took their seats, the tally lights on the cameras blinked red to show they were live now.

" Good evening," said Howard K. Smith, the gray and handsome modera- tor. "The television and radio stations of the United States ... are proud to pro- vide for a discussion of issues in the current political campaign by the two major candidates for the Presidency. The candidates need no introduction . ... "

And they were on air, before sevenry million Americans. Rereading now the text of the first of the great debates (and of the follow-

ing three also), one can find only a blurred echo of the emotions that rose from the performance, and the intense, immediate and dramatic impact of the de- bate on the fortunes of the two candidates.

This, the first of the debates, was committed to a discussion of domestic issues-an area in which the Democrats, by their philosophy and record, make larger promises and offer a more aggressive attitude to the future than the Republicans. Kennedy, opening, declared that the world could not endure half-slave and half-free, and that the posture of America in the world rested fundamentally on its posture at home-how we behaved to each other, what we did to move American sociery forward at home, this affected not only us, but the world too: "Can freedom be maintained under the most severe attack it has ever known? I think it can be. And I think in the final analysis it depends upon what we do here. I think it's time America started moving again."

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266 SECTION IX

. d OW in print, was o ne of good- s It rea s n d

Nixon's opening statement, ad' all the goals Kenn e y had OUt- d . h Kenne Y tn willed difference: he agree WIt I ' h methods to reach tho se goa ls. He

lined. He differed with Kennedy on y tn ted a half years of th e Eise nhower d d the seven an . lauded the progress rna e un er I' power gross natlon a l product

... . I h' hays e ectnc, , admmlstratlOn-hosplta s, Ig w , h 'd never matched befo re in any growth rate, were all moving at a rate, e sal ,

administration. . b mbered only in rereading the Th I h h pemng can e reme e c ue to w at was ap . rks . "The final point that I I . f M Nixon's opemng rema . penu tImate passage 0 r. d h gested in his speeches that

Id I'k k . this· Senator Kenne Y as sug wou I e to rna. e IS . Id and for others that are unfortu- we lack compasSIOn fo~ the poor, for the 0 , I know that Senator Kenned nate .... I know what It means to be poor. . . . . Y f I d I b h blems

as I do but our dIsagreement IS not about ee s as eep y a out t ese pro , h hI"

the goals for America but only about the means to reac ~ ose goa s. . For Mr. Nixon was debating with Mr. Kennedy as If a b?ard o.f Judges

were scoring points; he rebutted and refuted, a~ he ~ent, the mconslstencies or errors of his opponent. Nixon was addresstng hImself to K~nnedy-but Kennedy was addressing himself to the audience that was the natIOn. In these debates, before this audience, there could be no appeal to the past or to the ori- gins of any ethnic group-there could only be an appeal, across the board, to all Americans and to the future. This across-the-board appeal to all Americans had been Mr. Nixon's strategy from the very beginning-a generalized pressure that would fragment the minorities coalition of the Democrats. Yet here, be- fore the largest audience of Americans in history, Nixon was not addressing himself to his central theme; he was offering no vision of the future that the Republican Party might offer Americans-he was concerned with the cool and undisturbed man who sat across the platform from him, with the personal ad- versary in the studio, not with the mind of America.

Ten questions followed from the panel of television reporters who sat be- fore the debaters: on the importance of a candidate's age· on the quality of de- cisi?? in presidentia.1 affairs; on farms; on taxes; on sch;ols; on congressional polltlcs; on subverSIOn; and on schools agal'n In each p' f h . . aIr 0 answers, t e same contrast repeated Itself: the Senator from Massach . . h d ' .. " usetts, Ignormg t e 1- rect mqUlry when It sUIted him used each questl'on . b d f

I h · . ' as a spnng oar or an ap-

pea to t e mmd and the Imagination of th d' countless sets But the V' P'd . e au lence assembled before the

. Ice- resl ent's mmd d . . . the studio. As one rereads th f' a? attentIOn were fIxed there 111

e text, one mds hIm 0 d . . excellently against the person I d . ,ver an over agam, sconng

a a versary m the h II b 'd h ' f f I of the need to score on the mind f h . a eSI e 1m, yet orget u

. ate natIon he ho did The defenSIve quality of Mr N" pe to ea .

enunciation: "The things that Sen· tlXoK n

s performance (evident from his first . a or ennedy h 'd

WIth .... I can subscribe completel h as sal many of us can agree . y to t e sp " h S

pressed tomght, the spirit that the U . d S Int t at enator Kennedy has ex- s~i11 b~ reconstructe~ from the tex~~~e w~ates should move ahead .... ") can vIsual Impact of the fIrst debate. at cannot be reconstructed is the

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M ASS IvIED I;\ 26 7

For it was the sight of h ' There was f' d t e two men sid e by sid e th at ca rri ed th e pun ch,

, Irst an a bove II h d ", I side by side the a , t ecru e, overw helmll1 g Impress io n t l a t

P opular imag' two see med evenly matched-and thi s eve n matc hin g in th e

matlOn was fo K d " , opened on th S r enne y a malor victory. Until th e ca mera s under assault e denator and the Vice-President, Kenn edy had been th e boy enced N ban attack by the VICe -Pres ident as imm ature, yo ung, in ex peri -

. ow, 0 vlOusly m fl h d b h ' h '" I N I h

' es an e aVlOr e was th e Vice-Presid ent s equa . ot on y t at but th

d '. ' e co ntra st of the two face s wa s astounding. No rm a ll y

an m prtvate Ken d d ' . I h' k' ne y un er ten SIo n flutters his hand s-he adju sts hi s neck- tie, saps IS nee strok h ' f T ' h h ' , es IS ace. IOl1Ig t e was calm a nd nerve less 111 ap- pearance. The Vice-P 'd b ' . res l ent, y contrast, was ten se, a lm ost frightened, at turns glowenng and ' II h d I ' " b ,~ Occaslona y, aggar - ooklllg to the pOll1t of sickness. Pro ably no pIcture III American politics tells a better sto ry of cri sis a nd epi- sode than that famou s shot of the camera on th e Vice-Pres ident as he half slouched, his "Lazy Shave" powder faintl y streaked with swea t, hi s eyes exag- gerate~ ~ollows ,of blackness, his jaw, jowls, and face drooping with stra in .

It IS ImpossIble to look again at the still photograph s of Nixon in hi s or- de.al and to recollect the circumstances without utmost sympathy. For every- thmg that could have gone wrong that night went wrong. The Vice-President, to begin with, suffers from a handicap that is serious only on television-his is a light, naturally transparent skin. On a visual camera that takes pictures by optical projection this transparent skin photographs cleanly and well. But a television camera projects electronically, by an image-orthicon tube, which is a cousin of the x-ray tube; it seems to go beneath the skin, almost as the x-ray photograph does. On television, the camera on Nixon is usually held away from him, for in close-up his transparent skin shows the tiniest hair growing in the skin follicles beneath the surface, even after he has just shaved. And for the night of the first debate, CBS, understandably zealous, had equipped its cam- era with brand-new tubes for the most perfect projection possible-a perfec- tion of projection that could only be harmful to the Vice-President. (In the later debates, Nixon was persuaded to wear theatrical make-up to repair the ravage TV's electronic tube makes of his countenance; but for this first debate he wore only" Lazy Shave. " )

The scene of the debate, the studio of WBBM, had, further, been tense all day long, as furniture, desks, lecterns, background, had been rearranged and then rearranged again for best effect. Nixon's TV advisers had been told that the background would be gray-scale five, a relatively dark tone; therefore they had urged their principal to dress in a light-gray suit for contrast. Yet the backdrop, when they saw it, was so markedly lighter than they had anticipated that they insisted, rightly, it be repainted. Several times that day it was repainted-but each time the gray tone dried light. (The background indeed was still tacky to the touch when the two candidates went On the air.) Against this light back- ground Nixon, in his.ligh~ suit, faded into a fuzzed outlin~, while ~ennedy in his dark suit had the cnsp pIcture edge of contrast. The NIxon adVIsers had, fur- ther, adjusted all lighting to a master lighting scheme for their candidate before

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2.68 SECTION IX

he went on the air; but in the last few minutes before the debate a ho rd e of still photographers from newspapers and magazines were permmed o n th e set, and as they milled for their still pictures, they kicked over wires and di splaced lights and television cameras from their marked positions.

There was, lastly, the fact that the Vice-President ha~ still not recovered from his illness and was unrested from the exertion s of his fir st two weeks of intense campai~ning. His normal shirt hung loosely about his nec k, and his re- cent weight loss made him appear scrawny. And, most of all, psyc hologically, his advisers now insist, he lacked the energy to project-for Nixon does best on television when he projects, when he can distract the attention of the viewer from his passive countenance to the theme or the me~sage he wants to give forth as in his famous "Checkers" appearance on teleVISIOn In 1952.

All this, however, was unknown then to the national audience. Those who heard the debates on radio, according to sample surveys, believed that the two candidates came off almost equal. Yet every survey of those who watched the debates on television indicated that the Vice-President had come off poorly and, in the opinion of many, very poorly. It was the picture image that had done it-and in 1960 television had won the nation away from sound to im- ages, and that was that.

The Vice-President was later to recover from the impression he made in this first debate. But this first debate, the beginning of the contest, was, as in so many human affairs, half the whole. The second debate concerned itself with foreign policy and ranged from Cuba's Castro through the U-2 and espionage to the matter of America's declining prestige, and closed on the first sharp clash of the series-the defense of Quemoy and Matsu.

The third debate resumed, like a needle stuck in a phonograph groove, with the subject of Quemoy and Matsu, hung there almost indefinitely, then broke away with Nixon's stern disapproval of President Truman's bad language, and went on to other matters such as bigotry, labor unions and gold outflow_ This, according to all sample surveys, was Nixon's best performance in terms of its impact on the audience. This was the debate in which Nixon spoke from Los Angeles while Kennedy spoke from New York, and it was as if, separated by a continent from the personal presence of his adversary, Nixon were more at ease and could speak directly to the nation that lay between them.

The fourth debate was the dreariest-both candidates had by now almost nothing new left to say, and they repeated themselves on all the matters they ha~ covered in t~e three previous debates. Curiously enough, the audience which had been highest for the first debate and dropped off slightly for the sec- ond and third, returned on the last debate to almost match the total of the first.

No accurate political measurement or reasonable judgment is yet possible on a matte~ as vast as t?e TV debates of 1960. When they began, Nixon was generally vle~ed. as bemg the probable winner of the election contest and Kennedy as fightIng an uphill battle; when they were over, the positions of the two contestants were reversed.

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No rep o rter ca n cl a im a ny acc ur acy in cha rting th e mag ic a nd mys teri o us flow of publi c o pini o b h · . d hi · . n etwee n t e time a ca mpa Ign sta rts a n t e u tlm a te tall~ offeelm gs a t the po ll s; and so opini o n seesawed bac k a nd fo rth fo r weeks, as It stili s~e saws back a nd fo rth now, lo ng a ft er th e debates a re over, as to w~at, specIfIc a ll y, the debates achi eved in shapin g th e ca mp a ign a nd Ameri ca n opmlon.

There were fr ag menta ry a nd epi sodi c achi eve ments th at no o ne co uld deny.

Any reporter wh o foll owed th e Kenn ed y campa ign remembers still th e quantum lump m the size of crowd s that greeted th e campa igning Senator from the morrow of the fir st deba te, the mo rning o f Tuesday, Septemb er 27th, wh en he began to campaign in northern Ohio. Hi s crowd s had bee n growing for a full ~even days before the debates, but now, overnight, they seethed with en- thUSIasm and multiplied in numbers, as if the sight of him, in their home s on the Video box, had given him a "star quality " reserved only for television and movie idols .

Equally visible was the gloom that descended on Republican leaders around the country; they were angry with their own candidate, angry at his performance, angry most of all at his "me-too" debating style. At Nixon head- quarters in Washington, the telephones rang incessantly, demanding that some- one get to this "new Nixon" and convince him that only the "old Nixon" could win .

There were other measurable hard political results. On the evening of the first debate, the Democratic governors of the Southern states were gathered for one of their annual conferences at Hot Springs, Arkansas. Except for Governor Luther Hodges of North Carolina, they had until then viewed Kennedy with a range of emotions that ran from resigned apathy to whis- pered hostility. Watching him on TV that night, they too were suddenly im- pressed. We do not know whose idea it was to send Kennedy the telegram of congratulations which ten of the eleven signed that evening-but the enthusi- asm and excitement of the telegram was not only genuine but a tidemark in the campaign. The Southern governors were with him now; and if they were with him, it meant that the machinery of their political organizations would be with him, too.

lt is much more difficult to measure the debates in terms of issues, of edu- cation of the American people to the tasks and problems before them. For there certainly were real differences of philosophy and ideas between John F. Kennedy and Richard M. Nixon-yet rarely in American history has there been a politi- cal campaign that discussed issues less or clarified them less.

The TV debates, in retrospect, were the greatest opportunity ever for such discussion, but it was an opportunity missed . It is difficult to blame the form of the debates for this entirely; yet the form and the compulsions of the medium must certainly have been contributory. The nature of both TV and radio is that they abhor silence and "dead time." All TV and radio discussion programs are compelled to snap question and answer back and forth as if the

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270 SECTION IX

" ' t lIectual tenni s match, Alth ou h Contestants were adversaries m an m e h h g every , d ' ' er knows t at t e mos t th oughtf I expenenced newspaperman an mqUir u and

, d 'ff' I stl'on come after long pause d responsive answers to any I ICU t que , ' an that the longer the pause the more illuminating the thought that fo ll ows It, nonethe_ less the electronic media cannot bear to suffer a ~ause of ,mo re than five sec_ onds; a pause of thirty seconds of dead time on air seems mtermlllable. Thus, snapping their two-and-a-half-minute answers back and forth , both candi _ dates could only react for the cameras and the people, they could not think, And, since two and a half minutes permit only a snatch of naked thought and a spatter of raw facts, both candidates, whenever caught out on a limb with a thought too heavy for two-minute exploration, a t?ought seemlllgly too bold or fresh to be accepted by the conditioned Amencan mmd, hastily scuttled back toward center as soon as they had enunciated the thought. Thus Kennedy's response to the first question on Quemoy and Matsu was probably one of the sharpest and clearest responses to any question of the debates; in that response, actually, Kennedy was tentatively fingering at one of the supreme problems of American statecraft, our relation with the revolution in Asia. Yet he was out too far with such a thought for a two-minute response and, in succeeding debates, in reply to succeeding questions, he fuzzed the dis- tinction between his position and Nixon's until it was almost impossible to tell them apart.

If there was to be any forum for issues, the TV debates should have pro- vided such a forum. Yet they did not: every conceivable problem was raised by the probing imagination of the veteran correspondents who questioned the candidates. But all problems were answered in two-minute snatches, either with certain facts or with safe convictions. Neither man could pause to indulge in the slow reflection and rumination, the slow questioning of alternatives be- fore decision, that is the inner quality of leadership.

If, then, the TV debates did little to advance the reasonable discussion of issues that is the dream of unblooded political scientists, what did they do?

What they did best was to give the voters of a great democracy a living portrait of two men under stress and let the voters decide, by instinct and emotion, which style and pattern of behavior under stress they preferred iO their leader. The political roots of this tribal sense of the whole go as far back as the Roman Senate, or the beer-blown assemblies of the Teutonic tribes that Tacitus descr,ib~s in his chronicles. This sense of personal choice, of leader has been mlssmg for centuries from modern civilization-or else lun: ited to such conclaves of deputized spokesmen of the whole as a meeting 01 Tammany Hall captains, a gathering of Communist barons in the Kremlin or the dinners of leaders of the English Establishment in the clubs of London. What the TV debates did was to generalize this tribal sense of participation, this emotional judgment of the leader, from the few to the multitude-for the salient fact of the great TV debates is not what the two candidates said, nor how t~ey behaved, but how many of the candidates' fellow Americans gave up thelf evenmg hours to ponder the choice between the two.

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M ASS MEDIA 271

DA I E L J . BOO R STIN

49. PSEUDO- EVENTS

Historian Daniel Boor t ' d

. S In uses the t d escrlbe nonspontaneous I erm pseu o-event to

"news" whose main pu p' panted, or manufactured rose IS to oain p bl " I.

person or cause that d o· u IClty for the arrange the "e t " M d

American politicians hav b . ven. 0 ern h

e ecome quite soph ' t ' d . orc estrating pseudo-events. 71 IS Icate In "leaks" of h ' wo common examples are

news to t e med,a, a strate {. d b government om . I . gy often use y "t . I b II ICla s opposed to partIcular policies and

ria a oons," the "floating" of an idea to find out ~o,::, the publrc and other political leaders will respond

.ef ore a formal proposal is made. The modern presiden- t/al campatgn can be analyzed as one "pseudo-event" after another-as one candidate visits a flag factory and another rides in a tank to generate the free, as opposed to paId, TV tIme that puts them before the public.

The new kind of synthetic novelty which has flooded our experience I will call "pseudo-events." The common prefix "pseudo" comes from the Greek word meaning false, or intended to deceive. Before I recall the historical forces which have made these pseudo-events possible, have increased the supply of them and the demand for them, I will give a commonplace example.

The owners of a hotel, in an illustration offered by Edward L. Bernays in his pioneer Crystallizing Public Opinion (1923), consult a public relations counsel. They ask how to increase their hotel's prestige and so improve their business. In less sophisticated times, the answer might have been to hire a new chef, to improve the plumbing, to paint the rooms, or to install a crystal chan- delier in the lobby. The public relations counsel's technique is more indirect. He proposes that the management stage a celebration of the hotel's thirtieth anniversary. A committee is formed, including a prominent banker, a leading Society matron, a well-known lawyer, an influential p~eacher7 and an ".event" is planned (say a banquet) to call attention to the ~lstI~gUlshed servIce the hotel has been rendering the community. The celebratIOn. IS held, photog.raphs are taken, the occasion is widely reported, an~ the object IS accomphshed. Now th O . ' pseudo event and will Illustrate all the essential fea-IS occasIOn IS a -, tures of pseudo-events.

s .' .' f Scribner an imprint of Simon & Schuster Adult Pub- IOh".'ce: Repnnted with the perm.ss'

C on 'd to Pseudo-Events in America by Daniel J. Boorstin.

IS Ing Group from The Image: A /li e. d © 1989 C ' . nght renewe . opyright © 1961 by Daniel J. Boorsnn; copy

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l.7l. SI:. CTl ON IX

is so mew hat-but no t enti rely_ Thi s l"clcbratiun, Wl' can see a t th e out se t, un eI would no t have been a hl e

. I I' ) bl I I· Ii ' rel :.tt1 o ns co nil s cae IIlg, I res ulll :l y t lC pU) ~ ~ . ' f tllC ho tel had no t ac tu a ll v been , . c [l ze ns I '

to to rm hi s l'u rllmittee of pronll nent I h h r ha nd if th e ho tel 's se r vice .' . On t e o t e ,

rcndl'rlllg sc r vlce:' to the CO lll lllU !1Ity. . ublic relati o ns co un eI mi g ht not had hct'n all that important. U1 stlga tJO

n bYh~s been held , th e celeb ra ti o n itself have been nCl"essa ry. OIKe th e l"elebr.ltlOn .' . h d ' . . Th

II ' dl stlng ul S e IIl Stltutl o n, e occa-

becomes ev idence that th e hotel rea Y IS a . . d' . vhich It IS preten IIl g. sio n actu a lly gives the hotel th e prestige to \ lb' h d . I f h a ce e rati on to t e ow ners e-

It is obv iuu roo that the va ue 0 suc. . . ." h d d o rted III news pap ers, ma gaz mes pends o n ItS belllg photograp e an rep h ' h . ' . I .' It' th e re port t at g ives t e eve nt Its newsreels, on radIO, and over te eVISlo n. IS

f . ' f . I The power to ma ke a rep o rtable

orce III the I1lllld s 0 po tentia customers. . event is thu s the power to mak e experience. One is remllld ed o f Na poleo n's apocryphal repl y to hi s general. who objected that Circumstances were unfa- vo rable to a proposed campaign: " Bah, I make circumstances! " The mo~ern public rel a tion s counsel-and he is, of course, only one of man y twe ntleth- century creators of pseudo-events-has come close to fulfilling Na poleon's idle boast. "The counsel on public relations," Mr. Bernays explains, " not only knows what news value is, but knowing it, he is in a posi tion to m ake lIews

happen. He is a creator of events." The intriguing feature of the modern situation, however, comes precisel y

from the fact that the modern news makers are not God. The news the y make happen, the events they create, are somehow not quite real. There remains a tantalizing difference between man-made and God-made events.

A pseudo-event, then, is a happening that possesses the following

characteristics:

(1) It is not spontaneous, but comes about because someone has planned, planted, or incited it. Typicall y, it is not a train wreck or an earthquake, but an interview.

(2) It is planted primarily (not always exclusively) for the immediate ~urpose of being reported or reproduced. Therefore, its occurrence IS ar:anged for the. convenience of the reporting or reproducing medl.a . It~ s~ccess IS measured by how widely it is reported. Time relations III It a~e c?mmonly fictitious or factitious; the an~ounce~ent IS given out in advance "for future release " and wrItten as If the event had occurred in the past Th '''I . r P'" I' h .' e question, s It ea. I~ ess Important tan, "Is it newsworth y?"

(3) Its relation to the underlying reart f h' . . interest arises largel f h ' I Y 0 t .e s~tuatIon IS ambiguous. Its

y rom t IS very ambigUity C . pseudo-event the question " Wh d . . oncernmg a

d . . Wh'l ,at oes It mean~" has a new Imenslon. I e the news interest ' .'

happened and in the real m a tram wreck is in what

I consequences the' . . . .

a ways, in a sense in wheth' II' mterest m an mtervlew IS

h b ' er It rea y happen d d ' h ' h

ave een the motives. Did th e an m w a t mig t e statement really mean what it sa id?

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p

With o ut so me of thi s amb o . . . ' • IgUlty a pseudo-event cannot be very IIlteres tln g. .

(4 ) Us ually it is intended to b -· . If· t· If·ll · I I' . .. . . t ,1 se - u I IIlg prophecy. The lote s

thlrtieth -alllll Versar y celebntion b . I I hi · . . . .. . " y saYlllg t lat t lC ote IS a dl stlllgLll shed II1 Stlturi o ll ~ctllally k . , .. , ma -es It one ....

. In the age of pse udo-events it is less the artificial simplification than the artifICial co mplJc;ltl o n of experience that confu ses us. Whenever in the public mind ~. pseudo -event competes for attention with a spontaneou s event in th e same held , th e pseudo-event will tend to dominate. What happens on televi- sion ",iII ove rshadow what happens off television. Of course I am concerned here not with o ur private world s but with our world of public affairs.

Here are so me characteri stic s of pseudo-events which make them over- shadow spo nta neoll s events:

( I) Pseudo-events are more dramatic. A television debate between candidates can be planned to be more suspenseful (for example, by reserving questions which are then popped suddenly) than a casual encounter or consecutive formal speeches planned by each separately.

(2) Pseudo-events, being planned for dissemination, are easier to disseminate and to make vivid. Participants are selected for their newsworthy and dramatic interest.

(3) Pseudo-events can be reported at will, and thu s their impression can be reinforced.

(4) Pseudo-events cost money to create; hence somebody has an interest in disseminating, magnifying, adverti sing, and extolling them as events worth watching or worth believing. They are therefore advertised in advance, and rerun in order to get money's worth.

(5) Pseudo-events, being planned for intelligibility, are more intelligible and hence more rea ssuring. Even if we cannot discuss intelligently the qualifications of the candidates or the complicated issues, we can at least judge the effectiveness of a television performance. How comforting to have some political matter we can grasp!

(6) Pseudo-events are more sociable, more conversable, and more convenient to witness. Their occurrence is planned for our convenience. The Sunday newspaper appears when we have a lazy morning for it. Television programs appear when we are ready with our glass of beer. In the office the ne~t morning, Jack Paar's (or any other star performer's) regular late-l1Ight show at the usual hour will overshadow in conversation a casual event that suddenly came up and had to find its way into the news.

(7) Knowledge of pseudo-events-of what has been repor~,ed,. or what has been staged, and how-becomes the test of bemg. II1tormed." News magazines provide us regularly With qUIz questions concerning not what has happened but concerning "names in the news"-what

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274 SI:.CTION IX

, es Pseudo-eve nts begin to h eWS mag

aZll1 . f Id f h' ha s been reported in t e n " which some 0 my 0 - as loned

" .. n discourse k Provide that co m

mo ' h Great Boo s. f' d 111 t e " friend s have hoped to In h pseudo-events 10 geometric

awn at er , I b (ll) Finally pseudo-events sp sciousness s imp y ecause there

" h d minate our con progress ion. T ey 0 • a re more of them, and ever more.

, public life, counterfeit happenings . , h 'I of Amertca n 'Th" h By tim new Gres am s aw , f circulatIon. e rise In t e power

h ppeJ1lngs out ad' tend to drive spontaneous a , Iy to the broa elling powers of the 'd IS due not on f I'

and prestige of the Presl ency " b t also to the rise 0 centra Ized news office and the need for quick declslhons, u ase of the Washington press Corps

, d t e IIlcre . gathering and broadcasting, an ad more frequent, and more centralized ac. The President has an ever more re, l' ilar explanation helps account for the cess to the world of pseudo-events. f shim Congressional investigating commit-

, , ' ' recent years 0 t e flSlI1g promll1ence 111 'have virtually no legislative impulse, and tces. In many cases these committees, t But they do have an almost so metimes no intelligible legislative assign men . I ' h F d I

d d ed now by no one e se 111 tee era government

unprece ente power, possess h' b h P

'd k news Newsmen support t e committees ecause cxcept t e resl ent, to rna e· , h b· , h ' f d the newsmen· they live together 111 appy sym lOS IS. The t e committees ee· ,

b I f ong wlashingron agencies becomes a contest to dominate

art e or power am w. ' I b the citizen's information of the government. This can most easl y e done by

fabricating pseudo-events. , , A perfect example of how pseudo-events can dom1l1ate IS the recent popu-

larity of the quiz show format. Its original appeal came less from the fact that such shows were tests of intelligence (or of dissimulation) than from the fact that the situations were elaborately contrived-with isolation booths, armed bank guards, and all the rest-and they purported to inform the public.

The application of the quiz show format to the so-called "Great Debates" between Presidential candidates in the election of 1960 is only another exam- ple. These four campaign programs, pompously and self-righteously adver· tised by the broadcasting networks, were remarkably successful in reducing great national issues to trivial dimensions. With appropriate vulgarity, they might have been called the $400,000 Question (Prize: a $100,000-a-year job for four years). They were a clinical example of the pseudo-event, of how it is made, whyn appeals, and of its consequences for democracy in America. , In ongll1 the Great Debates were confusedly collaborative between politi-

clan~ and news makers. Public interest centered around the pseudo-event itself: the hghtll1g, make-up, ground rules, whether notes would be allowed, etc. Far more II1terest was shown in the performance th ' h ·d The , an 111 w at was sal . pseudo-events spawned 111 turn by the Great D b b I P pie

h h d h h e ates were num er ess. eo w 0 a seen t e sows read about them the m 'dl d I' d gerlY for interpretations by news ore aVI y, an Istene ea ,

d " "h commentators. Representatives of both parnes mad ed' statements on t e probable effects of the debates. Numerous interviews an Iscusslon programs were br d I ' ' '

oa cast exp ormg their meaning. Oplmoo

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275

II kept us inform ed on the nuanc " f . pO s , I · I .. ' ~ s 0 o ur own and o ther people's rea ction s . . sot specu :Hl o n mu tlphcd fv · I .

foPlc . . . m t 1e question whether there sho uld be a fifth debate became fo r a whde a lively "i ss ue."

The drama o f the Situation was I . I ' most y specIous, or at le as t had an ex treme y b· uous relevan ce to the m·lin (I f · . . .. 301 Ig . .. . .')ut orgorten) Iss ue: which partic ipant wa s

better qualifi ed tor rhe Pn:s ldenc y. Of course, a man's ability, while standin g d 'r klieg' lig,hts without notes tC) a . I If · . un C . ' , , nswer In two a ne alai millute s a question

kept secret until that n~Olllent, had only the most dubi o us releva nce-if any at all-to hiS real quahflcatlons to mak e deliberate Presidential deci s ion s on longstanding public questions after being in structed by a corps of advis e rs. fhe great PreSidents III our history (with the poss ible exception of F.D.R.) would have done miserably, bur our most notoriou s demagogues would have shone. A number of exciting pseudo-events were created-for example, the Quemoy-Matsu Issue. But that, too, was a good example of a pseudo-event: it was created to be reported, it concern ed a then-quiescent problem, and it put into the most factitious and trivial terms the great and real issue of our relation to Communist China.

The television medium shapes this new kind of political quiz-show spec- tacular in many crucial ways. Theodore H. White has proven thi s with copious detail in his The Making of the President: 1960 (1961). All the circumstances of this particular competition for votes were far more novel than the old word "debate" and the comparisons with the Lincoln-Douglas Debates suggested. Kennedy's great strength in the critical first debate, according to White, was that he was in fact not "debating" at all, but was seizing the opportunity to ad- dress the whole nation; while Nixon stuck close to the issues raised by his op- ponent, rebutting them one by one. Nixon, moreover, suffered a handicap that was serious only on television: he has a light, naturally transparent skin. On an ordinary camera that takes pictures by optical projection, this skin photo- graphs well. But a television camera projects electronically, by an "image- orthicon tube" which has an x-ra y effect . This camera penetrates Nixon's transparent skin and brings out (even ju st after a shave) the tiniest hair grow- ing in the follicles beneath the surface. For the decisive first program Nixon Wore a make-up called "Lazy Shave" which was ineffective under these condi- tions. He therefore looked haggard and heavy-bearded by contrast to Kennedy, who looked pert and clean-cut.

This greatest opportunity in American history to educate the voters by de- bating the large issues of the campaign failed. The main reason, as White points out, was the compulsions of the medium. "The nature of both TV and radio is that they abhor silence and 'dead time.' All TV and radio discussion programs are compelled to snap question and answer back and forth as if the Contestants were adversaries in an intellectual tenms match. Although every experienced newspaperman and inquirer knows that the most thoughtful and responsive answers to any difficult question come after long pause, and that the longer the pause the more illuminating the thought that follows .it, nonethe- less the electronic media cannot bear to suffer a pause of more than five seconds;

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276 SECTION IX

a pause of thirty seconds of dead time on air seems interminable, T'h , ' d I , If n'llite answers back and fortll b Us s plllg their two-an -a- 1.1 -I II ' ,oth ' nap

could only react for the cameras and the people, they could not thin~a~:didate; ever either candidate found himself roUC~llllg a thought too large 'f 'When. minute exploration, he quickly retreated. hnally the tclevlslon-Watchi~r tIVO. was left ro J'udge not on issues explored by thoughtful men, but On th g VOter

" f d I" e rei ' capacity of the twO candidates ro per arm un er te eVlslon stress, atlv,

Pseudo-events thus lead to emphaSIS on pseudo-qualifications A ' 'd 'I d'd b ' 'gain h

self-fulfilling prophecy, If we test Presl entia can I ates y their tale t e , h P' d n ts on l'>,

quiz performances, we will, of course, c oose resl ents for preCisely th' v

q ualifications In a democracy, reality tends to conform to the pseud eSe .. ..... '- o-event Nature Imitates art. '

\X1e are frustrated by our very efforts publicly to unmask the pseudo_ , I I' I' I k h d' , event \X1henever we descnbe ne Ig ltlllg, ne rna e-up, t e stu 10 settlllg th '

hearsals etc we simply arouse more interest, One newsman's interp'r e ,reo o. , " , ,etatlon

makes us more eager ro hear another s, One commentator s speculatio h , "f' k ' h n t at

the debates may have little slgm Icance ma es us CUriOUS to ear whethe ran· other commentator disagrees.

Pseudo-events do, of course, increase our illusion of grasp on the world what some have called the American illusion of omnipotence, Perhaps, IV; come to think, the world's problems can really be settled by "statements" b. "Summit" meetings, by a competition of "prestige," by overshadowin~ i~. ages, and by political quiz shows,

Once we have tasted the charm of pseudo-events, we are tempted to be· lieve they are the only important events. Our progress poisons the sources of our experience, And the poison tastes so sweet that it spoils our appetite for plain fact. Our seeming ability to satisfy our exaggerated expectations makes us forget that they are exaggerated.

MURRAY EDELMAN

50. POLITICAL SYMBOLS

To political scientist Murray Edelman, the central political activity is the manipulation of symbols, Inasmuch as the mass public experiellces the political world as a "passing parade o( symbols," public perception of political events necessarzly depends on communications about those

S F Th ' oflhe

ouree: rom e Symboltc Uses of Politics C 'h 1964 1985 b B d of Trll Srcos U

' ' fIll" . ' opyng t y oar mverSlty 0 InOlS, Used With permission of th U' , ' fIll' 'p e mvcrslty 0 tOOlS ress.

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M ASS M ED IA 277

events. Edelman argues that the president and other na- tIOna/leaders use symbols to cue the public as to how to react to world events-when to (eel threatened and when to feel reassured that all is 1.(Je ll. Edelman was one of the (irst American political scientists to systematically analyze politics from a symbolic perspective.

Edelmarrs view is ex empli(ied in the process of "spinning, " the term commonly used to describe how political leaders attempt to mani/mlate public percep- tions. Wa shington Pos t reporter Howard Kurtz's 1998 book, Spin C ycle, argues that the Clinton White House is "arguably the m ost successful team o( While House spin do ctors in history. , .. Though earlier administrations were cognizant of the need to control the flow o( information to the public, produce appealing photo opportunities for reporters, and generally to manage perceptions of the president, by 1998 Bill Clinton was widely regarded as having elevated the art of spinning to a new level.

A civil lawsuit alleging sexual harassment filed against the president by Paula Jones and the ensuing reve- lation that he had engaged in an 18-month sexual liaison with a former White House intern, Monica Lewinsky, and lied about it under oath and to the American people, however, tested even Bill Clinton's ability to "spin " the story so as to minimize political damage. In his brief August 17, 1998, speech to the American people follow- ing his appearance before a grand jury investigating charges that he may have committed perjury, suborna- tion of perjury, and obstruction of justice in his efforts to cover up the Lewinsky affair, President Clinton took "complete responsibility" for all his actions.

Claiming to assume full responsibility is the classic tactic of a chief executive under fire. Richard Nixon em- ployed a similar approach when he first addressed the nation concerning the Watergate scandals in the spring of 1973 when he accepted full responsibility for the illegal actions of White House officials. Ronald Reagan simi- larly accepted full responsibility for the Iran-Contra Af- fair of 1986. Unlike Richard Nixon and Ronald Reagan, who were accepting responsibility for the actions of oth- ers, Bill Clinton was accepting responsibility for his own actions. But just like his predecessors: Bill Clinton's ac- ceptance of full responsibility was at heart symbolic- intended only to pinpoint where responsibility lay, not to suggest that he should be punished (or his transgressions.

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278 SECTI ON IX

, the political proccss is a dist' f

. b )Iic formS In " I " , , ' II1 C. Basic to the recognition 0 s)' nl ( t and pohtlca ac tivIty as utilIzed b

, , , ccrator spor . b f' f tI I )' rion between politics as a sp . 'f' , ngib le ene Its or lcm se ves, F " slle(1 IC, fa , ' I' I Or

organized gro ups ro get qUltc " ' ' ries o f pICtures III t Ie mIne, plac 'd ' , litKS IS a se d I' .. ' e l110 st l11en ll10st of the tllne po 'az ines an (I SCU SS lOn s, The p' ' pel's mag. - , IC·

there hy tclevisioll news, newSp.l , ' I ce in a world the mass public I1Cv , 'I rnkJl1g p a ( ' Cr

tures create a nlOvJl1 g panoraJ11. . ro fear or cheer, 0 ten wIth pass io , " nbcrs come , . I n

qlllte touches, yet one Its ll1el II of legisl atu res passing aws, fOrCig , I ' Thc)' 'Ire to ( n

and someti mes WIt 1 a([ lOn . , if' 'trade agreements, wars starting and political figures thrcatclIlIlg 01 r~ ~:I:;~, or winning, decision s made to spend ending, candidates for puhllc office g

" " '0 to the moon. , unlmaglllable SUIllS 01 mon e) ro g , . d'ate world in whIch people mak

1'1 ' I ther hand the Imme I. C lere IS, Oil tie 0 " I ' I vable consequences. In these activities and do things that have cllrect )' Olser • , st the consequences and men can check their acts and assumptions agalll

i f 'I d ' Icor.

, k S . 1 rela tI ve yew, a re IIlVO ve III po Itlcs reet errors, There IS feedbac ' . ome J11el ,

in this direct way. d f b t bois t d Politics is for most of us a passing para eo a strac syn

l l I ' ye

f a para c

, I b a benevolent or m:1 evo ent orce that which our experience teac les us to e. , . b I ' t t Beca llse politics does VISibly confer wealth, take can e c ose to omnlpo en . , " .

1,[" d f eople and rCI1resent a history WIth strong emotional li e, IInprlson an ree p , • '. and ideological associations, its processes become. easy obJects ulPon which to displace private emotions, especially strong anxIeties and hop es.. .,

But it could not serve as conveyor of these fears and aspirations If It were simply a tool or mechanism which we all had the power and knowledge to ma- nipulate for our own advantage. It is central to ItS potency as a symbol that It is remote, set apart, omnipresent as the ultimate threat or means of succor, yet not susceptible to effective influence through any act we as individuals can perform.

Research in a number of different sciences has pointed to the ke y function of remoteness as an influence upon symbolic meanings. One element involved here is the distinction between referential and condensation symbols. Every symbol stands for something other than itself, and it also evokes an attitude, a se t of impressions, or a pattern of events associated through time, through space, through logic, or through imagination with the symbol. Students of this subject have noriced a fundamental distinction among symbols that groups them into two quite separate types. Referential symbols are economical ways of referring to the objective elements in objects or situations: the elements identi- fied in the sa me way by different people. Such symbols are useful because they help in logical rhinking about th e situation and in manipulating it. Industrial aCCIdent statistics and cost figures In cost plus contracts are referential political symbols, though they may also be condensation symbols. Condensation sym- bols evoke the emotions associated with the situation. They condense into one symbolIc event, sIgn, or act patriotic pride, anxieties remembrances of past glories 0; humiliations, promises of future greatness: ~ome one of these Of all of rhem,-

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!II " '\\1 U I A 27 9

'X/herr (ondl'n,aliun sy mbul s ~ re I J ' , , , " Invu w Ihe h 'k f I 1-

, Iia ll' ,'tlVI ron ITIl'1ll' I, ia.:king, A lraff " cun'lam ee 0 lI e III Illt{ I . ' t ' I ' I I ' IC pultcelllan al a bu sy co rner may grow

ance( t110lllcn ,m y Wit 1 l11n , elf ' I ' , .k ' etl H • fl " , I ' I , 01 11, Stl( as rcp rc,e ntall ve uf rh e au gust

'CSlY" I Ie stalc a ll ( Itl ( ulgc In II I 11131 ff ' Ie uxur y of ar bilra ry power perhaps bv

, 'ng tra IC 011 Olle , trcet· hi t I, I h ' " ' f:ll'ori . ' I k' 'I' I I Ie engl elling line uf ca rs in fronl of him

d soille Ir;'lte IOn ' In g WI I Suon rCll, ' II ' I I " atl ", ' , In ( IIIll 11at Ie mU SI bce realtr y: drtvers d a pros:!I": chid "f po ltee, Thc " ' ' h .1 " 311 ' " • Ie IS IIU Slle (leek UII rhe la nta sle, and c() n-

111 'litZltl" 01 tllO,e who ne ve r e' ~ 11 I " b' ' I ' " I erp , . " , " csr U I<'Cllve y rhelr cu nVlC llon rhat tIe Ove rnll1ent and their hOlll e !OWIl, abollnd I'll " d d d g ' . ' " comllluni st ,p ies a n upes an

Ihat John Birch sv mbolt zes re,l stall ce to the thr ea t. lur is there rh e check of reality and feedback lIpOIl those to whom Adlai Steven son or Barry Go ldwaler or DWight Etsellhowl'f are sy mbol s of rea son. intelligence. and virtue in publi c policy. Concluslvc demon stration s that rheir heroes' pulicies ma y oftcn be fu - lile or Illi sconceived are Impuss lble simpl y becau se the link between dramatic polilical announcements and their impact on peuple is so lung and so tangled. These people ma y he fight or they may be wrong. The point is that there is no necessi ty, :1I1d often no possibility, of continuously checking their conviction s against real conditions.

No example can ever be wholly free of either referential or of condensa - lion symbols; but the distinction between the two types of behavior is funda - mental in reali stic political analysis.

