The Image:

A Guide to Pseudo-Events in America

Daniel J. Boorstin
1961
INTRODUCTION
Extravagant Expectations
IN THIS Book I describe the world of our making; how we have used our wealth, our literacy, our technology,
and our progress, to create the thicket of unreality which stands between us and the facts of life. I recount
historical forces which have given us this unprecedented opportunity to deceive ourselves and to befog our
experience.
Of course, America has provided the landscape and has given us the resources and the opportunity for this feat
of national self-hypnosis. But each of us individually provides the market and the demand for the illusions
which flood our experience.
We want and we believe these illusions because we suffer from extravagant expectations. We expect too much
of the world. Our expectations are extravagant in the precise dictionary sense of the word - going beyond the
limits of reason or moderation. They are excessive.
When we pick up our newspaper at breakfast, we expect - we even demand - that it bring us momentous events
since the night before. We turn on the car radio as we drive to work and expect "news" to have occurred since
the morning newspaper went to press. Returning in the evening, we expect our house not only to shelter us, to
keep us warm in winter and cool in summer, but to relax us, to dignify us, to encompass us with soft music and
interesting hobbies, to be a playground, a theater, and a bar. We expect our two-week vacation to be romantic,
exotic, cheap, and effortless. We expect a faraway atmosphere if we go to a nearby place; and we expect
everything to be relaxing, sanitary, and Americanized if we go to a faraway place. We expect new heroes every
season, a literary masterpiece every month, a dramatic spectacular every week, a rare sensation every night. We
expect everybody to feel free to disagree, yet we expect everybody to be loyal, not to rock the boat or take the
Fifth Amendment. We expect everybody to believe deeply in his religion, yet not to think less of others for not
believing. We expect our nation to be strong and great and vast and varied and prepared for every challenge; yet
we expect our "national purpose" to be clear and simple, something that gives direction to the lives of nearly
two hundred million people and yet can be bought in a paperback at the corner drugstore for a dollar.
We expect anything and everything. We expect the contradictory and the impossible. We expect compact cars
which are, spacious; luxurious cars which are economical. We expect to be rich and charitable, powerful and
merciful, active and reflective, kind and competitive. We expect to be inspired by mediocre appeals for
"excellence," to be made literate by illiterate appeals for literacy. We expect to eat and stay thin, to be
constantly on the move and ever more neighborly, to go to a "church of our choice" and yet feel its guiding
power over us, to revere God and to be God.
Never have people been more the masters of their environment. Yet never has a people felt more deceived and
disappointed. For never has a people expected so much more than the world could offer.
We are ruled by extravagant expectations:

(1)
Of what the world holds. Of how much news there is, how many heroes there are, how often
masterpieces are made, how exotic the nearby can be, how familiar the exotic can become. Of the closeness of
places and the fairness of places.
(2)
Of our power to shape the world. Of our ability to create events when there are none, to make heroes
when they don't exist, to be somewhere else when we haven't left home. Of our ability to make art forms suit
our convenience, to transform a novel into a movie and vice versa, to turn a symphony into mood-conditioning.
To fabricate national purposes when we lack them, to pursue these purposes after we have fabricated them. To
invent our standards and then to respect them as if they had been revealed or discovered.
By harboring, nourishing, and ever enlarging our extravagant expectations we create the demand for the
illusions with which we deceive ourselves. And which we pay others to make to deceive us.
The making of the illusions which flood our experience has become the business of America, some of its most
honest and most necessary and most respectable business. I am thinking not only of advertising and public
relations and political rhetoric, but of all the activities which purport to inform and comfort and improve and
educate and elevate us: the work of our best journalists, our most enterprising book publishers, our most
energetic manufacturers and merchandisers, 'our most successful entertainers, our best guides to world travel,
and our most influential leaders in foreign relations. Our every effort to satisfy our extravagant expectations
simply makes them more extravagant and makes our illusions more attractive. The story of the making of our
illusions - "the news behind the news" - has become the most appealing news of the world.
We tyrannize and frustrate ourselves by expecting more than the world can give us or than we can make of the
world. We demand that everyone who talks to us, or writes for us, or takes pictures for us, or makes
merchandise for us, should live in our world of extravagant expectations. We expect this even of the peoples of
foreign countries. We have become so accustomed to our illusions that we mistake them for reality. We demand
them, And we demand that there be always more of them, bigger and better and more vivid. They are the world
of our making: the world of the image.
Nowadays everybody tells us that what we need is more belief, a stronger and deeper and more encompassing
faith. A faith in America and in what we are doing. That may be true in the long run. What we need first and
now is to disillusion ourselves. What ails us most is not what we have done with America, but what we have
substituted for America. We suffer primarily not from our vices or our weaknesses, but from our illusions. We
are haunted, not by reality, but by those images we have put in place of reality.
To discover our illusions will not solve the problems of our world. But if we do not discover them, we will
never discover our real problems. To dispel the ghosts which populate the world of our making will not give us
the power to conquer the real enemies of the real world or to remake the real world. But it may help us discover
that we cannot make the world in our image. It will liberate us and sharpen our vision. It will clear away the fog
so we can face the world we share with all mankind.
What is a pseudo-event? Can you list examples?
How do pseudo-events affect our political efficacy (both internal and external)?

Bad News
RICHARD A. POSNER
July 31, 2005
New YORK TIMES
THE conventional news media are embattled. Attacked by both left and right in book after book, rocked by
scandals, challenged by upstart bloggers, they have become a focus of controversy and concern. Their audience
is in decline, their credibility with the public in shreds. In a recent poll conducted by the Annenberg Public
Policy Center, 65 percent of the respondents thought that most news organizations, if they discover they've
made a mistake, try to ignore it or cover it up, and 79 percent opined that a media company would hesitate to
carry negative stories about a corporation from which it received substantial advertising revenues.
The industry's critics agree that the function of the news is to inform people about social, political, cultural,
ethical and economic issues so that they can vote and otherwise express themselves as responsible citizens.
They agree on the related point that journalism is a profession rather than just a trade and therefore that
journalists and their employers must not allow profit considerations to dominate, but must acknowledge an
ethical duty to report the news accurately, soberly, without bias, reserving the expression of political
preferences for the editorial page and its radio and television counterparts. The critics further agree, as they
must, that 30 years ago news reporting was dominated by newspapers and by television network news and that
the audiences for these media have declined with the rise of competing sources, notably cable television and the
Web.
The audience decline is potentially fatal for newspapers. Not only has their daily readership dropped from 52.6
percent of adults in 1990 to 37.5 percent in 2000, but the drop is much steeper in the 20-to-49-year-old cohort, a
generation that is, and as it ages will remain, much more comfortable with electronic media in general and the
Web in particular than the current elderly are.
At this point the diagnosis splits along political lines. Liberals, including most journalists (because most
journalists are liberals), believe that the decline of the formerly dominant ''mainstream'' media has caused a
deterioration in quality. They attribute this decline to the rise of irresponsible journalism on the right, typified
by the Fox News Channel (the most-watched cable television news channel), Rush Limbaugh's radio talk show
and right-wing blogs by Matt Drudge and others. But they do not spare the mainstream media, which, they
contend, provide in the name of balance an echo chamber for the right. To these critics, the deterioration of
journalism is exemplified by the attack of the ''Swift boat'' Vietnam veterans on Senator John Kerry during the
2004 election campaign. The critics describe the attack as consisting of lies propagated by the new right-wing
media and reported as news by mainstream media made supine by anxiety over their declining fortunes.
Critics on the right applaud the rise of the conservative media as a long-overdue corrective to the liberal bias of
the mainstream media, which, according to Jim A. Kuypers, the author of ''Press Bias and Politics,'' are ''a
partisan collective which both consciously and unconsciously attempts to persuade the public to accept its
interpretation of the world as true.'' Fourteen percent of Americans describe themselves as liberals, and 26
percent as conservatives. The corresponding figures for journalists are 56 percent and 18 percent. This means
that of all journalists who consider themselves either liberal or conservative, 76 percent consider themselves
liberal, compared with only 35 percent of the public that has a stated political position.
So politically one-sided are the mainstream media, the right complains (while sliding over the fact that the
owners and executives, as distinct from the working journalists, tend to be far less liberal), that not only do they
slant the news in a liberal direction; they will stop at nothing to defeat conservative politicians and causes. The
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right points to the ''60 Minutes II'' broadcast in which Dan Rather paraded what were probably forged
documents concerning George W. Bush's National Guard service, and to Newsweek's erroneous report, based
on a single anonymous source, that an American interrogator had flushed a copy of the Koran down the toilet (a
physical impossibility, one would have thought).
Strip these critiques of their indignation, treat them as descriptions rather than as denunciations, and one sees
that they are consistent with one another and basically correct. The mainstream media are predominantly liberal
- in fact, more liberal than they used to be. But not because the politics of journalists have changed. Rather,
because the rise of new media, itself mainly an economic rather than a political phenomenon, has caused
polarization, pushing the already liberal media farther left.
The news media have also become more sensational, more prone to scandal and possibly less accurate. But note
the tension between sensationalism and polarization: the trial of Michael Jackson got tremendous coverage,
displacing a lot of political coverage, but it had no political valence.
The interesting questions are, first, the why of these trends, and, second, so what?
The why is the vertiginous decline in the cost of electronic communication and the relaxation of regulatory
barriers to entry, leading to the proliferation of consumer choices. Thirty years ago the average number of
television channels that Americans could receive was seven; today, with the rise of cable and satellite television,
it is 71. Thirty years ago there was no Internet, therefore no Web, hence no online newspapers and magazines,
no blogs. The public's consumption of news and opinion used to be like sucking on a straw; now it's like being
sprayed by a fire hose.
To see what difference the elimination of a communications bottleneck can make, consider a town that before
the advent of television or even radio had just two newspapers because economies of scale made it impossible
for a newspaper with a small circulation to break even. Each of the two, to increase its advertising revenues,
would try to maximize circulation by pitching its news to the median reader, for that reader would not be
attracted to a newspaper that flaunted extreme political views. There would be the same tendency to political
convergence that is characteristic of two-party political systems, and for the same reason - attracting the least
committed is the key to obtaining a majority.
One of the two newspapers would probably be liberal and have a loyal readership of liberal readers, and the
other conservative and have a loyal conservative readership. That would leave a middle range. To snag readers
in that range, the liberal newspaper could not afford to be too liberal or the conservative one too conservative.
The former would strive to be just liberal enough to hold its liberal readers, and the latter just conservative
enough to hold its conservative readers. If either moved too close to its political extreme, it would lose readers
in the middle without gaining readers from the extreme, since it had them already.
But suppose cost conditions change, enabling a newspaper to break even with many fewer readers than before.
Now the liberal newspaper has to worry that any temporizing of its message in an effort to attract moderates
may cause it to lose its most liberal readers to a new, more liberal newspaper; for with small-scale entry into the
market now economical, the incumbents no longer have a secure base. So the liberal newspaper will tend to
become even more liberal and, by the same process, the conservative newspaper more conservative. (If
economies of scale increase, and as a result the number of newspapers grows, the opposite ideological change
will be observed, as happened in the 19th century. The introduction of the ''penny press'' in the 1830's enabled
newspapers to obtain large circulations and thus finance themselves by selling advertising; no longer did they
have to depend on political patronage.)

The current tendency to political polarization in news reporting is thus a consequence of changes not in
underlying political opinions but in costs, specifically the falling costs of new entrants. The rise of the
conservative Fox News Channel caused CNN to shift to the left. CNN was going to lose many of its
conservative viewers to Fox anyway, so it made sense to increase its appeal to its remaining viewers by catering
more assiduously to their political preferences.
The tendency to greater sensationalism in reporting is a parallel phenomenon. The more news sources there are,
the more intense the struggle for an audience. One tactic is to occupy an overlooked niche - peeling away from
the broad-based media a segment of the consuming public whose interests were not catered to previously. That
is the tactic that produces polarization. Another is to ''shout louder'' than the competitors, where shouting takes
the form of a sensational, attention-grabbing discovery, accusation, claim or photograph. According to James T.
Hamilton in his valuable book ''All the News That's Fit to Sell,'' this even explains why the salaries paid news
anchors have soared: the more competition there is for an audience, the more valuable is a celebrity newscaster.
The argument that competition increases polarization assumes that liberals want to read liberal newspapers and
conservatives conservative ones. Natural as that assumption is, it conflicts with one of the points on which left
and right agree - that people consume news and opinion in order to become well informed about public issues.
Were this true, liberals would read conservative newspapers, and conservatives liberal newspapers, just as
scientists test their hypotheses by confronting them with data that may refute them. But that is not how ordinary
people (or, for that matter, scientists) approach political and social issues. The issues are too numerous,
uncertain and complex, and the benefit to an individual of becoming well informed about them too slight, to
invite sustained, disinterested attention. Moreover, people don't like being in a state of doubt, so they look for
information that will support rather than undermine their existing beliefs. They're also uncomfortable seeing
their beliefs challenged on issues that are bound up with their economic welfare, physical safety or religious and
moral views.
So why do people consume news and opinion? In part it is to learn of facts that bear directly and immediately
on their lives - hence the greater attention paid to local than to national and international news. They also want
to be entertained, and they find scandals, violence, crime, the foibles of celebrities and the antics of the
powerful all mightily entertaining. And they want to be confirmed in their beliefs by seeing them echoed and
elaborated by more articulate, authoritative and prestigious voices. So they accept, and many relish, a partisan
press. Forty-three percent of the respondents in the poll by the Annenberg Public Policy Center thought it ''a
good thing if some news organizations have a decidedly political point of view in their coverage of the news.''
Being profit-driven, the media respond to the actual demands of their audience rather than to the idealized
''thirst for knowledge'' demand posited by public intellectuals and deans of journalism schools. They serve up
what the consumer wants, and the more intense the competitive pressure, the better they do it. We see this in the
media's coverage of political campaigns. Relatively little attention is paid to issues. Fundamental questions, like
the actual difference in policies that might result if one candidate rather than the other won, get little play. The
focus instead is on who's ahead, viewed as a function of campaign tactics, which are meticulously reported.
Candidates' statements are evaluated not for their truth but for their adroitness; it is assumed, without a hint of
embarrassment, that a political candidate who levels with voters disqualifies himself from being taken seriously,
like a racehorse that tries to hug the outside of the track. News coverage of a political campaign is oriented to a
public that enjoys competitive sports, not to one that is civic-minded.
We saw this in the coverage of the selection of Justice Sandra Day O'Connor's successor. It was played as an
election campaign; one article even described the jockeying for the nomination by President Bush as the
''primary election'' and the fight to get the nominee confirmed by the Senate the ''general election'' campaign.
With only a few exceptions, no attention was paid to the ability of the people being considered for the job or the
actual consequences that the appointment was likely to have for the nation.
5