Practically every politi ca l act that is controversial or regarded as rea ll y important is bound to se rve in part as a condensation sy mbol. It evokes a qui- escent or an aroused mass re spun se becau se it sy mbolizes a threat or reassu r- ance. Because the meaning of the act in these cases depends only partly or not al all upon its objective consequences, which the mass public cannot know, the meaning can only come from the psychological needs of Ihe respondents; and it can only be known from their re sponses,

One type of research that supports this view appears in the work of Smith, Bruner, and White, I who have explored the tie between personality and opin- ions. They conclude that political opinions serve three different functions for the personality. One of these, object appraisal, or help in understanding the world , can only be performed by those political opinions that are fairly realis- tic: opinions which, in our term s, are based upon referential symbols and are constantly checked against the objects to which the y reier. An opinion that the chief function of a party platform is to attract votes and not to forecast public policy would presumably further object appraisal.

NOTES

I. Harold D. La sswell, I'sychopathu/ogy and Politics .(New York. 1930),75- 76 . 2. Edward Sapir, "Symbolism," in F.wyclopedlll of the SOCIlI/ SClellces (New York, 1934),492-495. , ' ' , 3 M Brc S" I J S BrUII"r and R W White. OPIIIlOIlS (llld Perso lla/II)' (Ncw . . \\Ister Illlr " . , .. , . .' York , 1956). '

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280 SECTION IX

.... .. SECTION IX

REVIEW QUESTIONS

1. What evidence does George Orwell offer [0 show that "political speech writing are largely the defence of the indefensible"? Do you think that hand

. 'h' bl) e IS correct? It so, is there any solution [0 t IS pro em.

2. Do televised debates between presidential candidates help to clarify the sitions of the candidates on major issues? How have presidential television ~o. bates changed since the Kennedy-Nixon debates of 1960? e·

3. How does Daniel Boorstin define a "pseudo-event"? Can you identify som recent political events that fit the definition? Can you identify a political even~ that Boorstin would agree was a "real" event?

4. How does Murray Edelman distinguish a "condensation" from a "referen. tial" symbol? Do you agree that most Americans most of the time have very lit. tle objective information about the consequences of political decisions and events? What are the implications of this perspective for democratic theory?

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X

THE CONGRESS

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282 SECT I ON X

E D "I U N D BUR K E

51. - G THE NATION

REPRESEN nN

I elected member of CO II- Thc basic problem of how (//" t'lC' 1I0ters cO lltillu es t o

I f I .. '/~rcscllt gress slu )// ( ICS t rl alollg with m embers .' I bscrt'ers

pllz ~/c c()/lgrc>s J()lIa a , 111'ttle sillce Edmund I i l t 'IS C lallg('( thcm sc/I'cs. T lC (e)(/ C)( . ' ./ I'lrliamellt as a "co n-

.; , " I the Brill> 1 ( Burke ,mt Crltlc/~el r t alld h ostile illter- gress of ambassadors from ( 1(erell of Bristo l, Burke ests " III his spcech t o the e ((tors J

. i' Itatilles sh()uld d o more t 1an arglled tlhlt clcctel rep rc> el " d a t e acco rd

d ' / ' dIstricts all 1I " -lIIerely COUllt heLl s /II t lelr d illgly. As Bllrke told his supporters, an electe re?res e,n-

, ,,' '. ullbtased Opll110 n liS tatil'e o ll'es his COllstltuellts lI, ,:, , I dl" 11'"htened conscIence. matllre ,udglllCllt, (//1 liS ell b , ,

III Burke's lIiew of repres entation, an elected offiCial should lise the kllowledge acquired on the ,ob /11 the leg- islatllre to cast 1I0tes that the represelltatillC belielles to be ill the best illterests of the nation. To Burke, elected leaders represellt best whell they work to edu cate and persllade their cOllstituents on questions of public pol- icy. Legislators must be carefit!, however, /1/ followmg Burke's advice. After all, mallY ex-members of Congress have been defeated because they insisted on votillg in the il/tercst of the natioll as a whole; their constitllents feit sufficiently betrayed to throw them alit of office!

Cerrainly, genrlemen, it ought to be the happiness and glory of a representative to live in the strictest union, the closest correspondence, and the most unre- served communication with his constituents. Their wishes ought to have great weight with him; their opinion, high respect; their business, unremitted ;Jtten- tion. It is his duty to sacrifice his repose, his pleasures, his satisfactions, to theirs; and abOl'e all, ever, and in all cases, to prefer their interest to his own. But his unbiased opinion, his mature judgment, his enlightened conscience, he ought not to sacrifice to you, to any man, or to any set of men living. These he does not derive from your pleasure; no, nor from the law and the constitution. They are a trust from Providence, for the abuse of which he is deeply answer- able. Your repr~sentatIve owes you , not his industry only, but his judgment; and he betrays, lIlstead of serving you, if he sacrifices it to your opinion.

SOl/ree: From Edmund Burke, "Speech to the Electors of Bristol on Being Elected" (November 1774).

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My worthy C(> lk: al;: u ~ s ' l y~ hi s \ ' II I I

' , ' , ' ' . VI oUl;:hr 1'0 he ,uh, ervic nr to yo urs, If th at I ' ;111 , tIt: I' llllg IS 11 11 H H': C 111', If guv " " ' ' ,c I'thour llu csti h ' Cll1lll ellt Were 3 m~lTer of will up o n ::I ny , Id e, ,ours, w on. (l ug I' 1'0 he ' . ' I ' ' ) I' I ' SUp enor, 3m govnnlllenr and i<:gl siJtlon re matters 0 rCa SOI1:1n ludl'lll t: nr · I r ' ' r

;1 ' I ,' I ' I I '" , Mil nor 0 IIlciin atio f1' and what ,orr 0 , 3501'1 I S 1'1.11', III W li e 1 tl e del" , " , ' , , '

re. f " I 1'1 I:rnl1nallun precede s the di SC USS io n' In whi ch one set 0 ' mell ll: I )eratl: . and ~nuthcr decide; an d where those wh~ form the co nclU sIO n arc perhaps rhrcc hundred mil es d ' I' f h I I I , IS ant mm I' use w 10 lea r tIe argU1l1ents.

To deli ve r a n opinioll is th· " I f II " , e n g 11' 0 a Ill ew that of constitu ents IS a ei.,hty and reSIJeo.:tah le olJi ni o ll I ' ' I ' , w 0 " W IK 1 a rep resentative o ught a lways to re-

I'oice to he a r; a nd which he o uglll ,!I\vays In st ' I 'd B , . " ' ' . o. senou s y to con sl er. ut all- t/Jontatllle Ul stru ctlo ns; lII andates issued, whio.:h the member is bound blindly and 111lpli CIrl y to o bey. to vote, a nd to argue for, though co ntra ry to th e clea r- est conViCtiOn of hi S ludgill ent and conscienct:,-the se arc thin gs utterl y un- known to th e law s of thiS land, and which ar ise from a fund a menta l mi stake o f the whole o rder a nd tenor of our co nstitution.

Parliament is not a co ngress of ambassadors fro m different and hostil e in - teres ts; which interests eac h mu st maintain, as an age nt and advoca te, against other agents and advocates; but parliament is a delib erative assembly of o ne nation, with o ne interest, th at of th e whole; wh ere, not loca l purposes, not lo ca l prejudices, ought to guide, but the general good, res ulting from the ge n- eral rea so n of the wh o le. You choose a member ind eed; but when yo u have chosen him, he is not a member o f Bri stol, but he is a member of parliament. If the local constituent should have an intere st, or should form an ha sty opinion, evidently opposite to the real good of th e rest of th e co mmunit y, the memb er for that place ought to be as far , as any other, from any endeavor to give it ef- fect. I beg pardon for saying so much on this subject. I have been unwillingly drawn into it; but I shall ever use a respectful frankn ess of communication with you. Your faithful friend, your devoted servant, I shall be to the end of my life: a flatterer you do not wish for. On thi s point of instructi on, however, I think it scarcely possible we ever can have any sort of difference. Perhaps I may give you too much, rather than too little, trouble.

From the first hour I was encouraged to court yo ur favour, to this happy day of obtaining it, I have never promised you anything but humble and perse- vering endeavors to do my duty. The weight of that dut y, I confess, makes me tremble; and whoever well considers what it is, of all things in the world, will fly from what has the least likeness to a positive and precipitate engagement. To be a good member of parliament is, let me tell you, no easy task; especially at this time when there is so strong a disposition to run into the perilous ex-, .' . treme of servile compliance or wild popularity. To ulllte cIrcumspection with vigour, is absolutely necessary; but it is extremely dIfficult. We are n~w mem- bers for a rich commercial city; this city, however, IS but a part of a nch com- mercial nation the interests of which are various, multiform, and intricate. We are members f~r that great nation, which however is itself bur part of a great empire, extended by our virtue and our fortune to the farthest limits of the east

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+"e I ... .... ·· iii"'." .. .. _--

, .' ' ad intere sts mu st be con~ id c rcd· III and of the we st. All the ' c \\'1 de-rs

pre , 'ble We arc member s (or a rre~ U ~t be

d I - i led I paSS I .' , COunt

compare ; mu st )e recollc ' l

chim: of a (rcc con sfifution is no ' ry ; d I II k that tIe ma Slll1pl an sure y w, e a 111.)\\", 1'- , ' ' S it i valuahle. We :1re Illclllb . .. ' e

h - b " " .. d as de leate ,I. , , Crs In

t mg; ut:1 S IIltrlC',He ,Ill, d ,·t preserve religiou sly the t a " d'" ./7)1':111 we IIlU S , rUe leg I

grc,lt all allclcnt m Ollarc , ' the ke -stone that hl/lcl s together the a right of the sovereign. which form "y nd our con stitution . A COl ' ' nohle

d II d h o( our empIre a lsti\UIIO

an we -con tructe arc , he a critical thing. As such I n made u of balanced powers mu st ever ' . _ '. mean to

p f - I . h . me s wlthm my reach. I know my Inability and I touch that part 0 It w lIC co , I I I II ' h f ' ' , . t'r In partICU ar s 1<1 aim at t e nendsh'

sh f pport from evcry quar c . Ip WI or su . d ')( the worthy colleague ' and shall cultivate the best correspon ence, ( you have

gIven I me. bl . f ther than once more to thank you all; you, genticll1en trou e you no ur ' . ',' d I' b h' ,

f f h d 'dates for theIr temperate an po Ite e aVIOr' and

or your avours; t e can I " , f" h . ' the sheriffs, for a conduct which may give a model or a w 0 arc In public

stations.

JAMES MADISON

52. THE FRAMERS' VIEW OF REPRESENTATION

Critics of the Constitution argued that the House of Representatives was not large enough to include mem- bers of all social classes. Therefore. they believed that the views of the excluded classes would not be ade- quately represented in the newly created House of Rep- resentatives, But James Madison in Federalist, No, 35 dismissed the idea of "actual representation of all classes of the people. by persons of each class" as "altogether visionary, " While acknowledging that the newly created House would include mostly businessmen. profession- als. and landowners. Madison was convinced that these representatives. motivated by the need to win votes from all members of their districts. would adequately repre- sent the interests of all groups, In contrast to Burke's emphasis on representation of the national interest.

Source: From The Federalist. No. 35 (1788).

--_ .. II1II

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T H E. CONG RESS 185

Madisoll asked "Is it I t d 'd ' 10 natural that h ' ca ll , I ate for th e fallo f I a man w 0 IS a

ca re to illform hilnself :f~1 ~ , 1e))eOPle . .. should tak e ti o ns?" Therefore th , ' 1e n . ISP OS ItI OIIS and inc/ina-

d , , ' en co nce rns would find " th ' pro per egree of IIIflu ence Up c) n J ' d elr ? IS CO il II ct."

Let us now return to the examination of b' , " " 0 lectlon s. One whICh, If we may ludge fro m the frc uenc ' , ,

to be relied on is th ' h H q y of Its repetition, seems Inost , , .H t e Ouse of R"'p " ff " I

f h 'f " re sentatlves IS not su IClent y umerou S or t e recepti on 0 all th d' ff I n " ,e I erem c asses of citizens, in order to comb me the II1terests and feelmgs of every part f h ' d o t e commul1lty, an to pro- duce a due sympathy between the repre se ntatl've bod d ' . , ' . y an Its constituents. ThiS argument presents Itself under a very specl'ous and d ' f d ' , , se ucmg orm; an IS well calculated to lay hold of the preludlces of those to whom it is addressed. But when we come to di sse ct it with attention, it will appear to be made up of nothmg but falr- soundll1g words. The object it seems to aim at is in the first place, impracticable, and in the sense in which it is contended for: is unneces- sary. I reserve for another place the discussion of the question which relates to the sufficiency of the representative body in respect to numbers, and shall con- tent myself with examining here the particular use which has been made of a contrary supposition, in reference to the immediate subject of our inquiries.

The idea of an actual representation of all classes of the people, by persons of each class, is altogether visionary. Unless it were expressly provided in the Constitution, that each different occupation should send one or more members, the thing would never take place in practice. Mechanics and manufacturers will always be inclined, with few exceptions, to give their votes to merchants, in preference to persons of their own professions or trades. Those discerning cit- izens are well aware that the mechanic and manufacturing arts furnish the ma- terials of mercantile enterprise and industry. Many of them, indeed, are immediately connected with the operations of commerce. They know that the merchant is their natural patron and friend; and they are aware, that however great the confidence they may justly feel in their own good sense, their inter- ests can be more effectually promoted by the merchant than by the,mselves. They are sensible that their habits in life ha,"e not ~een such as to give them thos . d d nts wl'thout which m a dehberate assembly, the great-e acquire en owme , , , est I b

'I " f the most part useless; and that the mfluence and natura a I ltIes are or W ' h d . . ments of the merchants render them more equal elg t, an supenor acqUire , ' If' h . t . "h' h might happen to mfuse me mto t e public o a COntest With any spmt w IC "Th'd

'I h facturing and tradmg mterests. ese cons I - cou~C\ s, unfriendly to t e manu , be mentioned, prove, and experience ~~atl?nS, ~nd many. others tha::~~~~urers will commonly be disposed to be-

nflrms It, that artisans and m d h hom they recommend. We must Sto h' hants an t ose w h

W t elr votes upon mere h t ral representatives of all these classes t erefore consider merchants as t e na u

of the community.

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286 ECTI O N X

W I' I I I I cod )rofess io ns. lirrle need be observed· th "It 1 rega re ro t 1e carnt ." . ' ey t I . . .' '.' , d '!Ccordlllg ro their Sl tu a n On d r~ \' forl11 no distiller IIIterest 111 SOC le t) , an. '" d d I ' an talent '

. .. . . h b' f the con ti ence an C 10lce of ~ h s, wdl be IIldl SCfl l11l11ate l)' teo leets 0 cac Other and of o th er parts of the C0l11111Ulll tr . " . . '

N h ' · . b t tile landed Inrerest; and thi S, 111 a political vi~ ot IIlg rem a illS U· ( I ' d f cw, and . I I ' I ' I t,ke ro be peflect )' unite rOI11 thA parncu ar y 111 re anon ro taxes, .. '. c wealth.

iest landlord down ro the poorest tenanr. No tax can be laid o n land Whi h f '11 ' f acres as well a s th e p . c will no t affect the proprieror 0 1111 Ion s 0 , . . ' rop netor of

single acre. Every landholder will therefore have a coml11on Inrerest to keep th: taxes on land as low as possible; and common Inrerest ma y always ?erecko ned upon as th e surest bond of sy mpathy. Bur If we even s upp ose a dlstlJ1ction of interest between the opulent landholder and the 1llIddllllg farmer, what rea so is th ere ro conclude, that the first would stand a better chance of being dep~te~ to the national legislature than the last? If we. take fact as our gUide, and look into our own senate and assembly, we shall fllld that moderate proprietors of land prevail in both; nor is this less the case in the se nate, which consists of a smaller number, than in the assembly, which is composed of a greater number. \Vhere the qualifications of the elecrors are the same, whether they have to choose a small or a large number, their votes will fall upon those in whom they have most confidence; whether these happen to be men of large fortunes, or of moderate property, or of no property at all.

It is said to be necessary, that all classes of citizens should have Some of their own number in the represenrative body, in order that their feelings and inrerests may be the berrer understood and attended to. But we have seen that this will never happen under any arrangement that leaves the votes of the peo· pie free. Where this is the case, the representative body, with too few excep· rions to have an)' influence on the spirit of the government, will be composed of landholders, merchants, and men of the learned professions. But where is the danger that the interests and feelings of the different classes of citizens will not be understood or attended to by these three descri ptions of men? Will not the landholder know and feel whatever will promote or insure the interest of landed property? And will he not, from his own interesr in that species of property, be sufficiently prone to resist every attempt to prejudice or encumber it? Will not the merchant understand and be disposed to cultivate, as far as may be proper, the interest of the mechanic and manufacturing arts, to which his commerce is so nearly allied? Will not the man of the learned profession, who will feel a neutrality to the rivalships between the different branches of in' dustry, be likely to prove an impartial arbiter between them ready to promote either, so far as it shall appear to him conducive to the gen;ral interestS of the society?

If we take into the ~ccount the momentary humors or dispositions which may . happe~ to prevaIl In par~icular parts of the society, and to which a WIS~ adminIstratIon WIll never be Inattentive is the h . ation leads t. . ". ,man w ose SItu h r extensive inqUIry and Information less II'kel t b ' udge of t el y 0 e a competent I .e1 nature, extent, and foundation than one h b . d s nor rfav w ose 0 servatlon oe

d

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TilE CO NGRESS 287

d the circle of hi s neighbors ad · . I h beyon . . . . n acquaintances? Is It not natura t a t a mall who IS a candidate for the favor of the people, and wh o is dependent o n the suffrages of hiS fellow-citizen s for the continuance of hi s public ho nors, should take care to mform h11n se lf of th eir di spositions and inclinati o ns, and ho uld be willing to allow them their proper degree of influence upon his con- ~uct? This dependence, and the necessity of being bound himse lf, and hi s pos- teriry, by the laws to which he gives hiS assent, are the true, and they are the

rang chords of sympathy between the representative and the constituent. st . fhd '. There IS no part 0 t ea ministration of government that requires exten- ·ve information and a thorough knowledge of the principles of political econ- ~my, so much as the business of taxation. The man who und erstands those

rinciples best Will be least hkely to resort to oppressive expedients, or to sac- ~ifice any particular class of citizens to the procurement of revenue. It might be demonstrated that the most productive system of finance will always be the least burdensome . There can be no doubt that in order to a judicious exercise of the power of taxation, it is necessary that the person in whose hands it is should be acquainted with the general genius, habits, and modes of thinking of the people at large, and with the resources of the country. And this is all that can be reasonably meant by a knowledge of the interests and feelings of the people. In any other sense the proposition has either no meaning, or an absurd one. And in that sense let every considerate citizen judge for himself where the requisite qualification is most likely to be found.

WOODROW WILSON

53. CONGRESSIONAL GOVERNMENT

Before being elected president of the United States in 1912 Woodrow Wilson (1856-1924) had served as president of Princeton University and as president of th.e American Political Science ASSOCIatIOn. But It was h,s becoming the reforming governor of New Jersey in 191 .1 that made him a credible candidate for the DemocratIc Party's nomination for president in 1912. He then w?n

h 'd wI'th a plurality of the vote when the tn-t e presl ency . . cumbent Republican president, Wtll,am Howard Taft,

Source: From Woodrow Wilson, Congressional Gove",ment, 1885, Chapter 3.

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288 SECTIO N X

I , I " R P ,bll'can vote with form er Repllbli-sp 11 t 1e llra/onty e I h {,t I ' tl o ai' er OSIll Je cal/ president Theodore Roosevelt w , g " (, , I'ndependent on the Pro-nOllllllatlOn to Ta,t, rail as III , , "8 II M ose" Party ticket. Wrls o n w ould

gresslVe or II 0 1921) d ld ' - an WOII serve two terms as president (1913 lead the nation throllgh World War I . ,

As a college professor, Wilson publrshed the now classic aCCOl/nt of the congressional legislatIVe proce~s, Co ngress ional Government: A Study in AmerIcan Politics (1885). Wils ol/'s analysis describes how the vanous com- mittees, subcomlllittees, select committees, and confer- ence committees result in a complex and decentralrzed distribution of power. The influence of the standing com- mittees of the Congress cannot be overstated. As Woodrow Wilson declared more than a century ago, "I know not how better to describe our form of government in a single phrase than by calling it a government by the Chairmen of the Standing Committees of Congress. " Be- cause of the various subcommittees, select committees, and conference committees, overall authority "is perplex- ingly subdivided and distributed, and responsibility has to be hunted down in out-of-the-way corners." As a re- sult, Wilson wrote, in perhaps the most famous statement from Congressional Government, "Congress in session is Congress on public exhibition, whilst Congress in its committee-rooms is Congress at work." Despite periodic bursts of congressional reform, Wilson 5 insights continue to provide us with an amazingly accurate picture of what he termed the" dance of legislation . ..

Like a vast picture thronged with figures of equal prominence and crowded with elaborate and obtrusive details, Congress is hard to see satisfactorily and appreciatively at a single view and from a single stand-point. Its complicated forms and diversified structure confuse the vision, and conceal the system which underlies its composition. It is too complex to be understood without an effort, without a careful and systematic process of analysis. Consequently, very few people do understand it, and its doors are practically shut against the comprehension of the public at large. If Congress had a few authoritative lead- ers whose figures were very distinct and very conspicuous to the eye of the world, and who could represent and stand for the national legislature in the thoughts of that very numerous, and withal very respectable, class of persons who must think specifically and in concrete forms when they think at all, those persons who can make something out of men but very little out of intangible generalizations, it would be quite within the region of possibilities for the ma- jority of the nation to follow the course of legislation without any very serioUS

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confu sio n o f th o ught. I suppo h· I . ' h d h I

· sc t at:l most eve rybod y wh o Ju st now gi ves :l ny ee to t e po IC Y o f G re:lt B . . . . h

· d I I'k . rttall1, With regard even to the refo rm o f the fr a n- c Ise an or ler I -e Strtctl y I ,I . . h

. II I egi s atlve qu es ti ons, think s of Mr. G ladston e a nd IS co eague s rat ler th :l n (f I H f

Th ' . ) . t 110' ou se 0 Commo ns. whose serv:lnts th ey a re.

e qu es ti o n IS not What ' 11 P I' . . ' , WI a r I:lment do ? bur, What wlil Mr. G ladsto ne do? And th e re IS even less do b I . " . ". u t t 1,It It IS ea sier :lnd more natural to lo ok upon the leg'l sla tlve deSign s of Ge . . I k db ' . . rmanY,l s oc e up ehllld Bi smarck 's heavy brows than to thlllk o f th em as depe d h d " . h ' n ent upon t e etermlilatl o ns of the RclC stag, although a s a matter of fact its con sent is indi spen s:l bl e even to the plan s of the ImperiOUS and domineering C hancellor.

But there is no great minister or mini stry to represent the will and being of Congress III the common thought. The Speaker of the Hou se of Represe nta- tives stands as near to leadership as an y one; but hi s will do es not run a s a for- mative and imperative power in legislation much beyond the appointment of the committees who are to lead the House and do its work for it, and it is, therefore, not entirely satisfactory to the public mind to trace all legi slation to him . He may have a controlling hand in starting it; but he sits too still in hi s chair, and is too evidently not on the floor of the body over which he presides, to make it seem probable to the ordinary judgment that he has much immedi- ate concern in legislation after it is once set afoot. Everybody knows that he is a staunch and avowed partisan, and that he likes to make smooth, whenever he can, the legislative paths of his party ; but it does not seem likely that all im- portant measures originate with him, or that he is the author of every distinct policy. And in fact he is not. He is a great party chief, but the hedging circum- stances of his official position as presiding officer prevent his performing the part of active leadership. He appoints the leaders of the House, but he is not himself its leader.

The leaders of the House are the chairmen of the principal Standing Com- mittees. Indeed, to be exactly accurate, the House has as many leaders as there are subjects of legislation; for there are as many Standing Committees as there are leading classes of legislation, and in the consideration of every topic of busi- ness the House is guided by a special leader in the person of the chairman of the Standing Committee, charged with the superintendence of measures of the par- ticular class to which that topic belongs. It is this multiplicity of leaders, this many-headed leadership, which makes the organization of the House too com- plex to afford uninformed people and unskilled observers any easy clue to its methods of rule. For the chairmen of the Standing Committees do not consti- tute a cooperative body like a ministry. They do not consult and concur in the adoption of homogeneous and mutually helpful measures; there is no thought of acting in concert. Each Committee goe~ its ow~ way as its own pace. It is im- possible to discover any unity or method III the disconnected and therefore un- systematic, confused, and desultory action of the House, or any common purpose in the measures which its Committees from time to time recommend.

And it is not only to the unanalytic thought of the common observer who looks at the House from the olltside that its doings seem helter-skelter, and

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.'

. . t once easy to understand them \Vh '11 Ilc' J( IS not a . b cn

without comprehe nsl ) en,. I d 'lay through open seSS IOn y one who' . . d ' h 'Ir Jarly lea \ . . d f IS

they arc scr utinI Ze In, t C 'I ,J member, enterrng ItS oors or the (ir

I T h . newly-e ecte d h h St in~idc the I ousc. c , ' I d" f it S rules an customs t an t e more in-

tilllC, :lnd with no more knoW c ge 0 I "'ys experiences great difficulty in ad . . ' . tS possess, J \"'. -

tclllgent of Ill S constl tuCn 'd' f congressional Ide to the strange and

jll sting hi s preconceIved I ca,s 1 0

I e finds him self surrounded after he ha

I f , (" ' s b)' w lIC I 1 ..' s lInlookc, - or COJ1( Itlon t f the great legI slative machllle. Indeed

. J I I ecomc a p:lr 0 been sworn nl:ln 13~ ) . ' , • -ted with hi s career in Washington t II Y thmgs COli lice 0 there :lrc genera y mJn . the IleW member. In the first place h'

I I · .' .( r to 'Iggrreve ' IS

di sg ust aJl( ' .Isplrrt, I no ' I'm;o the federal capital. Possibly the mem- local reput:ltlOn does no

k t foll(~V n" and receive him into full fellowship; but no

bers (rom hi s own State ' IIOW n , . h

I k I . cept as an adherent of thIS or t at party, or as a new-

one e se . II()W S ]lin, ex .' . . . 'f' d h' . I

. I ' S · t He finds his station mSlg J1l reant, an IS Iden- comcr (rolll t liS or t wt ra e. . .... . . d" I' t tlll'S social humiliation which he cxperIences m Circles IJ1

tlty n' ,stmet. )lI f d" . b . h

. h I reSSl11an does not of itself con er IstJllCtlOn, ecause It is w IC to lC a cong d . . only to be Olle among many, is probably not to be compa~e Wlt~ the chagnn and di sappointment which come in company.wlth the I~evltable discovery that he is equally without weight or title to consideration m .the House ItSelf. No man when chosen to the membership of a body possessmg great powers and exal:ed prerogatives, likes to find his activity. repressed, and himself sup- pressed, by imperative rules and precedents which seem ~o have be~n ~r~med for the deliberate purpose of making usefulness unattamable by mdlVldual members. Yet such the new member finds the rules and precedents of the House to be, It matters not to him, because it is not apparent on the face of things, that those rules and precedents have grown, not out of set purpose to curtail the privileges of new members as such, but out of the plain necessities of business; it remains the fact that he suffers under their curb, and it is not until "custom hath made it in him a property of easiness" that he submits to

them with anything like good grace. Not all new members suffer alike, of course, under this trying discipline;

because it is not every new member that comes to his seat with serious pur- poses of honest, earnest, and duteous work. There are numerous tricks and subterfuges, soon learned and easily used, by means of which the most idle and ~elf-indulgent me~bers may readily make such show of exemplary diligence as Will qUite satisfy, If It does not positively delight, constituents in Buncombe. But the number of congressmen who deliberately court uselessness and coun- terfeit well-doing is. probably small. The great majority doubtless have a keen enough sense of thetr duty, and a sufficiently unhesitating desire to do it; and it may .sa~ely be ta~en for granted that the zeal of new members is generally hot and .lJlslste.nt. If It be not hot to begin with, it is like to become so by reaSon of fflctlon with th~ rules, because such men must inevitabl be chafed by the bonds of restramt drawn b h b' y f h H

a out t em y the mexorable observances ate ouse.

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r T H E Co GRESS

Often the new member goes t \X' h ' ticular line of policy, havin g bee 0 I a s Ington as the represe ntative of a par-n e ected t b trade, or as a champion of protect". '. '. may e, as an advocate of fre e tering on his duti es ro seek iml1 Idon, and It IS naturall y hi s first ca re up o n en-

' . 1e late 0PpOrt . f h . f ' vl'ewS and lI11m edlate me~ 11 S o f '. h unity or t e ex press ion 0 hi S

u giVing t d f . upon the attention of Congre H ' d ' em e Inlte shape and thrustin g them when he find s both Opportuni:

s . . ~s ISappOll1tment is, therefore, very keen

bill' but that is all he can d o . Ydah n

mea ns dellled h1l11. He can introduce hi s , , an e must do th . I ' d .

P articular manner. Thi s he ' I"k I at at a partlCu ar time an 111 a .. IS ley to lea rn through I . 'f h b

ot cautiOUS to II1quire bef I d h . rue e ex perienc e, lee n h I ore lan t e detail s of practice . He is likely to make a ras start, upon t 1e SUPP OS ition th~t C b

u ongress 0 se rve s the 0 d ' I f arliamentary practice t h ' h h h . r lI1ary ru es 0 PI b f '1' t h ' °h w IC . e as become accustomed in the debating c u s ami lar 0 IS yo ur and 111 th . . H ' b'II ' d b I ,< e mass- meetll1gs known to hi s later expe-

nence. IS I IS O U tess ready fo . ' . . r presentatio n early 111 the sess io n and

some day, taklllg advantage of a pause in the proce d ' h h ' . b e II1gS, w en t ere seems to be no busllless efore the House he ri ses to read 't d . d . B .' ' I an move ItS a option. ut he flllds gettlllg the floor an arduous and precarious undertaking. There are certalll to be others who want it as well as he; and his indignation is stirred by the fact that the Speaker does not so much as turn towards him, though he must have heard hiS call, but recognizes some one else readily and as a matter of course. If he be obstreperous and persistent in his cries of "Mr. Speaker," he may get that gre~t functionary's attention for a moment,-only to be told, however, that he IS out of order, and that his bill can be introduced at that stage only by unanimous consent: immediately there are mechanically-uttered but emphatic exclamations of objection, and he is forced to sit down confused and disgusted. He has, without knowing it, obtruded himself in the way of the "regular order of business," and been run over in consequence; without being quite clear as to how the accident occurred.

Moved by the pain and discomfiture of this first experience to respect, if not to fear, the rules, the new member casts about, by study or inquiry, to find out, if possible, the nature and occasion of his privileges. He learns that his only safe day is Monday. On that day the roll of the States is called, and mem- bers may introduce bills as their States are reached in the call. So on Monday he essays another bout with the rules, confident this time of being on their safe side,-but mayhap indiscreetly and unluckily over-confident. For if he sup- poses, as he naturally will, that after his bill has been sent up to be read by the clerk he may say a few words in its behalf, and in that belief sets our upon his long-considered remarks, he will be knocked down by the rules as surely as he was on the first occasion when he gained the floor for a bnef moment. The rap of Mr. Speaker's gavel is sharp, immediate, and peremptory. He is curtly. in- formed that no debate is in order; the bill can only be referred to the appropnate

Committee. . . Th ' . . d d d ' h tenl'ng' it is his first lesson 111 committee government, IS IS, 111 ee , IS ear , .

and th ' d ts but the sooner he learns the prerogatives and powers e master s ro smar ;

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292 SECTION X

, I ner will he penetrate th e mysteries of of the Standing CommIttees t le soo 'th their thorny s ide The "the

'd h ' f f ther contact WI . pnvlle rules and avol t e pam 0 ur ' d h d f I I ges I b 'nmg an teen 0 t l e ru es B h of the Standing Committees are t le egm d h' b' b' Ot the

, d h S te con uct t elr us mess y what House of RepresentatIves an t e ena 'f " may f ' 'I b ' rately be called an odd deVIce 0 dISIntegration Th ' Iguranve y, ut not maccu, ' II ' " e

House virtually both deliberates and legislates m sma sectIon s. TIme would fail 'd' II h b'll b ught in for they every sessIon number thousand It to ISCUSS ate I S ro , , Sj

d " b d b d h ther even if time allowed, the ordl11ary processes of an It IS to e ou te we, , h ff f h h debate and amendment would suffice to Sift the c a rom r e w eat in the bushel s of bills every week piled upon the clerk's desk. Accordl11gl y, no futile at- tempt is made to do anything of the kind',The wor~ IS parceled out, most .of it to the forty-seven Standing Committees which constl~ute the regular organization of the House some of it to select committees appol11ted for specIal and tempo- rary purpose~ . Each of the almost numberless bills that come, pouring in on Mondays is "read a first and second time, "-simply perfunctordy read, that is, by its title, by the clerk, and passed by silent assent through its first formal courses, for the purpose of bringing it to the proper stage for commitmenr,-and referred without debate to the appropriate Standing Committee. Practically, no bill escapes commitment-save, of course, bills introduced by committees, and a few which may now and then be crowded through under a suspension of the rules, granted by a two-thirds vote-though the exact disposition to be made of a bill is not always determined easily and as a matter of course. Besides the great Committee of Ways and Means and the equally great Committee on Appropria- tions, there are Standing Committees on Banking and Currency, on Claims, on Commerce, on the Public Lands, on Post-Offices and Post-Roads, on the Judi- ciary, on Public Expenditures, on Manufactures, on Agriculture, on Military Affairs, on Naval Affairs, on Mines and Mining, on Education and Labor, on Patents, and on a score of other branches of legislative concern; but careful and differential as is the topical division of the subjects of legislation which is repre- sented in the titles of these Committees, it is not always evident to which Com· mittee each particular bill should go. Many bills affect subjects which may be regarded as Iymg as properly within the jurisdiction of one as of another of the Committees; for no hard and fast lines separate the various classes of business which the Committees are commissioned to take in charge Their jurisdictions over/a? at ~any points, and it must frequently happen that bills are read which cover,Just t~IS c?mmon ground. Over the commitment of such bills sharp and in· terestmg skirmishes often take place There I'S act' .. L them the , " . Ive competition lor , ordl?ary, qUl~t routme of ma~ter-of-course reference being interrupted by rival motions seekl,ng to give very different directions to the disposition to be made of them. To which Committee should a bill "to fix and establish the maximuJll rates of fares of the Umon Pacific and Central Pacific Railroads" be sent,-W the Committee on Commerce or to th C . Sh Id a bill which pr h'b' h 'I' e ommlttee on the Pacific Railroads? Oll

o I ItS t e mal mg of c t ' I ' I 0 to h C ' er am c asses of letters and clrcu ars g t e ommlttee on Post-Offices a d P R d 'I of

to the Committee on th J d" n b ost- oa s, because it relates to the mal s~ e u IClary, ecause it proposes to make any transgreSSiOn

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TH E CON GR ES S 293

. prohibiti o n a rime? Wh at is the .. . of lIS 0 lie within two dis tinct c . proper di sPOsiti on of a ny bill whic h Ihu seerns I . . o mmlttee Jur LSdl Cli ons ;

The fate of bill committed is gen era ll . . . . ed is a bill doo med Wh · y no t un cert ain . As a rul e, a bill

.... mltt . en It goes f h I k' . ,0'" . I· ro m t e c er s des k to a commlttee- m It crosse a pa r lamenta ry brid, f · h

roO . ·11 Th ge 0 slg 5 to dim dungeo ns of silence b nce It WI neve r return. e me a d · . we . . ns an tim e of It s death a re unkn own but

. friend s never see It again . O f CO urse S d · . , lIS . If h f II no ta n Ing Committee is pri vil eged to

k upon Itse t e u powers of the H . ta e . . . .. o use It represents, and fo rm a ll y and deciSivel y rel ec t a bill refe rred to It · Its di sapp I ·f · d · b . ' rova , I It Isapproves, must e reported to the H o u e In the fo rm of a reco mme d · h h b·11 " d . . nati on t at tel 0 no t

" But It IS easy a nd therefo re c I . . pass. , o mmo n, to et the sessIO n pa ss With o ut king an y rep o rt at a ll upo n bills dee d b· . bl . ma . me 0 lectl ona e o r Unimportant, a nd

!O substitute fo r repo rts up o n them a few bill s of the Committee's own draft- ing; so that thousa nd s of bills expire with the expiratio n of each Congress, not having been reJe cted, but haVing been simply neglected. There was not time to report upon them .

Of course it goes without saying that the practical effect of thi s Committee organi~ation of .the House is .to consign to each of the Standing Committees the enure direction of legislation upon those subjects which properly come to itS consideration . As to those subjects it is entitled to the initiative, and all leg- islative action with regard to them is under its overruling guidance. It gives shape and course to the determinations of the House. In one respect, however, its initiative is limited. Even a Standing Committee cannot report a bill whose subject-matter has not been referred to it by the House, " by the rules or other- wise" ; it cannot volunteer advice on questions upon which its advice has not been asked. But this is not a serious, not even an operative, limitation upon its functions of suggestion and leadership; for it is a very simple matter to get re- ferred to it any subject it wishes to introduce to the attention of the House. Its chairman, or one of its leading members, frames a bill covering the point upon which the Committee wishes to suggest legislation; brings it in, in his capacity as a private member, on Monday, when the call of States is made; has it re- ferred to his Committee; and thus secures an opportunity for the making of the desired report.

It is by this imperious authority of the Standing Committee~ that the new member is stayed and thwarted whenever he seeks to ta~e .an active part m the business of the House. Turn which way he may, some pnvllege of the Commit- tees stands in his path. The rules are so framed as to put all busine.ss under their management; and one of the discoveries which the new member IS sure t~ make, albeit after many trying experiences and sobenn? adventures and as hiS first session draws towards its close, is, that under thelf sway freedom of d~­ bate finds no place of allowance, and that his .Ion~-delayed speech must ~emam unspok F I ressl· onal seSSIOn IS tOO short to afford time for en. or even a ong cong . a full co ·d . f II the reports of the forty-seven Committees, and de-

nSI eratlon 0 a hid d ·f bate b . ·dl t short if not altoget er exc u e ,I any

upon them must e rlgi Y cu, h h · h b f considerable part of the necessary business is to be gotten t roug Wit e ore

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SECTION X

_ which rhe Hou se mll s r always - _ . , sub,ec rs ro _ I) - -. give

ad,-Ollrnmenr. There :He Solll< f' o rn rhe Co nllTllfteCS o n rlllting and _ { > reporrs r I - . I - I on

Prompr attention: rhere!ort d I " are some s u l, el rs ro w Ill' 1 ca reE I - fer· ·Jr1 r lert C ' f II Elecrions are :llwavs If1 ore " d d. rll ~rcfore rhe Ol11nllrree 0 \~11'S' d b - a "o r e, • -' "n (on sider:uion mu sr alw.l)'s e.' . -~rions are clorh e d wlrh exrraordin o . -. on Approprr.. - _ .. r)' ~leans and rhe Comn1lrtd.' I b-II n -w be reported . and Will ord ll1arilv b

_ _ . ' . d supp V I S I " _ II 1- . . e prrnleges; and reH·nu.t an . I' 'Ire the o nl)' spec la y Ice nsed Cornnll-t

- - B r rhese our. . ·onsidered. :U ;Iny [IIlle. u _ . fixed order as rhe y are called o n by th

, ke rhelr rurn s rn - .- - . I f e rees. The resr musr r.1 - I ' ICII (' rumbs 01 rllne as la I ro m the ta

- helves Wlr I Sl . . Speaker conrentlng r elllS - • . ' - . - . , f hi ,hest preroganve ... ,

bles at rhe four COllllllfltrhee, 0, _ :r poinrs of the rul es . They are full of com. These a re some 0 r ep a In_ _ f - f - _ d f-' f ' to the uninlnared. and th e con us IOn s 0 practice are

P'e.xI tI· an 0 con USlon I d f b . . ' t' - f rhe rules. For rhe regu ar or er 0 usrness is grearer than rhe con USlon s 0 . ' I - f'

I b - - t d bl- the introductIOn of reso unon s 0 !ered "b y

constanr y ell1g Inrerrup e ' _ " - f' h .. _. - .. d of bills let rn under a s uspen s ion 0 t e rules. Srrll

unanUllOUS consent, an , ' - - -d h r rher~ I'S one principle which run s rhroug h every s tage 01 pro, It IS eVI enr r a • .' _ cedure. and which is never disallowed or abrogated,-. ~he prrnclple that the Comm ittees shall rule wirhout let or hindrance. And thi S IS a prmclple of extra· ordinary formative power. Ir is rhe mould of ~ll legislati~n. In the first place, the speeding of business under rhe direction of the Committees determrnes the character and the amounr o f rhe discussion ro which legisbrion shall be sub· jccred. The House is conscious rhat rime prcsscs. It knows that, hurry as it may, it will hardly gcr through with onc cighrh of rhe business bid our for the scss ion , and rhat to pause for lengrhy debare is ro allow the arrears ro accumu· late. Besides, most of the members are individually anxious to expedire ac rion on every pending measure, because each member of the House is a member of one or more of the Standing Committees, and is quite naturall y desirous rhat the bills prepared by his Committees, and in which he is, of course, specially interested by reason of the parricular attention which he has been compelled to gll'e rhem, should reach a hearing and a I'ote as soon a s possible. It must. therefore, rnvarrabl y happen thar the Committee holding the floor at any par· tlcular time IS rhe, Committee whose proposals the majoriry wish to dispose of as summarrly ,IS CIrCUmstances will allow, in o rder that the rest of the forry-twO undPrrhvll~ge. d Commltte:s to which the majority belong may gain rhe e~rlier an t e !alrer chance 01 a hea - A .

II I d b nng, reportrng Committee besides is gener·

a y as g a ro e pushed as th '. "1 b OIl d d - • e malom), are to push it. It probably has severa

I s mature , an Wishes ro see them dis . - oi opportunity are passed and gone. posed of before ItS brref hours

Consequently, it is the established for one hour to the member of the re Cu~tom of the House to accord rhe I~oor business under consideration- d h~ortrng ~ommittee who has ch:lfge ot rhe The reporringcommirree_ma ' a~ t <It.hour IS made the chief hour of debare: for his opening remarks. h n se om, II ever, uses the whole of the hour himself {b ' , e lIses pa rt of t d - £ r ror y undisputed privilDg . - h _ I ,an rerams ('oorrol of the rest 0 I. h fI • e If IS IS to d - 0

r e oor or nor. No amendn " ISpose of, whether he himself be L1PO lent IS rn order d - h -rot

unng r ar hour, unless he COil>

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esentati o n; and he do es not of c ' Id I ' , , rO irs pr , h k', o urse, yle liS time IIldiscriminately to oe who WI S es to spea ,He gives way II1deed ' f ' h h Id

~oy 0 II f ' d ' ' , as 111 alrness e s ()U , to , ltS a s we as to nen s ot the d ' II OppOnCI . measure un er hi S charge; but gen era y

e 'IS acco rd ed a share ot his tl' me \vl h b ' I h ' ' o 00 10 as not 0 talne( IS prevIou s o rOlllise of th e floor; and those who do spea k must not run beyond the num- ~er of minutes he ha s agreed to allow them, He keeps the course both of de- bate and of amendment rhu s carefull y under hi s own supervi sion, as a good tactician , and befo re he fll1ally Yields th e floor, at the expiration of his hour, he is sure to move the pre~lOu s question, To neglect to do so would be to lose all control of the bu sll1 ess 111 hand; for unless the previou s que stion is ordered the debate may run on at will, and his Committee's chance for getting its mea sures rhrough slip qUite away; and that would be nothing less than hi s disgrace, He would be all the more blameworthy because he had but to ask for the previous question to get It. As I have said, the House is as eager to hurry business as he can be, and will consent to almost any limitation of discu ssion that he may de- mand; though, probably, if he were to throw the rein s upon its neck, it would run at large from very wantonness, in scorn of such a driver. The previous question once ordered, all amendments are precluded, and one hour remain s for the summing-up of this same privileged committee-man before the final vote is taken and the bill disposed of.

These are the customs which baffle and perplex and astound the new member. In these precedents and usages, when at length he comes to under- stand them, the novice spies out the explanation of the fact, once so confound- ing and seemingly inexplicable, that when he leaped to his feet to claim the floor other members who rose after him were coolly and unfeelingly preferred before him by the Speaker. Of course it is plain enough now that Mr. Speaker knew beforehand to whom the representative of the reporting Committee had agreed to yield the floor; and it was no use for anyone else to cry out for recognition . Whoever wished to speak should, if possible, have made some arrangement with the Committee before the business came to a hearing, and should have taken care to notify Mr. Speaker that he was to be granted the floor for a few moments.

Unquestionably this, besides being a very interesting, is a very novel and significant method of restricting debate and expediting legislative action,-a method of very serious import, and obviously fraught with far-reaching consti- tutional effects. The practices of debate which prevail in its legislative assembly are manifestly of the utmost importance to a self-governing people; for that legislation which is not thoroughly discussed by the legislating body is practi- cally done in a corner. It is impossible for Congress itself to do wisely what it does so hurriedly; and the constituencies cannot understand what Congress does not itself stop to consider. The prerogativ,es of the Committee,s represent something more than a mere convenient diVISion of labor. There IS only one Part of its business to which Congress, as a whole, attends,-that part, namely, Which is embraced under the privileged subjects of revenue and supply. The House never accepts the proposals of the Committee of Ways and Means, or of

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the Committees only d igest tile va nom III""", ..... ~:-----. ~J :"u.nuual mem _

b . . I . d ~fter thorough II1vesttgatton for th f' ers, and prepare It, Wit 1 care, ,111« .' .' e Inal consideration and action of the House; but, 111 realIty, they dictate the COUrse to be taken, prescribing the ~eci~ions of the H.ouse not only, but measuring out, according to their own WII\S, Its opportulll.t1eS for debate a~d deliberation as well. The House sits, not for serious diSCUSSion, bu~ to sa~ctton the conclu_ sions of its Committees as rapidly as possible. It legislates 111 ItS committee_ rooms; not by the determinations of maj~rities, but by the resolutions of specially-commissioned minorities; so that It IS not f.ar from ~he truth to say that Congress in session is Congress on public exhibItIon, whIlst Congress in its committee-rooms is Congress at work.

GLENN R. PARKER AND ROGER H. DAVIDSON

POPULAR CONGRESSMEN AND UNPOPULAR CONGRESS

Americans paradoxically seem to love their OWI I memo. ber of. Congress while th in king litt le of Congress as a w lrole. "Based on national survey data, Parker alld Davidson conclude that Americans lise one set of stall- dards for evaluating Congress and another for ellalllat- ing indillidual members of Congress. The slolUness of Congress along with dissatisfaction with the policy re- suits of congressional action lead to negatille ella IlIa- tions of the institution as a whole. 011 the other halld, individua l members are rarely held accou ntable for f)ol- icy decisions of the Congress, bllt are ellaluated accord- 1ng to their IJersotlal qualities and level of service to constituents.

The past decade has witnessed the spread of public cynicism concerning estab- lished political institutions. The available evidence suggests that nlienatio n

Salt"':: From Glenn R. I'ark~r and Roger H. Davidson, "Why Do AmericlIls l.ove Their C(Jng~l;S ' men So Much More Than 1 hClr Congress?" LCKisiali/lc SI"r/iI's Q"fl/·llTi),. IV. I. Febru"r), () /9. ComparaTIve Legislative Research Celller. Reprinted by permission of the pllhlisher and lilt' authors.

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the IlolilY is :l fairly wid es prend phtnolne ' II ' (rOIIi . I ' f ' non, pcnetratlng a co untri es, II ringing to t l C ~ lIr ;:J LC fUlid a mental (Iu" st'l ' b hi ' , f It ), , , < - ons a olll'r c egltlm acy 0 po -

:u, I ili srirurlOn s ;l lld nlithol'ltIcs. htlC~ ' I ' , ,

A recurrtn g t lcnH': In Cl'itlqIlC S of the Anlcr ' I" I ' h ' ' , , , Ican po Itlca system IS t e cm- , di sma y ;lt th e lJl :lb tl lty of rhe gover nment to f ' d ' h

zen S " • 19 (, 3 64 ' per a rm , an Impe Imc nt t at Sey J11 0ur 1"lpsc t ( " ~ , ~p. -70) sin gles out as detrim ental to poli t ica l sta bil- it y. Felix hankful tel (19 30, p. 3) Lharact'Crtztd di stru st of Dcpress ion- era gov- c(llll1ent :15 an Indication that pcople fclt that government wa s unable to sati sfy Ihe needs of n Illodern SOUtty, In a later and presumably more benign era, Morris Roseni>e,rg (/ 951, p. 14) contended that 'Politics meant " very littl e to eople because It !t ter;l ll y docs !t tri c fo r th em, " and th at gove rnm ental action

P 'd d i u' I \~ conSI ere ly ma ny as Ir rc evant to th eir li ves" (1954, p. 364). Such a asture toward governlllent probably affects the public 's image of political of-

hcials . In fact, William C. Mitchell (1959, p. 693) has suggested that such officinls arc not Viewed as performing vital services because political functions Ihemselves are not conSidered as providing a societal contribution.

Publ ic assessments 'of gove rnmental p erfo rmance can be described i terms of three components: confide nce, impact, an d eva luation . Confiaence reflects the degree to which individuals have faith in the actions of their offi- cials and/or institutions. The extent to which governmental activity is perceived as nffecting an individual's life is a measure of th e imp-act of governmental per- formance. Evaluatiolls are explicit judgments of t1ie value the individual as- signs to that impact. In this research note we focus on the last-mentioned component-the content of public evaluations of one political institution, the United States Congress.

Citizens' evaluations are certainly important in and of themselves. But in re- porting these assessments, we too often overlook the bases of their judgments- that is, the criteria individuals use in forming their evaluations. T~ he ob'ective of thi s analysis is to describe the standards used in appraising Congress and its membership and to exami ne res ponse categories in an effort to gauge the likelihood th at certai n standard s ge nerate favorab le eva luations.

The findings are based on opinion surveys administered to national popu- lation samples (Harris, 1968; U.S. House of Representatives, 1977). Of partic- ular interest are the responses elicited from two open-ended survey items concerning evaluations of Congress and the respondent's representative. In both surveys, individuals were f sr aSKed how thex-wo uld evaluate e erfor- mance of Congress-excell ent, pretty good, ~nly fa ir, or poor. ,Respond~nts were then queried about the criteria u on which they based their evaluation. Later in die interview sessions the-sa me questioning was used to ascertai n re- SPOndent'~udgmenr of their r; presentativtl's performance in die U.s . ous,e of

epresentatives. The multiple-response narure of the ~pen-ended q~estlOn­ naire items allowed individuals the opporrunity to proVide as many dIfferent criteria as til d ' d Tile responses to the above items were then coded and

ey eSlre . d d 'f d' 'bl categorized h b ' f the criteria volunteere an, I Iscernl e, the f on t e aSls 0 I avorable or unfavorable nature of the responses.

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,

29 8 SECTION X

ANALYSIS

f t ly mentioned criteri on fo r evaluat'

, \' ' I' most requen 'I' 109 Dome stic po ICy IS t 1e I trnlity of dom estIc po ICY appears to h

II 'I) All gh t 1e cen " ,aVe Congress (Ta) e ',t lOU 968' till is the most frequently cIted basis f declined somcwhat Slllce late 1 , It s iated with domestic policy has ,or

I ' C ' . The valence asso C " a So

cva uatlng onglcss, WI 'I" 1968 domestIc polIcy seemed to d' I , I I ' I )'cars 11 c 111 1-change( 111 t 1e ast sevela ,< 'I t'sfied and dissatisfied with COn'

'd I .. 1.' , ., ally Into t lOse sa I "gres- VI e t lC e cctOlatc equ" ' I d d'stinctly negatIve effect III 1977· 93 ' I " " -h IlolIc)' actions la a I )

slona ,l(.:tlons, su~ , '\" as a basis for their evaluations of Co Ilcrccnt of those Cltll1g domestIC po ICY 'I f n-" nts of congresslona per ormance, gress were neg'Hive 111 theIr assess me ,

, I ' I , 196<8 I "I'etnam War's salience took Its toll on the popularity of' nate ,t1 .v , 'b ' f I '

G f I I 'ted foreign polIcy as a aSl s or eva uatlon, nearly ongress: 0 t lose w 10 CI ,

I ' d h d t-Ive evaluatl'ons Several years later, 111 the absence of two-t 1Ir s a nega " , major American involvement in a foreign war, few people mentioned foreign policy considerations in evaluating Congress. As tlle V.letnal~l War and other foreign ventures began to fade from media ~ttentIo~ and publI~ COnSCI?USneSs, domestic policy conflicts gained greater salIency WIth the publIc: The Ideolog- ical and partisan differences between those controllll1g th e WhIte House and Congress served to exacerbate the natural conflicts that the "sharing of power" produces, The resulting policy statements generated negatIve evalua- tions of congressional performance: in 19 77, three of every four mentions of legislative-executive relations as a basis for evaluating Congress were negative:

Another frequently mentioned basis for assessing Congress is the style and l pace of the legishtive process, In fact, there appears to be an increase in the saliency of the congressional environment as a basis for congressional evalua- tions: In 1977, one of every three responses made reference to the congres- sional environmcnt, and these references were distinctly negative. It seems clear that the congressional environment, like legislative-executive relations; tends to foster negative evaluatIon s of Congress.

In light of the saliency of the various criteria, it is not too surprising that eval- u:1tions of Congress are often negative .. The range and volume of policies and prob- lems for whIch Congress IS hel~1 accountable-by the media and the public-create numerous opportul1mes for dIssatisfaction with congressional performance. ["he cu~bersome legIslative process, which often gives the appearance of delay and in' a~tlon, may be a necessary evil for the constitutional system, but it is not an at- tnb~lte that appeals to th e public, Further, both domestic policy and the legislative envlronmcnt are frequcntly mentioned 'lS b'lses f I' C I sllort I

' , ',or eva uatll1g ongress, n , t 1e most salient conccrns ot the 1 II' I , . " IU) IC appear to le those that frequently generate negative IInpreSSlOns of congressional perform ,

Th ' ' f ance,

I e""Ct:Jten~ or evahming Congress and those applied.in evaluating individ-

ua rCRrescntatlves show few par' " I E I ' . , < b b d : •. 1 e s, "va uanons of representatives tend to e ase upon constituency scrvic 'd >d I ' , • , ohncumbenrs (T;lblc ') II , e pr~vl e t le dls,trIct and the personal attnbures

I-louse mcmbers in a fa-)' ~I 'I~dton, these cnteria tend to place incllmbent , ,. vora e Ig 1t: most of what people hear (or retain) about

S c a n

n e d

b y C

a m

S c a n

n e

rt

'"' ID ID

BAsES OF EVALUATION

Policy Domestic Foreign-Defense

Legislative-Executive Relations Presidential Support Presidential Opposition

Congressional Environment Congressional Style and Pace Congressional Ethics Congressional Self-Seeking

Group Treatment

Other

Repeat of Closed-Ended Question

Don't KnowlNot Ascertained

Total

P ERC ENT OF

ALL RESPONSES

(N = 1370)

51.8 46.3

5.5

6.5 3.1 3.4

16.0 10.2 2.4 3.4

4.2 6.4

12.0 3.0 --

99.9

t 968'

FAVO RAB LE

54 35

72 56

38

66 27

U NFAVO RABLE

46 65

28 44

62 100 100 34 73

P ERCENT OF

ALL R ESPONSES

(N=18t3)

30.8

19.6

37.1

1.4

8.4

2.8 100.1

30.1 0. 7

19.6

23.1 4.9 9.1

1977"

FAVO RABLE

7 100

25

30

50 33

U NFAVO RAB LE

93

75

70 100 100

50 67

'Question: "How would you rate the job Congress did this past year in 1968-excellent, pretty good, onl y fair, or poor? Why do you feel thi s wa y? Any oth er reasons?"

b Question: "Overall, how would you rate the job Congress as a whole-th at is the Hou se of Representati ves-has done durin g the pa st 2 or 3 years- wou ld you say Congress has done an excellent job, a pretty good job, only a fair jo b, or a poo r job? Wh y do you feel thi s way ? Any other reason s? "

J

S c a n

n e d

b y C

a m

S c a n

n e

r

.... 0 0 TABL E 2 Bases of Evaluations of Members of Congress (in percentages)

1968'

P ERCEN T OF

A LL R ES PO N SES B ASES OF EVALUATION ( N = 1258) F AV O R AB LE

Po licy 11.2 Vag ue Reference 7.9 69 Sp ec ific Reference 3.3 46

Co nstitu ency Se r vice 49 .8 Di strict Se rvice 28.1 74 Constitu ent Ass ista nce 2.1 100 Direc t Co nditi o ns 2 .7 9 1 Info rm s Co nstitu ents 16.9 18

Persona l Attributes 26 .9 Pe rsona l C ha racte ri sti cs 16 .5 84 Reputati o n 9 .4 95 Perso na l Acqu a in ta nce 1. 0

Gro up Trea tm ent 6 .4 58

Other 0. 3 50

Re p ea t o f Closed- Ended Questi o n 2 .7

Do n't Kn owlNo t Asce rtain ed 2 .7 , To ta l 100 .0

P EKCENT OF

A LL R ES PONSE...<;

UNFAVO RA BLE ( N = 1232 )

3.0 3 1 1. 5 54 1.5

37 .7 26 13 .3

12 .6 9 3 .7

82 8 .1

35.6 16 6 .7

5 28 .9

4 2 3 .7

50 10 .4

9. 7

100 .1

19 77'

F AVOR ABLE

100 100 100

82

100 6 7

100

5 7

U N FA\,O RAB l E

100 100

18

33

43

a Q ues tio n: "How wo uld you ra te t he se rvice your re pre sen ta tive gi ves i n loo king a fte r ( hi s di st r ict in Was hing ro n-exce l/ cllt. pretty good, o nly f:lir. o r r oo r ? Wh y do you fed th is way? A ny o th er rea so ns ?" b Q ue st io n : " Ov~r a \\ , h o w wou ld yo ur fatc th e tob th e cong re ss m a n w h o has hc('n n"presenti n g t hi s a re:l d u ring t he IXls t 2 o r J Yt."' oJrs ha s d o ne - wo uld .Hm s ay yo ur congre ssm :lll h a s d o ne a n exc ell e n t io b . a p re tt y go o d jo h . a fair jo h . or a p o or jo b ? W h y d o yo u feel t h is wa )'? A n ., · o che r rt~.1 S0ns? ··

..

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TilE CONGltESS 3 01

be ntS is favorable. In fact, th e rep uta ti o n of H o use me mb ers was th e m os t , Ulll 'd " f . InC tl}' mentl o ne c rite ri o n o r eva lu a ting th e pe rfo rm a nce of in c umb e nts : f £(uen fl· ' . , ~ 1"1170 percent 0 t 1e lesponses refer to some aspect of the IIlClimbents

rC t 1" (; . nlO , ency service or personal attributes. oflsntu . ' , f '

C Poli cy actl~n s , In co ntras t, a re In requ e ntl y c ited as c riter ia fo r eva lu a tll1 g

P rese nta ti ve. 'T hiS may be a biesslllg to House members inasmuch as ref-

[he re bl' I' , db' , " f flces to pu IC po IC} ten to e negative In content. T he II1frequ en t us e 0 ere I' , criteria a nd th e e mph as IS on p erso nal c ha rac teri sti cs a nd di stri c t se r vice po IC} , , I' fl ' onote pOSitive eva ua tlons 0 t 1e II1 c umb ent. Rarely are the latter elements pro 'ed in a negative light. In sum, evaluations of Congress and of individual vle~lbers are apt to differ in valence because of the disparate criteria that are nl

e lied to each. Congress is held responsible for policy and for management of

apP " 1'1 . d' 'd I I d' the legislanve envIronment, w 11 e 111 11'1 ua representatives are eva uate 111 terons of theIr personal characteristics or constituency service.

CONCLUSIONS

Clearly, quite disparate criteria are used in evaluating Congress and individual representatives. Furthermore, one's eva luative criteria influ ence th e n a ture of one's apprai sal : certain criteria are associated with positive evalll~tions, w hile other criteria are identified with negative appraisals. That is, the features of congressional activity that attract the concern and attention of individuals af- fect how congressional performance is evaluated. It also seems clear that eva l- uations of re prese nta tives rest more o n se rvice t o th e di st r ict th a n o n p o licy conce rns; mo reover, such service generally is perceived in a favorable light by constituents. It is no wonder, then, that members of Congress pay so much at- tention to constituency service-it generates a positive image. (2ongress, on the other hand, is assesse d more in ter m s o f its po li cy actio ns, which tend to pro- duce mi xed (o r nega tive) eva lua ti o ns o f th e ins tituti o n.

These findings cast new light on a paradox posed by Richard F. Fenno, Jr.: How can we account for the contrast in the popularity of Congress on the one hand, and individual representatives on the other? "If our congressmen are so good," he asks (1975, p. 278), "how can our Congress be so bad? If it is the in- dividuals that make up the institution, why should there be such a disparity in OUr judgments?"

One possible explanation for this disparity is tbat peo Rle simp }' app~ 0:"1--- tge m sta ndards o f juag ment to Congress as an in stitution and to indi vidual

legisl ators. Fenno speculates (1975, pp. 278-280) that individual legislators are judged on the basis of personal style and policy views. Stylistically, we ex- pect OUr legislators to display a solicitous attitude toward constituents-to ap- pear frequently in the district, to maintain contact through the media, and to \York On local projects and individual cases. ~s for po lic}' vi ew s, we a sk m e re ly

'~~ar-our legislators not stray toO far from the no rm as expressed by a majority COnStItuents.

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302 SECTION X

OUf data support Fenno's speculations, and they further ind' 'k I' ICate h

much precedence stylistic considerations ta ' e over pO ICY concerns, No 0\1' than 15 percent of our respondents, by the most generous reckonin I1lore policies in explaining how they rated their representative, Unless tl g, Cited

f d d 'I ' I' b 1ey We speci ic, t~ese policy references ten ~ to tl ~ ~n t 1e 1I1cum ems' favor, For re nately for I11cumbents, few voters vOice specific policy concerns-indeed tu- voice policy concerns of any kind-in evaluating members' performan ' fell' , ' , Ce,

For Congress as an institution, 111 contrast, citizens enunciate the t k resolving national problems. This is a far more hazardous assignment th:~ of izens set for individual representatives. Many problems are virtually insol ~~­ on a national scale; even if they were solved, would we be able to ascertain \ e fact? As we have seen, in assessing Congress, respondents mention policy ~ at tors more frequently than any other considerations. In the late I%Os dom a~-

, , ' estlc policy concerns tended to produce favorable assessments, whde foreign poli concerns yielded critical assessments by almost a two-to-one margin. A deca~ later, the valences were reversed. Legislative-executive relations also produce mixed reviews: some people expect Congress to fall into line behind the presi~ dent; others want it to resist White House initiatives and act as a watchdog, Fi- nally, ,what citizens read and hear of Capitol ~ill styl~ ~arries an overwhelmingly negative message_ Scandal and venality are highly vIsible features of legislative institutions; expertise or courage are less well publicized.

The present data, in short, give eloquent testimony to the reasons why we "love our congressmen so much" yet denigrate the institution of Congress_ Indi- vidual legislators are evaluated in terms of personal style and district service-- attributes upon which few voters are able to make comparisons with other legislators. But Congress-as-institution is evaluated largely on the basis of policies-which tend to be intractaole and divisive.

In view of the divergence we have found in the public's premises in assess- ing congressmen and Congress, incumbents are entirely rational in emphasiz- ing constituency service and equipping themselves with the necessary staff and perquisites to do the job. Members of the U.S. House have historically had a firm grassroots base, cultivated by constituency service as well as by loealist legislative roles. There is nothing novel about this: indeed, the House was de- signed to operate in this fashion (Wesberry v. Sanders, 1964). Yet, students of Congress agree that recently legislative roles have shifted perceptibly in the direction of constituency service. As Fiorina (1977, p. 61) puts it:

Congressmen are going home more, pressing the flesh, getting around. They are building a personal base of support, one dependent on personal contactS andJavors,

The present emphasis upon constituency errand-running, which appears to date from the mid-1960s, contrasts with at least some of the dominant House norms of the previous generation or two. " I

If the push toward errand-running is conceded, there remains a cnnca

issue of cause and effect. Put bluntly, the question is: In ere "ring r e achine!")'

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r TH E CONG RESS 303

, constituency co mmunicati o n a nd se rvice d " . . (- their ow n re-e lec ti o n o r did tl .' Id legi slato rs mainl y contri ve to

05Ure ' le y Simp\.' re d h e ublic dem a nd ed? I Spon to w at th ey ass umed the P I ' . '1

Perhaps t li S que stion WI I never be d ' . an swe re with t' A h 'e need to re view carefully th ' ce r aInty. t t every

least, \\ gressional establishment C sheq uence of events tha t produ ced th e pres- ot con < ,W it special art ' h d d f h

e Survey data sh o uld be re- I ,_ d enn on to t e eca e 0 t e 19605, f . d d' h' . danaf} ze to determine legis lators' and citi zens'

SO mm urmg t IS perlO 0 tim h state , '. e, eve n tough such data are bound to : Id a fra gmentar} a nd I11c o nclu slve picture, )Ie f' d'

The present 111 mgs nonetheless leave little f db '

i

. , . f ' roo m or ou t concern ing he PublIc s ex p ect ati o n s o r legislators' pedornla T h d . d' h t . . , . nee. e ata In lCate tat, whereas c~tlzens exp~c~atlons for Congress are va gu e and anchored to gener- alized policy an? stylIstic concern s, their expectations for their own represen- tatives are unmistakable. Legislators are jud ged ve ry largely on the way they serve their distrIcts and commul11cate with them. Successful performance of this aspect of the re~r~sentative's jo b typically pays off hand so mel y, as indi- cated by mcumb ents high rates of re-electi on. Yet such judgments on rh e parr of voters imply sanctions as well: legislators who lose touch or ~who seem pre- occupied with national issues may be disciplined by decli ning support or eve defe at. A few " lessons" of this type will suffice to persuade other legislators , who after a\l are politicians, to shift their job pri orities,

Is it possible then that public expectati on, rather than legislative connivance, is the cause of the bureaucratic establishment that su pportS constituency-oriented policy ma kin g? If so, we may wish to mod ify the currently popular notion (Fiorina, 1977, p, 3) that congressmen are to blame for this state of affair~. iT~e public may ell be die Key to tlie Washington establishment, If the publIc did not create this establi shment, they have inspired and sustamed It, and are apt to

continue to do so.

NOTES

d d on re ss ion al evaluation questions in the 19 77 sun·ey I. The data for the open-en e c g . (19 77) We have rec oded the se data . b' d f U S H se of Representatives . .

Ilere 0 tame rom:. '. ' ou . . 196 8 data in order to facilitate compansons mto th e categones utili zed m codmg the I I' A description of the recoding

d f 'ona eva uatlons. an sharpen patterns 0 congressl scheme is ava ilable from the authors.

REFERENCES

h N d r Says Congress Is 'The Broken Fenno, Richard F. , Jr. , 1975 . " If, as~~lpCong~e~smen So tv\uch? n in Norman J.

Branch' How Come We LOI'e I t' alld Reform. New York: Praeger, , . CI a/lge' Eva /I 10 11 Ornstein, ed., CO llgress ZIl ) • . pp 277-7 87 f I Washingto ll Establlshmellt. New

F· . _ . Ke),stolle 0 t )e lorina , Mo rris P. 1977. Congress: Haven: Yale University PresS.

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I I

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I I ... rrl~t l t'UI' \ \ ,~I JtC\ UII r.a It,.anl l rulll Ih

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l

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Rr I E\XI Q E~T I N~

On ",h .1t h .IW, d o c Ed mund Burke o nc\ude th at members of an clecte I \ ' I lti\ e b od y would hc tt e r represe nt th e vote rs bv reh' inl' o n th eir own\' ud o-I II . I ' , , 0 <'

• tit th.11l by mir roring t ie \ lew of th eir o nstitu ent s: Do \·o u wa nt yo ur 0

1 ber of o n l:\re 5 to fo ll o w Burke' advi e: '

tllrn1

Itl Feder,Ii, st ;-'; 0,- Ja mes ~bdison a rg ue th at th e ner d to win \'o te wtll 2. ure th.1t all p eu pk Will h e adeq uatel y repr e ent ed in o ngre - , D o ),O ll thmk j > r ha pro ven h lln ri g ht : \X h at gro up mi ht now a ~ f(T with hi op ti - hl>to ' • "

t'l predicti o n abou t ho w rcp rese nt a tl\'es \\' uld bch~\'e' OIlS

3, Alth o ugh th ere h a\ e h ee n m.l11 ~ refo rm in o ngre ss iner \'1; il slln', boo k \1'<1 publi hed. d yo u thl!1k th a t on re ha really ch:lI1 gc d '

t Do th e fmdl!1l:\' of ,Ien n PJ rker Jnd R 'c r D.I"d <o n reflel' t y ur perrl'p - ' of o n,'re, ,' I lo w d o P.lrk er ,lI1d DJ\ Id n c'pl.lln th e ,Ipp.lrent o ntr ,l-

UOlb ,,'

d tori' V \(' W' held h ) th e pllht. , r~ ·.ml ml! Indl\ I 11I.11 melllll'rs wr 'lI th e I , ogress as :In lI1 , tltlitl Un:

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XI

THE PRESIDENCY

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308 SECTIO N XI

, \MILTON AI.EXANDER H f

5 CREATING THE PRESIDENCY 5 .

. e WashillgtOll's aide and Alexallder Hamrltoll, Geor~ used Federalist No. 69 to first Secretary of the Treasl~r)~ ro IOsed ill the COII- defmd the powers of the Iilesldellt PI.

. . I . d tl at although executive powers StltlltlOlI He exp (//I1e I . f . . . 1 I d fa silwle cine executwe as

were to be /11 t Ie Jail so" . . . . K· 1 1 1 d b . Groat Britaill the slI/IIlantles to 1111; t Ny la eell /11. , .. I h

d d . 1 t tl e Ulllike the Bntls I 1I10llarc , George ell e ng I ler. Id b . I I · · · d· He cou e 1111-the presidellt was severe Y mute '. . .

1 d r. t· 1 brl·bery alld other Crllll es and 1111S-peac Ie ,or leaSOI, • d b ·dd 1 . fl· latl·OIl COld e overrl en demeall ors; liS veto a egis .

by strong majorities in the Congress; and the president collid not even agree to a treaty without the advice and consent of the U.S. Sellate. Hamiltoll wanted It ullam- biguously IInderstood that the essentwl dlfferellce be- tween the Killg of Englalld and the proposed President of the United States was that "on e can perforlll alone what the other call do ollly with the COIICllrrence of a branch of the legislatllre. "

I proceed now to trace the real characters of the proposed Executive, as they are marked out in the plan of the convention. This will serve to place in a strong light the unfairness of the representations which have been made in re- gard to it.

The first thing which strikes our attention is, that the executive authority, with few exceptions, is to be vested in a single magistrate. This will scarcely, however, be considered as a point upon which any comparison can be grounded; for if, in this particular, there be a resemblance to the King of Great Britain, there is not less a resemblance to the Grand Seignior, to the khan of Tartary, to the Man of the Seven Mountains, or to the governor of New York.

That magistrate is to be elected for fOllr years; and is to be reeligible as often as the peo~le of the United States shall think him worthy of their confi- dence. In these Circumstances there is a total dissimilitude between him and a king of Great Britain~ who is ?n hereditary monarch, possessing the crown as a patrImony descendible to hiS heirs forever; but there is a close analogy be- t\~e~~ him ~nd a governo~ of New York, who is elected for three years, and is reelIglble without IUl1Itanon or intermission. If we consider how much less

SOllree: From The Federalist, No. 69 (1788).

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- T i ll PI<I- ' I IJI N C Y

tim e wou ld be requi s ite f " br ' ", tll ~ n I'o r e ' II ' I ' o r eSt;) IS,hlll g a da nge ru us mfiu ence III a s lll g ic Sta re , .. SL l ) IS 1 1 ng a I k . ' 1"1 _ ,I I I, I ," l In ucnce th ro u~ho l1t t he Un ited Stares, w<.: Ill ust Lo ne ue c t lat a l u ra tl f r. .' , '

d " I' un 0 ,011 1' vea rs to r th e C hi ef Ma g ist ra te of th e Uni o n I

a eg l ee u pe r ma ne ncv f I I d ,', ' ( I

. ' a r ess to x ' rcaded In th a t of hee th a n a d ura ti o n () t nee \'(' a rs tur a c o rre - I' ff'" ' , , s po ne Ill g 0 IC e m a slll g ie sta te,

T he Pres ide nt oi th e U ' ' I S ' , ' I d

" n ltee ta tes wo ul d be li ab le to be Im peac hed , tri ce , a n , u p o n co n Vic ti o n ()f t n - b ' b I I ' I ' ' d re asu n, rI ery, u r or l e r 1'1' 1 c rim es or ml s e - m ea n o rs, re m o ved fr o m ff '" d II f ' ' , 0 Ice, a n wou e a terwa rd s be ha bl e to prosec uti o n a n d p Ulll shm e nt in til e 0 d ' f I T I f I k ' - G , , , r In a rv co ur se () aw. lC pe rso n 0 t lC ' lIl g o t rca t Bnta lll IS sac red a nd in violabl e; th ere is no co nst ituti o na l tri b un a l to w hi c h he is a m e n a bl e; n o puni shm e nt to w hi c h he ca n be su b jec ted w ith o ut in vo lvin g th e Cri SI S of a n a ti o n a l revo lut io n. In thi s del ica te a nd imp o rta nt ci rc um sta nce o t p erso n ;] 1 res p o n sibilit y, th e Preside nt o f Co nfedera ted Ameri ca wo uld sta nd up o n no b ette r g ro und th a n a gove rn o r o f New Yo rk , a nd upo n wo rse g ro un d th a n th e gove rn o rs o f Ma ryla nd a nd Del awa re.

Th e Preside nt o f th e Un ited Sta tes is to have p owe r to return a bill , w hi c h shall have p as sed th e two bra nc hes of th e leg is la ture, fo r reco ns idera ti o n; a nd th e bill so return ed is to beco me a law, if, up o n th a t reco ns ide ra ti o n, it be ap - proved by two third s o f bo th ho uses. Th e kin g o f G reat Brita in, o n hi s pa rt, has a n a bso lute nega ti ve up o n th e ac t s o f th e two ho uses of Pa rli a ment. Th e di s use o f th a t p o we r fo r a co nsidera bl e tim e pa st d oes no t a ffec t th e rea lity of its exi ste nce; a nd is to be asc rib ed wh o ll y to th e crown's hav in g fo und th e m ean s o f s ub stitutin g influe nce to a uth o rit y, o r th e a rt o f ga inin g a m a jo rity in o ne o r th e o th e r o f th e two ho uses, to th e necessit ), o f exe rtin g a preroga ti ve which co uld se ld o m be exe rted with o ut haza rdin g so me d eg ree o f na ti o n a l ag- ita ti o n _ Th e qu a lifi ed nega ti ve o f th e Preside nt differs wid e l), fro m thi s a bso lute negati ve o f th e Briti sh sove reig n . .. .

The Pres ide nt is to b e th e "co mm a nd e r-in-c hi ef o f th e a rm y a nd navy of the Unite d Sta tes, a nd o f th e mil iti a o f th e seve ra l Sta tes, wh en ca ll ed int o th e ac tual se r vice o f th e Un ited Sta tes . H e is to have po we r to g rant re prieves a n d pardo ns fo r o ffe nces a ga in st th e United Sta tes, ex cept in cases o f imlJeac hmellt; to reco mm e nd to th e co nsid era ti o n o f Co ngress suc h meas ures as he sh a ll judge necessa r y a nd ex p edi ent; to co nve ne, o n ex trao rdin a r), occas io ns, bot h ho uses o f rh e legisla ture, o r e ithe r o f th em, and, in case o f di sa gree m e nt b e - tween th e m w ith respect t o the tim e of adjournmellt, to adj o urn th e m ro suc h time a s he s hall think prope r; to ta ke ca re that th e law s be faithfull ), exec uted ; and to co mmi ss io n a ll o ffi ce rs o f th e United Sta tes . " In mos t o f th ese p a rti c u- lars, th e p o we r o f the Pres iden.t will re semble equ a ll y th a t o f the kin g o f G re at Brita in and o f the gove rn o r ot Ne w Yo rk. Th e m os t mate n a l POlllts of diffe r- ence a re th ese:-First. The Pres ide nt will have o nl y the occasio nal comm a nd o f s uc h parr o f th e militi a o f th e na ti o n as by legisla ti ve provi s io n may b e c all ed into th e ac tu a l se rvice o f th e Un IO n. The klll g o f G reat Bnralll a nd th e gove r- n o r o f Ne w Yo rk have a t a ll rim es th e entire co mm a nd o f a ll th e miliria within th e ir seve ra l jur is di c ti o n s. In thi s a rticl e, th e re fo rt' , rh e p owe r o f rh e Pres ide nt wo uld b e infe ri o r to th a t o f eithe r the mo n a rc h o r the gove rn o r. Secolldly_ The

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:3 10 S[CrIO N XI

. · .f f the arm)' and nav), of the United . I . I . nder-lI1 -chl~ 0 . II I . h h I'res lll'nr IS to )(' COlnl11.1 . II I wnllna), t Ie same Wit t at f

. I ' . IntI' \roll ( )e I . . TI . 0 Sta tes. In Ihl s resped li S .llIt 10 . ch infenor to It. . . . Jlrdly. Th.

. . . . I . Ihsrance IIlL! . I e th e kin g 0 1 Great Bnt.lln, mt 111 SI I would extend to a I ca ses, except

. I . . Ject to part on s, . '11 l p o we r (If the Pre SI( Cllt , In rL 51 . Ig r of thi s marrer, It WI )e neces_ I ( I The better to JUl ff f I Jose 0 illl/I (,d ( )11 11' 111. • • • I C IStl'tllticJIl the 0 ence 0 trea son I'S

I I' pose( 01 ' sary to re(oll ed, that, I)' tIL pm . 1St tes and adhering to their enemies . . I I ' I the Unlte( a . , ' . . ,

IlIlllte( "to l'Vylllg \\'.If UpOI .. I . I. , the law of New York It IS confined . . I . I J (,rt· '111(1 t 1.lt u)

g lVlI1 g t 1l'lll .lI l :11l (0111 ( , . I I)' " I 1t ('In o n I)' adjourn the national . I ' . ' 1 I I ' F trlhl), TIl' reSil el , .

Wit lin 5 11111 ar H) UI1l S. (JI . • . . • IJout the time of adjournment . . I . I . . f dl s'lgreelll ent a .

legi s lature In t 1e s lIlg e c.l S ~ (). I' Ive the P'Ir1iament The gov . . . I 'ue or even C ISS O " . er-

Th e Briti s h 1ll0llarC I ma)' promg I I . I t re of this State for a limit d nor of New ) o rk Illa), al so prorogue t 1C egi s al,u I d t . e

.' ..' . ns ma)' ue emp o),e 0 ver), ImpOrtant timc; a po wer which, 111 certain s ltuatlo ,

purposes. . d f h S The President is to have power, with th e adVice an consent 0 t e enate,

I. . . I d t thirds of the senators present concur. The klOg to Illa..:c treatlcs, proVIC e wo . h . . f G B · · , I I · d ~I)soillte representative of t e nation 111 all for-o rcat ntalll IS t Ie so c an <0 • . . H c~n of his own accord make treaties of peace, com-elgn tran saCtiOIl S. e <0 • • m~rce, al/iance, and of ever), other description. It has been inSinuated, that his authority in thi s respect is not conclusive, and tha~ hiS conventions :-v!th for- eign powers are subject to the revision, and stand 1Il need of the ratl.fJcatlOll, of Parliament. But I believe this doctrllle was never heard of, until It was broached upon the present occasion. Ever), jurist of that kingdom,. and every other man acquainted with its Constitution, knows, as an establIshed fact, that the prerogative of making treaties exists in the crown in its utmost pleni- tude; and that the compacts entered into b)' the ro)'al authorit), have the most legal validity and perfection, independent of an)' other sanction. The Parlia- ment, it is true, is sometimes seen emplo)'ing itself in altering the existing laws to conform them to the stipulations in a new treat),; and this rna)' have possi- bly given birth to the imagination, that its cooperation was necessar), to the obligatory efficacy of the treat),. But this parliamentary interposition proceeds from a different cause: from the necessit), of adjusting a most artificial and in- tricate s),stem of revenue and commercial laws, to the changes made in them by the operation of the treat),; and of adapting new provisions and precau- tions to the new state of things, to keep the machine from running into disor- der. In this respect, therefore, there is no comparison between the intended power of the President and the actual power of the British sovereign. The one can perform alone what the other can do onl)' with the concurrence of a branch of the leglslat~re. It must be admitted, that, in this instance, the power of. the federal Executive would exceed that of any State Executive. But this arISes naturall), from the sovereign power which relates to treaties If the Con- federacy were to be dissolved it would become . h h ' h Exeell-. , a questIon w et er t e ' ~lves of the severa! States were not solely invested with that delicate and Important prerogative.