Does this mean that the news media were better before competition polarized them? Not at all. A market gives
people what they want, whether they want the same thing or different things. Challenging areas of social
consensus, however dumb or even vicious the consensus, is largely off limits for the media, because it wins no
friends among the general public. The mainstream media do not kick sacred cows like religion and patriotism.
Not that the media lie about the news they report; in fact, they have strong incentives not to lie. Instead, there is
selection, slanting, decisions as to how much or how little prominence to give a particular news item. Giving a
liberal spin to equivocal economic data when conservatives are in power is, as the Harvard economists Sendhil
Mullainathan and Andrei Shleifer point out, a matter of describing the glass as half empty when conservatives
would describe it as half full.
Journalists are reluctant to confess to pandering to their customers' biases; it challenges their self-image as
servants of the general interest, unsullied by commerce. They want to think they inform the public, rather than
just satisfying a consumer demand no more elevated or consequential than the demand for cosmetic surgery in
Brazil or bullfights in Spain. They believe in ''deliberative democracy'' - democracy as the system in which the
people determine policy through deliberation on the issues. In his preface to ''The Future of Media'' (a collection
of articles edited by Robert W. McChesney, Russell Newman and Ben Scott), Bill Moyers writes that
''democracy can't exist without an informed public.'' If this is true, the United States is not a democracy (which
may be Moyers's dyspeptic view). Only members of the intelligentsia, a tiny slice of the population, deliberate
on public issues.
The public's interest in factual accuracy is less an interest in truth than a delight in the unmasking of the
opposition's errors. Conservatives were unembarrassed by the errors of the Swift Boat veterans, while taking
gleeful satisfaction in the exposure of the forgeries on which Dan Rather had apparently relied, and in his
resulting fall from grace. They reveled in Newsweek's retracting its story about flushing the Koran down a toilet
yet would prefer that American abuse of prisoners be concealed. Still, because there is a market demand for
correcting the errors and ferreting out the misdeeds of one's enemies, the media exercise an important oversight
function, creating accountability and deterring wrongdoing. That, rather than educating the public about the
deep issues, is their great social mission. It shows how a market produces a social good as an unintended
byproduct of self-interested behavior.
The limited consumer interest in the truth is the key to understanding why both left and right can plausibly
denounce the same media for being biased in favor of the other. Journalists are writing to meet a consumer
demand that is not a demand for uncomfortable truths. So a newspaper that appeals to liberal readers will avoid
exposs of bad behavior by blacks or homosexuals, as William McGowan charges in ''Coloring the News'';
similarly, Daniel Okrent, the first ombudsman of The New York Times, said that the news pages of The Times
''present the social and cultural aspects of same-sex marriage in a tone that approaches cheerleading.'' Not only
would such exposs offend liberal readers who are not black or homosexual; many blacks and homosexuals are
customers of liberal newspapers, and no business wants to offend a customer.
But the same liberal newspaper or television news channel will pull some of its punches when it comes to
reporting on the activities of government, even in Republican administrations, thus giving credence to the left
critique, as in Michael Massing's ''Now They Tell Us,'' about the reporting of the war in Iraq. A newspaper
depends on access to officials for much of its information about what government is doing and planning, and is
reluctant to bite too hard the hand that feeds it. Nevertheless, it is hyperbole for Eric Alterman to claim in ''What
Liberal Media?'' that ''liberals are fighting a near-hopeless battle in which they are enormously outmatched by
most measures'' by the conservative media, or for Bill Moyers to say that ''the marketplace of political ideas'' is
dominated by a ''quasi-official partisan press ideologically linked to an authoritarian administration.'' In a
sample of 23 leading newspapers and newsmagazines, the liberal ones had twice the circulation of the
6

conservative. The bias in some of the reporting in the liberal media, acknowledged by Okrent, is well
documented by McGowan, as well as by Bernard Goldberg in ''Bias'' and L. Brent Bozell III in ''Weapons of
Mass Distortion.''
Journalists minimize offense, preserve an aura of objectivity and cater to the popular taste for conflict and
contests by - in the name of ''balance'' - reporting both sides of an issue, even when there aren't two sides. So
''intelligent design,'' formerly called by the oxymoron ''creation science,'' though it is religious dogma thinly
disguised, gets almost equal billing with the theory of evolution. If journalists admitted that the economic
imperatives of their industry overrode their political beliefs, they would weaken the right's critique of liberal
media bias.
The latest, and perhaps gravest, challenge to the journalistic establishment is the blog. Journalists accuse
bloggers of having lowered standards. But their real concern is less high-minded - it is the threat that bloggers,
who are mostly amateurs, pose to professional journalists and their principal employers, the conventional news
media. A serious newspaper, like The Times, is a large, hierarchical commercial enterprise that interposes
layers of review, revision and correction between the reporter and the published report and that to finance its
large staff depends on advertising revenues and hence on the good will of advertisers and (because advertising
revenues depend to a great extent on circulation) readers. These dependences constrain a newspaper in a variety
of ways. But in addition, with its reputation heavily invested in accuracy, so that every serious error is a
potential scandal, a newspaper not only has to delay publication of many stories to permit adequate checking
but also has to institute rules for avoiding error - like requiring more than a single source for a story or limiting
its reporters' reliance on anonymous sources - that cost it many scoops.
Blogs don't have these worries. Their only cost is the time of the blogger, and that cost may actually be negative
if the blogger can use the publicity that he obtains from blogging to generate lecture fees and book royalties.
Having no staff, the blogger is not expected to be accurate. Having no advertisers (though this is changing), he
has no reason to pull his punches. And not needing a large circulation to cover costs, he can target a segment of
the reading public much narrower than a newspaper or a television news channel could aim for. He may even be
able to pry that segment away from the conventional media. Blogs pick off the mainstream media's customers
one by one, as it were.
And bloggers thus can specialize in particular topics to an extent that few journalists employed by media
companies can, since the more that journalists specialized, the more of them the company would have to hire in
order to be able to cover all bases. A newspaper will not hire a journalist for his knowledge of old typewriters,
but plenty of people in the blogosphere have that esoteric knowledge, and it was they who brought down Dan
Rather. Similarly, not being commercially constrained, a blogger can stick with and dig into a story longer and
deeper than the conventional media dare to, lest their readers become bored. It was the bloggers' dogged
persistence in pursuing a story that the conventional media had tired of that forced Trent Lott to resign as Senate
majority leader.
What really sticks in the craw of conventional journalists is that although individual blogs have no warrant of
accuracy, the blogosphere as a whole has a better error-correction machinery than the conventional media do.
The rapidity with which vast masses of information are pooled and sifted leaves the conventional media in the
dust. Not only are there millions of blogs, and thousands of bloggers who specialize, but, what is more, readers
post comments that augment the blogs, and the information in those comments, as in the blogs themselves, zips
around blogland at the speed of electronic transmission.
This means that corrections in blogs are also disseminated virtually instantaneously, whereas when a member of
the mainstream media catches a mistake, it may take weeks to communicate a retraction to the public. This is
true not only of newspaper retractions - usually printed inconspicuously and in any event rarely read, because
7

readers have forgotten the article being corrected - but also of network television news. It took CBS so long to
acknowledge Dan Rather's mistake because there are so many people involved in the production and
supervision of a program like ''60 Minutes II'' who have to be consulted.
The charge by mainstream journalists that blogging lacks checks and balances is obtuse. The blogosphere has
more checks and balances than the conventional media; only they are different. The model is Friedrich Hayek's
classic analysis of how the economic market pools enormous quantities of information efficiently despite its
decentralized character, its lack of a master coordinator or regulator, and the very limited knowledge possessed
by each of its participants.
In effect, the blogosphere is a collective enterprise - not 12 million separate enterprises, but one enterprise with
12 million reporters, feature writers and editorialists, yet with almost no costs. It's as if The Associated Press or
Reuters had millions of reporters, many of them experts, all working with no salary for free newspapers that
carried no advertising.
How can the conventional news media hope to compete? Especially when the competition is not entirely fair.
The bloggers are parasitical on the conventional media. They copy the news and opinion generated by the
conventional media, often at considerable expense, without picking up any of the tab. The degree of parasitism
is striking in the case of those blogs that provide their readers with links to newspaper articles. The links enable
the audience to read the articles without buying the newspaper. The legitimate gripe of the conventional media
is not that bloggers undermine the overall accuracy of news reporting, but that they are free riders who may in
the long run undermine the ability of the conventional media to finance the very reporting on which bloggers
depend.
Some critics worry that ''unfiltered'' media like blogs exacerbate social tensions by handing a powerful
electronic platform to extremists at no charge. Bad people find one another in cyberspace and so gain
confidence in their crazy ideas. The conventional media filter out extreme views to avoid offending readers,
viewers and advertisers; most bloggers have no such inhibition.
The argument for filtering is an argument for censorship. (That it is made by liberals is evidence that everyone
secretly favors censorship of the opinions he fears.) But probably there is little harm and some good in
unfiltered media. They enable unorthodox views to get a hearing. They get 12 million people to write rather
than just stare passively at a screen. In an age of specialization and professionalism, they give amateurs a
platform. They allow people to blow off steam who might otherwise adopt more dangerous forms of selfexpression. They even enable the authorities to keep tabs on potential troublemakers; intelligence and law
enforcement agencies devote substantial resources to monitoring blogs and Internet chat rooms.
And most people are sensible enough to distrust communications in an unfiltered medium. They know that
anyone can create a blog at essentially zero cost, that most bloggers are uncredentialed amateurs, that bloggers
don't employ fact checkers and don't have editors and that a blogger can hide behind a pseudonym. They know,
in short, that until a blogger's assertions are validated (as when the mainstream media acknowledge an error
discovered by a blogger), there is no reason to repose confidence in what he says. The mainstream media, by
contrast, assure their public that they make strenuous efforts to prevent errors from creeping into their articles
and broadcasts. They ask the public to trust them, and that is why their serious errors are scandals.
A survey by the National Opinion Research Center finds that the public's confidence in the press declined from
about 85 percent in 1973 to 59 percent in 2002, with most of the decline occurring since 1991. Over both the
longer and the shorter period, there was little change in public confidence in other major institutions. So it
seems there are special factors eroding trust in the news industry. One is that the blogs have exposed errors by
the mainstream media that might otherwise have gone undiscovered or received less publicity. Another is that
8

competition by the blogs, as well as by the other new media, has pushed the established media to get their
stories out faster, which has placed pressure on them to cut corners. So while the blogosphere is a marvelous
system for prompt error correction, it is not clear whether its net effect is to reduce the amount of error in the
media as a whole.
But probably the biggest reason for declining trust in the media is polarization. As media companies are pushed
closer to one end of the political spectrum or the other, the trust placed in them erodes. Their motives are
assumed to be political. This may explain recent Pew Research Center poll data that show Republicans
increasingly regarding the media as too critical of the government and Democrats increasingly regarding them
as not critical enough.
Thus the increase in competition in the news market that has been brought about by lower costs of
communication (in the broadest sense) has resulted in more variety, more polarization, more sensationalism,
more healthy skepticism and, in sum, a better matching of supply to demand. But increased competition has not
produced a public more oriented toward public issues, more motivated and competent to engage in genuine selfgovernment, because these are not the goods that most people are seeking from the news media. They are
seeking entertainment, confirmation, reinforcement, emotional satisfaction; and what consumers want, a
competitive market supplies, no more, no less. Journalists express dismay that bottom-line pressures are
reducing the quality of news coverage. What this actually means is that when competition is intense, providers
of a service are forced to give the consumer what he or she wants, not what they, as proud professionals, think
the consumer should want, or more bluntly, what they want.
Yet what of the sliver of the public that does have a serious interest in policy issues? Are these people less well
served than in the old days? Another recent survey by the Pew Research Center finds that serious magazines
have held their own and that serious broadcast outlets, including that bane of the right, National Public Radio,
are attracting ever larger audiences. And for that sliver of a sliver that invites challenges to its biases by reading
The New York Times and The Wall Street Journal, that watches CNN and Fox, that reads Brent Bozell and Eric
Alterman and everything in between, the increased polarization of the media provides a richer fare than ever
before.
So when all the pluses and minuses of the impact of technological and economic change on the news media are
toted up and compared, maybe there isn't much to fret about.

Richard A. Posner is a judge on the United States Court of Appeals for the Seventh Circuit, a senior lecturer at the University of Chicago Law School
and, along with the economist Gary Becker, the author of The Becker-Posner Blog.

Assessing the Modern Media:

Telling Us the News or Telling Us What to Think?
The Invisible Primary
Project for Excellence in Journalism
October 29, 2007

Winning the Media Campaign

Project for Excellence in Journalism
October 22, 2008

1. What can these two tables tell us about the role played by the media
during high stakes political campaigns?
2. What might mitigate the impact suggested by these charts?
10

An Unfair Doctrine
Democrats try once again to hush Rush, and many others
BYRON YORK
National Review
July 30, 2007
Rush Limbaugh remembers the days when the Fairness Doctrine ruled the world of radio. There was a moment
in 1972, he recalls, when as a young disc jockey at WIXZ, an AM station in the suburbs of Pittsburgh, he
criticized coverage of the Democratic response to Richard Nixons State of the Union address. The State of the
Union is a constitutionally mandated report, Limbaugh told listeners, but theres nothing in the Constitution
about any opposition-party response. So why were the networks covering it as if it were equal to the presidents
speech?
It was a reasonable question, something one might hear on dozens of programs today. But it wasnt something
you could say on the air in 1972. I got a scathing phone call on the hotline during the commercial break,
Limbaugh recalls, referring to the direct phone line from station management to the broadcast studio. And then
I got a follow-up memo. They said these types of things, if they are on this radio station, will appear in
editorials, written and recorded by management. The stations executives, worried about running afoul of the
Fairness Doctrine, laid down the law: Mere on-air personalities werent supposed to discuss issues of
importance. I had to button my lip about it, Limbaugh says.
Ask any radio veteran not just the nations most successful talk-show host and hell probably have a
similar story about the bad old days of the Fairness Doctrine. From the earliest years of radio until 1987, when
the Doctrine was repealed, the federal government rode herd on what broadcasters could and could not say
about controversial issues. If a radio host took a strong position on the air, he might find himself under
investigation by officials of the Federal Communications Commission, who would carefully examine his words
to determine whether they passed government standards of fairness. If they didnt, the government might
require his station to offer free air time to people with other views, or it might punish the owners in a number of
ways, including the revocation of their license to be on the air. The whole process was a blatant violation of
First Amendment rights what journalist or commentator today would stand for it? but it was the way
things worked in broadcasting for more than 50 years.
And now it might be coming back. After the Doctrine was repealed, there was an explosion of talk and
information on the radio, and today the business is dominated by Limbaugh, Sean Hannity, Laura Ingraham,
Bill Bennett, and a long list of other conservatives. Their commercial success, along with the failure of a
number of liberal talk-radio ventures, has led some influential people in Washington to argue that the Fairness
Doctrine should be revived.
I have this old-fashioned attitude that when Americans hear both sides of the story, theyre in a better position
to make a decision, Illinois Democrat Richard Durbin, the number-two-ranking leader in the Senate, said
recently. Its time to reinstitute the Fairness Doctrine. John Kerry agreed, saying the Fairness Doctrine ought
to be there. And Dianne Feinstein, chairman of the powerful Senate Rules Committee, said she is looking at
reinstatement. I think there ought to be an opportunity to present the other side, she said. Unfortunately, talk
radio is overwhelmingly one-way.
Their statements raised a lot of red flags, not just among conservatives but throughout the radio industry.
Durbin, Feinstein, and Kerry have significant clout in the Senate. Given their views, what if a Democrat wins
control of the White House in 2008, and the party keeps control of the House and Senate? Might we see a
serious attempt to revive the Doctrine? If so, what would that mean? The best way to understand what could
11

happen if the Fairness Doctrine were to return is to look back at how it worked in the years before 1987. Its not
a pretty sight.
STOPWATCHES AND TAPE RECORDERS
In the mid-1920s, when radio was new, stations were free to broadcast on any frequency they liked. But it didnt
take long for them to start bumping into each other, filling the radio dial with interfering signals. The situation
was approaching chaos when Congress stepped in with the Radio Act of 1927. The Act set up the Federal Radio
Commission, which divided the radio spectrum and issued licenses to stations to broadcast on particular
frequencies. The system was refined in the Communications Act of 1934, which broadened the radio
commissions powers and renamed it the Federal Communications Commission.
At the time of both bills passage, Congress debated whether the new laws should contain a fairness provision
requiring broadcasters to present differing views on important issues. Lawmakers rejected the idea both times.
Nevertheless, the new FCC, on its own, adopted a fairness principle. The reasoning was that the radio airwaves
were a scarce public commodity and there were few radio stations, so broadcasters had an obligation to stay
away from one-sided discussions of public affairs.
In practice, however, the FCCs position evolved into a ban on editorializing, with the commission encouraging
broadcasters to avoid hot political issues. But just 15 years later, in 1949, the FCC did an about-face, issuing its
landmark Report on Editorializing by Broadcast Licensees, which required broadcasters to discuss public
affairs. License holders, the FCC declared, must devote a reasonable percentage of their broadcast time to
news and the discussion of public issues of interest in the community served by the particular station.
Furthermore, the commission said broadcasters must present the different attitudes and viewpoints concerning
these vital and often controversial issues which are held by the various groups which make up the community.
The edict became known as the Fairness Doctrine, and after 1949 the FCC established enforcement procedures
under which members of the listening public, if they felt a broadcaster had covered a public issue in an
unbalanced way, could complain to the commission. FCC staff would then investigate the complaint, and,
acting as judge and jury, might order the broadcaster to give airtime to the complainant. The FCC also had the
authority to take more severe measures, including revoking the broadcasters license, thereby putting him out of
business.
Once in operation, Fairness Doctrine enforcement became a system for the government to micromanage
editorial content. When a complaint came in, the staff would start trying to determine a couple of things, says
Jim McKinney, a former head of the FCCs Mass Media Bureau who began work at the commission in the early
1960s. One, was the issue of public importance in the local community, and two, if it was, how was it treated
not only by the broadcaster, but by other forms of mass communication in the community? That required them
to get local newspapers and listen to tape recordings that a complainant sent in, and ask the broadcaster to
provide any other material they had done on the same topic.
With evidence in hand, the FCC staff would pull out stopwatches, McKinney continues. They would get out
the tapes, and they would start timing how many minutes and seconds a broadcaster had devoted to the issue of
public importance. And then, depending on how that came out, they would either close the investigation, or they
would prepare an item for the commission to take an enforcement action.
The system seemed unconstitutional on its face, as well as grossly unfair to broadcasters; certainly no
newspaper would tolerate the governments telling it what to cover and what to say. The FCC repeatedly cited
the scarcity argument to justify its actions, but in the years after 1949 a significant number of broadcasters
rejected its reasoning, and enforcement of the Doctrine became an intensely contentious and political affair. The
12