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T ill I'KI,II)I '( Y 3 I I

. Th e Presi d e nt is a lso au ._ . ' .. mlill ste r . T hi s tl I ' th o n zed to recc lw amba ss ador;, and ot he r rllbll ~

, 10 u g 1 It h a b ' . . m a rre r of di gn itv th f ; S er n a nch th e rnl' uf dccl :Hll a ti o n. " mor c it

. a n () au th o I " . ' 11 I . I co n seque nce in th . d ' . .nt )". t I;' a C1rCUI11 Sta IKe whICh WI lC WI I lo ul

. c a mlnl Stratlun of th ,,.. . . d ' f · ' c()n - ve l1l e nt that it sl lei b . t gU\ lrnI11 Cllt, ,In It was 3 1 l110re

; IOU e 'lrr'ln ' d ' I ' Id I nccess it\, of _ . ;; ge 111 t lI S 111 3nll e r, th a n th a t th e re shou )c it . l OllVenll1g th e I· . ' I ..

a rr iv'll o f' ~ t" '. eg is ature, or o nt' o t Ir s brallch es, UpU Il eve r y , ; "orelg n mlili ste I h . d d

. r, t IOU); It we re me re ly to take th e place of a d e- pa rte pre ecesso r.

Th e Pres id ent is to ' . . . . nOl11ln<l[e , and, /U lt/; t/;e adllier alld CfJIISe llt o( t/;e Sel/ -

ate, to appO ll1t a mba ssado rs' ld I bl ' .. . I f I 5 C

. ; "I Otl er pu Ie nlln l> ler • lut ges 0 t 1e upre mc o urt, a nd In ge n e ra l a ll o ff ', · . fl ' I 5 I ' I I d . ;, lLers 0 tI e Unltc( tate s es ta l lt shed Jy aw, a n

wh ose appO intm ents aro I ' ' d f . . . ' c no t o t le rWl se prov i ed o r by th e Cu nstltutl o n ... .

. H ence It a ppears th a t, excep t as to th e co ncurrent auth o rity of the Presi de nt 111 th e a rticl e of trea ti es, it would be difficult to determine whether th a t ma g is- trate would In th e aggrega te, possess more or less power th a n the governur o f New York. And .It appears yet 111 0 re un equi voca ll y, th a t there is no pretence for th e para llel whICh has been arrempted betwee n him and th e kin g uf G rea t Brtta ll1. BLit to rend er the co ntra st in thi s respec t stillm o re strikin g, it may be o f use to throw th e princ ipal c ircu mstances o f di ss imilitude inro a close r g roup.

The President o f th e United 5tates would be a n offic e r elec ted by th e p eo- ple for (ollr yea rs; th e king of G reat Britain is a p erp etual a nd hereditary prince . The o ne would be am enabl e to perso na l puni shm ent a nd di sg race; th e person o f the other is sac red a nd in vio labl e. T he one would have a quali(ied ne ga tive up o n the acts of th e leg islati ve body; th e o th er ha s an absoillte nega - tive. The o ne would ha ve a right to co mmand th e milit ary and naval fo rces of the nati o n; the o ther, in additi o n 10 thi s ri g ht, possesses th a t o f declaring war, and of raising and regulating fl ee ts and armies by hi s ow n authorit y. Th e o ne would have a co nc urrenr power with a branch o f th e leg isla ture in the forma- ti o n of tre a tie s; the o ther is the sa le possessor of th e power of makin g trea ti es . The o n e would have a like co ncurrenr auth o rity in appointing to offic es; the other is the sole author of all appoinrments. The o ne can confer no privileges whatever: the o th e r ca n mak e deni ze ns of aliens, no blemen o f commoners: can erect co rp o ration s with all th e ri g hts incident to corporate bodies. The one ca n pre sc ribe no rul es concerning the co mm erce or currency o f the na- ti o n' the o th er is in severa l respects the arbiter o f co mmerce, and in hi s ca pac-, ity can es tabli sh markets and fair s, ca n regulate weights and meas ures, ca n la y embargoes for a limited tim e, can co in mone y, can a uthori ze o r prohibit th e circulation of for eign coin . The one has no pa rticle of spi ritual juri sdi cti o n; th e o th e r is the suprem e head and gove rnor of the na tional church! What an- swe r shall we give to tho se who would persuade us th a t thin gs so unlik e re - se mble each other? The sam e that o ug ht to be given to th ose who tell us th a t a government, the whole power of which would be in the ha nd s o f th e elective and periodical se rvant s o f the people, IS an a ri stoc racy, a mon a rc h y, and a

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3 I 2 SECTIO N XI

ABRAHAM LIN CO LN

56 . THE PREROGATIVE THEORY OF THE PRESIDENCY

. I' I' "p a <7ative ,. approach to President Abra Jam L/Ilco n s rer {> • • presidential powers luas first stated by E~lglish polttlcal theorist Jolm Locke in his Second Trea ti se of Govern- ment (1690)-that there must be "a latitude left to the exeClltive power to do mally things of choice which the laws do II Ot prescribe." In this letter to the editor of a Kentu cky newspaper, Lin coln recognizes that his e1ec- tioll to the offi ce of president of the United States did not automatically give him the authority to impose his strong personal opposition to slavery on th e nation as a whole. On the other hal1d. haz!il1g...taken 411 oath " to preserve~ rotect uL.de{e1ld the Constillltjou of tkfJ Unite States," Linco ln believed that extraordinary steps were justtfied ill order to save the union. These steps in- cluded violating sOllie provisions of the Constitution if it was necessary to save the COUlltT')1 from being split apart over the issue of slavery. Lincoln believed that it would have been a breach of his oath of office not to have taken all necessary steps to save the llllioll. His claim that he could violate the Constitution in order to save the Constitution remains the strongest assertion of pres- idential power ever made by a U.S. president.

LEITER TO A. G. HODGES EXECUTIVE MANSION, APRIL 4, 1864

My dear Sir; ",,:ou ask me to put in writing the substance of what I verbally said the other day In your presence, to Governor Bramlett ~ d S D ' I

b f II un enator lxon. t

was a out as a ows: "I am naturally antislavery. If slavery is not wrong h" I

cannot remember when I did not so think and feel 'd' notllhn g

IS wrong.

d d h h 'd ,all yet ave never un-

erstoo t at t e presl ency conferred upon me a 'd ' n unrestncte nght to act

Source: From Jo hn Nico lay and Jo hn Hay, eds., The Complete Wor • (New York: Francis D, Tand y Co., 1894), pp. 65-68, This letter to 1s of Abraham Lincoln. Vol. 10 Frankfort, Kentuck y, CommollllJealth wa s used as a campa ' d lb ert ~. H odges. editor of the

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THE PRE SIDENCY 3 13

officially up o n thi s judg mel t d f' . Id h b f I an ee lm g. It wa s in th e oa th I took that I wo u , to t e es t 0 nwabilit . .

. I U ' d S I . < y, prese rve, protect, and d efe nd th e Cons tituti o n o t tI e nlte tates . could k I " . . . . I . no t ta e tI e o f bee wlthom ta klll g th e oa th . No r was It ill Y view t l a t I Illi g ht t k I .

. . I . a e an oat 1 t o ge t power, and brea k th e oa th III usm g t Ie power. I understood I ' . . . .. . I .

I f b d ' too, t lat III Ordlllar y clvd admllllstratlon t li S oat I eve n o r a e me t o pra . II . d I . . . I · < Ctlca y III u gc Ill y primary abstract Judgment on the mo ra question of sla ve r)' I I d II' I d . , d .

A d . la PU ) Ie y ec lared thiS man y tll11e s, an 111 man y ways. n I aver th 'n t I' d I I . . . d f b .' , 0 t li S ay, lave d o ne no o ffICial ac t III mere e -erence to ill Y a stract Jud g m d f I' .

. em an ee IIl g o n slaver y. I did und e rstand , how- ever th at Ill )' oa th to preserv tl C '. I I f b ' I'

' e Ie o nstltUtl o n to t Ie Jes t 0 my a I Ity imp osed u pon m e the dut u o f . b '. I .

. .. prese rvlll g, y eve ry IIldl spensa bl e mea n s, t lat gove rnm ent-that nati o n of I' h I C . . . I "Xf . , w IIC t lat o nstltutl o n wa s th e o rga llJc aw. , as

it p OSS ible t o lose th e nati o n and yet preserve the Co nstituti o n? By ge neral law, hfe and hmb must be protected, yet often a limb mu st be a mpmated to save a hfe; bur a life IS never Wisely g iven to save a limb. I felt that me as ures otherwise uncon stitutional might become lawful by beco ming indi spe nsab le t o the preservation o f the Constitution through the preservation of th e nation. Right or wrong, I assume this ground, and now avow it. I could no t fee l that, to the best of my a bility, I had even tried to preserve the Constitution, if, to save slav - ery or a n y min o r matte r, I should permit th e wreck of gove rnment, countr y, and Constitution all together. When, early in the war, General Fremont at- tempted military e mancipation , I forbade it, beca use [ did not then think it an indispensable necessity. When, a little later, General Cameron, then Secretary of War, suggested the arming of blacks, I objected because I did not yet think it an indispensable necessity. When, still later, General Hunter attempted mili- tary emancipation, I again forbade it, beca use I did not yet think the indis- pensable necessity had come. When in March and May and July, 1862, I made earnest and successive appeals to the border States to fa vo r compensated emancipation, I believed the indispen sable necess ity for militar y emancipation and arming the blacks wo uld come unless averted by that measure. They de- clined the proposition, and I was, in my best judgment, driven to the alterna- tive of eithe r surrendering the Union, and with it the Constitution, or of laying strong hand upon the colored element. I chose the latter. In choosing it, I hoped for greater gain than loss; but of thi S,. I was not entirely confident. More than a year of trial now shows no loss by It 111 our ~orelgn relations , none m Our home popular sentiment, none in our white military force-no loss by It anyhow or anywhere. On the contrary it shows a gam of qUite a hundred and thirty thousand soldiers, seamen, and laborers. These are palpable facts, about

I . h f h can be no caviling We have the men; and we could not w llC ,as acts, t ere , . have had them without the measure.. .

"A diU 'on man who com pia illS of the measure test himself n now et any 01 ' . b II' b f

b " d . I' e that he is for subdumg the re e IOn y orce of y writing own III one III , d d I' I . h I is for taking these hundre an t lIrty t 101isand

arms' and III the next, t at Ie h Id b b f h ' "d d placing them where t ey wou e ut or t e men from the UllIon Sl e, an d .. I b I

If I not face his case so state ,It IS o n y ecause Ie measure he condemns . Ie can cannot face the truth. "

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uJ i.:sd-0 ~V\ ; ~50Ll1Lc{ j ~' ILUJJ\

, b I ( nvers ation. In telling this tale I

SECTION Xl

. 1. add a word whi ch wa s no t In the ver a ,c I" t t ·) Il -lve cOlltr()11 d , ,_ ,' r ' I c ~lIm no l , e

atte mpt no comphment to m y own sag.le l ). I N t tl _J f , I ' , . ' ltrollec me. ow, a Ie enu a

eve nts, but confess plainl y that events 1.1\~ ~ Ol , I , " j " 'not what elt ler party, or any

three ye ars stru gg le th e nan on s comltlon IS 'I" d ' _ c , • I - 't Whit l c r It IS ten II1g seems

ma n, deVi sed or expected. God alon e can c ;11111 I . d ' II I I f ' , f ng an - WI S a so t lat we 0

pia 111 , If God now Will s th e removal 0 a great wro " I" - h I I II hirly for our COI11P IClt y 111 t at the North, a s well as you of th e Sout 1, 5 la pay , d . h

' , I I ' 'II f- I I 'Ile\·v cause to attest an revere t e wron g, Imparna llstory WI IlIl t le rell1 ' ju stice and goodness of God. )'ollrs truly,

THEODORE ROOSEVELT

57. THE STEWARDSHIP THEORY OF THE PRESIDENCY

Preside1lt Theodore Roosevelt expressed his thoughts on the powers of the presidency in an alltobiography pub- lished after he left office. He forceflllly argued that the job of the president was to act as "a steward of the peo- ple" who cOllld do anything that wasn't "forbidden by the Constitlltion or by the laws. " According to Roosevelt, the president lIeeded to conslllt with Congress ollly when explicitly reqllired to do so IIl1der the Constitution. In all other cases-whether involving foreigll policy or allega- tions of wrongdoing within his administration-the pres- ident was empowered to act 011 his own. Roosevelt's view allowed the president to exercise flower so long as there was no clear constitutional prohibition on doing so. Note that Lincoln had gone evell fllrther and justified his exer- cising power even where the Constitlltion and laws pro- hibited him frollz doing so.

A. Lincoln

My view was that every executive officer, and above all every executive officer in high position, was a steward of the people bound actively and affirmatively to do all he could for the people, and not to content himself with the negative merit of keeping his talents undamaged in a napkin . I declined to adopt the view that what was imperatively necessary for the nation could not be done by

Source: From Theodore Roose velt, The Autobiography of The odore Roosevelt (New York: Charles Scribner's Sons, 1913),

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1111 I' I<I' IIJI ' (. 1' ] 15

thl' Prc~idmt ullk ~, he cou ld f . ' , " ' I ' f \\' \' th It 'It \ 1"\ I ' Ind ,O ln C specific a Ul ho rJ l3t10 n lO do It. j\l y he- Ie • J. • , Il ut On y h " I 1 ' , I f h

· t ' I ' I IS Il g lt Jut hl 5 dut y to do anyrhing rh at I he neeu o t l n~ Io n (C ma iI C cd ulIl . I ' , '

I 1 1 d e s >uc 1 ac ti on wa s forbid den by th e Con StitUti o n

o r w tl e aws , n cr thi s illt , , d I d

' I ' trpre tauo n of executive power I did a nd ca u,e to 1e Oll e l1l :1 n y t l ln !!,s nor " I

I I , ,I l)fe\ lOLlS y dUll e by rh e Pres id ent and th e head s of de-

partm ent " ( Iu not Usurp , .. I ' ' I I

PO\\lI, )Ut I did grea tl y broaden th e li se of exec uti ve power. n or l cr word s I . d f I

II I ' f' II ,alte or t Ie publi c welfare I ac ted for th e commo n

we - 1e lll g 0 a our peopl I ' ' I d I

e, IV lenever alld 111 whareve r Illann er wa s necessa ry, LIn ess prcvellte )V direct c ' ' I " , ..

1 -1 ' on titUtion a or legislati ve prohd)ltlon . , . , l e co urse I fo ll owe d f d' " ' h

,0 regar In g the I: xec utl ve :IS suhl ecr unl y ro t e Peo pl e. a nd. und er the Co ' , b ' ' I , . Il Stitutl on, ound to se rve th e peuple affirm ati ve y 111 cases where th e Co nst 'lt ' I ' , " I , , utl un (oes Ilut ex plICitly fo rbid hlln tu rend er t le se rVIC e, wa s. substantiall y the Course followed by both Andrew Jac kson a nd Abraham Lll1coln O ther 11 bl d II ' 'd h ' Oll ora e an we -meanll1g Pres l ents, uc as James Buchana~l , rook the opposite and, as it seem s ro mc, narrowl y lega li sti c VICW that the I reS id ent IS the se rvant of Congress rather th an of the peo pl e, and ca n do nothll1 g, no matter how necessa ry it be to act unless th e Co nstitu - tion explicitl y comm and s the ac ti on, Most ~ble lawyers 'wh o are pas t middl e age take thi S VIew, and so do large numbers of well-meaning, respectabl e citi- zens. My successor in office rook thi s, the Buchanan, view of th e Presid em 's powers and duties.

For example, under my administration we found that one of the favo rite methods adopted by the men des irous of stealing the public domain was to carry the decision of the sec retar y of the interior into court, By vigo rously op- posing such action, and only by so doing, we were able to carry out the po lic y of properly protecting the public domain. My successo r not only took the op- posite view, but recommended to Congress the passage of a bill which would have given the courts direct appellate power ove r the sec retary of the interi or in these land matters .. .. Fortunatel y, Congress declined to pass the bill. Its pa s- sage would have been a veritable calamity.

[ acted on the theory that the President could at any time in his discretion withdraw from entry any of the public lands of the United States and re se rve the sa me fo r forestrv for water-power sites, for irrigation, and other public , , purposes. Without such action it would have been impossible to stop the acti v- it y of the land-thieves. No one ventured to test its legality by lawsuit. My suc- cessor however, him self qu estioned it, and referred the matter to Congress. Again 'Co ngress showed its wisdom by pa ssing a law which gave the Pres ident the power which he had long exercised, and of which my successor had shorn

himself. Perhaps the sharp difference between what may be called the Lincoln-

Jackson and the Buchanan-Taft schools, in their views of the power and duties

f h I) 'd y be best illustrated by comparmg the attitude of my suc -o t e resl ent, ma " ' d h S etary

of the Imenor, Mr. Balllllger, when the latter wa s cessor rowar t e ecr , '

d f ' d Ict in office with my attitude toward my chiefs of de-accu se 0 gross mlscon l, ') ,

d I b dl 'nate officers, More than once while I was I resldem

partment an ot ler su or h ff ' , , ff

' , I k d I)v Congress generally because t ese 0 IClals did my 0 ICla s were attac e I '

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316 SECT I O N XI

I case I srood by the official and re- th eir duty well and fearlessly. In eve ry suel . • f re with me excepting by im- fu sed to recognize th e ri ght of Congre ss ro Illteor e tll P other hand wherever I

. . I nnner n c ' peachm enr or in other constl tutlO n:1 n . . I . love,1 him eve n althollgh . . . I prompt y len c , • found th e officer unfit for hi S pO Sition, I . . Th J k . . '" f>ln for li S retention. e ac Son- the mo st Influ ential men of Congres s aug I d k sholiid be abl . . h ' f trot 0 goo wor e to LlI1co ln view is that 3 Pre Sid ent w 0 IS I d b II f h b

I . bordin 'Hes 'ln ,3 ove a ,0 t e su -

form hi s o\\' n judgment as to li S o\\'n Sll "." I' h h' I

. I , I most II1tllllate rouc 1 Wit 1m o rdin 3tes standin g highest am In c osest ,1m. d .

, . b J' re responSible ro me, 3n I accepted Mv secreta rI es and th eir su or lI1ate s we , f I

' . . . f II I . I I \ I g ~s the)' were sa tl s actory to me I t 1e responslbtllt)' or a t 1elr teet S . f s on ., ,

d . .. - ," 1~11t within or wlthollt Congress'

stoo by them :lga ll1 st every CrItll or ,lSS31" " ' and as for getting Co ngre ss to make up my mll1d for me about them, the thought \youid h:we heen inconceivable to me. My successor took the oppo- site, ~r Buchan:1I1, "i ew when he permitted and requested Congress to pass judgment on the ch:uges made against Mr. Ballinger as an executive officer. These charges were mad e to the President; the President had the facts before him and could get at th em at any time, and he alone had power to act if the charges \\'ere true. However, he permitted and requested Congress to investi- gate Mr. Ballinger. The party minority of the committee that investigated him, and one member of th e majority, declared that the charges were well-founded and that Mr. Ballinger should be removed. The other members of the majority declared the charges ill-founded. The President abode by the view of the ma- jority. Of course believers in the Jackson-Lincoln theory of the presidency would not be content with this town meeting majority and minority method of determining by another branch of the government what it seems the especial duty of the President himself to determine for himself in dealing with his own subordinate in his own department .. ..

WILLIAM HOWARD TAFT

58. THE LITERALIST THEORY OF THE PRESIDENCY

President William Howard Taft's "I't I'''' f 'd ' f I I era 1st view 0 pres- ~ ~nll~1 power offers a clear contrast with the views of

d ll1CtO n and Roosevelt. Taft feared that allowing presi- en s to act on behalf f tl I' a Je peop e m violation of the

SOllree: From William Howard Taft Ollr CI . f M . University Press, 1916), ,!Ie aglstrate alld His Powers (New York: Columbia

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T ill PI{I.'IDI. N C Y .3 1 7

Co nslillliio n o r LUi? slillliio . 'Id I ere 1/ 0 1 clearly prohibiled by Ihe COII-

II, ( a ll ead Ih , h d ' , , d , I ' I ell1 10 roa and II II 1111 I/I ed pres l -UI la POwer and II I ' , _' " ' }a l CO li d reslIll ill "irrelll ediahl e /lllu~ltee, Wherecr I ' I d '

b l ' ,, ' ~ - Ill eo n all Roos el'dl /.(Iere cOIII(o r l -

a e III se l (lIIg /J O I b I

, IVers 11 0 1 c early held alii o( Iheir g ra sp y I I e Co nsllllliio n T' /-I . d I " ' , , Ja m g ll e 11al Ihe pres ldelll call

ex ercise 11 0 IJol/I' I ' I el IV 71C ) ca ll1 lO l be (airly all d reas o llably

lra ced t o SOlli e sIJeel'(I'c !l ,'a I (p ' I ' I ' I " I' II a ower or IIISI y IlIIp ICC .

While it is imp o rtant to m ar k 0 t I I ' f' Id f ' ' d " f h ' U t 1C exc uSlve Ie 0 JUri S Ictlon 0 eac

branch of th e gove rnm e nt L ' I ' E ' ' " ' , ' egis a tl ve, xecu tl ve and JudICi a l, It sho uld be sa id that 111 th e proper working' of th I ' b " ' f II e gove rnment t 1ere mu st e coope ra ti on 0 a branches a nd withollt 0 ' II ' t' h I I " , " WI II1 g ness 0 eac )ranc 1 ro perform Irs function, there wiB follow a h ope less obstruction to rhe progress of rh e whole govern - ment. Ne ith er branch ca n compel rhe other to aff irmarive ac ri o n , and eac h branc h ca n greatly hinde r th e o th er in th e arrainment of rh e objecr of its activ- ities and the exerCise o f its dis c re ri o n.

The true view of th e Exec urive function s is, as I conceive it , th a r th e Presi - dent can exe rci se no power which cannot be fairly and reasonab ly traced to so m e spec ific grant o f power or justl y implied and included within suc h ex- press grant as proper a nd necessa ry to its exe rci se, Such spec ifi c g ra nt must be either in the Federa l Con stitution or in an act of Co ngress passed in pursuance thereof. There is no undefined re siduum of power which he can exe rc ise be- cause it seems to him to be in the publi c interest, and there is no thin g in the Neagle case and its definition o f a law of the United States, or in other prece- dents, warranting such an inference. The grants of Executive power are neces- sarily in general te rms in order no t to e mbarra ss th e Executive within th e field of action plainl y marked for him , bur hi s juri sdi cti o n must be justifi ed and vin - dicated by affirmative constitutional or statutor y provis io n, o r it d oes no t exist. There have not been wanting, h oweve r, eminent men in hi gh public office holding a different view and who have in sisted upon th e necess it y for an und e- fined residuum of Executive power in the public interest . Th ey have no t been confined to the present generation. We m ay lea rn thi s from th e co mpl a int of a Virginia statesman, Abel P. Upshur, a stri c t constructionist o f th e old sc hool, who succeeded Daniel Webster as Secretary of State und er PreSident Tyler. H e was aroused b y Story's commentaries o n .the Constitution to write a m o no- graph answering and criticizing th em, and 111 th e ,co urse of thi S he comments as follows on the Executive power under the Constituti o n:

The most defective part of the Constituti on beyond all qu esti on, isrh3t whi ch

I d h E e -utl've Department. It IS Imp OSS ible to read th at II1 st rum ent, re ate to t e xc , '

, h b' k with th e loose and unguarded term s 111 which th e powers Wit out ell1g struc , ' , d d

' f h P eSI'dent are pointed o ut. So far as the legislature IS co n-an ulles 0 t e r , , d h I

, ' ' s of th e Co nstitution, are, perh aps, as precise and stri ct as cerne t e 1J11ltallOn , '

, Id f I h' been made- bllt In rega rd to th e Exec utive, the Co nven - the y co u sa e y ave " d I ' , h d'ousil' selected such loose an ge nera exp re SSio ns, as

lion appears to ave Sill I .

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3 I 8 SECTION XI

would enable the President, by implication and construction either to neglect h' d ' ' W ' h ' I ~rd 'It gravely asserted III Congress IS utles or to enlarge hiS powers, \\'C ave le.. , ' , I h "I 'I' \'udiclar)' IS of course executive t lat w ,Hever power IS neither egi s anve nor " " '

and, as such, bel ongs to the Pres ident und er the Constitution, How far a ma- jority of that bod y would have sustained a doctrine so monstrous, and ,so utter,ly at war with the whole geniu s of our government, It IS ImpOSSible to sa}, but thiS, at lea st, we know, that it met with no rebuke from those who supported the particular ;lct of Executive power, in defense of which it W;lS urged, Be thi S as it may, it is a reproach to the Constitution that the Executive trust IS so Ill-deftned, as to leave any plau sible preten se e\-e n to th e insane zeal of party devotion, for attributing to the President of the United States the powers of a despot; pOwers which are wholly unknown in any limited monarchy in the world.

The view that he takes as a result of the loose language defining the Execu- tive powers seems exaggerated. But one must agree with him in his condemna- tion of the view of the Executive power which he says was advanced in Congress. In recent years there has been pur forward a similar view by executive officials and to some extent acted on. Men who are not such strict constructionists of the Constitution as Mr. Upshur may well feel real concern if such views are to re- ceive the general acquiescence. Mr. Garfield, when Secretary of the Interior, under Mr. Roosevelt, in his final report to Congress in reference to the power of the Executive over the public domain, said:

Full power under the Constitution was vested in the Executive Branch of the Government and the extent to which that power may be exercised is governed wholly by the discretion of the Executive unless any specific act has been pro- hibited either by the Constitution or by legislation,

In pursuance of this principle, Mr. Garfield, under an act for the reclama- tion of arid land by irrigation, which authorized him to make contracts for irrigation works amI incur liability equal to the amount on deposit in the Recla- mation Fund, made contracts with associations of settlers by which it was agreed that if these settlers would advance money and work, they might receive certificates from the government engineers of the labor and money furnished by them, and that such certificates might be received in the future in the discharge of their legal obligations to the government for water rent and other things under the statute . It became necessary for the succeeding administration to pass on the validity of these government certificates, They were held by Attorney-General Wickersham to be illegal, on the ground that no authority existed for their issuance. He relied on the Floyd acceptances in 7th Wallace, in which recovery was sought in the Court of Claims on commercial paper in the form of acceptances signed by Mr. Floyd when Secretary of War and delivered to certain contractors. The Court held that they were void hecause the Secretary of War had no statu- tory authority to issue them. Mr. Justice Miller, in deciding the case, said:

The answer which at once suggests itself to one familiar with the structure of our government, in which all power is delegated, and is defined by law, con- stitutional or statutory, is, that to one or both of these sources we must resort in

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TH E PR ~' I D~NCY ]19

everv IIl stanee, \Xle have . ff. , no 0 lee rs I ' down ro rh e mos r sllbord ' , In r li S gOl'e rnmenr , fro m rh~ Pres idem

, I In ,He age nt 'h d Wit 1 pres, rib rd duries a d I" • \\ 0 oes nor hold office un de r rh e law,

'd n IJnlted aurh ' Ad ' Presl em, th e Legislarure and th e ' , .o nr y, n , while so me of rh ese, as rhe ro rh e more ge neral d~f ' ~ , JUdi ciary, exe rCi se powers in so me st'nse lefr , , ' InJ[l ons nece ·1 " 'd In rh e onstltur io n rh e I ssa n ) mCI enr ro fund alllc nr al law fou nd

, , arger POrtiO fl . ' law, with duries " nd po n o r 1(' 111 are rh t· crea ti on of sr:Huror y ., Wers p 'b d ' rese n e and limired by rh ar law,

My judgment is th at the view " , , an undefin ed res idUlI f of Mr, Ga rfield and Mr. Rooseve lt, asc nblllg , m 0 power to th P 'd ' , th at it might lead lilld ,e res l f nt IS an lInsa fe doc trille a nd

, f r emerge nCle t If ' , irremedi ab le inl' lIsti c ' , s 0 resu ts 0 an a rbitrar y cha racter, d Olll g

• e to pnvate n ght Th " , ' th e Executive is charged with r : , , e ma lll spnn g of sll ch a view IS that a ge neral way, th a t he is to la esponslbillty for the welfare o f a ll th e people in

h ' ' I ' diP, y th e part of a Universa l Prov idence a nd se t a ll

t IIl gs n g 1[, a n t lat an),thin h ' h' , h d ' , g t at III IS ludgment will help the people he

oug thto hO, lInl es l s d

he IS expressly forbidden not to do it. The wide field o f ac- tion t a t t IS wou give to the Execlltl've h dl I' , o ne can ar y Imlt.

RI C HARD E, NEUSTAD T

59. THE PRESIDENTIAL POWER TO PERSUADE

While presidents have written about whell they should ex ercise power, scholars who observe presidents from a distan ce have tried to better understand h0 11l that power is exercised. The general debate has been between those who argue that the power of the president comes from the many roles associated with the office- commander in chief. legislative leader, chief exeClltive, foreign policy marker-and those who have argued that presidential pOllle r is really Il othing more thall the "powe r to per- suade" others to go alollg. Richard Neustadt's influell- tial book Presidential Power, first published ill 1960, advised presidellts that in order to accomplish anything, they must carefully lise the prestige of the Oval Office

S R ' d ' h 1 erm ·,ssion of The Free Press, a divi sion of Simon &: Schuster Adult Pu b-

ollree: eprlOte wit t 1e p 'd TJ v / " fL d I · I, h· G f P -· 1 f ' I VOiller alld fiJI' Modem Presl ellfs: !I' , 0 II/ CS 0 ea "'5 up from IS IIlg roup rom re;:,l{ elt ta ,-1 b ' h dEN d . R I

' b R' -h d E Ne ustadt , Copl'right iLl 1990 Y RIC 3r , ell sta I. All nght s ooseve t to Reaga n y If.. ar. ~ . reserved .

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320 SECTION Xl

k '11 - to bargain with legis la- alld their OIV/I negotiating s 'I

d ' . . lessage is clear: The

t Nellsta t s II I' tors alld vllreallem s. d tl IJresidellt meall It- , ' I "mllte to Je f' I COIIStltllilO/1ll /loluers", de others to go a ong.

tic to a presidellt III/a vie to /Jers lla

of O ur government. The constitu-. , I the structure The 11I11Its on comman( sugges t I eated a government of "sepa- , 'f 7L>7' sed to lave cr • '

ti o na I convention 0 loiS suppo I' I it created a government of d " I d'd · I ' 'of the sor t. "at ler, " rate powers. t I not 111lg .. f the legislative process"

d ' " I ' mvers I 1 am pa rt 0 , separate IIl stitutlon s s J(/flllg p ., I f I ' eto 1 Congress the dis- , f' I' 1959 ' remlll( er 0 liS V. ,

Eisenhower 0 ten S;1I( III , as .1 ' of th e administrative process. Fed- penser of authority ;1I1d funds, IS no less p.Ht 1. The Bill of Rights adds others. erahsm adds another set of se parated II1 Stltll[lOI sf' "

, I I I' , d by voluntary acts 0 private mstltu- Many publi c purposes can on y le ac lle\C ," b h f , " D I C ' J1hrase IS a fourth ranc 0 gov-[Ion s; the press, tor one, III oug ass ater s, , ' ,

ernment. "3 And with the coming of alliances abroad, the separate ~nstItutlons of a London or a Bonn share in the making of American public policy.

Wha; th e Consti~ution separates our political parties do not combine. The parties are themselves composed of separated organizations sharing pub,lic authority. The authority consists of nominating powers. Our national parties are confederations of state Jnd local party institutions, with a headquarters that represents the White house, more or less, if the party has a President in of- fice. These confederacies manage presidential nominations. All other public offices depend upon electorates confined within the state. 4 All other nomina- tions are controlled within the states. The President and congressmen who bear one party's label are divided by dependence upon different sets of voters. The differences are sharpest at the stage of nomination. The White House has too small a share in nominating congressmen, and Congress has too little \~eight in nominating Presidents for party to erase their constitutional separa- tion. Party llilks are stronger than is frequently supposed, but nominating processes assure the separation. 5

The separateness of institutions and the sharing of authority prescribe the terms on which a President persuades. When one man shares authority with another, but does not gam or lose his J'ob upon the othe' h' h' 'II' , r SWim, IS WI 111g- ness to act upon the urglllg of the other turns on wheth I 'h " , er Ie conceives t e ac- tion rIght for him. The essence of a President's per ' k ' .

, suasive tas IS to conV111ce such men that what the White House wants of th ' I h h d f h · k' em IS w lat t ey aug t to 0 or t elr sa e and on their authority.

Persuasive power, thus defined amounts to h h Th h h ' ' more t an c arm or reasoned argument. ese ave t elr uses for a President b h

his resources. For the men he wo Id' d ,ut t ese are not the whole of u m uce to do what h d h .

own responsibility will need or fear some t b I' e wants one on t elr they share his authority he has so h ac ~ y 11m on hiS responsibility. If

. ' me s are 111 theirs P 'd . I " " may be mconclusive when a President d' res I entia powers

com man s but I . as he persuades. The status and auth . . I ' . a ways rema111 relevant I ' · onty 1111erent 111 h' ff ' . f h' oglc and hiS charm. IS a Ice re111 orce IS

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S ta t u~ .ld d s ~o lll ('t h in ' . I g t o Pcr, u3SIV' , -- I ' II ' 11 \Vl I TrUln ,l l1 ur ge l I\'a ge dl"l n , ~ _ .' Ln l ; a Ul1 0nty <I( l" ~ tI more . ..v le ll

I ". • gcs on h " ecrn t f C' 1 '1 I I W el allll lll l'te nl1~ th e St' I ' 11 cary U .olllllll:fn: I\' 11 C t 1C a n Cf . ' le i n I s he j .

Illt' n rca ~o n ll i g wit h u n n I ' :l nl ccre tar y ~aw)'er were no t ILi st t l\'O , anot le I' H ad I I I I

nCl'cr kll'e ,l ~re('d tu a 't T ',' . t ICY )ee n so , Sawyer p rohah ll' \\'OLI ( • • L, rt lill a n s 5t I . .. ,

loya lt y, or ,n Ica s t a n e nt ' ' I . a rt l> gave 1I 1ll s pecia l ciJ lm s to Sawye r 10 11. n \XI'l!rr B I ' I .

cow argll L' O il hi s k nees, " A lth u

" , r .. agClOt s C la rllllll g ph ra se "No ma n me n-.llld l'xccc din g l ' f' C I ' ug h th e l e IS no k nee llll g III thi S co untr y, fe w

) ell' a Jln c t off , · . " I'es" to t he P rc~ i dc rlt f l ' I ce l ~-arc I III III lin e ro t he Iln p ul se to s a y

, 0 t Ie Ullit ' I S , 1 " th c l" a re ~eatcd in 11 ' I 'f' Cl t a tcS, t grows ha rde r ro ~ay "n o w hc n

. IS ova 0 1 IC ' a t I \"/1' , . rco nd fl oo r \V h ' r ' I ~. tI e ," lIt c H u usc, o r In hi S ~ tu d y o n th e

. ,t C a Ill Us t ta ng l hi y he );] I' k ~ , . f l · f l ' I . ' , I I'o un d lll gs In S'lI V ' . 1 ta es 0 t 1e a llr.l u l l ~ p l ys lca s ur -, , • ye r s case Ill o r I I) . , . . " . , cove r, tI e rC Sldc llt p ussess ed lo rlll 31 a u t hor- lt v to Ill t cl ve ll e III nn n y 11"1'1 ' , f T

'I ' , " ,. • - " tte l S 0 cu nce rn to th e Sec reta ry of Co mill e rce , l ese 1ll .1rtcrs I.lll ged IrOIll ' I" ' I I' , I

. I ' J ' . lurr sc let lo na c I s pu te~ a mo ll g t he defe nse age nc ies ro cg ls a n OIl pe n In g befo re C J '

I ' I' T I . . o ng ress a n , ultllll:ltciy, to th e tenllre of th e Sec -

retan', 1I1ll se I . l e re IS n u th ' " I d . :f' I I IIl g In t l e reco r ro s ugges t t ha t Tnllll :l n VO iced

spec i IC t 1rea t s \V l e ll th e)' ne" t ' d . " . . go la te ove r wage In c reases, Bllt g ive n hi S fo rmal Powe rs a nd th e ir releva nce t o S 'I ' .. , awye r sot l e I' Inte res ts, It IS safe to a ss u me t hat Trum a n s ve r y a~vocacy of wage ac ti o n co n veyed a n implic it th reat.

. A PreS ide nt s a uth o rity and sta tu s g ive him g rea t ad va ntages in d ea ling With th e me n he wo uld p e rs u ad e. Eac h " po we r " is a va ntage po int fo r h im in th e d eg ree th a t o th e r me n h ave use fo r hi s a uth o rit y, Fro m th e vero to a ppo int- me nts, fro m p ubliCit y to bud ge tin g, a nd so dow n a lo ng li st, th e W hite H o use now contro ls th e m os t e n co mp ass in g arr ay o f va ntage po ints in th e Ame ri ca n po litic al sys t e m . With h a rdl y a n excep ti o n, th e men wh o s ha re in gove rnin g thi s co untr y a rc awa re th a t a t so me tim e, in so me d eg ree, th e d o in g o f their jo bs, th e f urth e rin g o f their ambiti o ns, may d e pe nd up o n th e Preside nt o f th e United St a t es, T he ir need fo r presi d e nti a l ac ti o n, o r th eir fea r o f it, is bo und to be rec urre nt if n o t ac tuall y continu o us. The ir need o r fea r is hi s ad va ntage ,

A Pres id e nt 's ad va ntages a re g rea ter th a n me re li stin g o f hi s "p owe rs " mi ght s u gges t . Th e m e n with wh o m he d ea ls mu st d eal with him until th e las t day o f hi s t e rm . Beca use th ey have co ntinuin g rel a ti o nships w ith him , hi s fu- ture, w hil e it last s, s upp o rts hi s prese nt influe nce. Eve n th o ug h th ere is n o need o r fea r o f him to d ay, wh a t h e co uld d o to mo r row may suppl y ro da y's ad va n- tage . Co ntinuin g re la ti o ns hips may co nve rt a n y " powe r, " an y as pec t o f hi s sta- tu s, in to va ntage p o ints in alm os t a n y case . Wh en he II1du ces o th e r me n to d o wh a t he w ants d o ne, a Pres ide nt ca n trad e o n th eir d epe nd e nce no w all d la te r.

Th e Pres ide nt 's a d va ntages a re c hec ked by th e a dva ntages o f othe rs,. Co n- '. I ' h ' wl' ll pull in bo th direc ti o ns. Th ese a rc re la ti o nships o f tlllum g re a tl o ns II'S

I d d A P es ide nr d e pend s up o n th e me n he wo uld pe rsua d e; he

mutua e p e n e n ce . r . h k

' h h ' d o r fe ar o f th e lll. They toO will possess sta tu s, o r as to rec o n Wit IS nee '. .' ,

. h I- I wo uld be o f littl e use to hllll . Th eir va ntage pOints a uth Orit y, o r b o t , e se t l ey .

f I ' . heir po we r te mp e rs hi S. . co n ro nt li S ow n , t S ' '11 be recall ed did not res po nd B " , o -wav stree t. awye r, It WI , e rs uas lOn IS '~ t w f ' ,. e in c reases a t th e stee l mill s, O n th e contra ry,

at o nce to Trum a n s pl a n o r \\ ag

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P2 SECTION X I I

I I I) ' 'lCquiesced when he was satisfied

I S I , I J I "'wce an( on . tI e CCI'c rar y leS lr:He( an t ( ',' t' I _ ,'s ion Sawye r had some POillt

I ' II I rh eo nu SO( LCI ' s

r wr publi cly he wou L no r lL'ar ' " " de ntial pressure. If he had , III ' f ' ' hi ch ro ITSlsr pi es l . to

0 1 1';1I1rage a li S ow n 10111 II 'd t'S "s inl 'Hions of strength" " , " I'" 'n rhe Pres l c n ' ,

reckon wlrh coe rCII 'C IInp Icatlon s I I" derl)ling· Sawye r's plac I I I

, df I f th . il11l) IcHlOns lin '.' e as so 1;1L Truman to )e I11ln u 0 L d ' ' C abinet Sl)okesma f

I I ' ,tnror an .15.1 , n Or

;1 departill ent hea d, as stec at 11111115. " d ' ' I' I I ' , , " I 1-1 ' " nken on ;l Irr )' 10 ) In t le stee cnSls bU SlIlcss . 1.0I';1Itl' IS rec lpro Cl. ;ll' ln ,, ' , I I' I d I' ' " , I I lrr I3C SI( es , l e la aut 10nty to do Saw \'('!' had srron g Cl;lIl11 S ro 0)';' SUPP( " - I ' W'I I ' , " 11 ' 11 aftord Emu atlng I so n, le might sO l11e rhin gs th :1I the Willre Hou se co u ( I. . ,

I ' I ' I ,',' (tile 1''' III 0I''1 II)ower also works twO ways). Or emulat1l1g la ve res lgneL In a Ill ' , '. 0 I '

1 : 11 ' f\ ' ~ II I _ ' .1 I " declined to sig n necessary orders. r, le might have - IS In.l, IL mi g It 1.1Ie Id d d let ir he kn()lI'n puhlic'" th;H he dep lored wh;u he was to to a an protested its doin g. 1\1' followin g :1I1 y of the sc courses Sawyer almost surely would have strengthene~1 the position of l11ana ge l11ent, weakened th e positIOn of th.e White House, an d embitTered th e union. But the whol e purpose of a wage Increase was to enh;1I1ce \,\Ihitc House persuasiveness in urging settlement upon union :1I1d comp;,nies ;llike. Alrhough Sawyer's starus and authority did not give him the power ro prevent 3n increase outright, the y gave him capability to under- mine its purpose. If his aurhority over wage rates had been vested by a statute, nor by rel'ocab le presidential o rd er, his power of prevention might have been cOl11plete. So Harold Ickes demonstrared in the famous case of helium sales ro Ger man y before the Second World War.6

The power to persuade is the power ro bargain. Status and authority yield bargaining advantages. Bur in a governmenr of "separated instirutions sharing powers," they yield them to all sides. With the array of vantage points at his disposal, a Presidenr may be far more persuasive than his logic or his charm could make him. But outcomes are not guaranteed by his advantages. There re- main rh e counrer pressures rhose whom he would influence can bring to bear on hllll , from vantage poinrs at their disposal. Command has limited utility; persuaSIOn becomes gIve-and-take. It is well that the White HOllse holds the vantage points it does. In such a business any President may need them all- and more.

NOTES

J. The reader willwanr ro keep in mind the d' r' , rhe word power is emplo)'ed Wilen I I diS II1ClIon between two senses in which

. lave use rhe 11'0 d ( . I I [ f mal consrirurional, srarurory or cusromary I ' " r ~r Irs p ura ) ro reler ro ar- rive "fo rm31" or placed in g:lorarion m~ k aur ~,Orlty, It IS either qualified by rhe adjec- sense of effecrive influence upon the c~ ~ds as rower(s).," Where I have used it in the mark s (a nd always in rhe singular). Whelre uft 0 others, It appears wirhout quotation subsrirured for "power" in the first se nse cdarlty and convenience permit, aUlilorit)' is 2. See, for exa mple, his press conference ~;J t~uellce for power in the second sense. Tim es, Jul y 23, 1959. u Y 2, 1959, as reported in the New York 3. See Douglass Ca ter, Tile FOllrlil Brallcil of G . ' 1959.) ove /111l1elll (Boston: Houghton·Miffl ln ,

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r ....

3 2 3

~ . \X' ili, th e exce l:Hi o n of th e VKc - Pre ' , " ;. See Dav,d B. rrllm a n', illulll · . sld ('nC), of co m sc. . -rl C ' In a nng stud y f ..' . ~rc", ,e Ollgress [(lI/a / Pa r l v N'c' v k '. o. pa rr y r(' ,"n on hIp s In th e 8 1 st C on - . 5 - I " W lor - ' W,, · 19- 0 . 6. As e~ reta r v 01 tI C Interior in 19'9 H" l)', )', c,pen, lI y c ha ps. 4, 6, alld S. lillll' to Cer m,lIw de s pite th e ill S' .> , f .Hold Ick es rl'fu se d [0 "pprove th e sa le of he-

I . ,. IStc nee u th S · I) .

id,'Ilt Roose w t. \V,tho llt the Scc . ' e , t.He cpa rrlllL'nt ,nd rh e IIrg l1l g of Pres - 5c" TiJe Seael Diaries of J-I aro/d r2~r~ s .approva l, suc h sa les were forhidden hy st ' tllte. <, speci.lll y PI' . _39 1-393, 396-399 . 5 ~ > ~' i New York: S, m o n a nd Sc hu ste r, 195 4, Vo l. 2, vcrs"'" ill th e lorthcoming' c'sc b . kee .1 so MlChaci J Reaga n. "The Heiium C o ntrO-

, . "00 on c , I '1' . ti eth C entury hInd und er th " ed ' . I d ' 1\ I - ml Itar y reianon s prepared for the Twen -

. . ' • . Ifo na If " ( f!-I II . III thI S In st,lIKe the St,Huto . I . II Illll 0 am l SteIn .

.:retio ll

, A Pres id_c nt is IInlikel y r/o '}~~~,l~'? ran to r~le SccTe tary as a mane r of iJis di s- sll.:h ,lLIt ho nt v, It th e pre side nt d ·d ("net off, ce rs for rhe co nSCIe nti o us e xe rc Ise of

P ublicly a nd at the C apirol \ve I ISO, t lelr succ essors mi g ht we ll be embarrassed b o th

. , re ne y to reve rse I .... . I k f Pres ident s aut hor it y to set 'Is ·d . d ' .' «(l SIOII pre vIo us y ta e n. As o r a . ' I e Iscretlollary d , t , .' fl ' . ' f ' >xi sts at " II 0 11 s h aky leg 'll gr d I'k' e er l11m a n o ns 0 t lI S so rt, It re st s, I It " • , '. . o lin n o t I e ly tid . If · . . 0 JC fro save 111 [l e g ravest 0 Sltll :1 (J o n s.

AARO ' B. WILDAVSKY

60. THE Two PRESIDEN C IES

Presidelltswield cOllsiderably m ore power when Inaking deCISIOns 111 the area of foreign policy than ill dom estic policy. After reviewing the exercise of presidential power 1/1 the post- World War II period, Aaroll Wildavsky CO II- eluded that while the United States has one president, "it has two presidencies: one presidel1cy is or do ' ic a - (girs, and the other is cO ll ceme with defense alld foreigJ.1

policv.::. This observation, first published in 1966, continues

to describe a basic truth abollt the presidency, ;111I'resi- d,mts I / been able to exercise m ore powe 'n orei n t an d omestic polic Becallse 0 the greater need o r speed in dea ing with foreign policy problems, the

constitutionally mandated power of the president to command the anned forces, the lower level of pllblic IIn- derstanding about international problems, the general unwillingness of Congress to stand up to the president

SOllrce: From Aaron B. Wikbvsk)', -The Two Pres idenc ies, " TnlllS(lClioll 4, no. 2 (Dec('mh er,

1966) . Reprod uced by permissio n of Tran saction pubh shers.

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I

3 2 4 SECT IO N Xl

f. ' / " s-all)' /7residellt is goillg to be all ,orelgll po IC), ISSlle , / '

f / ' f. ' tl,all dom estic po ICy. II/ orc SlIccess,lI /1/ ,orelg ll

Th ' 'd b 't I ~s tWO pre sidencies' one pre side e Unned State s ha s one Presl ent, LIt I 1.., ' ,ncy

" I ' ' d I I ' 1cerned WIth defen se and foreIgn p I IS tor l omcstJc affaIrs, an t 1e ot 1er IS COl ,0. icy. Since World War II, Pre sidents have had nll~ch greater :L1ccess 111 con~rolling the nation's defcn se and foreign policies th:-In In dOJ1lJJ1~tIn~ It~ domestIc poli· ci es . Even Lyndon John son Iws seen his early record of vICtoneS 111 domestIc leg. islation dimini sh :-I S hi s concern with foreign :-Ifblrs grows.

What powers doc s the President have to co~trol defense and for~ig~ poli. cies and so completely overwhelm those who J11lgh~ wI sh to thwart hIm. ~ Presidenl4-l1armal problem with dom~s tIc polIcy , IS t? get con~s.

sJ.g n:-Il...supporr fo r the program s he prefers. In foreIgn a,ffalrs, I,n contrast, l1e can almost alwar s get support for policies that he belIeves WIll protect the nation-but his problem is to find a viable policy.

Whoever they are, whether they begin by caring about foreign policy like Ei senhower and Kennedy or about domestic policies like Truman and Johnson, Presid ents soon discover they have more policy preferences in do· me stic matters tholWo foreign policy:' The Repubilcan and Democratic par· ties possess a traditional roster of policies, which can easily be adopted by a new President-for example, he can be either for or against Medicare and aid to education. Since .existing do.Q!.estic policy usuallv changes in only small steps, Presidents find it relatively sim Ie to make minor adjustments. However, a tough any President knows e supports foreign aid ana- N ATO, the world outside changes much more rapidly than the nation inside-Presidents and their parties have no prior policies on Argentina and the Congo. The world has become a highly intractable place with a whirl of forces we cannot or do not know how to alter.

THE RECORD OF

PRESIDENTIAL CONTROL

__ It takes great crises, such ,as Roosevelt's hundred days in the midst of the de· p~esslOn, or die extraordll1ary majorities that Barry Goldwater's candidacy WIlled to Lyndon Johnson, for Presi ts to succ' II' d t'C . 111 contro II1g omes I poltc~. From the end of the 1930s to the present (\vh t II d , a may roug y e ca e the modern era), PreSIdents have often been frustrat d ' h' d . e 111 t elf omestIC pro· grams . From 1938, when conservatives regrouped h ' f h' f h

' d h ' t elr orces to t e tIme 0 IS eat ,Franklll1 Roosevelt did not get a singl' f' 'f' d .

I . I 'd e pIece 0 slgm Icant omesttC

.!gls atJon passe . Iruman lost out on most f h' . ,( -. h f

' 0 IS II1tense domestIc preler ences, except per aps or housll1g. Since Eise h d'd h d .

, I . I ' h d' n ower I not ask for muc 0 mesnc egIs atJon, e Id not meet consistent defeat ", eral

P olicy of curtailing governm I ' ' yet he faIled 111 hIS gen

" " enta commItments K d ' f faced great dIffIcultIes WIth domestic legislation. . enne}, 0 course,

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.. ~ T

r Alll E I Congressional Action on Pr' . eSldcntlal Proposal s from 1948 to 1964 -

POll l " A IU A

-Domes tic po lic y (natura l resources, lab or, agri culture, taxe s, etc.)

Defense po li cy (defen se, di sarmament, manpower, mi se )

Forei gn po li cy

Immi gration, refu gees

rreati es, general foreign relations, State Department, foreign aid

40.2

73.3

58 .5

13.2

70.8

59 .8

26.7

41.5

86.0

29.2

r U~ IHI· I( 0 1

PRO /'O'" , I ...