FCC found itself playing the role of referee in a series of skirmishes over political talk on the airwaves, and by
the mid-1960s the issue was fought out in a lawsuit that went all the way to the Supreme Court.
The story began in November 1964, just a few weeks after Lyndon Johnson trounced Barry Goldwater. WGCB,
a small radio station in Red Lion, Pa., ran a commentary by a conservative preacher named Billy James Hargis
in which Hargis denounced a recently published book entitled Goldwater: Extremist on the Right. Among those
listening to Hargiss commentary were radio monitors on the Democratic National Committees payroll. The
DNC had been working with the Kennedy administration in a campaign to use the Fairness Doctrine to, in the
words of one administration official, challenge and harass right-wing broadcasters in the hope that the
challenges would be so costly to them that they would be inhibited and decide it was too expensive to
continue.
The DNC enlisted the author of Goldwater: Extremist on the Right, a man named Fred Cook, to file a Fairness
Doctrine complaint against WGCB, demanding equal time to respond. (For Cook, it was part of a personal
crusade; he had recently written an article about conservative broadcasters, Radio Right: Hate Clubs of the
Air, for The Nation.) The FCC sided with Cook, ordering WGCB to give him time to respond. The station
refused, although it offered to sell time to Cook at the same rate, $7.50 for 15 minutes, that Hargis had paid. The
case went to court and eventually resulted in the Supreme Court ruling Red Lion Broadcasting Co. v. Federal
Communications Commission, in which the Court ruled unanimously in favor of the FCC. The Fairness
Doctrine was the law of the land in broadcasting.
CHILLING EFFECT
After Red Lion, FCC officials had new authority to get out the stopwatches, and local broadcasters were forced
to hire lawyers, gather evidence, and try to defend their editorial decisions. What few people realized at first,
however, was that Red Lion had within it the seeds of its own destruction.
Even though the FCC won the case, it did not win the Courts unequivocal approval of the Fairness Doctrine. In
a key passage, the justices noted that the intention of the Doctrine was to bring more opinions to the public
airwaves. If that did not happen, they wrote if the Doctrine instead had the net effect of reducing rather than
enhancing the volume and quality of coverage then the Doctrine might warrant reconsideration.
And that is just what happened. In the 1970s, as Red Lion took hold among broadcasters, their reaction was not
to present more viewpoints on controversial issues but to try to present no viewpoints at all. The last thing
station owners wanted was a challenge to their license, so they often ordered their on-air talent Rush
Limbaughs experience was just one small example to talk only about topics that wouldnt get anyone riled
up. As a result, says Michael Harrison, editor of Talkers, the radio-industry magazine, there was very little
provocative, edgy, informative, controversial, or even pertinent political speech on the radio.
Radio executives began to talk about the chilling effect of the Doctrine, and repealing it became their top
priority. (Remember, the Doctrine had never been a law approved by Congress, so even though it had passed
muster with the Supreme Court, the FCC had the power simply to do away with it.) But nothing much changed
until 1981, when the Reagan administration took office. The new administration installed communications
lawyer Mark Fowler as FCC chairman, and with that the commission was led by a First Amendment believer
who was convinced the Doctrine had to go.
For one thing, Fowler believed the growth of cable and satellite TV, as well as a big increase in the number of
radio stations, had made the scarcity argument obsolete. More important, he believed the Doctrine was
unconstitutional on its face, regardless of scarcity. The First Amendment says Congress shall make no law
abridging the freedom of the press, and no law means no law, Fowler says. The First Amendment was like an
old antique that had been slathered over with layer after layer of paint.
13

But Fowler, and later Dennis Patrick, Reagans next appointee as chairman, couldnt just throw a ruling with
Supreme Court approval and years of practice out the window. Instead, they began the laborious project of
interviewing broadcasters and gathering information about how the Doctrine worked in the real world. What
we found, recalls Patrick, were broadcasters who said that, rather than get into litigious waters, rather than
incur expenses and risk losing their licenses, they chose to stay away from controversial issues. In 1985, the
FCC released an extensive report filled with examples of the chilling effect.
There was the radio-station manager in southern California who canceled a series of reports on religious cults
because of an assessment of the legal and personnel costs associated with defending a possible Fairness
Doctrine complaint. There was the Cornhusker Television Corporation executive in Nebraska who said he
didnt run a number of public-affairs programs for fear of having to defend against Doctrine complaints. And
there was the testimony of one Dan Rather, who recounted his experience at a large-market radio station in
Texas. Not only the station manager but the newspeople as well were very much aware of this government
presence looking over their shoulders, Rather told the commission.
Armed with the evidence, the FCC had the strong support of broadcasters. But liberal activists who had relied
on the Doctrine in the past opposed the move. And so did some conservatives. Among them were Phyllis
Schlafly and the late Reed Irvine, founder of Accuracy in Media, who argued that repeal would make liberal
bias in the media worse. Many [broadcasters] have done no more than pay lip service to fairness even when it
was required by law, Irvine wrote in a letter to the New York Times in 1987. It is foolish to think that they
would suddenly become addicted to fairness if all legal restraints on their uninhibited exercise of power were
removed.
At the time, we didnt have the alternative media that we have now, and they felt it was the only chance they
had to get on the air with their point of view, recalls Paul Weyrich, who favored repeal, in part because he had
once worked in radio and had a first-hand sense of the burdens imposed by the Doctrine. They couldnt see
talk radio coming as it is today, and of course the Internet was unknown.
The repealers won, and in 1987 the Doctrine was thrown out. After a court challenge upheld the FCCs
decision, broadcasters were finally free to speak freely. Talk radio exploded and conservative dominance was
born. And so was a movement to bring government control back to radio.
THE NEW REGULATORS
For nearly two decades, liberal activists have tried to counter the success of Limbaugh and the conservative
hosts who followed him. First they tried to restore the Doctrine, beginning in 1993 with a bill dubbed Hush
Rush. That effort died after Republican victories in 1994, so liberals turned to the marketplace, searching for a
Rush of their own. For a while, they hoped that Jim Hightower, a former Texas state official with a small on-air
following, might be the answer. When Hightower failed, they hoped that Mario Cuomo, the former New York
governor, might fit the bill. When Cuomo failed, they came up with the idea of a liberal network, Air America,
that would succeed where single hosts had not. But Air America ended up in bankruptcy, although it has
recently undergone restructuring and is still at least nominally in business.
Now theyre back to the Fairness Doctrine. In October 2004, Media Matters for America, the liberal watchdog
group funded by a number of the same donors who made spectacularly large contributions to Democratic 527
groups in the last few elections, announced a campaign to support New York Democratic representative Louise
Slaughters bill to re-impose the Doctrine. Tired of imbalanced political discourse on our airwaves? Media
Matters asked readers in a petition appeal. By restoring a diversity of fact and opinion to programming,
Fairness Doctrine legislation restores a concept [of balance] that has been lost since the 1980s. The crusade
was picked up by a number of netroots activists, and now Durbin, Feinstein, and Kerry are on board.
14

That last development set off alarm bells, says Indiana Republican representative Mike Pence. Pence, a
former radio-talk-show host himself, was so concerned that in late June he and a colleague, Arizona Republican
Jeff Flake, came up with the idea of attaching to an FCC-funding bill an amendment that barred the commission
from using its funds to reinstate the Doctrine. The amendment passed the House, 309 to 115.
But it was just a one-year fix. Pence is also sponsoring the Broadcaster Freedom Act, which would permanently
take away from the FCC the authority to re-impose the Fairness Doctrine. If it passes, the only way the Doctrine
could come back would be by an act of Congress. The American people need to know that a future Democrat
president could appoint members to the FCC and issue executive orders that in combination could bring back
the Fairness Doctrine without a single act of Congress, Pence says. Our bill, very simply put, deprives the
FCC of that authority.
Even if Pence succeeds, there is still another threat on the horizon. The debate over radio fairness now includes
a new player, the liberal think tank Center for American Progress, which in June issued a report, The Structural
Imbalance of Political Talk Radio, advocating not a return to the Fairness Doctrine but an overhaul of the
radio-station ownership structure in the United States. The gap between conservative and progressive talk
radio is the result of multiple structural problems in the U.S. regulatory system, the report states, explaining
that stations owned by big companies, such as Clear Channel and Salem Broadcasting, are more likely to carry
conservative talk than stations owned by smaller companies. To remedy that problem, the Center advocates
policies to reduce the number of stations that one company can own. It also recommends a de facto quota
system to ensure that more women and minorities own stations. And it would penalize those radio-station
owners who do not get in line by requiring them to pay a fee to support public broadcasting.
Its not clear whether the Centers proposals will win much support in Congress. But it is safe to say that in the
next few years there will be repeated attempts to reintroduce some sort of regulation to control the content of
talk radio. Those proposals will certainly have some political support on the left. But among those who know
radio best, theres great optimism that freedom of speech will win, not only in a court of law but in the court of
public opinion. I dont think this has a prayer, says Rush Limbaugh. When I started there were 125 talk
stations. Today there are 2,000. The idea that there are fewer ideas expressed, that there is less diversity, is
absurd.

15

Remarks of Lewis L. Gould at the Center for American History, The University of Texas at Austin, May 6,
2003, on the occasion of a talk and book-signing for

The Modern American Presidency

(Lawrence: University Press of Kansas, 2003).
What better place to spend a spring afternoon than in a great historical archive? Before I turn to my book, I need
to thank a few people who made this afternoon possible. Don Carleton and the excellent staff of the Center for
American History went out of their way to put on this event. Linda Peterson of the Center helped greatly with
the photographs that illustrate this book. The work of three gifted photojournalists, David Kennerly, Bruce
Roberts, and Dirck Halstead add much to the story I am trying to tell.
Two more individuals deserve mention. I am indebted to Richard Norton Smith for his very kind introduction
which sets up my narrative in a felicitous and insightful way. And to Chris Hiers, who did the magical cover, I
can only say that few authors have been the beneficiaries of such a funny, perceptive, and brilliant work of art.
As a book, The Modern American Presidency began in the mind of the director of the University Press of
Kansas, Fred Woodward. It was said of George Gershwin that he wrote songs like trees give apples. Fred
Woodward is almost as prolific with ideas as Gershwin was with tunes. He has made the University Press of
Kansas into the best press in the country for historians and political scientists interested in American
government. In fact, one might call Fred the Maxwell Perkins of books on American politics.
Four years ago Fred mentioned to me a conversation he had recently had with a scholar at a convention. The
academic had said to him that a one-volume history of the modern presidency was badly needed for both the
general reader and students in courses. In response to Freds suggestion that I might do the book, I volunteered
to take on the assignment. The goal was to offer a concise, readable, and provocative narrative in a book of that
would be designed for readers who wanted useful information about the presidency. We agreed that prospective
readers should not have to make their way through one of those thousand page blockbusters that many start and
perhaps few finish. If successful, the book would supply a sense of how and why the presidency has developed
as it has over the past century.
There now arose the question of how I should do the book. Mastering even a small part of the information
available about each of the 20th century presidents would be clearly a daunting task. Even an entire career
might not be sufficient time to get the job done. After all, some distinguished historians such as Arthur S. Link
on Woodrow Wilson and Frank Freidel on Franklin D. Roosevelt had spent their professional lives exploring
the dimensions of a single president. On the other hand, I had been teaching and writing about presidents for
more than three decades, and I had amassed some thoughts of my own about how the institution should be
understood. More reading would be necessary for each chief executive, but it was not a matter of starting from
scratch to learn everything about every person who had been president since 1901.
At that point, my wife made a wise and constructive suggestion. She said: Get writing. The advice was
cogent. I had a general sense of what I wanted to say about the presidency in hand. Postponing the moment of
actual writing would only make the more difficult. So I started.
The result of research and writing is the book that the University Press of Kansas has published this spring. It
traces the evolution of the presidential office from the days of William McKinley from 1897 to 1901 and his
gifted secretary, George B. Cortelyou. Though his name is virtually unknown outside specialists in the
presidency, Cortelyou was the first true presidential staff member and in many ways the architect of the modern
White House.
The narrative then takes the reader from McKinleys small, personal presidency in 1901 through the massive
institution over which Bill Clinton presided from 1993 to 2001. The story tries to identify the significant
features of the presidency and to explain why the office operates as it does today.
Somewhat to my surprise, the story of the modern presidency turned out to be a cautionary tale rather than an
American success saga. I came out of the book convinced that the presidency badly needs rethinking and
16

fundamental reorientation. As it stands now, the institution is beset with intractable problems. These difficulties,
I believe arise from the interaction of three main forcesthe increase in size of the presidency, the rise of what
has been called continuous campaigning, and the impact of the twin pressures of celebrity and show business.
One key structural change in the Constitution, the Twenty-Second amendment, completed the emergence of the
presidency as we know it.
The growth in the size of the presidency is a well-recognized phenomenon. McKinleys small staff of Cortelyou
and six stenographers in 1901 has exploded into thousands of people who serve the president directly or
indirectly. The real expansion of the institution came in the 1950s and 1960s at the height of the Cold War. Here
the presidency of Dwight D. Eisenhower was key, as under his management the chief-of-staff form of
presidential administration appeared and grew. Despite regular campaign promises from many presidents to
reduce the size of the White House staff, the number of individuals who work there has steadily grown.
The other two forces operating on the presidency had more serious effects than just the growth in size. What
struck me from the beginning in writing the book was the way that the entertainment industry helped to shape
the modern presidency.
One way to see this phenomenon is to consider the presidential press conference which did not exist in 1901.
Under McKinley from 1897 onward the press was brought into the White House proper with tables allocated to
reporters on the second floor outside the presidents office. Theodore Roosevelts years brought a separate press
room, and under Woodrow Wilson the press conference itself began and then stopped. During the Harding and
Coolidge presidencies, regular weekly press conferences became a norm and this ritual reached a peak during
Franklin D. Roosevelt with more than nine hundred such sessions. The reporters crowded around the presidents
desk, the president could not be quoted directly, and the event was not open to the public.
Over the next two decades, first radio, then television came into the press conferences, until under Jack
Kennedy the press sessions became popular prime-time entertainment. Then commenced a slow decline in the
number of such conferences under Lyndon Johnson and Richard Nixon accompanied by a more elaborate
staging of them as media events. Now such press conferences, when they occur, are spectacles that presidents
hold as rarely as possible. Their purpose is no longer to make news or convey information but to portray the
president as on top of his job. The White House manages the proceedings with choreography worthy of a ballet,
journalists have their seating arranged with great care, and recalcitrant journalists are punished for impertinent
queries.
Why did all this occur? In my judgment, the emergence of television and the mass media, with their premiums
on simplicity and brevity of issues, the short attention span of a television audience, and the need to pursue high
ratings from other programming made the press conference and other news-gathering procedures too slow and
dull for modern audiences. The presidency had to turn itself into an arm of show-business to retain its allure.
Press conferences are thus but one way that the presidency has become, as I say in the book, a perennial
campaign, combined with the essential features of a television network and a Hollywood studio. I might also
have said a theme park. Presidential events are produced with meticulous thoroughness, as President Bushs
trip last week to the aircraft carrier Abraham Lincoln attested. The elaborate stagecraft involved, from the
airplane landing to the careful navigation of the vessel to avoid showing the California coastline in the distance
during Bushs speech, was worthy of Metro-Goldwyn-Mayer at the height of its success.
Lastly, we come to the continuous campaign, the term now applied to the political operations of the
presidency. Though every president had been mindful of re-election, it was under Richard Nixon that the idea of
perpetual campaigning really took root. Nixon believed that he faced ruthless political enemies out to destroy
him and his administration and a continuous campaign effort was needed to thwart them. The staff doesnt
understand that we are in a continuous campaign, he told H.R. Haldeman in March 1971.
Such a strategy serves the function of having the incumbent re-elected but its effect is felt throughout the
presidency from the first day in office. Since every decision that the president makes has a potential impact on
the voters, it becomes almost impossible to consider an issue outside an electoral context. Round-the-clock
17

polling insures that the political operatives can always inform the president how some judgment, in the words of
a Nixon aide, will play in Peoria, Illinois with rank and file Americans.
As politicians, presidents should be aware of how their judgments will affect citizens, but deciding every issue
on the basis of how it might sway a current or future campaign has over time made difficult decisions that will
serve the national interest but entail sacrifice or pain less likely.
Forming a context for these events is a related structural problem. The Twenty-second Amendment, adopted
after World War II, limits each president to two elective terms. More important, the amendment creates a
framework within which the president must concentrate on re-election to be eligible for greatness. Once reelected, however, the remaining days are numbered and the fickle public, spurred by the media, looks to the
next presidential election for excitement. Presidencies have become the political equivalent of situation
comediesthere is an initial burst of energy and excitement during the first three years, a suspenseful show in
the fourth as the main character faces cancellation, and once renewed by re-election there are three more years
of declining audiences before the show ends after eight seasons.
The result of these interacting forces is a presidency that, whether occupied by a Republican or a Democrat,
places a greater reliance on the mechanisms of celebrity than on the business of running the nation. Continuous
campaigning drains away valuable time and energy from the president and his staff. The obsession with
reelection distorts governance. Brilliantly operated as a kind of political spectacle, the presidency is no longer
well-designed to address the countrys intractable problems. The ways in which these sobering trends developed
over time, and how different presidents engaged them are described in the book. Seen in light of these
considerations, the emergence of the modern presidency takes on a coherence and unity that makes our current
predicaments with the institution more understandable and even more human.
Could things have turned out in different way? Has the modern presidency become modern in the only way
possible? Impressed as I am with the intoxicating and seductive capacity of the large media and show business
to shape our lives, I am doubtful that substance could ever have won out over glitz and glitter. But it is clear that
becoming more like a television network and a game show is not the way to run the country. Nor are perpetual
political campaigns a way to engage tough decisions. So what should we do?
Having written a narrative that traced the emergence of the presidency through the twentieth century and
diagnosed its ills, it is appropriate for you to ask me: Okay, wise guy historian far removed from the Oval
Office and the burdens of political responsibility, what would you now suggest should be done? That is the
purpose of the remainder of this talk.
First and foremost, I would endorse the repeal of the Twenty-Second Amendment mandating only two elected
terms for any successful president. Passed after World War II largely with Republican support, it was designed
to make it impossible for any other politician, and presumably a Democrat, to serve three terms as Franklin D.
Roosevelt did and then to be elected to a fourth. The amendment achieved that purpose, of course, and will
operate against President Bush if he is reelected in 2004. There is at least one congressman now, Jose Serrano
of New York, a Democrat, who wants to repeal the Twenty-Second Amendment, but his initiative is unlikely to
go anywhere.
Why should the amendment be discarded? The first weakness is that it limits the right of the American people
to elect a president for a third term if they wish to do so. More important, it places an institutional barrier to the
effective working of the presidency. Knowing that the president must leave office by a certain date reduces the
ability of the incumbent to support legislation, influence Congress, and shape the national debate. Press
attention shifts to the new contenders for the presidency, and the holder of the office slides into limbo. The last
two or three years of a two-term presidency have the atmosphere of a farewell tour.
What the amendment was designed to protect against is unlikely ever to happen again anyway. The three
presidents whom it affectedDwight D. Eisenhower, Ronald Reagan, and Bill Clintonwould have not been
viable candidates for a third term even without the constraint of the Twenty-Second Amendment.
18

Now my second proposal may seem to be in utter contradiction to the first, but I dont think so. Most presidents
should resolve in their own minds to serve only one term and resist with all their power the empty promise of
reelection. Get done what you can in a single term, Mr. or Mrs. President, and get off the stage. This
prescription should not be written into law, but aspiring presidents would be wise to observe its dictates.
This judgment reflects historical circumstances. Even with the Twenty-Second Amendment removed,
presidents would still likely have difficulties during their second terms. Consider these examples from the 20th
century before the 22nd Amendment went into effect. Woodrow Wilson, narrowly reelected in 1916 over
Charles Evans Hughes, took the nation through World War I, but saw the Democratic electoral majority
collapse, the postwar era decline into social upheaval and political reaction,, and his own disabling illness doom
his party to a dramatic election defeat in 1920. He left office a repudiated president. History will soften the
verdict rendered by the votes last November on the Administration of Woodrow Wilson, but is not likely to
reverse it, said one editor in March 1921.
Because World War II won him a third term, it is often forgotten how many problems Franklin D. Roosevelt
had in his secondthe Supreme Court Fight, the 1937 recession, the Republican election victory in 1938. Had
the Nazis not conquered western Europe in the spring of 1940, Roosevelt would have left office in 1941 rating
better than Grover Cleveland and Woodrow Wilson among Democratic chief executives but not stamped with
greatness.
Similarly, Harry S. Truman, after his surprise election victory in 1948, encountered heavy weather in his second
termMcCarthyism, Korea, scandals, Congressional opposition, and a slide in the polls. Retrospective
rehabilitation has come to Truman, but most of it arises from his creative first term.
The list can be continued even after the Twenty-Second Amendment. Dwight D. Eisenhowers second term had
a recession, a Democratic sweep in the 1958 elections, the U-2 incident, and a sense, on which John F. Kennedy
capitalized in 1960, that the nation was adrift. Richard Nixons second term troubles with Watergate need no
recounting. That large legal, constitutional, and political crisis now has boiled down to a single burning issue:
Was Fred Fielding Deep Throat?
Ronald Reagan went through the trauma of Iran-Contra, and Bill Clinton faced impeachment in their second
terms. In all these instances, the historical reputations of these presidents would have been no worse and
probably would have been better had they declared in their fourth year that they would not seek reelection.
Certainly for the one-term presidents of the 20th century, such a self-denying ordinance would have helped their
historical standingWilliam Howard Taft in 1912, Herbert Hoover in 1932, Gerald Ford in 1976, Jimmy Carter
in 1980, and George H.W. Bush in 1992. Since each would have left office voluntarily, historians might have
predicted their defeat had they run for reelection, but enough doubt would have remained about their fate that it
would have worked to the advantage of their historical reputations.
So presidents, if they think about history, should agree with Richard Nixon that most second terms have been
disastrous. The corollary of that point is that presidents would be well-advised to concentrate all their energies
on making their first term successful, and then be prepared to step aside in the winter or spring of their fourth
year. Obviously, they should not declare their intentions until then but keep in their minds that they really have
only four years to achieve tangible accomplishments.
With such a record of difficulty, why do incumbents presidents decide to run for a second term at all? Several
elements come into play. Once elected president, a politician realizes that his record in office will soon be
judged by historians and political scientists against the other chief executives in the perennial rating game of
deciding presidential greatness. Having little sense of history going into the job, they suddenly want to know
how they will stack up against their predecessors. Will the president be great, near great, competent, or
worst of all inadequate or even poor?
To be eligible for the great or near great category, two terms seem mandatory. So, since one-term greatness is
elusive, winning a second is required. In the most recent issue of Time magazine, discussing Bushs reelection
plans, the authors note that Karl Rove has planned for two Bush terms from 1998 onward because re-election
19

is what defines a successful presidency. In their words, the process is not just a continuing campaign, it is the
never-ending campaign.
Other pressures come from consultants, allies, lobbyists, and friends who sing the siren song that only by
winning a second term can the promise of the first term be redeemed. Moreover, the party and its candidates
need the drawing power of the incumbent in fund-raising, the country requires his services, and the victory of
the opposition would, of course, ruin the nation. A history teacher of mine in college, James Blaine Hedges, use
to tell his students that it would not have made any difference to the broad sweep of American history who had
been the winner in any single presidential election. Whether that generalization is true or not (and it is harder to
refute than it might seem at first glance), it is one that more chief executives should ponder.
However, the need to win a reelection victory usually entails bleaching out all strong traces of ideology and
future programs. For Ronald Reagan in 1984, the theme was morning in America, with few clues to what
Reagans future days in office would bring. Bill Clinton in 1996 was similarly content-free. We all remember
the bridge to the Twenty-First century. We just didnt know that Monica Lewinsky would be in the toll booth.
In seeking an electoral majority, the pressures of political advertising (which does not do well with complexity)
and the need to move to the center usually insure that blandness will triumph over substance.
With tired staffers worn out by four years of incumbency and a difficult campaign behind it, the reelected
administration reconstitutes itself and tries to find the themes that the candidate played down before the voters.
The clock is already ticking and Congress is well aware that the presidents days are numbered. Second terms
start out with little energy and run down from there.
So if a president cannot accomplish the enactment of an agenda in the first term, there is even less likelihood
that the second term will be successful. If the first term has been fruitful, the best bet for historical approval is to
step aside and leave the promise of what might have occurred in a second term rather than the drab reality of
what didnt happen once the chief executive had been returned for four more years.
The relentless quest for a second term has produced continuous campaigning. What is harmful about this trend
is not tht it serves partisan interests or costs abundant sums of money. The real downside of continuous
campaign is its impact on the capacity of the president and his staff to think about the nations problems on a
sustained basis.
Putting the president out before cheering crowds to spread his message, pressure Congress, and raise money is
not an intellectually challenging exercise. It is simply an extension of what the chief executive and his
operatives have been doing for several years. What it does demand is large amounts of staff time and White
House energy. Moving the president from place to place is the equivalent of relocating a circus on a daily basis.
These media-driven occasions are not designed to inform or enlighten, but solely to create pleasing pictures for
the evening news and cable television viewers. But just because these events are easy to do should not obscure
their real cost. They come out of the small store of time in an historical sense that any president has to get things
done.
A wise president would cut them back to a bare minimum. Instead, they proliferate to the point that even the
State of the Union address is now a scripted gala with hand-picked guests in the gallery. State governors have
started to imitate presidents in their state of the state addresses. The day after the State of the Union the
president embarks on another nation-wide junket to win support for a an initiative, often one that is forgotten
within a week of the speech itself. Who recalled three months later President Bushs AIDS initiative until he
returned to it briefly last week?
What do I recommend? First, the president should reduce substantially the amount of these contrived displays.
The White House is not the place to flee from. It is the arena in which presidents should do their work. It is a
fiction that the president can work equally well at Camp David or at a western White House or on Air Force
One. One hundred years ago an aide of Theodore Roosevelt said of that presidents traveling: When the
president is away the Cabinet practically disbands & there is a lack of coordination public work.
20

One particular area in which presidential traveling could be pared back without loss is in partisan fund-raising.
Since Franklin D. Roosevelt, presidents have used their office as a way to raise money for their party, but the
system has become self-perpetuating and grotesque. Bill Clinton raised millions of dollars; George W. Bush has
raised hundreds of millions.
These activities are called party-building and out-reach efforts by the president. In reality, they are a tacky
shakedown as well-heeled donors cough up thousands for the chance to gain access to the White House. If
political parties cannot raise money without having the president pass the hat or fry the fat out of donors, then
these organizations should go out of business. It is beneath the dignity of the president of the United States to be
putting the arm on fat cats in public, or private for that matter.
Similarly, the White House should stop being a prop in a constantly running movie production of the celebrity
presidency. The Rose Garden ceremonies, the greeting of championship athletic teams, the filming of public
service announcements, the backdrops for reporters, all of these are innocent enough on the surface. What is
debilitating about them is the amount of time they drain away from the serious business of the presidency.
Apologists for the White House will say that others do the work and the president focuses on big questions, or
as the Bush administration might put it, is fully engaged with the big picture.
The notion that the movie and television production set that the White House has become is a place for
sustained deliberative thought is a not very good joke. Presidents now move from one camera set-up to another
in the equivalent of the headquarters of a twenty-four hours news channel. Literally every move that a president
makes before the cameras is scripted and planned with all the precision of a Hollywood sound stage from the
books they carry to the helicopter, the obligatory pause and wave at the top of the stairs, to the slogans that
appear behind them on television.
Presidents present all this electronic artifice as though it were an essential part of being a successful chief
executive. If a president wins reelection or enjoys wide popularity, then that is offered as justification for media
manipulation and deft staging of the incumbents public image. That all of this wizardry comes out of the
presidents limited stock of time to deal with crucial issues is usually put aside as the carping of partisan critics.
An important collaborator in this process of turning the presidency into an arm of show business is the media.
As the newspaper industry at the turn of the twentieth century has morphed into the media conglomerates of the
beginning of the twenty-first, the press has entered into co-dependency with the presidency. Presidents draw
viewers when properly presented, and the media find the White House and its staged moments irresistible
subjects for coverage (at least until the next sensational California homicide happens).
Reporters no longer cover the White House in the sense of pursuing news. They are there instead as props in the
domestic drama that fills in the dead hours on cable television until something real happens. Both sides know
how to play their parts. The reporters ask seemingly tough questions which the White House press secretary
then declines to address. The two sides wait until the cameras turn off and then move to the next phase of the
pre-determined coverage.
Now do any of these criticisms matter? The current president, for example rides high in the polls and seems on
a course toward reelection. But listen carefully to the developing scenario. How many issuesSocial Security,
Medicare changes, civil rights, environmental issues, foreign policy concernsare now being discussed in terms
of their hoped-for implementation after the next presidential election? Soon the chorus will sing about how
just Four More Years will bring the full realization of the presidents agenda and the achievement of what the
first term did not accomplish because of terrorism, Democratic obstruction, and the lack of a clear popular
endorsement of the Bush administration.
Assuming the reelection of George W. Bush, another scenario is also likely in 2005-2006. Congress will be
restive after years of White House dominance, the emphasis of publicity and the media will have shifted to the
2008 nomination contest, and some unexpected event will disrupt the carefully laid plans for the second Bush
term. Commentators will speak of how Washington is anticipating how the next president will have to deal with
pressing social issues that have been deferred, and so the cycle will begin once again. The Modern American
21

Presidency will look toward what Cole Porter called another opening, another show and the nation will be
suitably entertained but not well governed.
Somewhere, however, reality will be intrudingwhether it is terrorism or an attack from a rogue nation, a
dramatic crisis in funding Social Security and Medicare that cannot be avoided, a severe economic downturn, an
environmental disaster, or a runaway epidemic of disease. People will wonder how did the United States get
into this fix? They may not look to the presidency for one explanation of why the nation found itself in a
dangerous predicament, but the descent into show business, continuous campaigning, and recurrent trivia will
be one key element in the problem.
Do I think the modern presidency should be reformed to become a serious, sustained policy-making, governing
institution? Absolutely. What are the chances of this happening, given the financially profitable and mutually
useful incestuous relationship between the White House and the entertainment media? Precious little. Until it is
clear how broken the Modern American Presidency has become, we will not be inclined to repair its
deficiencies. Let us hope that the price of this failure of will and insight is not too high for the nation to bear.