2,4 99

90

655

12 9

445

~~~~~E : Co ng ress io na l Quarterl y Service, COl/gress al/d the Natiol/ . 1945-1 96 4 (Was hington ,

. In the realm of forei n polic there has not been a sin Ie ~i!ior iss ue on '.0llch Pres,de~ w en they were serious and determine have failed. The list of their victories is impressive: entry into the United N~ti~ns, the Marshall Plan, NATO, the Truman Doctrine, the decisions to stay out of Indochina in 1954 and to intervene in Vietnam in the 1960s aid to Poland and Yugoslavia , , the test-ban treaty, and many more. Serious setbacks to the President in con- trolling foreign policy are extraordinary and unusual.

Table 1, compiled from the Congressional Quarterly Service tabulation of presidential initiative and congressional response from 1948 through 1964, shows that Presidents have significantly better records in foreign and defense matters than in domestic policies. When refugees and immigration-which Congress considers primarily a domestic concern-are removed from the gen- eral foreign policy area, it is clear that Presidents prevail about 70 perceru.-ef ~huime in defense and foreign policy, compared with 40 percent in the do,-

~

WORLD EVENTS AND

PRESIDENTIAL RESOURCES

Power in politics is control over ~rnment I decision~. How does the Presi- dent manage his control of foreign and defense. poltcy .. The answer does not res'd' h titutional power 111 foreIgn affaIrs that PreSIdents have

I em t e greater cons I' . h h po d · h f dl'ng of the Republic. The answer les m tee anges ssesse s1l1ce t e oun that have taken place since 1945. . '.

Th b f . - " .. ,;.h......uhich the Umted States has dlplomattc r

e num3r 0_ natto~ -~ 6i tions hasincreased fr'oo'!]l iL223.2i.!.!n~t'..::9~3~9:....t~0~t ;...13~in::...-t_9 _ _ . ut seer num ers 0 not

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326 S~cr l o N X\

, ' ' I become:l milch more lbngerolls place. H ' 1~lIl' lllll1 ~h; rh~ world h,lS ,1 so.s our government mll st :llw:lYs be aware ot

l l

-

CI'l' r rl' mote It 111.1 )' Sl'l' llI ,U tllnc , 11e possihilit y of lIuckar war. ' I ff ' I ' , f l're 'U powcr s Wit 1 ~ ~cnvc t lerll10nucl

Yct Ih~ llI~rl' l'x lSlelKC ° t:> ' , ' f ' ,ear , I f ' tself l"ISrl y lI1.:rea sc Ollr r,ue ° II1tcraction 1 ' h

1\'("lPOII S wOlild lIot, III ,Ill( () I , " , I " Vlt , I " W I , SC'~ ~Vl'llts ill Ass am or Burunul :l S Import:lnt becau

Illo st ot 1cr Il ,UIllII S. \\l' , II d I . Ii ' se I f

, I' 'r worldwld~ contcst, ca e t le co ( war, In whi I thc y :1re " so parr () ,1 ,Irbc f I' c I

" " I, f the conrrol or sllpport 0 ot ler n:1tlOns. Moreov greeu powns an: 111 ,1 S or " I 930 I I d er, I

' ' ' t III ' 1,I 'It 'lllt isobtHlIli sm of t 1C I s las e to:l concern t 1l' n:aC!loll ,Ig;IIIlS l " " , If ' ' I" tl 'It is worldwide in scope, We arc II1terested III whar hap

WI! 1 Orl'I~1l po Il l' 1, - -" ',1,1__ - - I I

, - . " , , ·th· - · . , ' ' I c.t.clL'IllULWIgerintere ens CI'C r)' \\' len: )CelliSt: \\ l Sll " ' ~s , , ' ,'I 'I' , ,' t IIcnon 1I\\'o lvlll~, at till' 1I',)rst, the lOS" HI,

G il'ell t 1C (1\'~rm II1g bet th ou the world IS dallgerou s and that small causes are pcrceil'cd to haw potentially grcat effect s \I1"an un;,table world, It follows that Presidents IIlIiSt he interested 111 rebnvely small matters. So they give Azerbaij :lIl or Lebanon or Vietnam huge amounts of their tin: e. Arthur Schlesinger, Jr., wrote of Kennedy that "\11 the fir st two mon,ths of hiS adminis- tr euion he probably spent more time on Laos than on anythll1g else." Fe~ ur es in domestic policy, Presidents soon realize, could have a s disastrous COnSeQIII'n(,!' s os 'wy one of do zens of mistakes in the international arena.

TI~e result is th ,;t foreign p o licy concerns tend to drive out domestic policy. Except for occa sional question s of domestic prosperity and for civil ri!,;hts. for=- .e ign affairs h.llt cOilsistently bi\;,her priority for Presidents. Once, when trying to talk to President Kennedy about natural resources, Secretary of the Interior Stewart Udall remarked, " He's imprisoned by Berlin."

The importance of foreign affairs to Presidents is intensified by the in- creasing speed of events in the international arena, The event and its conse- quences follow closely on top of one another. The blunder at the Bay of Pigs is swiftly followed by the near catastrophe of the Cuban missile crisis. Presid ent< can no longer co II 1'1 [ 01'1 PJssing along their most difficult problems to their suc- ~ They must expect to face the consequences of their actions-or failure to act-while still in office.

Domestic policy-making is \lSlIolly I);)sed on experimental adjustmenlU9 an existing situation, Only a few decisions, such as those involving large dams, Irretrievably commit future generations. Decisiol'1& iR foreign affairs, however, g,re often ~ercei'l@d to be .irre-\l~ihlc...This is expressed, for example, in the fear of escalatIOn or the varIOUS "spiral" or "domino" theories of international conflict.

If decisions are perceived to be borh important and irreversible, there is every reason for Presidents to devote a great deal of resources to them. presi; dents have to be oriented tow r I fl' Jhe)' le use 0 t leI serve a Ixe term 111 office, and they cannot automatically count on suppor! from the populace, Congress, or the administrative apparatlls. They have to be careful, therefore, to husband their resources for pressi~g future needs. 1M

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beL' a usc th e co n ~cq ue llcc s uf ,, ' '. . " rave fa >te r to Ill '] ' f I e\ ellt III fure lg n affa irs a rc pote nti a ll y mo re "c " c III CSt t l ern s I d ti c a ffair s, Pre~ ident s a re m e ves , a n Ie s ea sil y reversible th a n in d o mes-

o re wtiltn g to use up their resu urce;,

T H E POWE R TO A C T

Th eir forlll a l pOwers to ' , P

, I I ' co mlllit resu urces In fo rei g n affa irs a nd defense a re vas t. 3 rtICli :l ey l!)lnQrtanr is th ' r d ' C h' f

- _ ---, r - ' elr power as \Jl1:":ll;,:,n:..;l;:a:.;n;:.=.e;,:,r-..:.II;,:,l -.-:;:.:.;.;-:lc",-t:..;o",--,,m;--,-u_v_e ~, Faced With Situ ar' I'k h ' , -_ , , ' Io ns l et e IIl va Slo n uf So uth Korea or th e empl ace- ment 0 1 ml ss ti es in C uba f " " h h ., ast action IS requ ired, Pres id ents possess bo t t e fo rmal power to ac t a nd th e kn ow ledge that eli tes a nd the g ncraLp"blj c ex - pect th e III to act. O nc e th ey have cO lllmitted American fo rces, it is difficult fo r Congress or anyone else to alter th e course of events, The Domini ca n ve nture is a recent case in po int.

, Pres idel ' I di sc reti o n in foreign affa irs al so makes it diffi (th o ugh Il o t Imp OSS ibl e) for COllgress t G res trJcr t lelr actions, Presid ents ca n use execu ti ve agreements in stead of trea ti es, enter into tacit agree ments in stead of writt en ones, a nd o th erwise help crea te de (acto situati ons not eas il y reve rsed , Pres i- dents a lso have fat greater ab ility than a nyo ne eI e to o btain info r a.rion o~ deve lo pm ents abroad through the Departments of State and Defense. The need ~or secre in some as ects ' n a nd defense o li cy further restri cts th e a bility of others to co mpete with Preside nts, These thin gs a re we ' nown, What is no t so ge nerall y apprec ia ted is the grow ing presid enti a l ab ility to lis e info rmati o n to achieve goa ls.

In th e pa st Pres idents were a ma teurs in military stra tegy. They co uld no t eve n ge t muc h useful adv ice o utsid e of th e milita ry. As late as th e 1930s th e numb er of people o utside the military establishment who were profess io na ll y engaged in th e stud y of defen se policy co uld be numbered on the finger s. Today th e re a re hundreds of sllch men, The ri se of th e defense inrcil ec CllOl s has given-thc Pres ident of th e United Sta tes enhanced ability to contro l de- fense policY.. He is no lo nger dependent o n th e militar y for advice, He ca n chooseamong defen se intell ectua ls from the resea rch corporation s and the academies fo r alternative sOllrces of advice, He ca n in stall these men in hi s own office. He ca n play them off aga in st eac h o ther o r use them to ex tend sphere s of coord inati o n , , ,

Even with these advi se rs, howeve r, PreS idents and Sec reta rr es of Defen se mi g ht still be roo bewildered by th e compl ex it y of nucie a r situa tio ns to take ac ti o n-unless th ey had an understandlllg of th e doctrine and conce pts of deter- rence. But kn ow ledge of the doctrine about deterrence has been widel y diffused; it ca n be picked up by a ny intelli ge nt person who Will r ead books, o r li sten to cnough ho urs of conve rsation' ,Whether or not thc doctrlnc IS good IS a separate que sti o n; th e point is that clvtilan s ca n fee l rh ey und erstand wha t IS gO lll g on , d f I' n 1 ps th e "lOft cvtrlord 1n -H )' featpre of preSid ential ac ti QIl III e ensf' po ICy, !>[ 13

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328 SECT IO N XI

which the Co mmander-in- . . . . the de ree ru es F

during the C ubJn mi ss ile Cri SIS WJ S Ir 'even t lOV . [om C hief of th e Armcd ... h~ . . ' . , nt[O Idn , to th e preci se words and ac-

h i f b<nr IIl g, d h' . '1' the positionin u oi ships to the Illct ot s o· '1 the President an IS CIVI Ian '" . d"d lid ' rs and sal ors, ti o ns to be taken by In IVI U:1 so Ie

advisers were in control. . foreign :1ffairs, the rivals do . I f power In

Although Presidents havc r,,'a s or I I 'lI1 St' th ' ma ' have supe- I not on lee. d b not usually succeed. Pre sidentS 1reV;1I . ts are weak, divide or e-

I ' nti 'll 0 onen • . I 0 r re sources bllt hl' '. use t lelr lote .' \" . , t u s consider the potentia Illi!e~ve~· !!t1~l;~1t...!t!h~ery~s~h~o~u~ld~n~o~t ~c~()~n~tr~o~1 ~t<~)I~'Ci,'lg;'I~l tPr°g-r(Kj'u}' e I Congress the military - , I ' ltcrest groupS, t le , , rival s-the general Citizenry, Spl'LI:1 II u

d h 5 te Department.

the so -c:1l1ed milit:1ry-indu stri:11 complex, an t e ta

COMPETITORS FOR CONTROL OF POLICY

THE PUBLIC

I d Presidents in foreign affairs The gener:11 public is much more (epen ent on . f' I . WI '1 I know about the Impact 0 socia th:1n in domestic matters. 11 e many peop e ., .

. . f k b I I'tl'cs in MalawI. So It IS not sur-security and Medicare, ew ' now a out t le po I . .' . prising that people expect the President to act III foreign affairs and .rewa.rd him with their confidence. Gallup Polls consistently show that pre~lde?ttal popularity rises after he rakes action in a crisis-whether. the aC~I~n IS d~s~s­ trous as in the Bay of Pigs or successful as in the Cuban missile crISI~. DeCISIve action, such as the bombing of oil fields near Haiphong, resulted III a sharp (though temporary) increase in Johnson's popularity.

The Vietnam situation illustrates another problem of public opinion in for- eign affairs: it is extremely difficult to get operational policy directions from the general public. It took a long time before any sizable public interest in the sub- ject developed. Nothing short of the large scale involvement of American troops under fire probably could have brought about the current high level of concern. Yet this relatively well developed popular opinion is difficult to interpret. While a majority appear to support President Johnson's policy, it appears that they could easily be persuaded to withdraw from Vietnam if the administration changed its line. Although a sizable majority would support various initiatives to end the war, they would seemingly be appalled if this action led to Commu- nist encroachments elsewhere in Southeast Asia. (See "The President the Polls and Vietnam" by Seymour Mart!n Lip.set, Tralls-actiOIl, Sept/Oct 1966.) ,

Although PreSidents lead op1l1lOn 111 foreign affairs, they know they will be held ac.countable for the c~nseque.nces. of their actions. President Johnson has mallltallled a large commitment III Vietnam. His popularit), sho t .

d .. h 'd f . 0 s up now ~n aga1l1 III t. e 1111 st 0 some Imposing action. But the fact that a body of cit- Izens do not lIke the war comes back to damage his overall po I .. \VI ,'11

. ' " h pu ant). we \\ I support your 1I1lttattves, t e people seem to say but we \ '11 h' I

• , VI reserve t e ng It to punish you (or your party) if we do not like the results.

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T H E PH ES lDtN CY }29

The hrm, a o r, bu sine ss co ,covers II ma of COl ern..: 'd ' nse rva non ve t ' ' I ' h ' groupS prov i e c ues when ' ' e ran, CIVI fig ts, a nd o th er Inte res t

identify with these groups n~a~r~d:sed policy affects rhem. Thus peo pl e wh o till' int;:r,esL' s tructure . ~t their Views. But In foreign ~olicrtterS many matters affecting Af ' IS wea un stable a n 'Il. rath e r t an ~e. In

rica and ASia f I ' , , known inte rest groups. Wh'l h ' o r exa mp e, It IS hard to thll1k of weil-

I e ep emera I g , 'f ' , Port o r protest particular I" roups arise rom tllne to time to sup-e po ICles the y II d' " P

roblem is reso lved In ' usua y Isa ppear wh en the Immediate , . COntra st, longer-la st" , I' I' k h F '

Policv Association and C 'I _ , II1g e Ite groups let e o relgn " ounci on Foreign R I'd f I

of diverse views; refusal to take ' ,e atlons are compose 0 peop e condition of their conti 1 d 'bstl rong PO Sition s on controversial matters IS a

I ue via I Ity. The stron est interest rou b b I "s are pro abl the ethnic asso ciations whose

n~em ers lave str.ong ties WIth a home and ... as in Poland or Cub; so the y a re rare y activate Sim u ltaneously on any specific issue. They are m'ost ef~ when most narrowly and inten I f d ' , ,- , se y Ocuse_ -as 111 the fierce pressure from Jews to recognize the state of Israel But the ' I' I II b I" h

· . 'f' , . Ir re atlve y sma num ers unitS t elr Sl III Ican 0 Presidents' hi ' ,

. , ,111 t e vast y. morL lmportant general fore,lPn Policy picture-as COntll1ue aid t h A b 'h ~ <>.:..:.. , . 0 t e ra COuntfies sows. Moreover, some @1mc groups may confhct on significant issues such as American acceptance of the Oder-Neisse hne separating Poland from what is now East Germany.

THE CONGRESS

Congressmen also exercise power in foreign affairs. Yet they are ordioMily notieriolls competirorr wirA the presideRr because they follow a self-denying ..Qrdll1an£t. They do not think it is their job to determine the nation's defense policies. Lewis A. Dexter's extensive interviews with members of the Senate Armed Services Committee, who might be expected to want a voice in defense policy, reveal that they do not desire for men like themselves to run the na- tion's defense establishment. Aside from a few specific conflicts among the armed services which allow both the possibility and desirability of direct in- tervention, the Armed Services Committee constitutes a sort of real estate committee dealing with the regional economic consequences of the location of military facilities.

The congressional appropriations power is potentially a significant re- Source, but circumstances since the end of World War II have tended to reduce its effectiveness. The appropriations committees and Congress itself might make their will felt by refusing to allot funds unless basIC poliCies were altered. But this has not happened. Whit Congress adltional small cuts in t~e military budget , - " ' ,hemselv ~~- gression empts to iru:utlsc speCltl10 )temS-StiH-fur~

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330 SECTION XI

, . f ' I to spcnd ha s nor been se ri- " [Ion s rc US.l , I' 'd I I

l'lo -r of rh e rimc, thc adlllllll s tr ~1 I" () -c ls ioll 5 whcn lilt IVI ua egis- 1\ s . I ' 11"l\"l' )(tn L J k ' ,

ou sl)' dl'll1cngcd, HO\\'l'\"(o' r, t lCIC , 'fl ', I Sc n ~ltor HCllr y ac so n III hI S " I III ul' n[l,l - ' A ' E

hto rs o r committe es h ~1\"c Kcn I 'Joint C Oll1llllttCC on tomlC n- • ,' f · II ' 'UC 5 0ntlt -- , IS ,

cIminiI'll (with thc ;lId 0 co ca g I I' hri s WC~lpOIlS S) stem ane enator . . '" " . , KC for t Ie (). h f I M h II

e rg)' ) wa s abl e to g~lIn acceptal ' d" nininl' th e s ape 0 tIe ars a ~ I ' I , 1'lrtln CtCl1 c- , f , 1'

Arthur H, V;1I1dcnberg P :1) CC .1 I· I ' re eXIJerr In de en se po ICY act, as f . ' , ·ss m e n w 10 .1 ' 'I. h Plan a nd so on, Thc eW L<lIlgrc I II ,' -t s with the executive manc . It

, , I" ' el)' ;15 0) 1) IS I ' Sa mu e l p, HUlI[lngto n S~I) S , .lI g . . ional experts to u se (lelr re-

, " I f , th cse u)ng ress k is app;Henrly Illore tnlltlu ()~ f ' I 'xec utive than to wor on other

' I I ("1 rill" rOIll t Ie c . so urc es III orc cr to ge t ~1 1. "

co ng rcss men. . ' t of violence, it rakes a great When ;111 iss ue invol " lC " . follow IheJ'.residenr's lead~s

d I ' .~e&<;IH~· 11 not to - ~h I I ea to COI1\'II1C( .," I I t'. s'> polic y iss ues from t e ate 1930s I ' . I I ' t torcl"n anl ( e en • Ro )lIl son s ta 1lI ;ltlon 0 ," ' fl ' -e b Congress in only on e case out

to 196 1 (Ta ble 2) shows domll1anr In UCIK ~ d force in Indochina. In of sen' ll-the 195 4 deci sion 1I0t to IIltervene wIth arm e . '

, E' I deliberatel y so unded out congressIOnal that in stance PresIdent Ise n lower , ' h d'

, " ' d' d d not to II1te rven e-agalll st tea vICe opinion and, fllldlll g It nega tive, eC I e , ff I'

f '\d ' I I' ~dford c11'1irman of the Joint CllIefs of Sta . T lIS attempt to o r 1I11ra ,.. " fA' , I d 'b'l' d 'd or sllcceed as the years 0 mencan IIlVO vement aban on responsl I It y In. , •

demonstrate.

THE MILITARY

The ,outstanding feature of th e military's " , , king defense pol- icy is their am az lIlg weakness .• Whethe r the policy decision s invo ve the size 0 the armed forces , the chOICe of we apons systems, the total defense budget, or its division into comp o nents, the militarv have not prevailed. let us take bud- getary decisions as representative Ofrile key choices to b;n;ade in defense pol- icy. Since the end of Wo the militarv has not been a e...to achi~e significant ( I Ion ollar) increases in appropriations by their own effur,ts, Under Truman and Eisenh;wer defense budgets were detern1fned by what Huntington calls the remainder method: the two Presidents estimated rey- enues, decided what they could spend on domestic matters, and the remainder was assigned to defense. The usual controversy was between some military and congressional groups supporting much large r expenditures while the President and his executive allies refused. A typical case, involving the desire of the Air Force to IIlcrease the number of groups of planes is described by Huntington in The Common Defense:

The FY Ifiscal yearl1949 budge t provided 48 groups. After the Czech coup, the AdnlllllStranon YIelded and backed ']n Air Force . f 55 " ,

• 0 groups 111 Its spring rear- mament program. Congress add ed ']dd" I f d' ,

, " • Itlona un s to aId Air Force expansIOn to 70 groups. Th e AdminI stration ref d 'I'

, • use to utI Ize them howe\'er and in the gathering economy wave of th e Slll11mer and fall of 1948 h A' F' "I " cut back agall1 to 48 groups In 1949 I ' t e Ir orce gO.l \\.I S

. t le Hou se of Repre se ntatives picked up

S c a n

n e d

b y C

a m

S c a n

n e

r

= so .. " Ah .,

T""LF 2 Congressional Involvement in Foreign and Defense Po licy Decision s

C( )N(; R F~~ ll )NA L PR FD()r-.. lI NANT I NV()LVF~ I FNT I N IT I AT( )1{ I N FI (lEN( I L I-(. i "l ' A l l(l :-.i (H{ VI()t l ,, ( 1 DI <.. i'dl )"! ( HI GH, Low, (C()N(; R E .... ~ O R (CON ( ,K I ,~ OR R F .... l ) l lITIO:--J /\ ,-51 \h. 1 TI\" ( Lo""

b ,ul' NONE ) EXEC UTI VE) E X FC lIr, v F ) (Yo·, OJ< No ) ( Y h 'lK No ) O l{ ~IHHU )

Neu tr a lity leg islation, the 1930s Hi g h Exe c Co ng Yes No LOll g Lend-lease, 194 1 High Exec Exec Yes Yes LOll g Aid to Ru ssia , 194 1 Low Exec Exec No No Lon g Repea l of C hine se exclusion, 1 943 High Co ng Co ng Yes No Lo ng Fulbri ght Resolution, 1943 High Co ng Co ng Yes No Long Building th e ato mi c bomb, 1944 Low Exec Exec Yes Yes Lo ng Foreign Serv ices Act o f 1946 Hi g h Exec Exec Yes No Lo ng Truman Doctrine, 1947 Hi g h Exec Exec Yes No Lu ng Th e Marshall Plan , 194 7-4 8 High Exec Exec Ye s No Lon g Berlin a irlift, 1948 No ne Exec Exec No Ye s Long Vanden berg Reso luti o n, 1948 High Exec Co ng Yes No Lo ng No rth Atlanti c Treaty, 194 7-4 9 High Exec Exec Ye s No Lo ng Korean deci sio n, 1950 None Exe c Exec No Yes Sho rr Ja panese peace treaty, 1952 High Exec Exec Yes No Lo ng Bo hl en Nom in a ti o n, 1953 Hi g h Exec Exec Ye s No Lo ng Ind o-C hin a, 1954 Hi g h Exec Co ng No Yes Sho rt Fo rm osa n Reso luti on . 1955 Hi gh Exec Exec Ye s Yes l on g Int ern a ti o nal Fin ance Co rp o ratio n, 195 6 Low Exec Exec Yes No Lo ng Fore ign aid, 1957 High Exec Exec Ye s No Long Reciproca l trade ag ree ments, 1958 Hi g h Exec Exec Ye s No Lo ng Mo nro ney Reso luti o n, 1958 Hi gh Co ng Co ng Ye s No Lon g C uban dec ision , 196 1 Low Exec Exec No Ye s Long

lH lH

SUltrCe : ):.II11(, S A . Robin so n. C o ngress a nd Foreig n Pulicy-Making ( Ho lll t'wo od, 111. : Do rsl' y Press . 196 2 ).

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-'3 2 ~ ' l"ol\ X I

-s 1 'I" The I' rl'"d~ III jlllp',,",cicd rllt' dlJII~n!; ' " lid ,' ppru l'rI ,II " J tUlld, '" r) , ).: r: ' " I - I A' " , , h ,d 41i )!ru liP' , r H~ II1 0Il y. 111 J Ullt' . IY"O. t ll' Ir ·on .. l •

, " , I I · , " r.' J",' .U:_JllOf' - lin ~ nd T he brc It Ill lT , hl' tld el ' ) Ill I I ' , - ' ' I', , T he KOrl' :11l \X/ar rl's ll tel 111 a n 'n -

l11 udlT Il tt',hnoil,,,v Ih ,1I1 tn rh e '11' , , f II ' I SI) lIrnik . d I ere,ISt' frOll1 _ ;,; 4-1 li 'Oil ;ll1d 1l11l(h o f the re s! 0 ()W~l , I ' an (I e

, , , - I - , tl"l:hllulu gy :t il l Inte rll a tl o nal hll "e ":llsrs o t I11l 's,k I' ro" ra ms , r Ill S '11 0 If ' d-

L , L, - -f bu rl ""HC (ort' l 'n ;] air () 0 -C l fltct-p llh l,U e lld I() thl' o lle 111 ,'1" 1' d o rr to u ---.:::......

mL'sti ..: p ow "" ro ugh the bud 'cr. " I d - ' , d ~ ' I r ' I ' re i)' r'll1f,e s r lL' eCI Slons m a e b), It ,:ll llIJ he .tr g llt'L t 1at t 1C re, 'l ell! IllL ' "

, , " f I ' I' , 1/() r 'onl'ress were ulllted Jnd 111-till' millt ,II"\' ,md th e il' a l" " " I ' t 1l' 'nI 't:tr y .11ll '" , , ' 'f " I I " . I ' I· e diffi c ult for Pres idents to re sist Sls tt'IH o n de t"be po " cy. ,t wa ll l Ct'"a"l) ) , ,

th ese for ces, But it is prcci sL'ly th e di sllility of th e militar y that ha s c har ac ter - ized th e e nt ire os, " , nl eCt. th e Ill' ,t;]r, ce n I e on .1l1 ym-:lj o r In a n e r 0 ( d e nse po li cy, T he apparent unir y of th e J o int C hiefs of Sr,l ff turn s o ur tu be illu so ry, The vast m a jority of th e ir reco mmendati o ns ap- pear t o be un a nim o us and a re a ccep ted by th e Sec rc ta ry of Defense and the Presid e nt, Bur thi s fa cade o f unit y ca n o nl y be achieved b y m e thod s that vitiate the impact o f th e re co mm e ndation s, Ge nuine di sag ree ments are hidden by V.lg ue la ngua ge th a t co mmits no one to a nything. Mutually contradictory plans a re strun g together so eve r yo ne appears to ge t so m ething, but no thing is de- c ided, Since it is imp oss ible to agree o n reall y important matters, all SO rt s of tri via are bro ught in to make a reco rd o f ag reement. While it ma y be true, as Admiral Denfield, a former C hief o f Naval Operations, sa id, that "O n nine- tenths o f the matters that co me before th e m the joint C hiefs of Staff reach ag ree ment themselves," the vastly mo re important trurh is that "normally the Dilly di spures are on str;ltcgic co ncepts, th e size and comp, ' ti o n-of fo rce s, alld budget matte~s, " '

MILITARy-INDUST RIAL

But what about the fabled militar y-industrial complex? If the military alone is divided and weak , perhaps the giant industrial firms that are so dependent on defen se contracts playa large part in m a king policy,

First, there is an importanr di stinc tion between the question s " Who will get a given contract?" and "What will our defense policy be?" It is apparent that different answers may be given to these quite different questions There are literally tens of thousand s of defense conrractors, They may comp~te vig- or,o,usly for busll1ess, In the course of this competition, theynlay wine ana dine m.Jltary othcers, use rettred generals, seek intervention by their congressmen , place ads 111 trade lournal s, and even conrribure to poll'tl'cal 'Th fa

, campaIgns, e,- mous TFX controversy-sh o uld General Dynalnl" ' s or B' I ' ) , , ~ oemg get t 1C expen-

sive contract. -IS a larger than hfe example of the pres b hI ' 1 . , sure roug t to )car \I search ot lucrative contracts,

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Till: PJU: SID ENC Y 333

But neither the TFX case n I ' I j

' I I k' < or t Ie. usual vigorous competition (or contracts ' - invo vee Wit I tIe ma ' l1lg of S l' ~' k I> , f I > I f u lStanllve defen se policy, Vital questions . C he Size 0 tIt l e en se budg"t rI I ' ,, ' , , , 1' -t , Ie c WILe of strategic program s ma ss ll e rem I rion V5, ,I counter-City str'lteg , I I'k ' , ' - f

a ~_ . ' , < ~,anl t Ie I -e were far beyond the poliCY allll S 0 ny compan y, nJuStnal-flrnl s tl f - , , 'I

:1 . , len, ( 0 not control slI c b dCClslon s, nor IS t Jere - uch eVldcl1l:e that they 'ICtl ' II ' N ' , ' h I~ , . 1.1) try. 0 doubt J precipitous Jnd dm stlc ru s to ,lis'lrm;Jmcnr would meet With opposition from indusrri;ll firm s among other 'Hcrcsrs. Howcver there has b · ' " (' I II , , never een a tlllle when an y SlgJlI IC;lnt e ement , I the <To\'ernment conSidered 'I I' , ' , II t> • (I S.lrIllJmenr poliCY to he feaSible.

It Illa}' Jl)llear that indu st ' I f' I I ' h , na Irms 1,le no speCial rea son to concern t em- selres With the government's stance on defen se becau se they agree with the national consensus on resls,tlllg comlllunislll, maintaining a large defen se es- tablishment, ;In,d reJectll~g Isolationi sm. However, this hypothesi s about the climate of opinion explallls everything and nothing. For ~ .wor ted or rel~cted CJn be explained OW;]}, on the grounds th~~r. ~mate of opllllon dICtated what happened, Did the United StJtes fail to inter- vene with armed force in VietnJm in 1954? That must be becaus e the climate of opinion was Jgainst it. Did the United StJtes send troops to ViernJm in the 1960s? Tlwt must be becJuse the cold WJr c1imJte demanded it. If the United States builds more missiles, negotiates J test-bJn treaty, intervenes in the Do- minican Republic, fJils to intervene in a dozen other situJtions, all these ac- tions fit the hypothesis by definition. The Jrgument is reminiscent of those who defined the Soviet Union JS permJnentiy hostile and therefore interpreted increases of Soviet troops as menJcing and decreases of troop strength as equally sinister.

If the rowth of the militar ' e uated with in- creasia the extrJordinary wea ness of the ~nal seldi@F ,till reqllires explJnJtjon ,Huntington as written about how major military leJders were seduced in the Truman and Eisenhower years into believing that they should bow to the judgment of civiliJns thJt the econ- omy could not stand much brger militJry expenditures. «nce the size of the

JDilirary pie W;lS Jccepted AS a fixed constrajnt, the militJry services were com.: pelled to pm their l'Iujor energies into gU:1rrel~it-h-one...another o yer who should get the I;uger ,bne r Given the n;]turJI rivJlries of the military Jnd their traditional acceptance of civilian rule, the President Jnd his :1dvisers-who could cbim responsibility for the broJder picture of reconciling defense and domestic policies-had the upper hand. There Jre, however, additional expla-

nations to be considered. The dominant role of the congressional appropriations committee is to be

guardiJn of the treasury. This is manifested in the pride of its members in cut- ting the President's budget. Thus it WJS difficult to g~t this cruci,al committee to recommend even a few hundred million increJse 111, d~fen~e; It was practi- cally impossible to get them to consider the several billion Jump that might really have made a difference. A related budgetary matter concerned the

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334 SECTION XI

. d etar y system introd uc ed by Secretary of planning, programmll1 g, a nd bu g l d ' et co ntained 111. r ca t . that

F 'f I defen se HI g , th Defen se McNa mara. !2r I ti e . f Defen se CO li er. . . I . rhe Secreta n 0 d . . . c n s . ' Ices, on )' f rOPfa m bu ge rll1 g, Its major

I b II nsequences 0 p '" .. , d' \X' ha te ve r th e o th er (e ata 1 e co , and hi s cIvIlian a visers. . to th e sec reta r) • . .,

consequence wa s to g rant power, au h )ro ram h udgetm&-1S-Just ope The sub o rdinati o n of rh e I , of th " r.y, In rh e past d eca de the mil-

s mptom 0 a 1110re 'ener:11 k'lI rOIJri 'ne to th e nuclear age, For . f ' d I k t" r lI ec nl"ll S ' I S app· h Itary la s su tere a ac ' 0 111 e ' 'e with nucl ea r war. So t e usual

d t ) direct expenenc . , no o ne ha s (a n no o ne wan s '1 I co mba t expe rience IS not very l ' I I ' peop e to lave military talk about Je lll g t 1e o n ) ' f ss ibl e future wars-in order

, ' I d I ' lla"in 'uive creation a po h ImpreSSive, nsrea ,r 1e II '''' ' . I ' I 't y fo r abstract thoug t com- to avoid them-req uires peop,le With a lI

b g \CapaCgl quantitative methods. West

bined with the ability to ma nipulate sy m 0 s USIl1 Point ha s'no t produced many such men.

TH E STATE D EPA RTM ENT , h S D ut their policies.

Modern PreSidents expect t e tate e artme , , '

J h F · 1~t t~te was "in some particular sense hiS epart-

on, el "", I h ' h ment. " If a Secretary of State for gets this, as was apparent y t e case Wit Ja mes Byrnes under Truman, a Presiden~ mar find ano,ther man. B~t the State Department, especially th e Foreign SerVICe, IS also a hlghl,y profeSSional orga- nization with a life a nd mo mentum of its own . If a PreSident does not push hard he ma y find hi s preferences some . r ISS I at 111 time. Art ur

chlesinger I s li S JOO' o n Kennedy with laments about the ureaucratic inertia and recalcitrance of th e State Department.

Yet Schlesinger'S own accollnt suggests that State could not ordinarily r~­ sist the president. At one point, he writes of "the President, himself, lI1creas- Ingly the day-to-day director of American foreign policy. " On the next page, we learn that "Kennedy dea lt personally with almost every aspect of policy around the globe. H e knew more about certain areas than the senior officials at State and probabl y called as many issues to their attention as they did to his." The President in sisted on his way in Laos. H e pushed through his policy on the Congo against strong opposition with the State Department. Had Kennedy wanted to et a reat deal more initiative our of the State Dep-art- ment, as c eSll1ger insists, he cou ave the ec re ary O"fSt'a~ manwho did not command special support-in th e Democratic RartYOr .§. ._ Congre~. It may be that Ke nnedy wanted too strongly to run his own foreign p~licy. Dean Rus,k may have known far better than Schlesinger that the one thmg K.~nnedy did not want was a man who might rival him in the field of foreign affairs.

Schlesinger comes closest to the truth when he writes that " the white Hou~e could alwa~s, win any battle it chose over the [Foreign] Service; but the prestige and profiCiency of the Service limited the number of battles any white House would find it profitable to fight." ~hen th e pres ident knew

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T I-I l PR E> IDl NC Y 335

nte d he o t it. good ad vic e a nd f r e que n td ";-:-:i d:;-:n:-:o::t-'-'--, e":'t:':t:;'l:"a=t=. -;;B:::u~t:':t-:';";'e:'r e::':;'i s--'"-'n"'o"""'e'::v 1;'- l-e=-n=-cC:::-e t ha t the peop e o n li S st a came lip with better I ca s. T he rea l probl em may ha ve been a lack of good Idea s a n yw here. Kennedy und o ubted ly e nco uraged hi s staff to prod th e Sta te Department. But th e Pres ide nt wa s s uffi c ie ntl y ca uti o us no t to push so ha rd th a t he gO t hi s way when he wa s not ce rtai n w ha t th a t way sho uld be. In thi s Co ntex t Kenlle~ppears to have pla ye d hi s staff off aga ins t elements 111 th e St a te Department.

The grow th of a spec ia l White H o use staff to help Pres ide nts in foreign affairs ex presses th e ir need for assistance, th e ir re fu sa l to re ly co mpl ete ly o n the regul a r exec utive age nci es, a nd th e ir ab ility to find competent men. Th e de- ployme nt of thi s staff mu st remain a presidential preroga tive, ho weve r, if its memb e rs are to se rve Presidents and not their oppo nents. Whenever critics do not like existing foreign and d efen se po li c ies, the y a re likel y to complain th a t the White House staff is screening o ut di ve rge nt views from the President 's at- tenti o n. Naturally, the critics rec o mmend int rod ucing man y mo re different viewpoints. If the critics could man euve r the President into co untin g hands a ll day ("o n the one ha nd and on the oth er "), th ey would ma ke it impossible fo r him to act. Such a viewpoint is also congenial to th ose who believe that action ra ther than inaction is the greatest presenu:langer in foreign..polic.y. Bur Pres i-

dents res o lutel y refu se to beco me pri so ners o f th eir advisers by using them as other people wo uld like _ presidents rem a in in co ntrol ekheir scaff as well as uf major foreign polic y deci sions. -

- HOW CO MPLETE I S TH E CON TROL?

Some a nal yst s say that the success o f Presidents in controlling foreign po li cy de- cisions is large ly illuso ry. It is achieved, th ey say, by anticipating th e reac ti o ns of others, and eliminating proposa ls th at would run into seve re o pp os itio n. Th ere is so me truth in thi s objection. In o litics, where tra nsactton s are based o n a high degree of mutual interdependence, \ . other~ ma cio has to be . taken into account. But basi ng presidenttal success 111 foreIgn and d efe nse poltc)' o n ; nticipated reaction s suggests a static situatio n which does not exist. For if Presidents propose o nl y th ose poltcles that would get support 111 Co ngress, and Congress opposes them only when it knows that it can muster ove rwh elming strength, there would never be any conflict. Indeed , there mIght never be any

action. .. action" ex lain the conflict over polici

ow - . h ' h Marshall Plan and the test-b a n treaty 111 W IC seve re o~~~stnon was oveI-

I h s efforts' Furthermore, why doe sn t anttClpated re ac -Co me on_): -v stre nu ou· h f - " k ' d . affairs' One would have to argue t at or some rea so n f1 0 n wor 111 o mesttc · f"

ccess ul IS consIstently onfused r identia l

d - - d most alwa s accurate 0 0 'olic iss ue s. o n omestlC Iss ue s an' d b - h - B h f

. - t d reac tion s" sho ul e greater 111 t e more ta ml la r Ut t e ro le 0 "antlclpa e

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336 SECTION XI

. . .kl 'of expe ri ence for forecastin g d o mcst ic situations, which pro vid e a b~IL °b ch a s th e Suez crisis or th~ I . f· I· . I )"el SilU ;Hlon s Sll t Ian In o rel gn po IC Y Wit I man y 1H •

Rhodesian affair. I . ,I , i"IH refute th e the sis of . . f· I . . I ' ·lmI1I es w III 1 n 0 Arc there Slg1l1 Ica nt ll sronca ex. · . I . . . F

. . . I·) C . 'n aid mav ,1 C J GIS' In pOIn!., or pres ldcnl1al control of fo reign po IC y. , orc lg~ · d .. b

. I' I ' t forclgn al appropriation s e- n1:1n y years, PreS id ent s have strllgg ~( to be I .. v t se er~1 b ·ll·

. . . . II . I' .res siona opiniOn. Ie v" I lOll cau se ot ho stilit y from pli 1 IC am long ·d I .

. I I ,I , d )ite the eVI ent unpopu anty of dollars ;] )'ear are approprlatel reg ll ;l1) eS I ..

. ' ltrles like Poland and the program. In the ;ud progr;IIll S to , . I 'd

I . I fi Ction s to tIe al 1m resl-

Yu o s ,Wla, tiC Co ngress attac 1 ' dents fin ways 0 bettini' ·lWlllHj.~t~hlf'e+lll+'l.- ..) .

\X!hat ahout th e exa mpl e of reco g nition of CO lll111U111St China. The senti- ment of the (Olintry alwa ys ha s heen against recognizing Red China or admit- tin g it to the United Nations. But have Presid e nts wanted to recog111ze Red C hina and been ham strung by opposition? Th e answer, I sugges t, IS a qualified "no." By the time recognition of Red C hina mi g ht have become a serious issue for the Trunun administration, the war in Korea effectively precluded its con- siderati o n. There is no evidence that President Eisenhower or Secretary Dulles ever thought it wi se to rcco gni ze Red C hina or help admit her to the United Nations. The Kennedy admini stration viewed the matter as not of major im- portance and, considering the opposition, moved cautiously in suggesting change. Then came the war in Vietnam. If the advantages for foreign policy had been perceived to be much high e r, th e n Kennedy or Johnson might have proposed changing American policy toward recognition of Red China.

One possible exception, in the case of Red China, however, does not seem sufficient to invalidate the ?eneral thesis ~hat Presidents do con s iderably bette£, m gettmg thClr way III foreign and defense policv thJn in dom e stic policie5.,..

THE WORLD INFLUENCE

The forces impelling :residents to be concerned with the widest ran e of for- eign and defense poliCies also affect the ways in which the calcufate their power stakes. As Kennedy used to say "D . . Y us; foreign policy can kill liS " ' _~StlC pobcy ... can only defeat

It no longer makes sense for Presidents to" I 1" ''' ' . defense policies. In the past P ·d . P ay po lUes With foreign and

. • , resl ents might ha I I h h lei gam by prolonged delay 0 I . . ve t 101ig lt t at t ey cou

r )y not actmg at all Th bl . or be passed on to their successo P .d " e pro em might disappear

rs. res! eots mil t . h costs themselves if the world SI·t .- d ,s now expect to pay the hlg . ' ' uatlon etenorat Th d lllg a polley that is viable in th Id I ' . es", e a vantages of pllrsll-

. f II e wor t lat Will bl . or their e ow Citizens far ollt . h ' not ow up on PreSidents

d . ,. welg any tempor I·' I

accrue III supporting an initial I I. ary po IUca disadvantages . P . I • Y unpopll ar pob C . .

affaIrs, res lc ents e)l!!aged in \ Id 1". cy. ompared With domestiC . . b vor po. nICS (Ire' I ._J

With meeting pro lems on their Own ;e;;;;;:;v Immense y more conceolt:ll ho suPPOrts and opposes a pobey,

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I ULI"h a m a rt e r of co nsider'lbl ' , I ' a r -t 1 '" , , • e Inte re st. dues nut ass ume th e crucla Imp IKe th a t It d ues In d o me sti c aff ' - TI I ' , f' ~ ' , Iso t3 , , ' aIr, 1e JeS t po lI cy Pres ld e nrs ca n Inll IS .1

rh e best pulIttc , '

The fact th a t th e re are . f ' I' ' ' n s . Ilumero us orel~n a nd defen se po IC), s lru a tt o , 11pe rin u to r a President's ' ~, , ' I ' . e

l OI "' ", attentIon mea ns that It IS worthwhl e to o rga n . po litical JcttVIt)' In order to e ffec t hi s age nda. r o r it a re en pa)'s m o re

:lrtentI o l1 ro ce rt a tn probl em s he ma )' develop difie renr prefe re nc es; he mal' see k and rece ive diffe rent advice; hi s new calculations ma l' lead him to devote greater reso urces to see kin g a SOlution. Inte rested congre~smen mti'- exe rt in - tlu e nce not b )' dl.rectl d ete rmtnln < re sldenttal ' . ' Il hill in Iree d y by 1113 ' 111 It co ' .' ' 1t to avo id recon sid e rin • the basis for hi J lcrinn. For example, citizen groups, such as those concerned with a change in C hin a policy, ma)' have an impact simply by keeping their proposa ls o n th e puhli c age nda. A Pres ident may be compelled to recon side r a probl em even th o ug h he could not ove rtly be forced to alter the prevailing polic )'.

In for " a roaching the stage where kn ow led ge is E.£-wer.. There is a tremendous receptivity goo I eas I n a ' . ' O$t- anyone who can present a convincing rationale for dealing with a hard wo rld finds a ready audience. The best way to convince Presidents to follow a d es ired I!.0licy is to show that it might wo~ man lIke McNamara thrives be-caLise he performs; he comes up WIth answers he can defend. It is, to be sure, ex tremel y difficult ro devise good policies or to predict their consequences accuratel),. Nor is it easy to convince others that a given policy is superior ro other alter- natives. BlIt it is the way to influence with Pre sidents. Ear if th e y 'lee convinced that [be c urre pt polj c )' is b e st the likelihood of gajnine sufficient forc e to COID- ;e1 a chaos!: is 'Illite small. The man who can build better foreign p o licies will find Presidents beating a path to his door.

UNITED STATES V . NIXON

61. EXECUTIVE PRIVILEGE

As is true o( most major question~ in Americail gove,,:- ment, the Supreme Court was (mally {arced to enter

h d b r P residential power when Presldellt tee ate ave ,

Richard M. Nixon claimed that preSIdents have an ab- , privilege-that they could determll1e

soillte executIVe , Id I I I t ill formatIon they Wall re ease to (or themse ves w la I'

• ' ,d Stales v. Nixoll ( 1974 ), SOllTce: U.S, Supreme Co urt , Umle

•

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338 SE CT I O N X I

" Ily JIIad e i/l Ihc \Y/ hite thc cou r l s, AI issuc /Vcre l a.p es sec~e r. ' so i/l Ihe Wil t er-

/l ae(l , 0 1 II L /-lo use I/;al /;ad b ee/l subp oe , I Un ired Sra res v,

I I ' ' I Iru <ecul /U /I , /I

\!lI t c S(([ /I( a crlllli/l a ) - , I ' JI'sa " recd lUith c , C 'I 1I/1([III/IlOIIS' (I " N ixo n t/;c Suprelll c 0 111 , / 1' /)" sc/)amtio /l of , ' tl ([ I .. /l el t )cr L Presidelll N IXOII . sl al/ll8,) (,' J I · 1'1)1 of hi"h -Ievel

/ " d I I' CO /l,we ll iii I " p Ul/ lcrs. 11 0 1' I)C 11(( U -I al'll a /l ahsoillt e " ' / I /l o rc call Sl/ , , ,

CO IIIIIII/lllcalioIl S. 1(llt )() U I • , ' d' 'al/il'o cess 'J ' I ' 11 (1)' {ro lll /11 ICI

llIlql/ali(icd. /lrcsw e/ ll{(7 1/1/11/11 , ~ , ' , II r. . d .. TI '- dCClSIOIl lil em v , Ol ce

ullder a/l circuIllSiall ces, )1' [; ' II " r. da)ls la l cr- eca us e JC

t/;c res ig llalioll uf N lx o /l a l ew . ' I , ", 1/ I Nh: o ll s IIlIpcac Jll1ent

l([ peS l{Jcre SU /IIC/'IIIIIIIiII/IIg )a . d . bv I/;e /-l ouse alld cDlwiciioll by Ihc SCllat e seelll e cel-

({;ill wil/; t/;eir rele([se.

C hi ef Ju srice BURGER delivers rhe o pini o n of rh e Co urr.

IWJe rurn ro rh e claim rhar rhe subp oe na sh o uld be qua shed beca use it de- ma nd s "confidential conversations betwee n a Pres Ident and hI S cl o~e adVIsors th a t it would be incon siste nt with th e pubhc IIlte res t to produce. Th e first conrention is :1 broad cl a im that rh e se para ti o n o f powers doctrine precludes judici a l re view of a Pres id ent's claim of privilege. Th e second contention is th a t if he does not preva il on the claim of absolute privilege, th e court s hould h o ld as a matter of constitutional law that the privilege prevails over th e subpoena duces t ecum.

In th e perfo rmance of assigned constituti o nal duties each branch of the Government must initiall y interpret the Constitution, and the interpretation of its powers by a ny branch is due grea t resp ect fro m the others. The President's counsel, as we have noted, reads th e Constituti o n as providing an absolute privilege of confidentiality for all Preside ntial communications. Many deci- sions of this Co urt, howeve r, have unequivocall y reaffirmed the holding of Marbury v. Madison, [1 C r. 137 (] 803)J, that "lilt is emphatically the province and duty of the judicial department to say what th e law is. "

Our system of gove rnment "requires that federal courrs on occasion inter- pret the Constitution in a manner at variance with the con structi o n given the docum ent by another branch." Powell v. M cCo rma ck , [395 U.S. 486 (1969)J. And in Baker v. Carr, [369 U.S. 186 (1962)], the Co urt stated:

"IDJeciding whether a matter has in any measure been committed by th e Constitution to another branch of governmenr, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate ex- ercIse III conStitutIonal IIlterpretation and is a resp o 'b'l' f h ' C

I ' , , ' nSI I Ity 0 t IS ourt as

u tIlnate Interpreter of th e Constitution,"

Notwithstanding the deference each branch nlust d h h I w d' , flU ' accor t e ot ers t le IU 1-

cia! Power 0 tle mted States " vested in the federal courts by Art. III, §1, of the

..

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- Til L PR~"DI, NC\' 339

Co ns tituti o n ca n n o m o rt' b I . h ' f . t' e s 1ared With th e Exec uti ve Bran c h th an th e C Ie

Executive, or exa mpl e I· . h C I

. ' ca ll s lare With the Judiciar y th e ve to power, o r t e o ng re S S lare with the J d " I · .

A h I · u ICla ry t l e powe r to ove rrid e a Pre identlal ve to. n )' or e r co ne u Ion 11'0 I lb · f I h I

u ( e CO mr a ry to the ba sic co nce pt of se par:Hl o n 0 powers anc t e c l ee ks a . d b I . .

W I ' 11 . a anees that flow fro m th e sc he me of a tripa rtit e gove rn m ent. we th erefor ff ' I " fl '

" e rea Irlll t l a t It IS the pruvinee a nd dut y 0 t li S Coun to s ay what the la · . ,' . I .. . d .' . , II' IS Wit 1 respect to th e c1alln of privilege prese m e In thi S case . Marbury v, Madis ol/

In s upp Ort of hi s c la im of ab~~ I'l;te privilege th e Pres ident's co un se l urges twO ground s o ne of whid . II ' f h ' I . .' 1 IS co mm o n to a governments a nd one 0 II' IC 1 IS

Pec uliar to o ur sys te m o f . . f . d ' h I'd . sepa ra tion 0 powers. Th e fir st gro un IS t e va I need fo r protectio n of co mmunicati o ns between hi g h Govern ment o ffici a ls a nd tho se who adVise and assist th em in the performance o f th eir manifo ld duti es: the Imp o rtance of thi S co nfidentialit y is too plain to require further di sc ussio n. Human experIence teac hes that those who expect public di ssemination of their remark s ma y well temp er candor with a concern for appearances and for their own Inte res t s to the detrim ent of the deci sionmaking process. Whatever the na- ture of the privilege of confidentiality of Presidential co mmunications in th e ex- ercise of An. II powers, the privilege can be said to derive from the supremacy of each branch within its own assigned area of constitutional dutie s. Ce rta in powers and privileges flow from th e nature o f enumerated powers; the protec- tion of the confidentiality of Pres idential communications ha s similar constitu- tiona I underpinnings.

The second ground asserted by the Pre sident 's counsel in s upport of the claim of absolute privilege rests on th e do ctrine of separation of powers. Here it is argued that the independence of the Executive Branch within its own sphere, Humphre y'S Executor I I. United States, 295 U.S. 602 (1935); Kilb ourn v. Th ompson, 103 U.S. 168 (1881), in sulates a Pres ident from a judicial sub- poena in an ongoing criminal prosec ution, and th ereby protects confidential Presidential communications.

However neither the doctrine of separation of powers, nor the need for confidentialit~ of high-level communications, without more, ca~ sustain an ab- solute, unqualified Presidential privilege of Immumty from JudiCIal process under all circumstances. The President 's need for complete candor and obJectlv- 't f dvisers calls for great deference from the courts. However, when the I y rom a ff . d I ' fbi " . " 1 d d olely on the broad undi erentlate calm 0 pu IC IIlteres t III prlVl ege epen s s , .. h f 'd' I't of such conversations, a confrontatIOn With other values t e con I entia I y '1' d ' I ' . .

. Ab I' of need to protect ml Itary, Ip omatIc, or senSItive na-anses. sent a calm h . I ' ve find it difficult to accept the argument t at even the tIona securIty secrets, \ . . .' ' " .

. . t ' n confidentialIty of PreSidential commUlllcatIons IS slg- I'ery Important Interes I . '. . .

'f' d " . h d b oduction of such matenal tor //I camera IIl spectIon III lCandy ImllllS e Y pr . bl ' d 'd

. . h district court wIll be 0 Ige to proVI e. With all the proteCtIon ~ at a absolute, unqualified privilege would place in the

The Impediment t at an . nal duty of the Judicial Branch to do ju stice in f h . ary constltUtIO . .

way 0 t e prIm . Id lainl y conflict with the funCtIon of the courts cnmIllal prosecutions wou p

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340 SECT IO N XI

G )\'ernJIleJlt :1nd dividin g and ture of our ( I I' f und er Art III In d es i"nin g the strU C 11:11 hr;ln c he s, tIe ' ramers 0 . " . <' • . lIl' three co -cq . I. .

alloc-HIIl!' the sOI'Crelgn pown .1111< g I ' ve Sys tem , hut t It: se parate . ' " . .' I a compre len SI . th e Con stituti o n sought to provi l c. . I I lutc indep e ndence ....

I I 'nte Wit I :11 S0 I I . , Powers were not intcill el to ope. . . I . s providing an a ) SO ute PrJVI- f I Pre sil ent .1

To read th e Art. \I powers 0 I Ie f .. It of c riminal statutes on no , , . '. I to en orCCJ11t I " I' f

lege a s ;]gamst a suhpo ena esse nll.1 II ' _' te res t in co nfldentla Ity 0 non- I, I I ' f the pu ) It: III , , II I more than a ge nera IZCl c :lIm 0 , Id pset th e conStltutlOna )a ance

' , , I · " I" 'slon s wo u U nulitary and nOllllip omatlt: llSLUS I' ' th e role of the courts under