22

The Case for the Strong Executive

Harvey C. Mansfield
Claremont Review of Books
Spring 2007
Complaints against the "imperial presidency" are back in vogue. With a view to President Bush, Arthur M.
Schlesinger, Jr., has expanded and reissued the book of the same name he wrote against Richard Nixon, and
Bush critics have taken up the phrase in a chorus. In response John Yoo and Richard Posner (and others) have
defended the war powers of the president.
This is not the first time that a strong executive has been attacked and defended, and it will not be the last. Our
Constitution, as long as it continues, will suffer this debateI would say, give rise to it, preside over, and
encourage it. Though I want to defend the strong executive, I mainly intend to step back from that defense to
show why the debate between the strong executive and its adversary, the rule of law, is necessary, good, and
under the Constitutionnever-ending. In other circumstances I could see myself defending the rule of law.
Americans are fortunate to have a Constitution that accommodates different circumstances. Its flexibility keeps
it in its original form and spirit a "living constitution," ready for change, and open to new necessities and
opportunities. The "living constitution" conceived by the Progressives actually makes it a prisoner of ongoing
events and perceived trends. To explain the constitutional debate between the strong executive and the rule of
law I will concentrate on its sources in political philosophy and, for greater clarity, ignore the constitutional law
emerging from it.
Saving Republicanism
The case for a strong executive should begin from a study, on this occasion a quick survey, of the American
republic. The American republic was the first to have a strong executive that was intended to be republican as
well as strong, and the success, or long life, of America's Constitution qualifies it as a possible model for other
countries. Modern political science beginning from Machiavelli abandoned the best regime featured by classical
political science because the best regime was utopian or imaginary. Modern political scientists wanted a
practical solution, and by the time of Locke, followed by Montesquieu, they learned to substitute a model
regime for the best regime; and this was the government of England. The model regime would not be applicable
everywhere, no doubt, because it was not intended to be a lowest common denominator. But it would show
what could be done in the best circumstances.
The American Founders had the ambition to make America the model regime, taking over from England. This
is why they showed surprising respect for English government, the regime they had just rebelled against.
America would not only make a republic for itself, but teach the world how to make a successful republic and
thus improve republicanism and save the reputation of republics. For previous republics had suffered disastrous
failure, alternating between anarchy and tyranny, seeming to force the conclusion that orderly government could
come only from monarchy, the enemy of republics. Previous republics had put their faith in the rule of law as
the best way to foil one-man rule. The rule of law would keep power in the hands of many, or at least a few,
which was safer than in the hands of one. As the way to ensure the rule of law, Locke and Montesquieu fixed on
the separation of powers. They were too realistic to put their faith in any sort of higher law; the rule of law
would be maintained by a legislative process of institutions that both cooperated and competed.
Now the rule of law has two defects, each of which suggests the need for one-man rule. The first is that law is
always imperfect by being universal, thus an average solution even in the best case, that is inferior to the living
intelligence of a wise man on the spot, who can judge particular circumstances. This defect is discussed by
Aristotle in the well-known passage in his Politics where he considers "whether it is more advantageous to be
ruled by the best man or the best laws." The other defect is that the law does not know how to make itself
23

obeyed. Law assumes obedience, and as such seems oblivious to resistance to the law by the "governed," as if it
were enough to require criminals to turn themselves in. No, the law must be "enforced," as we say. There must
be police, and the rulers over the police must use energy (Alexander Hamilton's term) in addition to reason. It is
a delusion to believe that governments can have energy without ever resorting to the use of force. The best
source of energy turns out to be the same as the best source of reasonone man. One man, or to use
Machiavelli's expression, uno solo, will be the greatest source of energy if he regards it as necessary to
maintaining his own rule. Such a person will have the greatest incentive to be watchful, and to be both cruel and
merciful in correct contrast and proportion. We are talking about Machiavelli's prince, the man whom in
apparently unguarded moments he called a tyrant.
The American Founders heeded both criticisms of the rule of law when they created the presidency. The
president would be the source of energy in government, that is, in the administration of government, energy
being a neutral term that might include Aristotle's discretionary virtue and Machiavelli's tyrannyin which
only partisans could discern the difference. The founders of course accepted the principle of the rule of law, as
being required by the republican genius of the American people. Under this principle, the wise man or prince
becomes and is called an "executive," one who carries out the will and instruction of others, of the legislature
that makes the law, of the people who instruct or inspire the legislature. In this weak sense, the dictionary
definition of "executive," the executive forbears to rule in his own name as one man. This means that neither
one-man wisdom nor tyranny is admitted into the Constitution as such; if there is need for either, the need is
subordinated to, or if you will, covered over by, the republican principle of the rule of law.
John Locke's Prerogative
Yet the executive subordinated to the rule of law is in danger of being subordinate to the legislature. This was
the fault in previous republics. When the separation of powers was invented in 17th-century England, the
purpose was to keep the executive subordinate; but the trouble was the weakness of a subordinate executive. He
could not do his job, or he could do his job only by overthrowing or cowing the legislature, as Oliver Cromwell
had done. John Locke took the task in hand, and made a strong executive in a manner that was adopted by the
American Founders.
Locke was a careful writer, so careful that he did not care if he appeared to be a confused writer. In his Second
Treatise of Government he announces the supremacy of the legislature, which was the slogan of the
parliamentary side in the English Civil War, as the principle that should govern a well-made constitution. But as
the argument proceeds, Locke gradually "fortifies" (to use James Madison's term) the executive. Locke adds
other related powers to the subordinate power of executing the laws: the federative power dealing with foreign
affairs, which he presents as conceptually distinct from the power of executing laws but naturally allied; the
veto, a legislative function; the power to convoke the legislature and to correct its representation should it
become corrupt; and above all, the prerogative, defined as "the power of doing public good without a rule."
Without a rule! Even more: "sometimes too against the direct letter of the law." This is the very opposite of law
and the rule of lawand "prerogative" was the slogan of the king's party in the same war.
Thus Locke combined the extraconstitutional with the constitutional in a contradiction; besides saying that the
legislature is "the supreme power" of the commonwealth, he speaks of "the supreme executive power." Locke,
one could say, was acting as a good citizen, bringing peace to his country by giving both sides in the Civil War
a place in the constitution. In doing so he ensured that the war would continue, but it would be peaceful because
he also ensured that, there being reason and force on both sides, neither side could win conclusively. The
American Constitution adopted this fine idea and improved it. The American Founders helped to settle Locke's
deliberate confusion of supremacy by writing it into a document and ratifying it by the people rather than
merely scattering it in the treatise of a philosopher. By being formalized the Constitution could become a law
itself, but a law above ordinary law and thus a law above the rule of law in the ordinary sense of laws passed by
24

the legislature. Thus some notion of prerogativethough the word "prerogative" was much too royal for
American sensibilitiescould be pronounced legal inasmuch as it was constitutional. This strong sense of
executive power would be opposed, within the Constitution, to the rule of law in the usual, old-republican
meaning, as represented by the two rule-of-law powers in the Constitution, the Congress which makes law and
the judiciary which judges by the law.
The American Constitution signifies that it has fortified the executive by vesting the president with "the
executive power," complete and undiluted in Article II, as opposed to the Congress in Article I, which receives
only certain delegated and enumerated legislative powers. The president takes an oath "to execute the Office of
President" of which only one function is to "take care that the laws be faithfully executed." In addition, he is
commander-in-chief of the military, makes treaties (with the Senate), and receives ambassadors. He has the
power of pardon, a power with more than a whiff of prerogative for the sake of a public good that cannot be
achieved, indeed that is endangered, by executing the laws. In The Federalist, as already noted, the executive
represents the need for energy in government, energy to complement the need for stability, satisfied mainly in
the Senate and the judiciary.
The Test of Good Government
Energy and stability are necessary in every form of government, but in their previous, sorry history, republics
had failed to meet these necessities. Republican government cannot survive, as we would say, by ideology
alone. The republican genius is dominant in America, where there has never been much support for anything
like an ancien rgime, but support for republicanism is not enough to make a viable republic. The republican
spirit can actually cause trouble for republics if it makes people think that to be republican it is enough merely
to oppose monarchy. Such an attitude tempts a republican people to republicanize everything so as to make
government resemble a monarchy as little as possible. Although The Federalist made a point of distinguishing a
republic from a democracy (by which it meant a so-called pure, non-representative democracy), the urge today
to democratize everything has similar bad effects. To counter this reactionary republican (or democratic, in
today's language) belief characteristic of short-sighted partisans, The Federalist made a point of holding the
new, the novel, American republic to the test of good government as opposed merely to that of republican
government.
The test of good government was what was necessary to all government. Necessity was put to the fore. In the
first papers of The Federalist, necessity took the form of calling attention to the present crisis in America,
caused by the incompetence of the republic established by the Articles of Confederation. The crisis was both
foreign and domestic, and it was a crisis because it was urgent. The face of necessity, the manner in which it
first appears and is most impressive, is urgencyin Machiavelli's words, la necessit che non da tempo (the
necessity that allows no time). And what must be the character of a government's response to an urgent crisis?
Energy. And where do we find energy in the government? In the executive. Actually, The Federalist introduces
the need for energy in government considerably before it associates energy with the executive. To soothe
republican partisans, the strong executive must be introduced by stages.
One should not believe that a strong executive is needed only for quick action in emergencies, though that is the
function mentioned first. A strong executive is requisite to oppose majority faction produced by temporary
delusions in the people. For The Federalist, a strong executive must exercise his strength especially against the
people, not showing them "servile pliancy." Tocqueville shared this view. Today we think that a strong
president is one who leads the people, that is, one who takes them where they want to go, like Andrew Jackson.
But Tocqueville contemptuously regarded Jackson as weak for having been "the slave of the majority." Again
according to The Federalist, the American president will likely have the virtue of responsibility, a new political
virtue, now heard so often that it seems to be the only virtue, but first expounded in that work.
25

"Responsibility" is not mere responsiveness to the people; it means doing what the people would want done if
they were apprised of the circumstances. Responsibility requires "personal firmness" in one's character, and it
enables those who love fame"the ruling passion of the noblest minds"to undertake "extensive and arduous
enterprises." Only a strong president can be a great president. Americans are a republican people but they
admire their great presidents. Those great presidentsI dare not give a complete listare not only those who
excelled in the emergency of war but those, like Washington, Lincoln, and Franklin Roosevelt, who also
deliberately planned and executed enterprises for shaping or reshaping the entire politics of their country. This
admiration for presidents extends beyond politics into society, in which Americans, as republicans, tolerate, and
appreciate, an amazing amount of one-man rule. The CEO (chief executive officer) is found at the summit of
every corporation including universities. I suspect that appreciation for private executives in democratic society
was taught by the success of the Constitution's invention of a strong executive in republican politics.
Expanding Necessities
The case for a strong executive begins from urgent necessity and extends to necessity in the sense of efficacy
and even greatness. It is necessary not merely to respond to circumstances but also in a comprehensive way to
seek to anticipate and form them. "Necessary to" the survival of a society expands to become "necessary for"
the good life there, and indeed we look for signs in the way a government acts in emergencies for what it thinks
to be good after the emergency has passed. A free government should show its respect for freedom even when it
has to take it away. Yet despite the expansion inherent in necessity, the distinction between urgent crises and
quiet times remains. Machiavelli called the latter tempi pacifici, and he thought that governments could not take
them for granted. What works for quiet times is not appropriate in stormy times. John Locke and the American
Founders showed a similar understanding to Machiavelli's when they argued for and fashioned a strong
executive.
In our time, however, an opinion has sprung up in liberal circles particularly that civil liberties must always be
kept intact regardless of circumstances. This opinion assumes that civil liberties have the status of natural
liberties, and are inalienable. This means that the Constitution has the status of what was called in the 17thcentury natural public law; it is an order as natural as the state of nature from which it emerges. In this view
liberty has just one set of laws and institutions that must be kept inviolate, lest it be lost. But Locke was a wiser
liberal. His institutions were "constituted," less by creation than by modification of existing institutions in
England, but not deduced as invariable consequences of disorder in the state of nature. He retained the
difference, and so did the Americans, between natural liberties, inalienable but insecure, and civil liberties,
more secure but changeable. Because civil liberties are subject to circumstances, a free constitution needs an
institution responsive to circumstances, an executive able to be strong when necessary.
The lesson for us should be that circumstances are much more important for free government than we often
believe. Civil liberties are for majorities as well as minorities, and no one should be considered to have rights
against society whose exercise would bring society to ruin. The usual danger in a republic is tyranny of the
majority, because the majority is the only legitimate dominant force. But in time of war the greater danger may
be to the majority from a minority, and the government will be a greater friend than enemy to liberty. Vigilant
citizens must be able to adjust their view of the source of danger, and change front if necessary. "Civil liberties"
belong to all, not only to the less powerful or less esteemed, and the true balance of liberty and security cannot
be taken as given without regard to the threat. Nor is it true that free societies should be judged solely by what
they do in quiet times; they should also be judged by the efficacy, and the honorableness, of what they do in war
in order to return to peace.
Judging Our Circumstances

26

The American Constitution is a formal law that establishes an actual contention among its three separated
powers. Its formality represents the rule of law, and the actuality arises from which branch better promotes the
common good in the event, or in the opinion of the people. In quiet times the rule of law will come to the fore,
and the executive can be weak. In stormy times, the rule of law may seem to require the prudence and force that
law, or present law, cannot supply, and the executive must be strong. In judging the circumstances of a free
society, two parties come to be formed around these two outlooks. These outlooks may not coincide with party
principles because they often depend on which branch a party holds and feels obliged to defend: Democrats
today would be friendlier to executive power if they held the presidencyand Republicans would discover
virtue in the rule of law if they held Congress.
The terms of the disagreement over a strong executive go back to the classic debate between Hamilton (as
Pacificus) and Madison (as Helvidius) in 1793-94. Hamilton argued that the executive power, representing the
whole country with the energy necessary to defend it, cannot be limited or exhausted. Madison replied that the
executive power does not represent the whole country but is determined by its place in the structure of
government, which is executing the laws. If carrying on war goes beyond executing the laws, that is all the more
reason why the war power should be construed narrowly. Today Republicans and Democrats repeat these
arguments when the former declare that we are at war with terrorists and the latter respond that the danger is
essentially a matter of law enforcement.
As to the contention that a strong executive prompts a policy of imperialism, I would admit the possibility, and I
promise to think carefully and prayerfully about returning Texas to Mexico. In its best moments, America wants
to be a model for the world, but no more. In its less good moments, America becomes disgusted with the rest of
the world for its failure to imitate our example and follow our advice. I believe that America is more likely to
err with isolationism than with imperialism, and that if America is an empire, it is the first empire that always
wants an exit strategy. I believe too that the difficulties of the war in Iraq arise from having wished to leave too
much to the Iraqis, thus from a sense of inhibition rather than imperial ambition.

Harvey C. Mansfield is William R. Kenan Professor of Government at Harvard University.

27

The Accountable Presidency

Jack Goldsmith
The New Republic
February 1, 2010
I.
In December 2008, Chris Wallace asked Vice President Cheney, If the president, during war, decides to do
something to protect the country, is it legal? Cheneys answer included a reference to a military authority that
President Bush did not exercise. The President of the United States, he said, now for fifty years is followed
at all times, twenty-four hours a day, by a military aide carrying a football that contains the nuclear codes that
he would use and be authorized to use in the event of a nuclear attack on the United States. The vice president
added that the president could launch the kind of devastating attack the world has never seen without
checking with Congress or the courts, and noted also that he has that authority because of the nature of the
world we live in. And then he shifted to the war on terrorism: Its unfortunate, but I think were perfectly
appropriate to take the steps we have.

Crisis and Command: A History of Executive Power

Garry Wills and John Yoo have
written books that, in very different
from George Washington to George W. Bush
ways, analyze the conception of
By John Yoo
presidential power inherent in
(Kaplan, 544 pp., $29.95)
Cheneys statement. Wills does not
like what Cheney and his boss did
Bomb Power: The Modern Presidency
with the presidency after September
and the National Security State
11. But perhaps in reaction to
By Garry Wills
Cheneys statement, which he
(Penguin, 288 pp., $27.95)
reproduces in his introduction, Wills
has looked back and determined that
the problem lies less with the Bush
administration, which he blames plenty, than with the institution of the presidency, which became too powerful
when it was given control of the bomb in the 1940s. Yoo, a legal architect of many of the Bush administration
counterterrorism policies that Wills detests (and some of which I had a hand in revising), also looks to history to
explain the Bush presidency, but he takes a longer arc. He analyzes the origins and subsequent growth of
presidential power, with emphasis on how presidents have used their powers aggressively in crisis, and
concludes that the Bush administration actions fell within the precedents set by earlier Presidents.
These books nicely frame the debate about the Bush administrations place in constitutional history. On the
surface, Willss and Yoos arguments are unsurprising. Since the 1970s, and especially since September 11, we
have grown accustomed to liberals arguing against, and conservatives arguing for, broad presidential power.
But their arguments become more interesting, and revealing, when placed in their broader context. During the
century from the end of the Civil War to the middle of the Vietnam war, liberals in the United States mostly
supported, and conservatives mostly opposed, a powerful presidency. Among the many remarkable aspects of
these two books is that Yoo appropriates the mid-twentieth-century liberal case for a strong national-security
presidency, while Wills articulates mid-twentieth-century conservative concerns about an out-of-control one.
Liberals at the dawn of the Progressive era believed that the traditional American system of checks and
balances--with its mechanisms of indirect democracy, and its dispersion of power among state and federal
governments and between Congress and the president--led to corrupt, inefficient, and unaccountable
government that was unsuited to the social and economic challenges of postCivil War industrial society.
28

There has been a vast alteration in the conditions of government, Professor Woodrow Wilson argued in 1885,
and the checks and balances which once obtained are no longer effective.
These alterations changed the living Constitution, Wilson later argued, for the underlying understandings of
a constitutional system are modified from age to age by changes of life and circumstance and corresponding
alterations of opinion. The contemporary Constitution, properly understood, should centralize power in
national administrative institutions under the control of an agenda-setting president who alone, in virtue of his
national election, embodied the national interest. The President is at liberty, both in law and conscience, to be
as big a man as he can, Wilson declared. His capacity will set the limit; and if Congress be overborne by him,
it will be no fault of the makers of the Constitution.
Formal centralization of presidential power and agenda-setting unilateral presidential action: these were the
tenets of the executive power that guided progressive thinking from Theodore Roosevelt to Lyndon Johnson,
not only in domestic affairs but also in military and foreign affairs. The initiative in foreign affairs, which the
President possesses without any restriction whatever, is virtually the power to control them absolutely, wrote
Wilson in 1908, capturing the presidential philosophy of the incumbent Roosevelt and anticipating his own
attitude in office.
Much more significant were the aggrandizing military acts of our two greatest war presidents. Lincoln met the
secession crisis by exercising Congresss power to raise armies, spend federal money, and suspend habeas
corpus, and by detaining thousands without charge or due process, in defiance of the chief justice of the
Supreme Court. Franklin D. Roosevelt, too, exercised broad prerogative powers before and during World War
II. Liberals approved or tolerated the theories of presidential power on which these acts rested, because that
power had been used to preserve and extend liberty and equality.
They continued to approve when the Soviet threat and the broader Cold War led to permanent and still
underappreciated expansions in the constitutional powers of the president. Rather than fully demobilize, as in
past wars, the government maintained a multimillion-person peacetime standing army for the remainder of the
Cold War, and in 1947 it established new institutions--including the Office of the Secretary of Defense, the
Joint Chiefs of Staff, and the National Security Council--to manage the peacetime military bureaucracy. These
and similar institutions concentrated unprecedented authority in the president, which Harry Truman was quick
to exercise. Most momentously, in 1950, without congressional authorization or consultation, he dispatched
American troops to defend South Korea from North Korean attack and announced his intention to send four
divisions (about 100,000 men) to a NATO force in Europe.
In a famous speech in the Senate in January 1951, Senator Robert Taft, the mid-century leader of the
Republican Party, blasted Truman and the emerging Cold War presidency. Taft was a foe of the New Deal, a
critic of Roosevelts aggrandizing pre-war maneuvers, and an isolationist by reputation, but these positions were
grounded in an obsessive concern about the concentration of too much power in the executive. In 1951, he
charged that Truman had simply usurped authority, in violation of the laws and the Constitution, when he sent
troops to Korea. Taft was, if anything, more upset about the troop deployment to Europe, which he said lacked
authorization and would require a peacetime military buildup that would result in turning the United States into
a garrison state. The matter, he argued, must be debated and determined by Congress and by the people of this
country if we are to maintain any of our constitutional freedoms. But far from consulting Congress, Truman
here and elsewhere had engaged in a general practice of secrecy in all the initial steps of foreign policy, which
had deprived Congress of its constitutional powers.
Liberal intellectuals, notably Arthur Schlesinger Jr. and Henry Steele Commager, were quick to attack Taft and
to defend Truman. Schlesinger called his arguments demonstrably irresponsible, and noted that presidents
have repeatedly committed American armed forces abroad without prior congressional consultation or
approval. Taft was rewriting American history, Schlesinger concluded, and trying to foist off current
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political prejudices as eternal American verities. Commager recounted many instances when presidents had
involved the nation in war without consulting Congress, and added that Truman was on even firmer ground
because treaties are laws and the U.N. Charter and the North Atlantic Treaty required American action that
must be left to a large extent to the discretion of the Executive. Commager also argued that there was no
historical basis for distrusting powerful presidents. Call the roll of the strong Presidents--those who have
used the executive power boldly--Washington, Jefferson, Jackson, Polk, Lincoln, Theodore Roosevelt, Wilson,
Franklin Roosevelt, he said. None of these presidents threatened democracy or impaired the constitutional
system. It is, on the contrary, the weak Presidents--men like Fillmore and Buchanan and Harding--who bring
democracy into disrepute and expose the Constitution to grave perils.
This liberal view of the heroic presidency, with its enthusiastic embrace of broad presidential powers, would
persist well beyond the Truman administration. Liberals cheered when the Eisenhower administration invoked
absolute executive privilege to shield government officials from Joseph McCarthys communist-hunting
investigations, and when he defeated Senator John Brickers attempts to limit the treaty power and presidential
executive agreements. They raised no serious constitutional objection to President Kennedys Bay of Pigs
operation in 1961, or his naval quarantine of Cuba in 1962. And in 1964 they enthusiastically endorsed the Gulf
of Tonkin resolution, sponsored by Senator William Fulbright, which gave Lyndon Johnson expansive military
discretion in Southeast Asia. Every Democrat in the House voted for the resolution, and The New York Times
praised its breadth. The president has rightly asked that the resolution express a determination that all
necessary measures be taken, reasoned the Times, which added that no one else [but the president] can play
the hand.
When the FDR hagiographer James MacGregor Burns published a Presidential Government, a paean to the
subject, in 1965, he reflected widespread and long-held liberal conventional wisdom. But after 1965, the
downward spiral in Vietnam and then the horrors of Watergate would quickly undermine liberal confidence in
the heroic presidency. By 1968, Commager was complaining in these pages about the intransigent problem of
the abuse of presidential power, and in 1971 he testified before the Senate that it is very dangerous to allow
the president to, in effect, commit us to a war from which we cannot withdraw, because the war-making power
is lodged and was intended to be lodged in the Congress. Schlesinger, who had written admiring biographies of
Jackson, Roosevelt, and Kennedy, converted from establishment cheerleader for the heroic presidency to the
leading critic of what he called the imperial presidency. His book of the same name appeared in 1973, and its
subject was presidential excesses at home and abroad. Robert Taft had a much more substantial point than [I]
supposed twenty years ago, Schlesinger acknowledged.
Senator Fulbright, for his part, was regretting Congresss failure to check the president in Vietnam, in his book
The Arrogance of Power in 1966. As chairman of the Senate Foreign Relations Committee, he helped lead the
charge to defund the Vietnam war and to shepherd to completion the historic War Powers Resolution of 1973,
which sought to check unilateral presidential militarism. Congress in the 1970s, with broad liberal support,
would enact scores of other historic reforms to check what it viewed as the war-prone and excessively secretive
president, including landmarks of presidential accountability such as the Freedom of Information Act, the
Foreign Intelligence Surveillance Act, the Presidential Records Act, the Inspector General Act, the National
Emergencies Act, and laws to enhance congressional oversight of intelligence and covert operations. Since
these 1970s reforms, and in an era dominated by Republican and moderate Democratic presidents, liberal
pundits and intellectuals have usually been opposed to broad assertions of presidential power, especially those
touching on military affairs and national security. This movement reached its apex, of course, after September
11.
II.
For most of the twentieth century up through the Vietnam war, conservative theorists followed a mirror-image
path. During the Progressive era and the New Deal, they rejected living constitutionalism and were
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committed to the legally constrained presidency that they believed the Constitutions text and original
understanding required. Conservatives detested the New Deal not only because they viewed it as
redistributionist, wasteful, and harmful to private enterprise, but also because it created an enormous federal
bureaucracy and sweeping centralized power in the presidency, contrary to the Framers vision. After the war,
and with Robert Tafts death in 1953, William Buckleys National Review became the intellectual home of this
conservative anti-presidential philosophy, and Congress and the American Tradition, a book by Buckleys
colleague James Burnham that appeared in 1959, became its intellectual bible.
Burnham culled the constitutional Framers writings to make the conservative case for a presidency bounded by
indirect representation, congressionally centered checks and balances, states rights, and the deliberation and
slowness of legal change that those structures guaranteed. For Burnham, every aspect of the mid-twentiethcentury presidency was a constitutional solecism: the rise of plebiscitary or Caesarist presidents, who
claimed a direct mandate from the people in virtue of their national election; the massive bureaucracy, which in
both domestic and military matters looms like a colossus over the small and scantily staffed Congress; the
presidents increasing reliance on emergency powers, at home and abroad, which he called democratic
despotism; the progressive undermining of Congresss investigatory power, by which the president, in the
name of secrecy and under the guise of separation of powers, has simply refused to supply information in
congressional investigations; and the ever-expanding scope of the treaty power, which swell[s] the functions of
the central government and allows the president to operate in virtual complete independence of Congress.
Burnham supported the Korean war, but he criticized Trumans dispatch of troops without congressional
authorization. The Constitution assigned the bulk of the sovereign war power to Congress, he noted, adding
that conservatives are specifically opposed to the concentration of power in the executive to which nearly
exclusive presidential control of foreign policy contributes. Here Burnham silently touched on a large tension
in post-war conservative philosophy. By the late 1950s, Burnham and most other conservatives were fierce anticommunists, who argued for action against the Soviet Union more aggressive than mere containment. They
never fully reconciled this view--and the need for a large standing army and powerful presidency it entailed-with their fear of centralized presidential power. On the whole, conservatives dejectedly (as Buckley put it in
1955) accepted the minimal centralized state that their anticommunism implied.
Despite the anti-communist imperative, conservatives continued to criticize growing presidential power
throughout the 1960s and into the Nixon administration. National Review, which did not exactly love Nixon,
declared in an editorial in May 1974 that Watergate raised the question that conservatives had been pressing
since the New Deal: whether a free, democratic, constitutional republic can survive in our era of wars and
revolutions or must evolve, like its Roman prototype, into a Caesarist mass democratism, in which the leader
bases his rule on direct contact with the masses, bypassing the intermediary institutions of legislatures, courts,
and local jurisdictions. William Rusher, National Reviews publisher, wrote in the magazine later that year that
Watergate would have a salutary effect on a Presidency whose steadily growing power has for forty years been
the most serious danger facing the American society, adding that liberals have not been overly generous about
admitting that conservatives recognized and resisted that menace for decades before they did.
But it was also during this period that conservatives, increasingly confident of their national majority, started to
re-think their long-held suspicion of the presidency. When, in the late 1960s, Congress began to withdraw its
support for the war in Vietnam that it had enthusiastically authorized earlier in the decade, many
anticommunists began to question its viability as an institution of foreign policy decision-making. Barry
Goldwater had argued for Congresss primacy and against presidentialism as a conservative insurgent in the
early 1960s, but by 1971, in the midst of the Vietnam debate in Congress, he said that he would put more faith
in the judgment of the office of the president in the matter of war-making at this time than I would of
Congress.