,. . . l 'r'we)' Impair of "a workable gove rnment anu g .

Art. Ill, , ' > eeds of th e judicial process may S' I ·1 tl ~ t the legitimate n , , mce we conc Ul e I.. " Ive those competing 111-

' I " I t s necess ary to res o o utwei gh Presidenlla prtVI ege, I I " I f -t' . n s of eac h branch The

. h' 'ssentla unt: 10. , teres ts III a manner Ih :H prese rve s tee 'docs not free the Judiciary right and indeed th c dmy to reso lve that question d b h If f th P

.. I nt"ltlon s rna e on e a 0 e res-from accordmg Iligh respec t to tIe repre se • id ent United States I '. Bltrr, 14 C r. (8 U,S,) 470 (1807)1. , ,

'1 'f P 'd · It to th e confidentiality of hi S conversations TIe expect:Hlon 0 a res I el " " 'b ' d d I' k II e cl~I'ln of confidentiality of JudiCial deli eratlons, an correspon ence, I e I u ,

for e.x ample, has all the values to which we accord defe rence for the prtvacy of II " d dded to th ose v~lues is the necess ity fo r prote ction of the a cItIzens an ,a u , " , ,

pubiic interest in candid, objective, and even blunt or h,arsh opmlOns III PresI- dential decisionmaking. A President and those who assist 111m mu st be free to explore alternatives in the process of shaping policies and making de~isions and to do so in a way many would be unwilling to express except prtvately. These are the considerations ju stifying a presumptive privilege for Presidential communications, The privilege is fundamental to the operation of Government and inex tricably rooted in the separation of powers under the Constitution. In Nixon v. Sirica, 159 U.S. App. D.C. 58 (1973), the Court of Appeals held that such Presidential communications are "presumptively privileged" and this po- sition is accepted by both parties in the present litigation. We agree with Chief Justice MARSHALL's observation, therefore, that" [iln no case of this kind would a court be required to proceed against the president as against an ordi- nary individual." United States v. BlIrr . ...

But this presumptive privilege must be considered in light of our historic commitment to the rule of law. This is nowhere more profoundly manifest than in our vi~w that "the twofold aim [of criminal justice] is that guilt shall not es- cape or mnocence suffer." Berger v. United States [295 U.S. 78 (1935)). We have, elected to e~ploy an adversary system of criminal justice in which the parties Contest all Issues before a court of Iau , The need t d I lilt

' , n. 0 eve op a re evan facts m the adversary system is both fundamental d h' Th

" , , • an com pre enslve. e ends of cnmmal JUStice would be d e feated if J'udgme t b f d d

" n s were to e oun e on a partIal or speculative presentation of the facts TI ' , f h ' d' ' " ' . le very Integnty 0 t e JU 1-

clal system and public confidence in the system dep d f II d ' 1 f 11 ' h' en on u ISC osure 0 a the facts, Wit m the framework of the rules of ev'd"r I "

' , , ' , I ence. 10 ensure t lat Justice IS done, It IS Imperative to the function of COurts th I b at compu sory process e

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Til e I'IH "D LN C Y 34 1

aV:1il3ble fo r th e pro duction of evid " " rhe defen se " ence needed e ither by th e prosec uti o n o r b)'

Only rec ently rhe C ourt ' rest"ned th " " "

the context of :1 grand jUr ' in ". e anCIent prop os iti o n o f I3w, a lbeit 111 > qUlr y rather than a trial.

"th a t ' the public ha s " I ' " " a rtg 1t to CV " ' "d

so ns pro te c ted b ' "" er v Ill a n s l"V I ('IK e,' exce pt fo r rh ose per- y a constitution I

a , Cllllllllon -law, o r slarUrOr)' privilege, " " " " The privileges referred to b th C "

" " "" Y e oun are deSIgned to protect weight y and le- gitimate competing IIlterests Th h '" " "

P rovides that no 11 "h II' us, t e Fifth Amendment to the Con stitution

, 1an s a be Con II d " " " " gainsr himself." Ad " 1pe e 111 any crnnll1al ca se to be a wItness ~ ' I h h ~' generally, 3n attorney or a priest may no t be required to , ISC ose w at a s een revealed in profess ional confidence, These and other ;n~r~sts a;e ~cogntzed 111 law by privileges against forc ed di sclosure, estab- IS e hill t 1e onstltUtlon, by statute, or at common law, Whatever their ori -

gillS, t ese exceptions to the de d f ' " " " man or every man s eVIdence are not Itghtl y

created nor expansIvely const d f h " " rue , or t ey are 111 derogatIon of the search for

truth,

In thiscase the President challenges a subpoena served on him as a third party requiring the production of materials for use in a criminal prosecution on the clalln that he has a privilege against disclosure of confidential commu- nications" He does not place his claim of privilege on the ground they are mil- Itary or dIplomatic secrets, As to these areas of An, II duties the courts have traditionally shown the utmost deference to presidential responsibilities, No case of the Court, however, has extended this high degree of deference to a President's generalized interest in confidentiality, Nowhere in the Constitution, as we have noted earlier, is there any explicit reference to a privilege of confi- dentiality, yet to the extent this interest relates to the effective discharge of a President's powers, it is constitutionally based, , , ,

In this case we must weigh the importance of the general privilege of confidentiality of presidential communications in performance of his responsi- bilities against the inroads of such a privilege on the fair administration of criminal justice, The interest in preserving confidentiality is weighty indeed and entitled to great respect, However we cannot conclude that advisers will be moved to temper the candor of their remarks by the infrequent occasions of disclosure because of the possibility that such conversations will be called for in the context of a criminal prosecution,

On the other hand, the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial could cut deeply in~o the guar- antee of the process of law and gravely impair the" baSIC function of the courts, A President's acknowledged need for confidentlaltty III the commUlllcatlons of

h " ff'" I "n nature whereas the constitutional need for production IS 0 ICe IS genera I , """ " d " f I 'd"n a criminal proceedll1g IS speclhc an central to the faIr o re evant eVI ence I """ " " " d " d'" f t"cular criminal case 111 the admll1lstratlon of JustIce, a JU Icatlon 0 a par I "b I

W " h "fl"c facts a criminal prosecution may e tota Iy frus-It out access to specl " "' f "" " "d ' b d I" nterest in conhdentlaltty 0 commUlllcatlons will trated, The Prest ent s roa

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3 4 2 SF CT IOl'l X I

nor be vio lJ tco by di sclos ure of ;] lim ited numb er of co nve rsa ti ons prelimin ar_ il y show n ro ha ve SO Ill C bea ring o n the pcndin~ crlJ1lln a l cases.

We co nclud e th at when th e grollnd fo r asse rrJn g pri vil ege as ro subp oe- n3ed mater ials so ught fo r li se in a crimin a l trial is based on ly o n th e gc neral- ized inreres t ill co nfid enrialit v, it CJ nn ot preva il ove r th e fundJ menra l demands of d ue proce ss of IJW in th e' fa ir 3dmini strati o n of criminal ju sti cc. The ge n- era li zed J sse rri o n of pri vil ege mu st yield to th e d emo nstrJted, spec ifi c need for ev iden ce in a pendin g criminal rri al. We h:1I'e ea rli er determJlled that the District Co un did nor err in auth ori zin g th e iss ua nce of th e subp oe na . If a pres id enr co nclud es th at co mpli ance with a subpoena wo uld be injuriou s to th e publi c inrerest he may prop erl y, as was done here, in vo ke a cl aim of pri vi- lege on th e rerurn of th e subp oe na. Upo n rece iving a claim of privilege from th e Chi ef Exec uti ve, it became th e furrh er dut y o f th e Di strier Co un to treat th e subp oenaed material as pres umpti ve ly privileged and to require th e Special Prosec uror ro demon strate th at th e presidential material wa s "esse nti al to the justi ce of th e Ip ending crimin al] case." United States v. Burr. Here the District Court trea ted th e materi a l as presumpti ve ly privilege d, proceeded to find that th e Spec ia l Prosecutor had made a sufficien t show in g to reb ut th e presumption and ordered an in camera exa mination of the subp oe na ed material. On the ba sis of our exa mination of th e record we are unabl e to concl ud e th at th e Dis- trier Co urt erred in order ing th e in specti on. Accordingly we affirm the order of th e District Court th at subp oe naed material s be tran smitted to th at co urt. We now rurn to th e imp orta nt question of th e Di strict Co urt 's respon sibilities in cond ucti ng the in camera exa minati on of presidential materi a ls or co mmuni- ca ti o ns delivered under th e compulsion of th e subp oe na du ces feCl/m.

It is elementa ry that in camera in spec ti o n of ev idence is always a proce- dure cailing for scrupulou s protec tion aga in st any release o r publication of material not found by th e court, at that stage, probably admissable in ev idence and relevant to the iss ues of the trial for which it is so ught. Th at being tru e of a n ordinary situation , it is obv ious th at the District Court ha s a very heavy re- spo nsib ility to see to it th at Presidential co nve rsa tion s, which are either not rel eva nt or not admissible, are accorded that hi gh deg ree of res pect due the President of the United States. Chi ef Ju sti ce MARSHALL, si tting as a trial judge in th e Burr case was ex traordinaril y careful to point o ut that

" Iiln no case of thi s kind would a coun be req uired to proceed again st th e president as agains t an ordinary indi vidu al. " .. .

MARSHALL's statement cannot be read to mean in any sense that a Pres id ent is above the law, but relates to the singularly unique role under Art. II of a Presi- dent 's communications and activities related to the performance of duti es under th at Article. Moreover, a President's communications and activities encompa ss a vastly wider range of sensitive material than would be tru e of any "ordinary in- dividual." It is therefore necessa ry in the public interest to a fford Pres idential confidentiality the greatest protection consistent with the fair administration of justi ce. The need for confidentiality even as to idle conversations with associates

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T ill 1'10,11>1 N ( y 343

ill which ca 11 ,, 1 reference ll'Ii ,I f

' g 1r be ITl'Ide ' ' , , ' I ' th t' CO lllltr ), or o relvn Stat' . _ ' ., CO ll ce rllln g pullfl ca l kadn Wltlill

~ • CSIIlt'n IS t I ' \"I/e h:lVt' no do ubt th " t th e D' ,', OU U )v IOII S IU ca ll for furth er fl't'atm enr.

d I I , I I Isnllt Iud,· · w'll II ' ' I ' I reCo r s t ut l lg 1 (egree of d , t' , . CIt I at a fIIn es accu rd to Presl( erm :!

I 'II d ' I e t' rence su " - I ' U ' anC WI IS': l arge hi s res' p 'b.I' g.gc,tcc In IlIl ed Slal('s I '. Bllrr. sllpra

, , OIl SI I Ity t >' , CI:11 ProseC li lU r no 11/ ca lli e ' 0 set' to It that unnl released to the Spc · , . 'ra marel'l a l ' " I d ' piles With eve n greater force ,, ' IS reVea e to anyo ne. T IllS burd en ap '

. I ' to eXCised matel'l' I I d ", I eXCi se, t 1(' mate n a l is res to . d ' , ' . a; o nce t 1(' ens lo n IS Ill ac e to , re tu It s p ' l I

und er se ,,1 to Its lawful Cll st d ' II VI egee stat us and sho uld he return ed " 0 la ns,

Sill ce thi S matter ca me b , f I

P rosecuti o n and o n rep e ore t l e CO lirt during the pendency of a crim ina l

" re se nranoll s tI ' . f shall iss ue to rth with. lat tlill e IS () the esse nce, the mand ate

Affirmed.

WILLIAM J EFFE R SO V. PAULA CO RBI N

CL I NTON J ON E 5

62. SUING THE PR ES ID ENT

I II w hat cO l,tld tum OllIla be a il e of Ihe 111 05 1 illlp o rtalll m ode m Supreme Ca lirI decisiolls abollllhe presidellcy, the V.S. SlIpreme CalirI ruled ill J 998 Ihal a sillillg pres· /del/t could be slled by a private cilizell see killg m Olley dam ages in a civil suil for co ndllct alleged 10 have oc· curred before Ihe presidelll look office. President Clinlo n urged the CalirI t o dela y Ihe suit lin Iii he lefl office, c1aimil/g that the chief execlltive should // 0 1 b e bllrdened al/d distra cted by hm/ing to defend aga inst civil slIils ex· cept in ex ceptio nal circumstan ces. The sexllal harass - m el/t claim brought b y Pallia j ones, based on Clinl o n's alleged co ndu ct while serving as goverl/o r of Arkansas years earlier wOllld I/ ot, he argued, be su ch a suil.

Writing fo r the m ajority, justice j ohn Paul Stevens rejected C1il/ton's argu/1/ellt and co neluded thaI it wo uld be highly unlikely that il llowing Ihe jones case to pro· ceed would gel/ erate a (l ood of other suits against this o r other presidents and, in any event, Slevens noted. Ihe lower collrt judge co uld il lways defer s//ch a case whe re

S U S S C \ VF//,'(/ m j effersoll Clill lOlI 1'. Hw /a Corbill j Ollrs ( 199 7 ),

Ollr((>; .. uprCIlH.' o urr. ,'I /II

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XII

THE SUPREME COURT

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354 SECT I ON X II

ALEXANDER H A MIL TON

63. D EFEND IN G THE JUDI C IARY

. 8 A lexander Hamilton a rglled 111 The Federa li st, No. 7 , . d ' d ' . I branch of

I I I deslgll e 11-1 ICIa thai illaslllu c 1 as 11e new y . th I d . I II purse slrmgs liar e govenzment con trol e lIell ?er 1e . H

I 'ear its p ow ers. e as- mililary, there was 11 0 reas on a I' .' . I branch slIred sk eptics thai the newly proposed !lldlCIa h of gove rnm ent wOllld be the "least dangerous to t e po- litical rights of the Co nstitlltion" and w ould not even be able to enforce its judgments without the assistance of

the executive branch. Hamilton's persuasive defense o f the judiciary pro-

vided the theoretical basis for the doctrine of !lIdlCial re- view later announced by the Supreme CO lat in Marbury v. Madison (1803). As stated in No. 78, the basic princi- ple was that the Co nstitution should be seen as " funda- mental law " and that the ro le of the courts ,vas to "asce rtain its meaning, as well as the m eaning of any particular act proceeding from the legislative body."

Although it took the w o rds of Chief Justi ce John Marshall in Marbury to give legal effect to this idea, it was Hamilton who first clearly stated the view that the CO llstitution as interpreted by the Supreme Court should prevail over any legislative enactment.

To the Peo ple of the State of New York: We proceed now to an examination o f the judiciary department of the pro-

posed government. In unfolding the defects of the existing Confederation, the utility and ne-

cessity of a federal judicature have been clearly pointed out. It is the less nec- essary to recapitulate the considerations there urged, as the propriety of the institution in the abstract is not disputed; the only questions which have been raised being relative to the manner of constituting it, and to its extent. To these points, therefore, our observations shall be confined.

The ma nner of constituting it seems to embrace these several objects: 1 st. The mode of appointing the )udges. 2d . The ~enure by which they are to hold their places. 3d. The partition of the ludlclary authority between different courts, and their relations to each other.

SOllrce: from Tbe Federalisi. No. 78 (1788).

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TII ~ SU I'~I' M" C OUHT 355

First. As to th e mode of appoin tin g the judges; thi is the sa me with that of appointing th e office rs of the Union in ge nera l, a nd ha s bee n a full y (li s- cussed in the two las t numb ers, th at nothin g can be sa id here which would no t be use less repetition.

Second. As to th e tenure by which th e judges a re to ho ld th eir places: thi s chi efly co ncerns th ei r duration in offi ce; the provi sion s for th eir supp o rt; th e precautions for th eir responsibility.

According to the plan of th e ~onve ntion , all judges who may be appo inted by the United Sta tes a re to ho ld th eir offices dl/ring good behavio r; which IS conformable to the mos t approved of th e State co nstituti ons, and a m o ng the rest, to that of thi s State. Its propriety having been drawn into questi o n by the adversaries o f th a t plan, is no li ght sy mptom of th e rage for o bjec ti o n, which disorders their imaginations a nd judgments. The sta nd a rd of good be- havi o r fo r th e continuance in office of the judicial magisrracy, is ce rta inl y one of the most valuable o f the mode rn improvements in the practice of gove rn- ment. In a monarchy it is an excellent barrier to the de spo ti sm of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the represe ntative body. And it is the best expedient which can be devised in any government, to secure a stead y, upright, and impartial admini strati o n of the laws.

Wh oever arrentively considers the different depa rtm ents of power must perceive, that, in a government in which the)' are sepa rated from eac h other, the judiciary, from th e nature of its function s, will always be the least dange r- ous to the political rights of the Co nstituti o n; because it will be leas t in a ca- pacity to annoy or injure them. The Executive not on ly dispen ses the honors, but holds the sword of th e community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every c itizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or o f the wealth of the soc iety; and can take no active resolution whatever. It may truly be sa id to have neither force nor will, but merely judgment; and must ultimatel y depend upon the aid of the executive arm even for the efficacy of its judgments.

This simple view of th e marrer suggests seve ral important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power; that it can never arrack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the generalliberry of th e peo- ple can never be endangered from that quarter; I mean so long as th e judiciary remains trul y distinct from both the legislature and th e Executive. For I agree, that "there is no liberty, if the power of judging be not separated from the leg- islative and executive powers." And it proves, in the la st place, th a t as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter ,

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I

SECTI ON XII

, t 'o n ' th at as , fro m th e natural d :trent se para I , ,

notw ithstandin g a no mina l an app. , ~ I J'eolJa rd y o f be ll1 g ove rp owered, , , ' ' co ntln u" I '

fee bleness of the jud icia ry, It IS ~n b' cll es ' a nd th a t a s no t ll11 g ca n CO Il- , " 'd n'n e Ia n - , ' ff' I '

awed , o r influ ence d by, ItS CO O I I . inde endence as pe rm a nency I,n 0 Ice, t 11 5 tri bute so much to ItS fir mn ess and dP n indi s pensa bl e II1 g l edl ent In ItS

b ' I ega rd e as a I I'" d I qua lity may th erefore e Ju st y r , I ira de l o f th e pu J IC Ju sti ce a n t le " d ' , ,It mea sure, as t le c co nstlrutl on, an , lil a gle,

IJublic securit y. I ' ts of J' usti ce is p eculi a rl y essential ' d d e of t le co u I d I '

T he compl ete 111 epe n enc , ' d C t 'tuti o n, I und ersta n on e w ll ch , " " , B ' a linllte ons I , ' h f . 111 a limited Constlrutl on. ) ' , I ' legisla ti ve auth o l'lty; suc , or 111-

, ' f' d 'ce l)[l ons to t Ie I d co ntain s cc rr a ll1 spec i K ex, , , ' der 11 0 ex-pos t-facto aws, an the

I ' I II - 10 bill s at atra ll1 , stance, as t lat It s 1:1 P;ISS I b ' ed in prac ti ce no o th er way than , ", C I ' k ' d ("I n e prese l v

li ke. LlIllIta ti Ons 0 1 t li S 111 • f " 11 0se dut )' it mu st be to declare all I, f ' 'ts 0 Ju sti ce , w . through th e mc( Illlll 0 CO UI r of th e Co nstituti o n vo id. Without thi s, all

ac ts co ntrar y to th e mal1lfest tenl o d" ,' Ieges wo uld a mo unt t o nothing. I ' f ,tl cul ar fi g n s an Pll\ I t Ie reserva ti ons 0 lXlI , , I 'I f he co urts to pro n o unce legislative

Some pe rpl exity res pecting t le ri g ltS 0 r 'f " I C nstiruti o n ha s ari se n ro m an Imagll1a-

ac ts vo id , becau se contrar y to tI e 0 , .' , d' , I I 'I ' . Id' Iy a sup erI orIt y of th e JU ICi a ry to t l e egis a-tl on th at th e doctrll1 e wou Imp , I f h ' I '· d th t the authorit), which can decl a re t Ie acts 0 an ot er

ti ve power. t IS UI ge a b did 'd 'd ' I be superio r to th e one whose acts ma y e ec are VOl . VO l mll st necess arI y " ,

A I' , d ' ' f grea t l'lllp ortance in all the Amencan co nstitutions, a ' s r liS octnn e IS o · , brief di scussion of the ground on w hich it rests cann ot be unacc eptable.

Th ere is no positi on which depends on cle a rer prll1clple s, th~n that every act of a delega ted auth o rit y, contrary to th e tenor of th e commiSSIOn under w hich it is exercised, is void. N o legislative act, therefo re, contrar y to the Con- stirution , can be valid. To deny this, would be to affirm , that the deputy IS grea ter th an his principal; that the servant is above his master; that the repre- sentatives of the peopl e are sup erior to the people themsel ves; that men acting by virtu e of powers, may do not onl y what their powers do not authorize, but wh at the y forbid.

If it be said that the legisl ative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusi ve upon the other dep artments, it may be a nswered, tha t this cannot be the natural presumpti on, where it is not to b e collected from an y particular provision s in th e Con stitution. It is not otherwise to be supposed , that the Constitution could intend to enable the repres entatives of the pe ople to substi- rute their will to that of their constituents. It is far more ration a l to suppose, that the courts were designed to be an intermediate body between the people and the legislature, In order, among other things, to keep th e latter within the limits aSSigned to their authorIty. Th e interpretation of the laws is the prop er and peculiar province of the courts. A constitution is, in fact, and must be re- gard~d by the judges, as a fundamental law. It therefore belongs to them to as- ce rtall1 Its meanll1g, as well as the meaning of any particular act proceedin g fro m the legislati ve bod y. If there should happen to be an irreco ncilable vari- ance between the two, that which has the Superior obliga tion a nd validity

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o ug hr o f course ro be f' d . . ' I 0 , . . pre erre ; o r, III other words th e Co nstitUtion o ug H t be preferred to th e Sratl r I " ' ., f I ' r , I e, r le Inten tion of th e people to the Intention 0 t le I agents.

Nor does rhis c I . b . . fl ' d ' . '. o nc USlo n )' any means suppose a sup e rIorIr y 0 t le JU 1- Clal to the leg Is lative pOwer. It only supp oses rhar the power of th e people is superI o r to borh; and rhat where the will of rhe legi slature, declared in irs sta tutes, stands 111 opposirion ro rhat of rhe people, declared in rhe Co nsri tu- tlon , rh e Jud ges o ughr to be governed by rhe latter rather than the former. They oughr to regulare rheir decisions by rh e fundamental laws, rarher rhan by rhose which are not fundamental.

This exe rc ise of judicial discrerion, in derermining berween twO conrradic- tory laws, IS exe mplified in a familiar in srance. It nor uncommonl y happe ns, rhat rh ere a re rwo sratures exisring ar one rime, clashing in whole or in part wirh each orher, and neirher of rhem containing any repealing clause or ex- pression. In such a case, ir is rhe province of rhe courts to liquidate and fix rheir meaning and operarion. So far as rhey can, by any fair consrrucrion, be reconcil ed to each orher, reason and law conspire to dicrare rhar rhi s s hould be done; where this is impracticable, it becomes a matrer of necess iry to give e f- fect to one, in exclusion of rhe orher. The rule which has obrained in rhe courts for determining rheir relarive validiry is, rhar rhe lasr in order of rime shall be preferred to rhe first. Bur there is a mere rule of consrrucrion, nor derived from any posirive law, but from rhe nature and reason of rhe rhing. It is a rule nor enjoined upon the courts by legislarive provision, but adopred by rhemselves, as consonant to rruth and propriery, for rhe direcrion of rheir conduct as inter- preters of rhe law. They rhoughr ir reasonable, rhar berween rhe interfering acrs of an equal aurhoriry, rhar which was rhe la sr indicarion of irs will should have the preference.

But in regard to rhe interfering acts of a superior and subordinare author- ity, of an original and derivarive power, the nature and reason of rhe rhing in- dicate the converse of that rule as proper ro be followed. They reach us that the prior act of a superior ought to be preferred to the subsequent acr of an in- ferior and su bordinate authority; and thar accordingly, whenever a particular statute contravenes the Constitution, it will be rhe duty of the judicial rribunals to adhere to the latter and disregard rhe former.

It can be of no weighr to say that rhe courts, on rhe prerence of a repug- nancy may substitute their own pleas ure to rhe constiturional intentions of the legisl;rure. This might as well happen in the case of two contradictory statutes; or ir might as well happen in every adJudIcatIOn upon any sll1gle statute. The courts must declare the sense of the law; and If they should be dIsposed to ex- ercise will instead of judgment, the consequence would equally be the substitu- tion of their pleasure to that of the legislative body. The obser~ation, if it prove an I · Id rove that there ought to be no Judges dlStlllct from that . y t llllg, wou P , b~~ . .

If h h t of ,'ustice are to be conSIdered as the bulwarks of a IlIn-

, ten, t e cour s . h h' 'd ' . 't de " . st legislaove encroac ments, t IS consl eraoon wIll I e onsotutlOn agaIn '

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358 SECT ION XII

, f J' u el ie d offi ces, s in ce I ' nenr rC IllU eo, ' I afford n srro ng argLllllc nr for r le pcr lll .l 'd ' le1e n t s p irit In t he JLl C ges

, , 'b -I ' I " ro rhnt JI1 epc I eI no rh JJ1 g w ill conrn u re so I11 UC 1 ,1S r li S " f SO '1I'e1 l1 0 Ll S a lIt y. , ' I I t- - I f I \:rfo rm a m:c 0 ' ,

wilieh l11u sr be cssc ntl a to r le a ir 1 1I P , ' rc t o " li a rd rh e C o n stltLl- , ' , lI y req lli s l ,., ,

T hi s in dep e ndence of th e Judges IS eqll ,l ff t' t h ose ill hUl11 ors, whi c h . " I' - I I I' rhe c ecrs 0 ,

ti on a n d rh e rlg hrs of lilt IVIC lI a s rom , ' I ' 11J'ee rures so m e tim es - , - I ' f1 ot P:1J'tl CU a I co , ,

rhe arts ot des lg nll1 g l11 \: n, o r r 1e In lI cnec _I I ' _I t houg h rhey s p ee dil y " I I I ' e lves a m w li e 1,

dl ssen lln arc a mo ng r 1e pco p e r le ll1 S 'I 1'1 . ' , 'cflec ri o n h ave a te n- , b ' f ' ' d l1 0 rc C e I lC I a re I ,

g ive phcc to cner In o rm a tl OJ1, ,111 I , " 1 t he govc rnm e nt ' , ' I' 'e 'o us JI1n ova ti o ns II ,

dency, IJ1 rhe meantllll e, to OCC1SIo n C ,1I1g I , ' ry T h o ug h I tru s t I , , ' Ill rhe co mlllun i . a n d sc r ious opp ress io ns of r lC Illlll o r pa l r) ' til I' rs e ne mi es in

' ' . , II neve r co n c llr WI , th e fri en ds o f t he pro p ose d Co nstituti o n \\ I I ' I d ' , ' I f' bl ica n gove rnm e nt, w ll C 1 a -

q ues t io nin g th at fun da menta l prlJ1Clp eo l ep u , II ' I d C stituti o n " I I ' , I o hs h th e esta ) IS l e o n , I11ltS rhe n ght of the peo p e to a te r 0 1 a) , , b '

, " ' ' I I ' I , in ess ye t It IS n o t to e JJ1 -w henevc r th ey fin d It In co ns iste nt Wi t 1 t 1e lr l a pp _ ' I ' , I ' o t th e p eo pl e w l e neve r a ferr ed fro m thi s p nJ1 c lple, th a t t le rep rese nta ti ves" ,',

, , ' I I I Id f a m a Jo nt)' of th e ir c o n stitu e nts, m o menta ry IJ1chn a tl o l1 l a ppe ns to ay 10 0, , , ' I inco m pa ti b le wi t h th e p rov is io ns in th e ex istin g Con stituti o n , w o uld , o n t l a t acco unr , be ju sti fia bl e in a vio la ti o n of th ose p rov isio n s; o r t hat th e co urts wo uld be und e r a g rea te r o bliga ti o n to co nnive a t II1 frac ti o n s 111 thi S s h a p e, th a n w hen th ey h ad p rocee d ed wh o ll y from th e cab a ls o f th e re presenta tive bo d y, Unril th e peo pl e have, by so me sole mn a n d a uth o rita ti ve acr,a nnull ed o r c ha nge d th e es ta blishe d fo rm , it is b inding up o n th e m se lves co ll e cti ve ly, as we ll as indi vidu a ll y; a nd n o p res umpri o n, or eve n kn owl ed ge, of th e ir se ntim e nts, ca n wa rra nt th eir re prese nta ti ves in a departure fr o m it, pri o r to s uc h a n ac t. But it is easy t o see, t h a t it wo uld requi re a n un comm o n p o rti o n o f fo rtitud e in th e judges to d o th eir duty as fa ithful g uard ia ns o f th e Co n stituti o n , w he re leg- isla ti ve in vas io ns of it h ad bee n in sti ga ted by th e maj o r vo ice o f the community.

But it is n o t w ith a v iew to infrac ti o ns o f th e Co ns tituti o n o nl y, th a t th e in- dep end e nce o f th e judges may be an esse nti a l safeg uard aga in s t th e e ffec t s o f occas io n a l ill hum o rs in t he soci ety, These so m etim es ex te nd n o farth er th a n t o th e injur y o f th e pri vate r ights of parti c ul a r clas ses o f ci ti ze ns, b y unju st a nd pa rr ia ll aws. H ere a lso th e firmn ess o f th e judi c ia l m ag ist racy is o f va s t imp o r- ta nce in m iti ga tin g th e se verit y a nd co nfinin g th e o p e ra ti o n o f s uch laws , It n o t o nl y se rves to m o d era te imme diate mi sc hi e fs o f th ose w hi c h m ay h a ve bee n passe d , but it o pe ra tes as a c heck up o n th e legis la tive b o d y in pa ss ing th e m ; wh o, perce lvll1 g th a t o bst acl es to th e s uccess o f iniquito us inte ntion a re to be ex pec ted fro m th e scrupl es o f the co urts, a re in a mann e r c o mpe lle d , b y th e ver y m o ti ves o f th e II1Ju sti ce the y me di a te, t o qu a lify th e ir a tte mpts. Thi s is a c irc um sta nce calcul a ted to h ave m ore influe n ce up o n th e c h a r acte r o f o ur gov- e rnm e nts, th a n bl~t fe w may be aware o f. The be n efits o f the integrit y a nd m o d e ra ti o n o f th e Judlcl~ry h ave a lread y bee n fe lt in m o re Sta tes th a n o ne; and th o ug h th ey ma y h ave di spl eased t h ose w h ose siniste r exp ect t' I

' - a Ion s t l ey m ay h ave d isa pp o ll1ted , th ey mu st have comm a nd e d th e es tee nl a d I f II

' ' , , , n app au se 0 a th e Virtu OUS and dl s ll1te res te d , C on SId era te m e n o f eve rv eI " I

' I es crIptI o n , o u g It to

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Tm S PRt. \It ' O U RT 359

pri ze w h ateve r wi ll te nd b .' . b

to eget o r fOrtll v th :n te m l e r III th e cO ur! ; ,IS no m:JII ca ll e Sur e th a t he b . . . .' f " . . . m :.1V not e to- mo rrow th e Victim of :.1 Sp irit 0 11I1u s-

(I ce, b y w hi c h h e l11 a" b e ' . d f I I I . . ' ! a g,lln er to ay. And e ve n ' ma n mu st now ee . tl a t t 1e i\1 ev ltab le te n de ncl' o f s h ' ... . ' ., b l' d .

" d . UC ,I SP irit IS to sa p th e fo un da ti o ns 01 pu IC an Prl- \'at e COl nil . ence~ a n d to intr od uce in its stead uni l'e rsa l di stru st a nd di str ess.

T 1a t Infl e x ib le a nd '1' d l . - C . . '. " , unl a rm a 1(' rence to th e ri g hts 0 1 th e onStitut lOn , a nd o t IIl d lvld ua ls w h o I . . . . I f . ,IC \ we perce ive to be In d ispe nsa bl e In t l e co u rt a justi ce, ca n ce rt ai nl v no t b · d f . d I I Id I ' ff ' b ' . .. . e ex pecre ro m IU ges IV 10 10 t l e lr a ICe s ) a temp o ra ry co mmi SS io n . Pe ri od ica l appo intme nts, howe \'er reg u b te d, o r bl' wh o m soeve r m a d e , wo uld , in so me wav o r o th er. be fa ta l to th e ir necessa ry in - dep end e nce . If th e p o we r o f m a kin g rI~em wa s co mmitted ei th e r to th e Exec u- (l ve o r legislature, th e re wo uld be da nge r of a n im p rope r co m pb isa nce to th e bra nc h w h IC h p ossessed it ; if t o bo th , th ere wo uld be a n unw ill ing ness to haz - ard th e di spl eas ure o f eithe r; if to th e peopl e, o r to perso ns c hose n bv th e m fo r th e speCia l purp ose, th e re wo uld be too g rea t a di spositi o n to co ns ult popu lar- ity, to justify a reli a nce th a t no thin g wo uld be co nsulte d bur th e Co nst ituti o n a nd th e laws.

The re is yet a furth er and a we ighti er reaso n fo r th e pe rm a nency of th e judic ia l o ffi ces, whi ch is d edu c ibl e fro m th e na tur e o f th e q ua lifica ti o ns th ey require. It h as b ee n fr equ entl y rema rk ed , with grea t p ro pri ety, th a t a \'O lumi - nous cod e o f law s is o ne o f th e inco nve ni ences necessa ril y co nn ec ted w ith th e adva ntages o f a fr ee gove rnm ent. To avo id a n a rbitra ry di sc reti o n in th e co urts, it is indis p e nsa ble th a t th ey sho uld be bo und d own bv stric t rul es a nd p rece- dent s, whi ch se rve to d efine a nd po int o ur th eir dury in eve ry pa rti c ul a r case th a t co mes befo re th e m ; a nd it w ill readil y be co nce ived fr o m th e \'a r ie ty o f co ntrove r sies wh ic h grow o ut o f th e fo ll y a nd wi ckedn ess o f m a nkind , th ar the reco rd s of th ose preced ents must un avo ida bl v swe ll to a ve ry co nside rab le bulk , and l11u st d em a nd lo ng a nd lab o ri o us stud y to ac quire a co m pe te nt kn owled ge o f th e m. H e nce it is, th a t th e re can be b ur few men in th e soc iet y wh o will h ave suffi c ie nt skill in th e bws to qu a lify th em fo r th e st:lti o ns of judges. And m a kin g th e pro pe r deducti o ns fo r th e o rdin a ry de prav it y of human nature, th e numbe r must be still sm a ll er o f th ose who unite th e req ui - site integ rity with th e requi s ite kn owl ed ge. Th ese co ns ide ra ti o ns appri se us, that th e gove rnme nt ca n have no gre a t o ptio n betwee n fit cha rac te r; a nd th a t a temp o rary durati o n in o ffi ce, whi ch wo uld na tura ll y di sco urage suc h c ha rac - ters from quittin g a luc rati ve lin e o f practice to acc ept a sea t o n th e b ench, wo uld have a tende ncy to throw th e admini stra ti o n o f ju stice into ha nds less able, and le ss we ll qualifi ed, to co ndu ct it with urilitv a nd di g nit y. In th e ~res­ em circ umstan ces o f thi s co untr y, and 111 th ose 111 whICh It IS likely to b e to r a

I · 1e th e di sad v'lntages o n thi s sco re wo uld be grea te r th a n th ev ong tim e to can , ,. .'. .

t" . h ppear' but it mu st be co nfessed , th a t they a re far 11l tr n o r to ma y a t Irst s lg t a . , . h h

· h t th e mselves und e r th e o th er aspec t s o f th e s ubl ec t. t ose w IC presen . I '

U h I I , th e re ca n be no ro o m to do ubt th a t t 1e co nve nti o n acrt'd

po n t e W 10 c, . . ' h' h h hi ' h . I ' . f th e mo d els 0 1 th ose co nstltllt1 o ns W 1( ave es t a IS e d

Wi se y 111 co py1l1g ro m

,

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360 SECTI ON XII

, "I ff ' s in po int of duration; and f I 'r Judi cia a Ice, I b ' good behavior as th e tenure 0 r lei , heir plan wo uld lave ee n 10-

, bl bl rhl s acco unr, r f d rhar so fa r from bell1 g ama eo n " ['lnr feature 0 goo govern- , " I I red rhl s IInp or , h

exc usa bl y defec tive, If Ir 13C wan " ff d illu srriou s co mment on t e , G B ra In '1 o r sa n mem. The expe ri ence of rea r rI , '

exce ll ence of rh e in srituri on.

MARBU RY v. MAD I SON

64. ESTABLISHIN G JUDICIAL REVIEW

III this lalldlllark decision, Chief Justice Johl1 Marshalfl declared that the Supreme Court had th e power 0 judicial review, which is th e power to declare actlOI1S of the presidellt, the CO llgress, 0 1' al1Y o th er f!ov~1'I1ment agellcy at allY level to be illvalid or unconstitutIOnal. 111 the 1803 case of Marbury v. Madison the Court held that it was the duty of the judiciary to say what th e law is, includillg expoulldillg alld interpreting that law. The law cO lltaill ed ill the COlls titution, Marshall said, was paramoullt, and laws repugnall t to its provisions must fall. He con cluded that it was the pro villce o f the courts to decide when oth er laws were in violation o f the basic law of the Cons tituti on alld, where this was found t o a CCII r, to declare such laws null and void. This power of judicial review, first asse rted in this case, has given the United States th e most powerful judiciary in the world.

Chief Justice MARSHALL delivers the opinion of the Court.

At the last term on the affidavits then read and fil ed with the clerk a rule was granted in this cas~, requiring ~he secretary of state to show cause' why a mand~mus should. no~ Iss ue, dlrectll1g him to deliver to William Marbury his commission as a Justice of the peace for the county of Washington in the District of Columbia. '

No cause has been shown, and the present motion is for a mandamus The peculiar delicacy of this case, the novelty of some of its circumstances, a nd the

Source: U.S. Supreme Court, Marbury v. Madisoll ( 1803) .

....

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TI-I E SU I'IU .ME C O U K'r 3 6 J

, I diffi c ulty atte ndin g th e po ' I . ". . rc :l f h . - I Ints w llCh OCc ur III It reqUIre a co mplete expO- " n O t e prlllClpeso h ' l " ' .

Sin o n w IC 1 th e Opllli o n to be g iven b)' th e co urt I found ed.

These princ ip les have bee h 'd d d

' n , o n t e Sl e o f th e applic a nt ve r)' a bl )' a rg ue a t I bar. In re n e rlll g th e op i - f I ' -t le· _ ' nl o n 0 t l C co un, th e re will be so me dep a rtur e III f rill th o ugh no t III s ub stan c f I ' , o , "e, rOm t l e POllltS st ated III that argu me nt.

In the o rd e r III which th e cou n has viewed thi s subject, th e fo ll o wing ques- ti ons have bee n conSid ered a nd d ec ided.

t st. Has th e app li ca nt a ri g ht to th e co mmi ss io n he demands? 2d . If h e h as a ri g ht, a nd th a t ri ght has bee n vio lated, d o th e laws o f hi s

co untr ), aftord him a remed)'?

3d. If th e)' do afford him a remedy, is it a m andamus iss uin g fr o m thi s court?

The fir st o bjec t o f inquir y is,

1st. H as the applicant a right to th e commissio n he d ema nd s? His ri ght o rigin a te s in an ac t o f congress pa ssed in February, t 80 1, co n-

cerning th e District of Co lumbia .

After dividing the district into two counties the II th sec ti o n o f thi s law , enacts, " that th ere shall be a ppointed in and for each of the sa id countie s, s uc h numb er of discreet persons to be ju stic es of th e peace as the presid ent of the United States shall, from time to time, think expedient, to continue in o ffi ce for five years."

It appears, from the affidavits, that in co mpliance with thi s law, a commis- sion for William Marbury, as a justice of the peace for th e county of Washington, was signed by John Adams, then President of the United States; after which th e seal of the United States was affix ed to it; but th e commission has never reached the person for whom it was made our. . ..

Mr. Marbury, then, since his commission was signed by the president, and sealed by the sec retary of state, was appointed; and as the law c rea ting the o f- fice, gave the officer a right to hold for fi ve ye ars, independent of the executive, the appointment was no t re voca ble, but vested in the officer legal rights, which are protected by the laws of his country.

To withhold his commission, therefore, is an act deemed by the co urt not warranted by law, but violative of a vested lega l ri ght.

Thi s brings us to the second inquiry; which is, 2d. If he has a right, and that right has been violated, do the laws of thi s

country afford him a remedy? The very essence of civil liberty certainly consists in the right of every indi-

vidual to claim the protection of the laws, whenever he receives an injur y. One of the first duties of government is to afford that protection. In Great Brita in the king himself is sued in the respectful form of a petition, and he never fail s to comply with the judgment of his court .. ..

By the co nstitution of the United States, the president is invested with cer- tain important political powers, in th e exercise of which he is t o use hi s Ow n discretion , and is accountable only to his country in his po litica l cha ra c te r a nd

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'T : f' !

\61 '>1 ( IIUN >' 11

" I I ' orfurtnallc<: of th c~(' dutie ~, he i ~ au - ro hi, ()\I n COlhC lelll"l' : lu ,tid hllli 111 I le pc : I I I I f

: I ' I 111' hi S aU I lOrtt y, am III Co n or thol'l L~d to .Ipp oi m Ce rt :111l o lll c<:r, . IV 10 .IL , - lIIit )' with hi l)rd~r, : ' ' I

I I ' I I ' t I Illd wh.treve r o plili o n llI ay )c en ter-

n , UC 1 .I ~e" Ih Clr .\( t, .tl C 11' :1( , . ' : I :' I I I ,: . Ir>cre tl o ll ili a)' he used, ~ tlII th ere

ta lil ed 01 th e 11I .lnll er In whl C 1 l'xruHl ve ( I I T I _ I I , I I : ' Cl i tll 'lt dl scrcnun: lC s u )Icc ts a rc 1)0-CXl> t" ant ca ll eX I'I , 11 0 pOI c r to C(l ilil . I I

I : I I d l ,: I '11 ril.htS and hemg Intrusted to !ttlc" L T hey rc, pect Ih e Ihtrlu n. 11 01 In 1\ I( 11 .. <' I ' th e exec ulil e, Ih c dec i, IOII of Ih e exec uli vc is c() !1l:luSlve, , , . I

I I I " ~ 0 11 rlnt office r o th er duti es: But II'h ell th e icgl>I.!!ure prucrc l ' to II11 PO,, ' I' I :: II : II , I c" ~ ll ta in '\C ts' w hen th e n g, ht s of IV le ll he IS dlrl'cled pere lll pton )' to per (I I III ,. ., I

i ll dividu~ l s are depclld cm on th e perfo rm a ll ce of th ose ac t; he IS so fa r th e o ffic-er (If th e 1.1Iv; i a mena ble to th e law, fo r hi S co ndu ct; an d ca nn o t at hi S di scretio ll sport .Iwa y the ITs tcd right s of othe rs,

T he co nclu sio n fro m thi s reaso llin g is, that wh ere th e heads of depart- mellls arc the political o r co nfide nti al agents of the exec utive, merely to exe, cute the wi ll of the president, or rather to :lct ill ca ses in w hi ch th e exec uti ve posses es a co nstitutional o r lega l di sc retion, no thing ca n be mo re perfe crl y clear th an that th eir acts a re o nly politically exa min ab le, But w here a specific duty is ass igned by bw. and indi vid ual ri ghts depend up o n th e perfo rm ance of that duty, it see ms eq ua ll y clear that th e indi vid ual who co nsiders him se lf in- jured. has a ri ght to reso rt to the laws of hi s co untr y fo r a remed y, , ..

It is, then, the opini on of the Court, 1st. That by signin g the co mmi ssion of Mr. Marbury, th e Pres ident of th e

United States appointed him a justi ce of peace for th e county of Wa shingto n, in the District of Columbi a; and that the sea l of the United States, affixed thereto by the sec reta ry of state, is conclu sive testimo ny of the ve rit y of the signature, and of the completi on of the appointment; a nd that the appointment conferred on him a lega l right to the offi ce for the space of five yea rs,

2d, That, hav ing thi s lega l title to the office, he has a consequent ri ght to th e co mmi ss io n; a refusa l to deliver which is a plain violati o n of th a t ri ght, for which the laws of hi s country affo rd him a remedy.

It remains to be inquired whether, 3d . He is entitl ed to th e remedy for which he ap plie s, This depe nds on, I st. The nature of the writ applied for; and 2d. The power of thi s court. t st. The nature of the writ .. , , ITlo rend er the Inalldamlls a proper remedy, the officer to whom it is to be

directed, must be one to who m, on lega l principles, such writ ma y be directed; a nd the person applYlllg for It mu st be without any o ther specific and lega l remed y. , , .

The act to establish the judicial courts of the United States authorizes the Suprem e Co urt "to iss ue writs of mandamlls in cases warranted by the princi- ples and usages of law, to a ny courts appointed, or persons holding office, under the authority of the United States."

The sec retary of state, being a person holding an office under the authority of the United States, is precisely within the letter of the desc ripti o n, a nd if th is

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TilL 1'l{ h \l L Co Ill' 3 6 3

co urr is no t a uth o ri zed to iss ues a writ o f m a nd a lllll s ro s uc h a n office r, it mu sr be becllI se th e law is un co nstituti o nal, a nd th e refore abso lute ly incapable of co nferrin g rh e a urh o rir y, and a ss ig nin g th e duti es which irs word s purporr to co nter and ass ig n.

The co nsrirurion ves ts rhe whol e judicial power of rh e Unired Sra res in on e supreme co urt, a nd s uc h infe ri or co urts as congre ss shall, from time ro rim e, ordalll and esrab li sh. This powe r is express ly ex rend ed ro all cases a ri s in g und er rh e law s of rhe United Sta te s; and, co nsequentl y, in so me form, ma y be exe rCi se d ove r th e present case; becau se th e right claimed is g ive n by a law of the United Sta tes.

In th e di stribLltion of thi s power it is decl a red that "the suprem e co un shall have o ri g inal juri sdiction in all cases affecting ambassadors, other publi c mini ste rs and con sul s, and th ose in which a state shall be a party. In all other cases, rhe s uprem e COUrt shall have appellate juri sdiction."

It has been in sisted, at the bar, that as th e original grant of juri sdiction, ro the suprem e a nd inferior courts, is general, and the clau se, assig ning original jurisdicti o n ro the supreme COllft, contains no nega tive or restrictive word s, th e power remains to the legislature, to assign original jurisdicti o n to that coun in other cases than those specified in the article which has been recited ; provid ed those cases belong to the judicial power of the United States.

If it had been intended to leave it in th e discretion of the legi slature to ap- portion the judicial power between the supreme and inferior courts according to the will of that bod y, it would certainly have been useless to have proceeded further than to have defined the judicial power, and the tribunal s in which it should be vested. The subsequent part of the section is mere surplusage, is en- tirely without meaning, if such is to be the construction. If congress remains at liberty to give this court appellate jurisdiction, where the constitution has de- clared their jurisdiction shall be original; and original jurisdiction where the constitLltion has declared it shall be appellate; the distribution of jurisdiction, made in the constitLltion, is form without substance ....

To enable this court, then, to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be necessa ry to enable them to exercise appellate juri sdiction.

It has been stated at the bar that the appellate jurisdiction ma y be exer- cised in a variety of form s, and that if it be the will of the legislature that a mandamus should be used for that purpose, that will mu st be obeyed. This is true, yet the jurisdiction must be appellate, not original.

It is the essential criterion of appellate jurisdiction, that it revises and cor- rects the proceedings in a cause already instituted, and does not create that cause. Although, therefore, a mandamus may be directed to courts, yet to issue such a writ to an officer for the delivery of a paper, IS 111 effect the same as to sustain an original action for that paper, and, therefore, seems not to belong to app llat b t to original jurisdiction. Neither IS It necessary 111 such a case

e e, u II '. d' , as this, to enable the court to exercise its appe ate JUrIS Ictlon. , ,

Th I , theret'o re given to the supreme court, by the act establish1l1g e aut lOrIty" " f the ' d ' , I . f the United Stares to Iss ue writs 0 mal/dall/lls to public JU ICla courts 0 '

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, tl'on' and it becomes neces- I b the consnru , '

office rs, appears nO[ ro be wa rrantee Y f ' d all be exercised .... " ' ' d " 0 con el re c, . '

sarv ro IIlqllll'e w heth er a JUri S Ic n o n s ' I I' ll'ted a nd unl1l11lted powers . " , ' ment Wit 1 In ' ,

The dl stll1 c tlon between a gove l n , I so ns o n wh o m they are Im- is abolished, if tho se lil11its d o no t co nhnl e [led per o f eq ua l ob li gat io n. It is a

' f I ' b ' d I ctS al owe , arc pose d, and I acts pro 11 Ite ane a ' d I lstitution controls any leg- , ' I 'b ted an ne CO l , ,

pro position roo p all1 ro e conte s , ' I Y ~ Ite r the constitution by , I I leg iS atu re ma "

islative act repu gnant ro It; o r, t lat t le

an ord in ary act. "ddl 'oLlnd The constitution is ' I 10 1111 e gl . Between the se alte rnati ves t lere IS I abl c b ' o rdin ary mean s, or it is on

either a sup erior paramount law, unchanglc'l I) ts is alterable when the , ' I ' I ' t a nd I <e ot ler ac, , a leve l With ordll1ary eg is atlve ac s, ' ,

legislature sha ll plea se ro alter it.. . ,then a leg is lative act contrary If th e form e r pa rr o f th e a Itel nanve be n ue, I ' '

' f I I ' rt be tru e t l e n wntten constitu- ro th e con stitution is not law: I t le attel pa " , ' '

I f I ople to 11I11It a power 111 Its own

tions are absurd attempts, o n t le part 0 t le pe ,

nature illimitable. . . I C

. I II I 110 Il a\'e framed written constItutions contemp ate erra ll1 y a t lose W f h . d

, f dId lount law 0 t e nation an con-them as formll1g the un amenta an paran ' , seq uenrly, the theor y of every such governm~nt must be, that an act of the leg- islature, repugnant ro the constitution, IS VOId., " '

This theory is essentially attached ro a wntten constitution, and, IS conse- quently, ro be considered, by thi s court, as one of the fundamental pnncI~les of our societ y. It is not therefore to be lost Sight of 111 the further conSideration

of thi s su bject. If an act of the legislature, repugnant to the constitution, is voi d, does it,

notwithstanding its invalidit y, bind the courts, and oblige them to give it ef- fect? Or, in other words, thou g h it be not law, does it constitute a rule as oper- ative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity roo gross to be insisted on. It shall, however, receive a more attentive consideration.

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule ro particular cases, must of necessity expound and interpret th a t rule. If two laws conflict with each other, the courts must d ec ide on the operation of each.

So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution' or con- formably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

If, then, the co~rts are to regard the constitution, and the constitution is supenor to any ordll1ary act of the legislature tile " d t such , , constitution, an no ord111ary act, must govern the case to which they both apply.

Those, then, who controvert the principle tIl t tl ..' to be 'd d' a le constitution IS

conSI ere , 111 court, as a paramount law are d d I 't)' of , re uce to t le necesSI

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C n Rf TIll' ~ U I'H ... \ II' 3 6,"

" I tll P CO ll stl'tlltion, and ,ee lllaint:lIll1n g t l a t co urt s mu st cl ose th e ir eves on , o nl y rh e hlV, ' ,

T hi s doctrine would s ub ve rt th e vcrI' foundarion of all wrinen co nstJru - , I Id d I I ,', I ' . ' les :JI1d rh eo r y

tI ? ns, r wou ec are r lar an act wh,ch, acco rdJll g to t l e Prlll C1P ' J tor ', It ot o ur gove rnment, IS e ntirely VO Id IS ye r, In prac ti ce, co mpl etel y ob li g3 } I

' " f b 'dd . s uCl would declare th a t if the legi s lature shall do what is express ly o r I e ll , act, notwirh standing the expre ss prohibirion, is in reality effec rual. Ir wo uld be give n to rh e legis la ture a praerical and rea l omniporence, wirh th e sa me breath which professes to res trier their powers within narrow limits. It is pre SC rlblll g limits, and declaring that tho se limits ma y be pa ssed a t plea s ure.

That it thu s reduces to not hing what we ha ve deemed the greate st Im - provement o n political in stitution s, a written co nstituti o n, would of Itse lf be sufficient, in America, where written con stituti o ns have been viewed WIth so much revere nc e, for re jecting the construction. But the peculiar express ions of tile co nstituti o n of the United States furnish additional arguments in fa vo ur of its reje ctio n.

The judicial power of the United States is extended to all cases ari s in g under th e constitution.

Co uld it be the intenti o n of those who gave this power, to say that in us ing it the constitution should not be looked into? That a case arising und e r the constitution should be decided without exami ning th e in strum ent und e r which it arises?

This is too extravagant to be maintain ed. In some cases, then, the constitution must be looked into by the judges.

And if they can open it at all, what part of it are they forbidden to read or to obey?

There are man y other parts of the constitution which serve to illustrate this subject.

It is declared that "no tax or duty shall be laid on articles exported from any state." Suppose a duty on the export of cotton, of tobacco, or of flour; and a suit instituted to recover it. Ought judgment to be rendered in such a case? Ought the judges to close their eyes on tile constitution, and only see the law?

The constitution declares " that no bill of attainder or ex post (acto law shall be passed."

If, however, such a bill should be passed, and a person should be prose- cuted under it; mu st the court condemn to death those victims whom the con- stitution endeavors to preserve?

"No person," says the constitution, "shall be convicted of treason unles s on the testimony of two witnesses to the same overt act, or on confession in open court."

Here the language of the constitution is addressed especially to the COllrtS. It prescribes, directly for them, a rule of evidence not to be departe d from. If the legislature should change that rule, and declare one witness, or a confes- sion out of court, sufficient for conviction, must the constitutional principle YIeld to the legislative act?

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r

]66 ~ I C liO X II

, I I I " ~ ,, 111'c ll rni .. IH be ma d e it is appa r, I' ro lll r lese, clnd man y o r l e r ,t: CC tl OIl S \. " . ' I I f f

". t ' llpl a red that In s trum e nt as a rule e nt. t l :H t l e ram ers () . rht: co nStlflltl OIl Lon c1 ' • fo r rh e go vernme llt uf ('( lurts, as well .:15 of th e leg isi:Jture. . ) .

'\ ' h y o th e rwi se du es it direct the ludges to take a n oa th to supp o rt It. Thi s oa th certai nl y app li c ' in an es pec ial manner, to th e ir co ndu c t III th e ir official c ha racter. H~w illllll o ra l to impOSt: it o n th e m , if the y were to be used as the in s trum e nts. a nd th e knowin g in strulllents, fo r violating what the y swea r to

s upp o rt! Th e o ath of office. too. imposed by the legis la ture, is co mpl e tel y d emon,

strati ve of th e legislatiw opinion on thi s subj ect. It is in these words: "I do so le mnl y swear that I will admini ste r ju s tic e without respec t to perso ns, and do eq ua l right to th e poor and to th e rich ; and th a t I will faithfully and impar, ti a ll y di sc ha rge all the duties inc umb e nt o n me a s , according to th e best of Ill y abilities and understanding ag reeably to th e constitution and

la ws of the United States. " Wh y d oes a judge swear to discharge hi s duties agreeably to the constitu,

ti o n of the United St:ltes, if that co nstitution form s no rule for hi s government? if it is cl osed up o n him , and ca nnot be in spected by him?

If such be the real sta te of things, thi s is worse th a n so lemn mockery. To prescribe, o r to take thi s oath, becomes equally a crime.

It is also not entirely unworth y of observation, that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank.

Thus, the particular phraseolog y of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound b y that instrument.

The rule must be discharged.

ASHWANDER V. TENNESSEE VALLEY AUTHORITY

65. DEFINING THE COURT'S JURISDICTION

Associate justice Louis Brandeis's concurring opinion in thIS case set forth a widely accepted view of when and how the Supreme COllrt should exercise its jurisdiction.

SOl/rce: U.S. Supreme Co urt, AshwOIlder v. Tellliess ee Valle)· AI/thorit)' (1936).

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Bralldeis asse rted that I . <titutio ll I . t Je Co urt should 1I0 t dcnde C{) II - - a ques t lOll S I I I . II I

' { 'IJO Id . / /II ess t Jey are a /Jso lut cly esselltlal , •. , U (// IOI( C -t ' .

{ O il, lfut lU llal questiulls i( "ther lega l

gro ulI(. s C(/II be {a lii d F' I _I" Id I' I " . urt Je r. he arg ued that the Cuurt , lUll 1I0 t m a k e a C . .

. d O/I stltutl ollal mlillK broader t"all re- q Uire tu decide the ' . I - .

pi Id I ca,e at Ja lld. 11J/5 particular case

u Je t Je CO II St r t ' ( { . u c lOll a ( alliS alld the sellillg o( elec - tnc p o w er b)· the r., { I ,eG era goverl/Ill ellt. Despite Bralldcis's effo rts to restra ' tl S I

/1/ Je IIprem e COl/rt hy ad upting what 1alle beco m e kll uw A·I d . . II as S lW3n cr rules the OJl1StltU -

tl o // al decisio ns o(tl {s· . . 1e ili ac erll uprem e CU llrt cO llt/lll/ e to t Ol/ ch a ll alld (req l/ently dominate the lIIaio r p olitical qllestlOlls o( o l/r time.

Mr. Justice BRANDEIS, concurring .. . .

The Court developed, for its own governance in the ca ses confessedly with1l1 Its JUrIsdIctIOn, a se ri es of rules under which it ha s avoided pa ss ing upon a large part of all the constitutional question s pressed upon it for deci- sion. They are:

I. The Coun will not pass upon the constitutionality of legi slation in a friendly, non-adversary, proceeding, declining because to decide such ques- tions "is legitimate only in the last resort, and as a necess ity in the determina- tion of real, earnest and vital controversy between indi vidual s. It never wa s the thought that, by means of a friendl y suit, a party beaten in the legi slature could transfer to the courts an inquiry as to the constitutionality of the legisla- tive act. " Chicago & Grand Trunk Ry. v. Wellman, 143 U.S. 339,345 ....

2. The Court will not "anticipate a question of constitutional law in ad- vance of the necessity of deciding it." Lillerp ool, N. Y. & P. S. S. Co. II. Emi- gration Commissioners, I J 3 U.S. 33, 39; ... "It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessa ry to a de- cision of the case." BI/rton v. United States. 196 U.S. 283, 295.

3. The Coun will not " formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied." Liverp ool, N. Y. & P. S. S. Co. II. Emigratio n Commissioners, sl/pra . ...

4. The Court will not pass upon a constitutional question although prop- erly presented by the record, if there is also present some other ground upon which the case may be disposed of. This rule has found most varied applica- tion. Thus if a case can be decided on either of two grounds, one involving a consticutio'nal question, the other a question of statutory construction or general law, the court will decide only the latter. Stier II. Louswtlle & Nashllil/e R. Co .• 213 U.S. 175, 191; Light II. Umted States. 220. U.S. 523,538. Appeals from the highest court of a state challenging Its deCISIOn of a question under the Federal Constitution are frequently dislnIssed because the Judgement can

be S . d . d pendent state ground. Berea College II. KentHcky. 2 I 1 usta1l1e on an 111 e U.S. 45, 53 .

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368 ~ 1,c.T I O II

5. T he Co urt wi ll nor pa s upo n rh e va li diry of a sraru re upo n co mplainr of one who fai ls ro show rhar he is inj ured by irs ope ran o n. Tyler 11. The ju dges, 179 U . . 40 5; Hell drick 11. Marylalld , 235 U.S. 6 10,62 1 .. Amo ng rh e ma ny ap- plicari ons of rh is rul e, none is more srriking rh an rh e delli a l of rh e fl ghr of chal- lenge ro one who lac ks a persona l o r prope rr y rig hr. T hu s, rh e cha ll enge by a publi c official inreresred onl y in rh e pe rfo rm ance of hi s officia l dur y will nor be cnrertai ned .. . . In I:airchild /I. Hllghes, 258 U.s. 126, rh e Co urr affirm ed rh e dismi ssa l of a suir bro ughr by a ci ri ze n who so ughr ro have rh e Nin eree nth Aill endm cnr dec lared unconsriru riona l. In Massa chusett s /I. Me llon, 262, U.S. 44 7, rh e chall enge of rh e federal Ma rernir y Ac t wa s no r enrerra in ed a lrh o ugh made by rh e Co mm o nwea lrh on be ha lf of all irs c iri ze ns.

6. Th e Courr will nor pass upon rh e consrituti o na lity of a sta tute at the in- stance of one who has ava il ed himse lf of its benefit s. G rea t Fa lls Mfg· Co. v. Att om ey Gell eral, 124 U.S. 58 1. . . .

7. "When the va lidity of an ac t of the Congress is draw n in questi on, and even if a se ri ous doubt of co nstituti ona lity is ra ised, it is a ca rdin a l principle rh at thi S Co urr will fir st asce rta in whether a constructi o n of th e sta tute is fa irl y poss ibl e by whICh th e qu es non ma y be avo id ed. " Cromwell v. Bens on 285 U.S. 22, 62. '

E U GENE V . R OS T OW

66. TH E D EMO C RATI C CHARACTER OF JUDICIAL R EVI EW

Think about it: The Co ngress or your state legislature passes a la w that is signed by the presl'd t h A r. '. en or t e gove r- nCo r. s ,ew as fIVe appolIIted judges on the U.S . Suprem

ollrt ca n declare the I b " . e thereby v t ' I d . aw to e I/Il CO llstltutional,"

e omg t 1e eClslons of I public offi cials Is th ' r. Yotlr popu arly elected This question 'has t;~;'l~/::ro, oundly "undemocratic "? and the public at lar . Ameh"cans-both scholars public. ge-Sll1 ce t e founding of the re-

Eugene Rostow's defense of ". d ' . the power of th e 5, p C JU Ictal review, " or

/ reme ourt to rule that the laws ,

SO ll rce: Fro m "The Democr' . Ch - I R

· \' I .\lIC aracter ot J d ' . _ti ll' CVleltl, 0 . 66 , no. 2 (1952 • . U !Clai Rev iew," bv Eu . Reprill! ed bv permi ss ion f H ). Copy n ght ID 1952 b , h H ' ge ne V, RoslOw In H. IrI ·ard

. 0 arva rd L.aw Sc hoo l. ) t e arva rd L.aw Rev iew Assoc iation.

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Ii w '

T ill I'KL\l1 Co IH

decisioll s all d l ·t ( I . I . . I : . , ~ 5 ° e ected goverlllll elltal o((ICIa 5 arc III 1'1 0 <I I/ Oil o( tl ' C . . ( I I . _ . ?C OIl Stltl/t lO lI . stallds li S oll e u t Je

c U,S IC statell/ ellt s ( I' I .' . . ° w 'Y SUC J a powe r IS q Ull e COIISIS- tell t /ll/ t" del . ' I .' . / ' . II Oc m tlC t 1eory all d dell/ ocra tl c {lu hllcs . \ U, tO/l 1 argl/ es th t ' . . ( a a COlIstltl/t lO n that ol/thlles the powers

o the guve mmCllt WU I/ld be m ea nillgless withol/t a II/ ealls o( Ide llt l'fY I' " (fl " . b . " IIg cases U CO llld ctmg actIO n Y eiI/ /ere llt brall cIJe - /- . . II . ' u gouer llm ellt o r cO lIslltllt lU na )' I/llal/thoru,edgov r> rl t I ' . . d " d I ..

. L I/u ell a actl oll aga /ll st /II IVI . lI a s. / 11 effect. he reasO Il S tha t i( elected o((icials collid sill/ pi)' alt er thc m ea lll',1 ( I C . . . b . . g o t Je Olls lltllt lO n at any tl/n e y their act IOns, the CO II Stitlltioll would /Jruvide 11 0 real Il/llltatlOl1 0 11 them at all. NO ll etheless, euell i( one accepts the democra tic legitimacy o( ;udicial review. the deba te w ill rage 0 11 as to when and how Ihe SUjJreme CO llrt should exercise this aweso me power to limit ma;orit y rule.

A th e me o f un eas in ess, a nd eve n o f g uilt, colo rs th e litera ture abo ut ju dic ia l rev iew. M an y o f th ose wh o h ave ta lked , lec tured , a nd written a b o ut th e Co n - stituti o n h ave b ee n troubl ed by a se n se th a t jud ic ia l rev iew is und e m oc ra ti c . Why sho uld a maj o rity o f nine Ju sti ces a ppo inted fo r life be pe rmitted to o utl aw as un co n stituti o na l th e ac t s o f elec ted o ffi cia ls o r o f o ffi ce rs co ntroll ed b y el ec ted o ffi c ia ls? Judic ia l rev iew, th ey have urge d , is an unde m oc ra ti c s h ow o n an o th erw ise res p ec t a ble tree . It sho uld be cut o ff, o r a t lea st kept prun ed a nd in co nspi c uo us. Th e a tt ac k has go ne furth er. Re li a nce o n ba d p o litica l d oc t r in e, th ey say, has p roduc ed ba d p o litica l res ult s. The strength o f th e co urts h as we a kene d o th e r p a rt s o f th e gove rnm ent. The judic ia l ce nso rs a re acc used o f ca using lax ness and irres p o n sibility in the sta te a nd na ti o na l legisla tures, and po litica l a pa th y in th e elec tora te. At th e sam e time, we a re warn ed, th e p a rti c i- pati o n o f th e co urt s in thi s esse nti a ll y p o litica l fun cti o n will inev ita bl y lead to th e des tru c ti o n o f th e ir indep e nd ence a nd thu s co mp ro m ise a ll other a sp ec t s o f th eir wo rk.

The id ea that judic ia l review is und emoc rati c is n o t an aca d e mi c iss ue o f po litica l phil osoph y. Like m os t a bstr ac ti o ns, it has fa r-reac hin g prac ti cal co n - sequ ences. I s usp ec t th a t fo r so me judges it is th e m a in sp rin g o f d ec is io n , in - duc in g th e m in m a n y ca ses to uph o ld legisla ti ve a nd exec uti ve ac ti o n whi c h wo uld o th e rwi se h ave been co nd emn ed . Partic ul a rl y in th e multipl e o pini o n s of rece nt yea rs, th e Supre me Co urt 's self-sea rching o fte n bo il s dow n to a d eba te w ithin th e boso m s o f th e Ju sti ces ove r th e a ppro priateness o t judi c ia l rev iew

itse lf. Th e a ttac k o n judic ia l rev iew as und emoc ratic res ts o n the pre mi se th a t

th e Co n stituti o n sho uld be a ll owed to grow w ith o ut a judic ia l ch ec k . T h e pro po ne nt s o f thi s v ie w wo uld have th e Co nstituti o n mea n wh a t th e Preside nr , th e C o ng ress, a nd th e sta te legis latures say It mean s . ...

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37 0 SECTION XII

It is ;1 grave oversimp lificati on to contend that no society can be democra_ tic unle ss its legislature ha s sovereign powers. Thc soc Ial qua"t~ of democracy ca nnot be defined hy so rigid a formula. Gove rnmcnt and PO"~ICS .are ~fter all th e arms, not thc end, of soc ial life. The purpo se of th e. Co n stitution .IS t~ as- s ure the peopl e a fre e and dcmocratic soc iety. The final a~m of that socle~y I~ as mu c h freedom a s po ssib le for the individual human bemg. Th e Cons.t1tutlOn provides soc iety with a l1l ec hani sm of government full y compe~ent to Its task, hur hy no mcan s universa l in it s powers. The power to govern IS parcelled out between th e states and th e nation and is further dividcd among the three main branch es of all govcrnmental units. By custom as well as constitutional prac- tice, many vital a spccts of coml1lunity life are beyo nd .t he direc t reach of gov- er nment-for cxa mple, religion , th e press, and, until recently at any rate, many pha scs of ed ucati ona l and cultural activities. The se paration of powers under the Co nstitution sc rves th e end of democracy in society by limiting the roles of the seve ral branches of gove rnment and protecting the citizen, and the various parts of the state itse lf, again st encroachments from any source. The root idea of th e Constiturion is that man can be free because the state is not.

The power of constitutional review, to be exercised by so me part of the government, is implicit in th e conception of a written constitution delegating limited powers. A written constitution would promote discord rather than order in society if there were no accepted authority to construe it, at the least in cases of conflicting action by different branches of government or of consti- tutionally unauthorized governmental action against individuals. The limita- tion and separation of powers, if they are to survive, require a procedure for independent mediation and construction to reconcile the inevitable disputes over the boundaries of constitutional power which arise in the process of government ....

So far as the American Constitution is concerned , there can be little real doubt that the courts were intended from the beginning to have the power they have exercised. The Federalist Papers are unequivocal; the Debates as clear as debates normally are. The power of judicial review wa s commonly exercised by the courts of the states, and the people were accustomed to judicial con- struction of the authority derived from colonial charters. Constitutional inter- pretation by the courts, Hamilton said, does not

by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their dec isions by the fundamental laws, rather than by those which are not fundamental.

Hamilton's statement is sometimes criticized as a verbal legalism. But it has a~ advantag~ t?o. ~or muc~ of the discussion has complicated the problem Without c1anfymg It. Both Judges and their critics have wrapped themselves

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Till ~u 1'1( I ,\1 1 (() III

successf ull y in th e difficulric f ' SO ' I I ' ' .. 0 ,~o pJrtl c uiar cases th ar th ey h:l I'C bee n Jh lc to 1'3ck t l e u tlln a te I SS U~ p ose d In tl > F d ' I' e • le e ,13 I>r Papers

Whether 3nother m et hod f f ' " , d I h , 0 en o rClIl g the C onstitutiun cu uld h:lVe h ee n

d Vise , t l e s o rt an swer IS th at I C h" . ' , I' , ' no suc 1 meth od ha s deve lo ped, T he a rg ulll e nr vert c cons tltutl o n a It y uf Iud ' ,' . I . ' I ' b h ' o . ILI .l rev iew 13S lo ng Sill ce bee n ~ettl,d y 1, -

v The power a nd dut y o t tI S ' tOr]' , . ', , l e upreme Co urt to declare t:.'l tutes ur exec utive

-n o n ulK o nstituti o n a l III apl) " , ' ' 3_ _ ,' rupn 3tc cases IS part of rhe li ving Co nstitUti o n, "Tht:' co urse o t cun stltuti o nal I ' " M " I ll sto r y, r. Jusn cc hankfurter rece nt y re - n1a rk ed , has cast resl)on sibilit 'lc I S " Id I " ''' , s upon t 1(' uprem e Co urt whi ch It wou )e "stultifi ca ti o n for It to eV'ld e' TI . C ' ' d d ' ff . , '. 1(' o urt s power has hee n exe rc ise I e r- elld)' at diffe re nt tim es' sOmetl'Il1 ' I kl " I ' , ' . es Wit 1 rec eS5 a nd do ctrinaire r nr lU Sla Ill; so metim es with g rea t defe rence to the sta tu s and rc pun sihiliri es of oth er branches of the gove rnment; so metimes with a deg ree of weakne ss and timid - ity that com es close to the betra ya l of tru st. But the power exis ts, a s an integ ra l parr of th e proce~s o f American government. The Court has th e duty of inte r- preting th e Co nstituti o n III m a ny of its most imp o rta nt aspects, a nd (' peciall y in those which concern th e relations of the individu a l and the sta te, The polit - ical propositi o n underlying the survival of the power is that th e re a re so m e pha ses of American life which should be beyond the reac h of any m ajo rit y, save by constitutional amendment. In Mr, Ju stice Jac kso n's phra se, "O ne's right to life, liberty, and property, to fre e speec h, a fr ee press, freed o m of wor- ship and assembly, and other fund a mental rights may not be submitted to vote; th ey depend on the outcome of no elections," Whether or not thi s wa s th e intention of the Founding Fathers, the unwritten Co nstituti o n is unmi sta k a ble .

If one ma y use a personal definiti o n of the crucial word, thi s way of p o lic- ing the Constitution is not undemocratic. True, it employs appointed offic ial s, to whom large powers are irrevocabl y delegated. But democr ac ies nee d nor elect all the officers who exercise crucial authority in the name o f the voters. Admirals and generals can win or lose wars in the exercise of their di sc retion, The independence of judges in the administration of justice has been the pride of communities which aspire to be free . Members of th e Federal Re se rve Boa rd have the lawful power to plunge the country into depression or inflation . The list could readily be extended. Government by referendum or town meeting is not the only possible form of dem ocracy. The task of democrac y is not to have the people vote directly on every iss ue, but to assure their ultimate re spo n sibil- ity for the acts of their representatives, electeo ur appuinted. For judges d ec id- ing ordinary litigation, the ultimate responsibility of th e, electorate has a special meaning. It is a responsibility for the quality of the Iudge s and for the substance of their instruction s, never a respon sibility for theIr deCISions in par- ticular cases. It is hardly characteristic of law in democratic soci~ty to encour- age bills of attainder or to allow appeals from the courts 111 pa rticular cases to legislatures or to mobs. Where the judges are carrying out the function of con- stitutional review, the final responsibility of the peoplns appropriately guar- anteed by the provisions for amending the Co nstitution Itself, and by th e

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372 SECfION XII

. . h h pe r o nnel o f courts. Given the be ni gn influ ence o f tim e, whic h c an ges t e . d . . h

I d I ere is nothlll g un emocratlC In av-poss ibilitv o f ro nstituti o na amen me nt, t 1 . . I d' , I . d ct as impo rt a nt constltutlona me la -

in g res po nsible a nd ind epe nc ent IU ges a , . k . h I to rs. Within th e narrow limits o f th eir cap ac it y to ac t, their g relat taks ' IS tO

f e p

. ' I' b . ' ··t The y can d o mu c 1 to eep It rom ma intain :1 plurali st eqUi I rlUI11 111 soc le y. b C h . . d b h I F deral Gove rnment y ongre ss or t e bell1 g dOl11l11ate y t e state s o r t 1e e . , ,

Preside nt by th e purse o r th e swo rd . . ' . I h'· . f tl ' cruc l' ~ 1 but deli c ate fun c tion , con stitutional re-n t e exec uti o n 0 li S . " ' ' . d ' b h h

view by the judi c iar y ha s an ad vanta ge th o ro ughl y re cognize 111 or t eory and pr~ctice. Th e p~we r o f the courts, howe ver final: can only b e a sserted In the co urse o f liti gation. Ad visor y o pinion s are forbidden, and reefs of self- limita ti o n have grown up around the doctrin e that the courts will determine constitutional que sti o ns onl y in c a ses of actual controvers y, when no lesser gro und of decision is available, and when the complallllllg party would be di- rectl y and perso nall y injured by the a ssertion of the power deemed unconsti- tutional. Thu s the check of judicial review upon the el ected branches of go vernment must be a mild one, limited not only by the detachment, .in- tegrity, and good sense of the Justices, but by the structural boundanes Im- plicit in the fact that the power is entrusted to the courts. Judicial review is inherently adapted to preserving broad and flexible lines of constitutional growth, not to operating as a continuously active factor in legislative or exec- utive decisions ....

Democracy is a slippery term. I shall make no effort at a formal definition here. Certainly as a matter of historical fact some societies with parliamentary governments have been and are "democratic" by standards which Americans would accept, although it is worth noting that almost all of them employ sec- ond cham bers, with powers at least of delay, and indirect devices for assuring continuity in the event of a parliamentary collapse, either through the crown or some equivalent institution, like the presidency in France. But it would be scholastic pedantry to define democracy in such a way as to deny the title of "democrat" to Jefferson, Madison, Lincoln, Brandeis, and others who have found the American constitutional system, including its tradition of judicial re- view, well adapted to the needs of a free society. As Mr. Justice Brandeis said,

the doctrine of the separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was, not to avoid friction, but, by means of the inevitable fflctlon mCldent to the di stribution of governmental powers among three de- partments, to save the people from autocracy.

It is error to insist that no society is democratic unless it has a government of unlimited powers, and that no government is democratic unless its legisla- ~ure has unlimited powers. Constitutional review by an independent judiciary IS a tool of proven use in the American quest for an open society of widely dis- persed powers. In a vast country, of mixed population with widely different regional problems, such an organization of society is ;he surest base for the hopes of democracy.

4

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· ElM .. -.

THE SU PI! ~ME C O U IlT 373

ALEXANDER "1 . B I C K EL

67. TH E L EAST D ANGE ROUS BRAN C H IND EED

A lexander Bickel (1924-/ 974), a Il e of the leading co n- stItutI o nal scholars of the twen tieth celltury insisted that if th e bas · fA · ' I

. . IS a m ert can gOl/e mm ent rests on t 7e prm Clple o f majo rity YItle, then the power of judicial re- llIew requIres considerable justification. Bick er s starting po mt was Alexander Hamilton's argumen t in Federalist No. 78 that the separa tion of judicial, executil/e, and leg- Islatllle powers in the American system virtually gua ran- teed that "the judiciary, from the nature of its fun ctions, will alwa ys be the least dange rous to the political rights of the Co nstitutio n; because it will be least in a capacity to annoy or injure them. " Bick el believed that because the Supreme Co urt la cks any significant en forcem ent powers, "the Supreme Court's la w could not in our sys- tem prevail . .. if it ran collnter to deeply felt poplliar needs o r convictions. " For Bick el, the m ere fact that the dem ocratically chosen branches of government accept and enfo rce the Court's rulings m ea ns that judicial re- view is consistent with democratic theory. In a later book, The Morality o f Consenr (1975), Bick el strongly criticizes the Supreme Co urt for deciding cases m ore all the basis of expediency than principle.

THE COUNTER-MAJORlTARIAN DIFFICULTY

The root difficulty is that judicial review is a counrer-majoritarion force in our system. There are various ways of sliding over thi s ineluctable reality. Marshall did so when he spoke of enforcing, in beha lf of " the people," the limits tha t they have ordained for the institutions of a limited governmenr. And it has been done ever since in much the sa me fashion by all toO many commenrators. Marshall himself followed Hamilton, who in the 78 th Federalist denied that judicial re- view implied a superiority of the judicial. over the legislative power-denied,. in other words, that judicial review constituted conrrol by a n unreprese nra tlve

S AI d · M Si ckel The Least Dallgerol/s Brallch (Indi anap oli s: Sobbs-Me rrill

ol/ree' From exa n er. , . S· k I R d db · · C

· 62) C , . • he © by Jose phin e A. IC e. epro uce y permI ss Ion . ompan y In c., 19 . op> ng

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37 4 ~ I T I ON X II

. . f I d .' "I I supp oses" H a milron went o n, "that nlln o nt y 0 I n e cere ma lo nt y. t o n y , . - . I - .' I I· ' d th at wh e re th e wdl o t the legI S-t 1 e powe r 0 1 th e peop le IS sup en o r ro Jo t 1 , ,In '

I . . 1- . - iti o n to thJt of the people de-a ture, d ec lared III ItS sta tutes , st:ln (s In opp o s . , cl a red in th e Con stituti o n, th e jud ges o ught to be go ve rned b y th e larrer rather

tl I f " B I d "peo pl e" s' O use d is :In abstracti o n. ot neces-1a n t 1e o rm er. ut t 1e wo r . sa ril y J me anin gless o r a perni c io us o ne by an y mean s; alwa ys charged with emo ti o n, but no nreprese nrati o n:ll- an Jb traction obSC Uring th e reality that when th e Supreme Co un dec lares uncon stirution a l a legislative acr or the action o f a n elected exec uti ve it thwarts th e will o f re pre senta tive s of th e actual people of th e here and now; i; exercises co ntrol, not in be half of the prevailing major- ity, but again st ir. Th:\[, without lIlystic overrones, is what a ctuall y happen s. It is :In altogether different kettle o f fi sh, and it is th e reJ so n th e charge can be made that judicial review is undemocratic ....

It is true, of co urse, that the process of reflecting the will of a popular ma- jo rit y in the leg islature is deflected by various inequalities of representation and by all sorts of in stitutional habits and characteristics, which perhaps tend most 'often in favor of inertia. Yet it must be remembered that statutes are th e product of the legislature and the executive acting in concert, and that the executive represents a very different constituency and thus tends to cure in- equities of over- and underrepresentation. Reflecting a balance of forces in so- ciety for purposes of stable and effective government is more intricate and less certain than merely assuring each citizen his equal vote. Moreover, impurities and imperfections, if such they be, in one pan of the system are no argument for total departure from the desired norm in another part. A much more important complicating factor-first adumbrated by Madison in the 10th Federalist and lately emphasized by Professor David B. Truman and others-is the proliferation and power of what Madison foresaw as "faction," what Mr. Truman calls "groups, " and what in popular parlance has always been deprecated as the " interests" or the " pressure groups."

No doubt groups operate forcefully on the electoral process, and no doubt they seek and gain access to and an effective share in the legislative and executive decisional process. Perhaps they constitute also, in some measure, an impurity or imperfection. But no one has claimed that they have been able to capture the governmental process except by combining in some fashion, and thus capturing or constituting (are not the two verbs synonymous?) a ma- jority. They often tend themselves to be maioritarian in composition and to be subject to broader majoritarian influences. And the price of what they sell or buy in the legislature is determined in the biennial or quadrennial electoral marketplace. It may be, as Professor Robert A. Dahl has wrirren, that elec- tions themselves, and the political competition that renders them meaningful, "do not make for government by majorities in any very significant way," for they do not establish a great many policy preferences. However, "they are a crucial deVice for controlling leaders." And if the control is exercised by "groups of various types and sizes, all seeking in various ways to advance their goals," so that we have "minorities rule" rather than majority rule, it remains

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T H I:. S U I'I!E.\ I I:. Co KT 375

tru e neve rth eless th at 0 I , h '. '. d I te ' " . .• n ) t ose mtn o rttl es rul e whi ch ca n co m ma n t l e va s

of a mal0 rlt y of tndi vidl ' I ' I I . d I of a .' . : " 1,1 S In t 1(' eglslat ure who ca n co mm a n t le vo tes

mal o m y o t tndl vldu a ls ' hi' I b h ' th e . .' In r e e ecro rate. In one fa shI o n o r a not ler, ot In leglslan ve process a nd at I ' h . .. I ' . . e ecr lO ns, t e Illtn o rttl es mu st coa esce tn ro a malo r- It)'. Alth o ug, h as Mr D'1hl s· ,. . . f l ' bl ' ggesr . ' . '. .I YS, It IS as ll o na e In so me q ua rrers ro su that eve rythtn g belt eved abo ut democ rati c politics pri o r ro Wo rld Wa r I, a nd perh aps Wo rld Wa r II , was nonse nse" he ma kes no bo nes a bo ut hi s own beli ef that ··th e radi ca l democ rats wh o, U1;like Ma di son, in sist upon th e dec isive im - po rta nce of the elec ti on process in the whole grand strategy of democ racy a re essenna ll y correc t. '·

Th e in sights of Professo r Trum a n a nd oth er writers in ro th e ro le th at groups play in o ur soc iety and o ur politics have a bea ring o n judicial rev iew. They tndlca te th at th ere a re other mea ns th an the elecro ral process, th o ugh subordlll ate and subsidi ary ones, of making in stituti ons of gove rnm ent re- sponsIve ro the needs and wishes of the govern ed. Hence one Ill ay in fe r th at ju - dicial rev iew, alth ough not res ponsible, may have ways of being res po nsive. But nothing ca n fin all y deprec iate the central fun cti on th at is assigned in de- mocratic th eo ry a nd practice to th e electoral process; no r ca n it be deni ed th at the polic y- ma king power of representati ve in stitutions, born of th e elecro ra l process, is the di stingui shing characteri stic of th e system. judicial rev iew work s co unter to this ch arac teri stic. .. .

Besides bein g a counter-m a joritari an chec k on the legislature a nd th e ex - ecuti ve, judicial review may, in a large r se nse, have a tend ency ove r tim e se ri - ousl y to weaken the democ ratic proce ss. judicial rev iew ex presses, of co urse, a form of di strust of the legislature. "The legislatures," wro te j ames Bradley Thayer at the turn of the century,

are grow in g acc ustom ed to th is d istru st a nd mo rc and mo re rea d ily inclin ed to justify it, a nd to shed th e consid erati o ns of co nstituti o na l restra ints,--<:erta inl y as co nce rnin g th e exac t ex tent of th ese res tri cti o ns,-turning th a t subj ec t ove r to th e co urt s; a nd wh at is wo rse, they in se nsibly fa ll into a ha bit o f ass um ing th at wh a teve r they co uld co nstituti o na ll y do they may do,- as if ho no r a nd fa ir dea lin g a nd ~ommon ho nesty we re not releva nt to th ei r in q uirie s. Th e peopl e, a ll th is whil e, beco me ca reless as to wh o m th ey se nd to th e legis la ture; too o ften th ey chee rfull y vo te fo r men wh o m th ey would not tru st with a n im- po rta nt pri va te a ffa ir, a nd when these unfit perso ns a re fo und to pass foo li sh a nd ba d laws, a nd th e courts step tt1 a nd d isregard th em, th e peop le are g lad tha t these few wi se r gentl emen on the benc h a re so rea dy to pro tect th e m aga inst the ir mo re immediate represe ntati ves .... lilt sho uld be rememb ered th a t th e exe rc ise o f it Ith e power of judicia l rev iewl even whe~ unavoida ble~ is

I d d \v'lth a se ri o us evil , na mely, th at the co rrec tt o n of leg lsla tt ve a ways a tten e • . . . . . k fro ln th e o utSide a nd th e peopl e thu s los e th e po lttt ca l ex pe· ml sta es co mes " . . .

. d h 10 ra l educa ti on and sttmulu s th at co mes fro m fl ghttng th e rt ence, ant e n ' .. . . h o rdin a r}' wa}' and co rrecttng their own erro rs. The ten-qu estt o n o ut tt1 t e • , ' . .

f nd easy reso rt to thi S grea t fun ctt o n, now lamenta bl y too

den cy 0 a comm o n a . f hi d d . . . d f the po liti ca l ca paCIty 0 t e peop e, a n to ead en It S

co mmo n, IS to wa r .' h' d h I 'bilit}' It IS no It ght t 109 to 0 t a t. se nse o f mo ra res po nsl .

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376 SECTION XII

, does Co ng ress enact a mea- I I , ds of oCC<ISlo ns , f ' " To thi s da y on huw many lun e Ie d ' lsideratlon u Its constitUtlon-

" 'I ,' " cssaye CO l b d h sure that it decms exp edl cnt, la\ In " , ' "lC ipl e) u nl y to a all all t e f

' , - rabillty a ll pIli' f ' , alit y (th<1t is to S<1 y, () ItS aCLcp· 1 C rt w ill correct e rrors a prll1CI-

, d - fd 'e rhartlcOu "fll attcmp t 111 the declarc cun I CIIL .d that ally 10wc IIIlg 0 r Ie evel , , II b ' I s bee n sugges rc , I ' d ' , I pi e If a ny? It ma y we C, as la . , hcrOl's other t Ia n IU ICla re-

, , " ,'b unbl e to man) , bl of legislative perfurm ~lnce IS atlll • I .' bse rved remain s observa e ... .

, 'd b rI 'H wh :H T la ye l 0 f d I ' VICW. Yet there IS no Ull t 1.· t'OIl has been pur orwar . t IS .. I I I rehtcd conrcil I ' I h hllall y, anot leI', t lOug I ' , II ' unter to democ ratic t leary t at

h ' d " I ' . ns so fllnei-llllcnta ) co d ' ' I ' t at III ICla rev iew III • 1 that th eu ry jll ICla review can- , ' I ' I ' II ther reS I)cCrs rests 0 1. , d'" In a soc iet y w llC I III a () , f g rave inn e r contra Ictlon In

, ' I b t'f · ' , We I)'I Y the pnce 0 a • not ulnm ~1te y e e CLtl\ e. ' I ' I 's an inconvenience and a dan-

b ' " I f 'government w lIC I I • the aSlc prlllClp e 0 0111 d' for when the great test comes, ge roll s one;and in the end ro n~ goo P~II~~~~l~St arresting express ion of this 11Idi ciai review will be un equ,l to It. I f J dge Learn ed Hand a pas-

"f ' from a speec IOU · , . , thought IS 111 a amous pa ssage " d b sa e Deall Eu rene V. Rostow has written, "of Brownll1ges que passlO~ a~ 0- • g: ,,' ,g "I , d pocal)' ptic view." Absent the II1stltution of

SCUl'lty, VOlC1l1g a g oom) an a ' judicial review, Judge Hand said:

I do not think that anyone ca n say what will be left of those I fundamental principles of equity and fair play which our constitutions enshr1l1eJ; I do not kn ow wheth er th ey will serve onl y as counsels; but thiS much I th111k I do know-that a society so riven that the spirit of moderati on IS gone, no court can save; that a soc iety where that spirit tlourishes, no court need save; that 111 a society which evades its respo nsibility by thrusting upon the courts the nur- ture of that spirit, that spirit in the end will perish ....

Such , in outline, are the chief doubts that must be met if the doctrine of ju- dicial review is to be justified on principle. Of course, these doubts will apply with lesser or greater force to various forms of the exercise of the power. For the moment the discussion is at wholesale, and we are seeking a justification on principle, quite aside from supports in history and the continuity of prac- tice. The search mu st be for a function which might (indeed, must) involve the making of policy, yet which differs from the legislative and executive functions; which is peculiarly suited to the capabilities of the courts; which will not likely be performed elsewhere if th e courts do not assume it; which can be so exer- cised as to be acceptable in a so ciety that generally shares Judge Hand's satis- faction in a "sense of common venture"; which will be effective when needed; and whose discharge by the courts will not lower the quality of the other de- partments' perf~rmance by denuding them of the dignity and burden of their own responslbtllty. It wtll not be possible fully to meet all that is said against j~dicial review. Such is not the w,ay with questions of government. We can only ftll the other Side of the scales With countervailing judgments on the real needs and the actual workll1gs of our society and, of course, with our own portions of faith and hope. Then we may estimate how far the needle has moved.

d

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T H E 5 PR b\l ~ Co u wr 377

Th e po int o f d e parture is . . .. h ·1_ . . . " trUI sm; perh a ps It eve n rt ses ro t e un a sa l

bl·ltt y of a platttude. It IS th a t · 'c ts. a .. man y actIon s o f gove rnm e nt have twO as pe . heir \ITIm edl 3te necessa ril}, · d d · . I _

t ' . IIlte n e ,prac tt ca l effec ts, a nd th e Ir per l aps un . tended o r un a pprec Iated b . I d In . . eartng o n va lu es we ho ld to have mo re ge ne ra a n

ermanem Inte res t. It IS a p . d f Iff P . . re mI se we educe not merely ro m t l e ac t a a

·Itten co nstttutl o n but fr o hi · . I wr m t e ll Sto ry o f the race a nd ulttm a tely as a mo ra judgment o f th e good society, that governm ent sho L;ld se rve no t o nl}' what we ·o ncel ve fro m ttme to tlllIe to b . d · . b I .

C e o ur Imm e la te mate rt a l nee d s ut a so ce rta In d ring v·llu es This· . I . B

en u • . In pa rt IS w lat IS meant by gove rnment und er law. ut such va lues d o no t prese nt them se lves rea d y-made. They have a pas t a lways, ro be sure, but th ey mu st be Continually derived, enunciated , and see n in re leva m appltcatton. And It remain s to as k which in stituti o n o f o ur gove rnm em-if an y s \l1 gle one III partIcul a r-should be th e pron o un ce r a nd g ua rdi a n o f s uc h values.

Men in a ll wa lk s of public life are able occas ionall y ro perce ive thi s sec- ond aspect of public questions. Sometimes the y are al so a ble ro ba se their d e- cisions on it; that is one of the things we like t~ call acting on prin c ipl e. Often they do not do so, however, particularl y when the y sit in legi s lati ve assem- blies. There, when the pressure for immediate results is strong enough a nd emotions ride high enough, men will ordinarily prefer ro act on expediency rather than take the long view. Possibly legislarors-everything else being equal-are as capable as other men of following the path of principl e, where the path is clear or at any rate discernible. Our system, however, like all secu- lar systems, calls for the evolution of principle in novel circumstances, rather than only for its mechanical application. Not merely respect for the rule of es- tablished principles but the creative establishmem and renewal of a coherem body of principled rules-that is what our legislatures have proven themselves ill equipped to give us.

Initially, great reliance for principled decision was placed in the Senators and the Presidem, who have more extended terms of office and were meam to be elected only indirectly. Yet the Senate and the Presidem were conceived of as less closely tied to, not as divorced from, electoral responsibility and the political marketplace. And so even then the need might have been felt for an institution which stands altogether aside from the current clash of interests, and which, insofar as is humanly possible, is concerned only with principle. We cannot know whether, as Thayer believed, our legislatures are what they are because we have judicial review, or whether we have judicial review and consider it necessary because legislatures are what they are. Yet it is arguable also that the partial separation of the legislative and judicial functions-and it is not meant to be absolute-is benefICIal III any event, because It makes It possible for the desires of various groups and interests concerning immediate results to be heard clearly and unrestrainedly In one place. It may be thought fitting that somewhere in government, at some stage In ~he process of law- making, such felt needs should find unambIguous expressIon. Moreover, and

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378 ECT IONX II

. . ies for d ea lin g with maners of mo re imp o rranrl v co uns have ce rr a tn c lpac tr J I I

. , . d no t poss ess . uc ges lave, Or pri ncip le th a t legislaturc s and exec utl\"CS 0 . f II h .

. . d I . s ul a tl o n ro 0 o w t e wavs ot sho uld have th e le isur e th e tralnll1g, a n n e 111 -' .. . I . .'

: . ' f ' t 1 hi S IS crucla 111 so rtll1 g Out th e sc ho i:Jr III purS UIl1~ th e end s 0 gave l nm e n . .., . . c. I " t -o mething that IIl stituti o ns can do

th e endurtn g va lu es of a soc iety, a nc It IS no s . d ' ff . . . . f· I lOSt pout wtrh a I e rent set of we ll occaS io nall y, w hd e o pe ra tin g 0 1 n e n . ' . . . .

I II t· I I ' t· · · d ~ Ild for IIlld ev la tlll g II1 stltuti o nal customs. gea rs. t c a s o r a la Jlt 0 I11ln , " . f" I I . I les tl o ns 0 prtnClp e neve r carry Ano th e r adva ntage th at courts la ve IS t lat qL . .

the sa me aspect for th em as th ey did for th e leg is la ture or the executive, Statutes, after all , deal typically with ab str ac t o r ?Imly for esee n problems. The co uns are concerned with th e fl es h and blood o t an actual case . ThiS tends to mod ify, perhap s to length en, everyo ne's view. It a lso provide s an extremely s::dutar y proving g ro und for all abstractions; it is co nduci ve,. III a phra se of H o lmes, to thinkin g thin gs, no t words , a nd thu s to th e evo luti o n of prll1clple b y a process that te sts as it creates.

Their in sulation and the mar ve lou s mys ter y of time give courts the ca pac- it y to appeal to men's bener natures, to call forth th e ir aspirations, which may have been forgotten in the mo ment 's hue and cry. Thi s is what Justice Stone ca lled the opponunity for "the sober second thought. " Hence it is that the couns, although the y ma y so mewhat dampen th e p eo ple's and the legislatures ' efforts to educate them selves, are a lso a great and highl y effective educational in stitution. Judge Gibson, in th e very op inion mentione d ea rlier, highly critical as he was, took account of thi s. "In the business of gove rnment, " he wrote, "a recurrence to first principles answers the end of an observation at sea with a view to correct the dead reckonin g; and, for this purpose, a written constitu- tion is an instrument of ine stimabl e value. It is of inestimable value also, in ren- dering its principles familiar to the mass of the people .... " The educational institution that both take s th e o bse rvation to correct the d ead reckoning and makes it known is the voice of the Constitution: th e Supreme Court exercising JudiCial review. The Justices, in Dean Rostow's phrase, "are inevitable teachers in a vital national seminar." No other branch of the American government is nearly so well eqUipped to conduct one. And such a seminar can do a great deal to keep our society from becoming so riven that no court will be able to save It. <?f course, we have never quite been that soc iety in which the spirit of moderation IS so nehly in flower that no court need save it.

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••• • ECTI O XII

" •• _ ....... 0--'"\ ~_ _ .

1 111 ll'lI 1\" ( otRI 39

RI-: I E\; QLJ~WIO I ~

I n wh a t bJ i ~ did I ' d 11 '1 k I . I, II . exa n <:' r - .11111 ton n ' (() pe r 1I .1 ( t' mCr/ La n, I • the ne, Iy cre ated upre l11 C COUrt po c I no th reJt to t he peo ple of th e nlt eo

t,H e;;? Do )'O U th ink H 3111ilt o n wo uld .IPI rme () th e c' up rcmc ( o ur! \ ro ll' "' co ntemporar y mc ri 3n life ? Wh y? \'(/ h not.

2. Trace th e rc.bonin g Df 'hi d Ju Ii M.1r h.dl III ILir/Jl/ r )' I '. ' Ilil so ll . \l h.lI i the iron y in th e () urr'~ d ( I\ IOn tt) stri ke um 11 th e PMll c ul.Jr '>eC ll on of .In Ac t of o n !!-re~ th a t W3 ilwo lve d 111 thl \ ~' 3 ' ?

3. X a Ju sti cc Bra nd ci • o pini o n in A S/III 'cl llder I '. T('ll lI e ce \ft tl/ey A II/ h o rt/ )I a pl e3 for cxp.llldill g o r lirnitillg th e ' upre me , o urt ? In yo ur op inion. if Ih e

ou n aCl u311 y h eli eve th :u :I gove rnm ent:11 :Inion is lII1Co n<' litul ion a l, I rh e re a good re:1 0 11 th e o un sho uld no t rul e on thi s qu e<; tion l

4. Ca n yo u think o f a respon e ro Euge ne Rostow' c!:Jil11 th a t wi th uu t jud icia l re view th e Co ng ress co uld simpl y cha nge th e o n tiruti o n at wi ll ? Did yo u kn ow th a t thi is exactl y how th e British ys tem wo rk ? Is Brita in no t a de l11 o- cratic natio n ?

5. What does Alexander Bickel see as the " roOf difficulty" rega rdin g judi id l re view ? H ow does he reso lve the pro blem ?