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After Watergate, influential young conservatives such as Dick Cheney, Donald Rumsfeld, and Antonin Scalia,
working in Gerald Fords White House and Justice Department, would form lifelong views about the
importance of executive power while resisting the historically unprecedented congressional backlash against the
imperial presidency. The rising influence of the formerly liberal neo-conservatives also brought with it an
unabashed preference for a strong presidency in foreign affairs. In the mid-1970s Irving Kristol described the
traditional conservative position on the presidency as absurd, and Norman Podhoretz charged that the
congressional attack on the presidency damaged the main institutional capability the United States possesses
for conducting an overt fight against the spread of communist power in the world.
Jeffrey Hart made the domestic policy case for a shifting conservative perspective on the presidency in
National Review, just after Republicans in Congress had suffered huge post-Watergate mid-term losses in 1974.
Conservatives can claw back the hated bureaucracy, Hart maintained, only through the action of a powerful
president who is willing virtually to go to war within his own executive branch in order to carry out his
mandate. He also argued that a major threat to conservative ascendancy was the powerful mass media that
controlled public discourse. Flipping the fear of Caesarism on its head, he argued that the presidency was the
only branch of government with the capacity to contest the mass media where the focusing of opinion is
concerned. Hart concluded that it seems both likely and desirable that the attitude of conservatives toward
executive power will undergo a drastic shift.
Harts prediction proved true. The shift came sharply, and almost imperceptibly among conservatives, with the
election of Ronald Reagan. He was just what Hart envisioned: a conservative committed to using a powerful
presidency to slay the bureaucracy, who also possessed the media savvy to circumvent the liberal presss
powerful agenda. Reagan was also a stern anti-communist committed to building up national defenses without
the traditional conservative fear of a garrison state. The executive was the only branch of government that
conservatives controlled at the time, and the only branch they believed they would control for a while. It was
also a time of extraordinary intellectual ferment in conservative legal thinking, marked by the creation of the
Federalist Society in 1982 and by the presence of an unusual number of young, smart, and motivated
conservative lawyers in the Reagan White House and Justice Department, including John Roberts and Samuel
Alito, Theodore Olson and Kenneth Starr, and Michael McConnell and Steven Calabresi.
It was in this context that a new conservative legal philosophy for a strong presidency came to maturation. Like
their predecessors, conservative lawyers in the Reagan era rejected living constitutionalism and were devoted
to a strict construction of the Constitutions text as understood by the constitutional Framers. But in sharp
contrast to earlier conservative thinkers, Reagan conservatives used these sources to bolster an unprecedentedly
robust presidency. Focusing on three clauses in Article II of the Constitution, they recovered arguments that had
largely been banished from conservative thought since at least the New Deal, but that had antecedents stretching
back to the founding. Most fundamental was a broad reading of the Executive Power vested in the president,
which they interpreted to include all traditional executive powers except for those specifically given to
Congress. They also believed the president had an independent power to interpret laws incident to his duty to
take Care that the Laws be faithfully executed. And they read the presidents designation as Commander in
Chief to be a fount of substantive presidential authority over military affairs, some aspects of which were
untouchable by Congress.
In the 1980s, conservatives synthesized and deepened these old arguments into a new and unprecedentedly
broad conception of presidential power. In 1989, an influential Department of Justice legal opinion,
summarizing a decade of conservative theory and practice, described ten ways that Congress intrudes on
exclusive executive branch authorities. Only by consistently and forcefully resisting such congressional
incursions can exclusive executive branch prerogatives be preserved, it advised. And resist conservatives did,
in books such as The Fettered Presidency, The Imperial Congress, and Energy in the Executive, and also on the
ground. The new conservative synthesis undergirded the attack on the independent-counsel law, the many
Reagan and Bush I dispatches of troops abroad without congressional authorization, and Representative
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Cheneys minority congressional report on the Iran-Contra scandal, which blamed the Boland Amendment that
Oliver North violated on an aggrandizing theory of Congress foreign policy powers.
The Clinton administration employed some of these arguments, but in a tempered way that gave more deference
to Congress. But the arguments were back in full voice in the postSeptember 11 presidency of George W.
Bush, and were marshaled in support of military commissions, the asserted power to disregard the torture
statute, the Terrorist Surveillance Program, detention authority, and much more.
III.
John Yoo had a heavy hand in those policies, as is well known. It thus comes as no surprise that his rich history
of presidential power provides a brief for the expansive post-Reagan conservative conception of executive
power on which these policies rested.
Yoos account of the constitutional founding would have set James Burnhams hat on fire. Burnham thought
that the founders created a system of congressional supremacy based on (among other things) their discussion of
the virtues of deliberation and representation, the length and the detail of the powers conferred by Article I of
the Constitution, and Madisons dictum that in republican government, the legislative authority necessarily
predominates. Yoo argues that they created a system of presidential dominance based on (among other things)
the Framers discussion of the virtues of unity, dispatch, and secrecy; Article IIs open-ended grant of
executive power; and Hamiltons dictum that energy in the Executive is a leading character in the definition of
good government. Burnham praises the Constitutions many checks on presidential Caesarism; Yoo praises
the Constitutions creation of a republican executive to be elected by the nation as a whole, with a connection
to the people independent of Congress. Burnham thinks the presidents war power is a modern invention; Yoo
thinks it is part of the Framers design. And so on.
What explains these diametrically opposed conservative constitutional visions? One answer--this is the general
lesson of liberals embrace of presidentialism until the late 1960s, and of conservatives suspicion of it until
then--is that constitutional theory is usually grounded in a theory of preferred outcomes. From the beginning of
the nation, Schlesinger once noted, views of the proper distribution of power between the Congress and the
President depended a good deal less on considerations of high principle than on preferences about the uses to
which power was put. Burnham wrote near the end of an era in which American politics was seen as a
prolonged fight between what his colleague Willmoore Kendall described as an invariably liberal president
motivated by high principle and enlightenment and an invariably resistant and thus conservative Congress.
Yoo writes at the end of three decades of Republican presidential rule interrupted only by eight years of a
moderate Democratic presidency, in which the main conservative concerns, especially the bloated bureaucracy
and national security, favor a strong presidency.
A second lesson is that the text and the original understanding of the Constitution often do not yield determinate
answers concerning the separation of powers. Yoo is right to emphasize that the Framers--burned by their
experience with the feckless executive power that the Articles of Confederation had lodged in Congress-created a strong and independent presidency that could enforce the law, and help maintain the national defense,
and act swiftly in crisis. This is a point downplayed by Burnham and modern presidential critics, just as Yoo
downplays the ways the Constitution sought to place legal checks on the president. The complicated truth is that
the Framers had cross-cutting concerns about legislative and executive power and spoke in many voices. They
worried about a too-weak Congress and a too-strong Congress and about a too-weak president and a too-strong
president. The Constitutions final allocation of power involved many compromises embodied in sometimes
imprecise provisions that meant different things to different people and interacted in unpredictable ways.
Consider the famous debate in 1793 over the legality of George Washingtons unilateral proclamation of
American neutrality in the ongoing European wars. Hamilton, writing as Pacificus, supported the proclamation
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based on a broad reading of the presidents Executive power. He also argued that the presidents authority to
execute, and thus to interpret, treaties gave him the power to determine whether the United States was at war or
at peace. Madison, writing as Helvidius, took issue with both points and accused Hamilton of trying to
incorporate British royal prerogatives into the Constitution that had stripped the executive of the kings power
to determine war and peace. Within six years after they co-authored The Federalist Papers and five years after
the Constitution was ratified, Madison and Hamilton sharply disagreed, each with plausible arguments, about
what the Constitution says about a simple question of presidential power. The text and the original
understanding of the eighteenth-century Constitution, taken alone, are less sure guides to presidential power in
our very different world.
Yoo does not rest the entire edifice of modern presidential power on what happened in 1789. Madison wrote in
The Federalist Papers that the Constitutions provisions, though penned with the greatest technical skill, and
passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until
their meaning be liquidated and ascertained by a series of particular discussions and adjudications. Like many
originalists, Yoo recognizes Madisons truth, for he acknowledges the importance of practice as a source of
constitutional meaning, and he devotes most of his book to analyzing presidential practice and the steady
growth of presidential power over the course of American history.
Yoos story from the founding until Vietnam is the same basic story that liberals told about the heroic
presidency in the middle of the last century. Yoo, like Commager, notes that our greatest presidents--the
contemporary top-ten list is Washington, Lincoln, Franklin Roosevelt, Jefferson, Theodore Roosevelt, Reagan,
Truman, Eisenhower, Polk, and Jackson--achieved victory or important progress in domestic and foreign affairs
by using presidential power very aggressively to defy congressional and constitutional restrictions or to act
boldly when Congress was silent. Several of these Presidents were, in fact, responsible for some of the most
explosive constitutional confrontations in American history, writes Yoo, adding that an enormous historical
literature, indeed, trumpets their great or near great status precisely because they were so bold as to assert
power with extraordinary vigor, and precisely in the most contested or doubtful circumstances. Failed
presidents, by contrast, are almost all ones--Yoo agrees with Commager that James Buchanan is a prime
example--who hold narrow visions of their powers, or those who are overly deferential to Congress and thus
who experience failure in crisis.
While Yoos heroic presidency tracks the old liberal story, he highlights aspects that support the modern
conservative synthesis. He emphasizes that Washingtons neutrality proclamation was grounded in a theory of
inherent executive power; that Jefferson the strict constructionist introduced to the presidency the notions of
prerogative power and secret, unilateral covert operations; that many of Jacksons great victories were premised
on his asserted power, independent of Congress and the courts, to interpret laws; that Lincolns Emancipation
Proclamation rested on a broad conception of his commander-in-chief authority, and sidestepped statutory
procedures for freeing slaves; that FDR unilaterally ordered domestic wiretaps in defiance of a congressional
ban; and that our greatest Cold War presidents--Truman, Eisenhower, and Reagan--succeeded through
presidential activism abroad.
What explains the striking identification of presidential greatness with the aggressive use of presidential power?
Why is it, as Clinton Rossiter wrote half a century ago, that a president who is not widely and persistently
accused in his own time of subverting the Constitution may as well forget about being judged a truly
eminent man by future generations? The main answer, as Yoo notes, is that great presidents are those who
succeed in crisis, and success in crisis often demands that the presidential virtues emphasized by Hamilton-decision, activity, secrecy, and dispatch--be employed in ways that test or exceed traditional constitutional
limits. A related point is that we tend to judge presidential action by the quality of its outcomes, and not by
compliance with backward-looking conceptions of constitutional norms. Roosevelt is praised for his bold but
constitutionally dubious unilateral actions before and during World War II, but Johnson is pilloried for his
unconstitutional war, even though it was, until the very end of his term, funded and approved by Congress.
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Of course, bold presidents can also be disasters. Vietnam and Watergate caused liberals to rethink the heroic
presidency, but Yoo sees the presidencies during this period, especially Nixons, as the temporary deviations of
a still-heroic presidency. The problem with Watergate was not the Presidency itself, he writes, but the man
who used the powers of the office to advance and protect his personal interests. And while many see the
presidency of George W. Bush as a dramatic deviation from past constitutional practice, Yoo thinks it acted
well within the example of past Presidents.
Yoo is right that most of Bushs controversial counterterrorism programs can find a precedent, and often many,
in the actions of past great presidents. Why, then, was Bush judged so harshly not just by people on the left, but
also by the general public and even by some on the right? There are many reasons. One is that the Islamist
terrorist threat is invisible to many. Another is that, as Yoo notes, we are still living through the period of
threat, and only with the benefit of hindsight can we know whether Bushs aggressive use of executive
authority was too much, too little, or just right. The tradition of the heroic presidency views Lincolns and
Roosevelts Constitution-stretching actions in a benign light because their crises were apparent to all, and
because they used aggressive presidential powers to achieve great ends. Bush, by contrast, operated in a world
in which the threat was contested, rendering aggressive presidential action, based on precedents from undoubted
crises, suspicious--a suspicion exacerbated by the administrations frequently proclaimed desire to expand its
powers. And Bush left office in the middle of the war, without the hindsight glow of approval that victory may
bring.
The Bush administration compounded these challenges, of course, by acting unilaterally in several key areas
without seeking the consent of Congress. Yoo stands by the constitutionality of this approach. Of course,
cooperation between the President and Congress on national security policy is politically desirable, but it has
never been constitutionally necessary, he claims. Our constitutional tradition shows that presidents can and
must exercise prerogative powers in the short term of a crisis, sometimes even in defiance of Congress. But that
this is not the whole of the story. It also emphatically shows that when the crisis lingers, presidents must receive
the approval of the other branches of government. The paradigm is Lincolns famous speech of July 4, 1861 in
which he laid out before Congress the emergency extra-constitutional steps he had taken in response to the
secession crisis that spring, and sought Congresss approval.
The early Bush administration failed to see that the legitimating constitutional price for the presidential power
that it revered was the congressional consent that it abhorred. It failed to recognize that unilateralism was
destined to fail over the medium term, especially in a crisis that was so novel, hard to gauge, and open-ended. It
failed also to recognize that the presidents power would be legitimated and made effective only by securing the
consent of the other institutions of government.
Garry Wills has been a man of the left for a while now, but he began his career at National Review in the 1950s,
where he doubtlessly absorbed then-conservative concerns about the Cold War presidency. Traces of these
concerns appear in his new book, but they have spun out of control, and he has produced an unilluminating rant.
Wills believes that the atomic bomb altered our subsequent history down to its deepest constitutional roots by
fostering a militarized and crisis-filled society that centralized unprecedented power in the president and redefined the government as a National Security State, with an apparatus of secrecy and executive control. This
happened, Wills says, because the presidents sole authority to launch nation-destroying weapons gives him
license to use every other power at his disposal that might safeguard that supreme necessity and causes
Congress and the courts to acquiesce in presidential power. In this way, the bomb gave rise to institutions and
practices that are responsible for all of the evils of the modern presidency, including the secrecy system,
unilateral presidential war-making, CIA assassinations, dictator-coddling, unitary executive theory, presidential
signing statements, executive orders, Watergate, Iran-Contra, torture, and more. Only the president had the
35

supreme power, the Bomb, and all else must defer to it, for the good of the nation, for the good of the world, for
the custody of the future, in a world of perpetual emergency superseding ordinary constitutional restrictions.
The problems with Willss thesis begin with his obsessive focus on the atomic bomb--as opposed to the Cold
War to which it contributed--as the source of all subsequent presidential evil. Yes, the placement of a nationdestroying weapon in the presidents hands contributed a lot to the rise of presidential power. But the Soviet
menace, which Wills downplays in independent significance, was the primary cause of the security anxiety that
produced the national security state after World War II. The possession of the bomb, moreover, had a mixed
effect on the national security state, which Wills misses altogether. In the political fights over military budgets
in the 1940s and 1950s, the atomic and thermonuclear bombs were viewed as relatively inexpensive weapons
that provided significant deterrence--what became known, rather morbidly, as a bigger bang for the buck.
These weapons were substitutes for an even larger conventional military buildup against the Soviet threat--a
buildup that, but for the bomb, would have brought the United States closer to a garrison state.
If we set aside Willss insistence that the bomb itself is the poisonous apple, and focus more broadly on the
congeries of factors (including the bomb) that led to the Cold War, then Wills is correct that the United States
has been in a more or less permanent emergency since the late 1940s, and that this state of alert led to the
development of institutions, responsibilities, and practices that forever changed the presidency. But Wills wildly
exaggerates the reach of these constitutional changes. The national security state is responsible for many things,
but it is not, as he claims, responsible for the Bush administrations asserted power--sometimes in signing
statements--to decline to enforce laws that it believed violated the Constitution. This is not a new practice. It
goes back at least to the nineteenth century, and it has been asserted by many presidents, including many before
World War II. The practice has grown in modern times with increases in the size of government and the scope
of congressional regulation of the executive, but presidents frequently invoke it concerning ordinary domestic
issues as well as national security issues. It has nothing to do with the bomb.
Nor is Wills right to claim that the main reason Congress and courts have deferred to modern presidents use
of Executive Orders is the Bomb. Executive orders are presidential directives that rely for their authority on
statutes, treaties, or a constitutional provision. Congress and the courts have permitted them not for fear of
making the president look weak, as Wills claims, but rather because it is a perfectly legitimate exercise of
executive power. While presidents have issued executive orders since the beginning, the practice has grown
naturally with the size of government, and it too applies in many contexts that have nothing to do with national
security. Executive orders have, in fact, been a central tool of the heroic presidency in achieving domestic
reform. On race relations, for example, Truman used an executive order to desegregate the military; and
Eisenhower used one to enforce Brown v. Board of Education in the South; and Kennedy and Johnson used
several to promote racial equality in other governmental functions, and to establish early government programs
on affirmative action.
Wills makes similar mistakes about unitary executive theory, but larger problems mar his book as well. He
recounts in loving detail the bad acts of the powerful modern presidency, but he considers none of its virtues or
successes (including its success in guiding us to a safe conclusion of the Cold War), and thus makes no effort at
a balanced accounting. His entire argument is premised on a fondness for the quaint old Constitution of 1789
with the notion of executive power that prevailed at that time. He does not defend this unsubtle originalism, nor
explain how he would reconcile it with his fondness for modern constitutional innovations such as the New
Deal, abortion rights, and free political speech. Nor does he try at all to come to grips with the massive social,
political, technological, and other changes in the world that, like the invention of the bomb, have caused us to
place more and more power in the presidents hands. Lodging the fate of the world in one man, with no
constitutional check on his actions, caused a violent break in our whole governmental system, he maintains.
Even if this were so, we cannot wish away the bomb any more than we can wish away other enormous changes
in the world. Wills says nothing constructive about how government might be improved to meet these changes.
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IV.
Though Wills and Yoo have very different views on executive power, they agree that congressional efforts to
check the ever-growing presidency--and especially the famous congressional reforms of the 1970s--were largely
useless. Wills says these laws struck only glancing blows at executive power, and that Congress has largely
capitulated to executive aggrandizement. Yoo says that presidents worked around many of these laws, which
proved somewhat toothless. Wills decries this result; Yoo admires it. And both are wrong about the premise.
Congressional reforms of the presidency have been far from toothless. In fact, they have accomplished a great
transformation. They (along with judicial and other innovations) changed the unprecedentedly powerful post
Cold War presidency into one that is also unprecedentedly accountable. It is hard to know whether the most
famous of these reforms, the War Powers Resolution, has slowed presidential war-making much (though it is
worth noting that every president has complied with its reporting requirements, and no president has defied it on
constitutional grounds). It is clear, however, that the many other reforms made the presidency much more
accountable to Congress, the courts, and the public.
Presidents used to wiretap at will in the name of national security, but now they must comply with complex
criminal laws and get the approval of a secret court. Presidents used to conduct covert operations without any
accountability, but now they must comply with elaborate restrictions and report all important intelligence
activities to Congress in a timely way. Presidents used to have carte blanche in interpreting or ignoring
international human rights law and the laws of war, but now these laws are embodied in complex regulations
and criminal statutes that touch on every aspect of military and intelligence operations. Presidents used to hide
information easily, but now they must take extraordinary steps to maintain records and give the public broad
access to internal documents. Quasi-independent inspectors general that were viewed as unconstitutional during
the Reagan revolution are now well-established auditing and investigatory thorns in the presidents side.
There are many other examples, but perhaps the best indicator of the impact of law on the presidency is that the
CIA has well over one hundred lawyers, and the Department of Defense has over ten thousand, not including
reservists. These lawyers--and many tens of thousands of other lawyers in other agencies--devote their days and
many of their nights to ensuring that the extravagantly regulated executive branch complies with the law and
with numerous forms of ex post accountability--inspector general audits, congressional investigations and
queries, reporting requirements, and testimony before Congress--that influence executive behavior before the
fact.
This massive change in accountability to Congress has been mirrored in our other institutions--in courts, which
(owing to the prevalence of law in this area, and to changes in constitutional norms) are significantly more
involved in adjudicating executive conduct of war and intelligence; and in the media, which is much more
aggressive and successful than ever in ferreting out government secrets. The president retains the initiative in
war and intelligence, to be sure, and he has discretion in choosing where to lead the nation, especially in crisis.
Yet his decisions are widely and deeply regulated, both before and after execution.
The increasingly powerful but increasingly law-bound presidency is the key to understanding the remarkable
extent to which President Obama has continued the counterterrorism policies of his predecessor. Obama has cut
back the Bush program on interrogation and black sites, though not as much as most people think. He has
supported tiny congressional modifications to military commissions, but he has persisted in their use. He has
controversially insisted on a civilian trial for Khalid Shaikh Mohammed, but this is less of a change than critics
suggest, as the Bush administration often used civilian trials for terrorists, including the September 11 plotter
Zacarias Moussaoui, the Al Qaeda agent Jos Padilla, the shoebomber Richard Reid, and the American
Taliban John Walker Lindh. Obama has replicated Bushs legal arguments concerning detention, habeas
corpus, and state secrets. And he has embraced, and indeed ramped up, the Bush approach to targeted killing
and rendition.
37

Obama is not by a mile the first president to come to office as a critic of presidential power and then switch on
the job. Jefferson, Lincoln, and Nixon, among others, maligned broad assertions of presidential power before
entering the executive branch. The president has enormous responsibilities for our safety and many legitimate
powers to meet them, both of which are difficult to appreciate before assuming the office. And as Schlesinger
once observed, power always look[s] more responsible from within than from without.
But there is another explanation for the Obama continuation of Bush policies. Almost every aspect of the early
unilateral Bush counterterrorism program has been pushed back against or modified, and ultimately blessed,
with accountability strings attached by Congress or the courts or both, with an assist from the ever-critical press.
One important reason why Obama embraced so much of the Bush program as it stood in 2008 is that most of
this program had been vetted--and restrictions, guidance, review, and reporting and internal monitoring
requirements imposed--by the other branches of our government. The enhanced powers of the presidency after
September 11 have become part of the national fabric, in short, because they have received the consent of our
national institutions, and thus of the people themselves.
There is an important constitutional lesson here. The presidency has grown in power over two centuries and
more, because massive changes in domestic and international society have made it necessary to centralize
power in a hierarchical, relatively secretive, quick-acting executive. This presidential growth was not, as Yoo
argues, anticipated by the Framers in Article II. Yet the Framers did create a structure of divided government
that gave to each branch the motives and the constitutional tools to check the other branches. This structure did
not prevent the presidency from becoming very powerful, but it did provide a way to create compensating
adjustments through novel accountability mechanisms for presidential power that translate, in a rough way, the
Framers original design. These compensating adjustments are far from perfect. Congress is sometimes slow to
exercise its constitutional responsibilities, and when it does act, it often does too much or too little. But
Congress does act with consequence, not infrequently, as do the courts; and the larger picture is one that
preserves the original idea of a balanced constitution with an executive branch that remains legally accountable
despite its enormous power.

Jack Goldsmith, author of The Terror Presidency (W.W. Norton), served as an assistant attorney general in the Bush administration.
He teaches at Harvard Law School and is a visiting fellow at the Hoover Institution at Stanford Univers

38

Electoral College [Practice]

A significant feature of the Electoral College is that most states have a winner-take-all
system.
(a) Describe the winner-take-all feature of the Electoral College.
(b) Explain one way in which the winner-take-all feature of the Electoral College
affects how presidential candidates from the two major political parties run their
campaigns.
(c) Explain one way in which the winner-take-all feature of the Electoral College
hinders third-party candidates.
(d) Explain two reasons why the Electoral College has not been abolished.
39

How the Electoral College Works

The current workings of the Electoral College are the result of both design and experience. As it now operates:

Each State is allocated a number of Electors equal to the number of its U.S. Senators (always 2) plus the number of its U.S.
Representatives (which may change each decade according to the size of each State's population as determined in the
Census).

The political parties (or independent candidates) in each State submit to the State's chief election official a list of individuals
pledged to their candidate for president and equal in number to the State's electoral vote. Usually, the major political parties
select these individuals either in their State party conventions or through appointment by their State party leaders while third
parties and independent candidates merely designate theirs.

Members of Congress and employees of the federal government are prohibited from serving as an Elector in order to
maintain the balance between the legislative and executive branches of the federal government.

After their caucuses and primaries, the major parties nominate their candidates for president and vice president in their
national conventions traditionally held in the summer preceding the election. (Third parties and independent candidates
follow different procedures according to the individual State laws). The names of the duly nominated candidates are then
officially submitted to each State's chief election official so that they might appear on the general election ballot.

On the Tuesday following the first Monday of November in years divisible by four, the people in each State cast their ballots
for the party slate of Electors representing their choice for president and vice president (although as a matter of practice,
general election ballots normally say "Electors for" each set of candidates rather than list the individual Electors on each
slate).

Whichever party slate wins the most popular votes in the State becomes that State's Electors-so that, in effect, whichever
presidential ticket gets the most popular votes in a State wins all the Electors of that State. [The two exceptions to this are
Maine and Nebraska where two Electors are chosen by statewide popular vote and the remainder by the popular vote within
each Congressional district].

On the Monday following the second Wednesday of December (as established in federal law) each State's Electors meet in
their respective State capitals and cast their electoral votes-one for president and one for vice president.

In order to prevent Electors from voting only for "favorite sons" of their home State, at least one of their votes must be for a
person from outside their State (though this is seldom a problem since the parties have consistently nominated presidential
and vice presidential candidates from different States).

The electoral votes are then sealed and transmitted from each State to the President of the Senate who, on the following
January 6, opens and reads them before both houses of the Congress.

The candidate for president with the most electoral votes, provided that it is an absolute majority (one over half of the total),
is declared president. Similarly, the vice presidential candidate with the absolute majority of electoral votes is declared vice
president.

In the event no one obtains an absolute majority of electoral votes for president, the U.S. House of Representatives (as the
chamber closest to the people) selects the president from among the top three contenders with each State casting only one
vote and an absolute majority of the States being required to elect. Similarly, if no one obtains an absolute majority for vice
president, then the U.S. Senate makes the selection from among the top two contenders for that office.

At noon on January 20, the duly elected president and vice president are sworn into office.

Occasionally questions arise about what would happen if the pesidential or vice presidential candidate died at some point in this
process.For answers to these, as well as to a number of other "what if" questions, readers are advised to consult a small volume
entitled After the People Vote: Steps in Choosing the President edited by Walter Berns and published in 1983 by the American
Enterprise Institute. Similarly, further details on the history and current functioning of the Electoral College are available in the second
edition of Congressional Quarterly's Guide to U.S. Elections, a real goldmine of information, maps, and statistics.

40

Role Over... the President

An A.P. Government Look at Sinking the Bismark

Chief of State

1. Provide a brief definition for each of the following Presidential roles.

2. Find current examples of each role. Cite where appropriate.
3. Rank each role: 1 = most important, 6 = least important

Chief Diplomat

Chief Executive

Chief Legislator

Commander in
Chief

Chief of Party
41

The Rule of Propinquity

Sweet Home Obama
We all know Barack Obama is the President of the United States. What we may not know is that an army of
advisors and friends surrounds him. Those whose desks are closest to the Oval Office tend to exert more
influence. This is called the rule of propinquity. Who are these people? Who makes up this shadow
government?
Directions: Search the Internet and find ten (10) of President Obamas closest advisors. Start with is Chief of
Staff. These folks are not Cabinet level employees but can be found inside the White House Office and
the Executive Office.
Barack Obama. President of the United States

Obamas CABINET
Identify each of the following Executive Department heads and explain their primary duty. What are the
primary issues facing each of them? Rank them in order of their importance. Explain. Why do you suppose
their offices are far removed from the presidents?

Presidential Approval Ratings

Hot and Cold Presidents
http://www.usatoday.com/news/washington/presidential-approval-tracker.htm

Using the web link above perform the following tasks:

1. Choose three (3) different Presidents.
2. For each complete a simple summary of their respective presidencies include
the years they served; their respective political party and whether or not they
served during a unified or divided government.
3. Note two (2) public approval high points and two (2) public approval low
points during their respective presidencies. Explain reasons for the increase
and decrease.
4. Thinking more generally, assess the causes and effects of presidential approval
ratings. [3-4 sentences]

42

The Perfect President?

What Would a Perfect President Look Like?
Presidential Qualities: clever, aloof, pleasant, naive, gentle, intelligent, insensitive, competitive, mature,
sociable, humane, unselfish, cooperative, compassionate, deceitful, charismatic, charitable, articulate, heartless,
obliging, shrewd, honest, outgoing, dependable, ruthless, pompous, brave, ethical, sincere, cunning.
1. List 15 desirable qualities from the list above
2. List 5 ESSENTIAL qualities from the list above. Explain EACH choice.
3. List 5 UNDESIRABLE qualities from the list above. Explain EACH choice.

Essential
Qualities:

Undesirable Qualities:
1.

1.

2.

2.

3.

3.

4.

4.

5.

5.

No sadder proof can be given by a man of his own littleness than disbelief in great men...
Does not every true man feel that he is himself made higher by doing reverence to that
which is really above him?
Thomas Carlyle

Today no one bestrides our narrow world like a colossus; we have no giants...
Arthur M. Schlesinger Jr.

43

American Government

The Power of the Presidency

The history of the presidency is a history of aggrandizement

Formal Powers

Federalist 70

(Constitution, Article 2)
A feeble executive implies a feeble
execution of the government. A feeble
execution is but another phrase for
bad execution; and a government ill
executed, whatever it my be in theory,
must be, in practice, a bad government...
Taking it for granted, therefore, that all
men of sense will agree in the necessity
of an energetic executive, it will only
remain to inquire, what are the ingredients
which constitute this energy?...
[These ingredients are]...unity, duration,
adequate provisions for its support, and
competent powers...

1.
2.
3.
4.
5.
6.
7.

Alexander Hamilton

Impressive?
The greatest sources of Presidential Power are to
be found in the INFORMAL POWERS.
1.
2.
3.
4.

Thus television places in the presidents hands enormous metaphysical powers not provided for in the Constitution: powers over
reality, powers over appearances, powers over perception. This presence dominates the attention of citizens who sit in silence and
only listen.
If we are to reform the presidency, the heart of the matter is the presidents power over reality, his symbolic power. The social
reality of the United States cannot be left to definition by one man alone.
Robert Novak
Perception is everything.

Abraham Lincoln

44

Reasons for the growth of the Presidency during

the 20th century:
1.
2.
3.
Constraints on Presidential Power:
1.
2.
3.
4.
5.
6.
7.
8.

The President of the United States....

The most powerful person in the world?
or
A pitiful helpless giant?

45

Education of a President
PETER BAKER
New York Times
October 12, 2010
On a busy afternoon in the West Wing late last
month, President Barack Obama seemed relaxed
and unhurried as he sat down in a newly
reupholstered brown leather chair in the Oval
Office. He had just returned from the East Room,
where he signed the Small Business Jobs Act of
2010 - using eight pens so he could give away as
many as possible. The act will be his
administrations last piece of significant economic
legislation before voters deliver their verdict on his
first two years in office. For all intents and
purposes, the first chapter of Obamas presidency
has ended. On Election Day, the next chapter will
begin.

While proud of his record, Obama has already

begun thinking about what went wrong and what
he needs to do to change course for the next two
years. He has spent what one aide called a lot of
time talking about Obama 2.0 with his new interim
chief of staff, Pete Rouse, and his deputy chief of
staff, Jim Messina. During our hour together,
Obama told me he had no regrets about the broad
direction of his presidency. But he did identify what
he called tactical lessons. He let himself look too
much like the same old tax-and-spend liberal
Democrat. He realized too late that theres no
such thing as shovel-ready projects when it comes
to public works. Perhaps he should not have
proposed tax breaks as part of his stimulus and
instead let the Republicans insist on the tax cuts
so it could be seen as a bipartisan compromise.

As he welcomed me, I told him I liked what he had

done with the place. Gone was George W. Bushs
yellow sunburst carpet (it says optimistic person,
Bush would tell practically anyone who visited),
and in its place was a much-derided earth-tone rug
with inspirational quotations. The curved walls now
had striped tan wallpaper, and the coffee table had
been replaced by a walnut-and-mica table that,
Obama noted, would resist stains from water
glasses. The bust of Winston Churchill was replaced
by one of Martin Luther King Jr. The couches were
new. He told me he was happy with the
redecorating of the office. I know Arianna doesnt
like it, he said lightly. But I like taupe.

Most of all, he has learned that, for all his antiWashington rhetoric, he has to play by Washington
rules if he wants to win in Washington. It is not
enough to be supremely sure that he is right if no
one else agrees with him. Given how much stuff
was coming at us, Obama told me, we probably
spent much more time trying to get the policy right
than trying to get the politics right. There is
probably a perverse pride in my administration
and I take responsibility for this; this was blowing
from the top that we were going to do the right
thing, even if short-term it was unpopular. And I
think anybody whos occupied this office has to
remember that success is determined by an
intersection in policy and politics and that you cant
be neglecting of marketing and P.R. and public
opinion.

If there was something incongruous about the

president of the United States checking out reviews
of his dcor by Arianna Huffington, well, lets face
it, he has endured worse reviews lately. The
president who muscled through Congress perhaps
the most ambitious domestic agenda in a generation
finds himself vilified by the right, castigated by the
left and abandoned by the middle. He heads into the
final stretch of the midterm campaign season facing
likely repudiation, with voters preparing to give him
a Congress that, even if Democrats maintain
control, will almost certainly be less friendly to the
president than the one he has spent the last two
years mud wrestling.

That presumes that what he did was the right thing,

a matter of considerable debate. The left thinks he
did too little; the right too much. But what is
striking about Obamas self-diagnosis is that by his
own rendering, the figure of inspiration from 2008
neglected the inspiration after his election. He
didnt stay connected to the people who put him in
46

office in the first place. Instead, he simultaneously

disappointed those who considered him the
embodiment of a new progressive movement and
those who expected him to reach across the aisle to
usher in a postpartisan age. On the campaign trail
lately, Obama has been confronted by
disillusionment the woman who was exhausted
defending him, the mother whose son campaigned
for him but was now looking for work. Even
Shepard Fairey, the artist who made the iconic
multihued Hope poster, says hes losing hope.

everything takes time. And were not a culture

thats built on patience.
These days, Obama has been seeking guidance in
presidential biographies. He is reading, among
others, The Clinton Tapes, Taylor Branchs
account of his secret interviews with Bill Clinton
during the eight years of his presidency. I was
looking over some chronicles of the Clinton years,
Obama told me, and was reminded that in 94
when President Clintons poll numbers were lower
than mine, and obviously the election ended up
being bad for Democrats unemployment was
only 6.6 percent. And I dont think anybody would
suggest that Bill Clinton wasnt a good
communicator or was somebody who couldnt
connect with the American people or didnt show
empathy.

Perhaps that should have come as no surprise.

When Obama secured the Democratic nomination
in June 2008, he told an admiring crowd that
someday we will be able to look back and tell our
children that this was the moment when we began
to provide care for the sick and good jobs to the
jobless; this was the moment when the rise of the
oceans began to slow and our planet began to heal;
this was the moment when we ended a war and
secured our nation and restored our image as the
last, best hope on earth.

In the fall of 1994, things were even better than

Obama recalls: unemployment was in fact 5.6
percent. If the feel-your-pain president had trouble
when the economy was not nearly as bad as it is
now, with 9.6 percent unemployment, then maybe
the issue for Obama is not that he is too cool or
detached, as some pundits say. When the economy
is bad, even the most talented of presidents suffer at
the polls. There is an anti-establishment mood,
Rahm Emanuel, the former Clinton aide who served
as Obamas first White House chief of staff, told me
before he stepped down this month. We just
happen to be here when the music is stopping.

I read that line to Obama and asked how his highflying rhetoric sounded in these days of low-flying
governance. It sounds ambitious, he agreed. But
you know what? Weve made progress on each of
those fronts. He quoted Mario Cuomos line about
campaigning in poetry and governing in prose. But
the prose and the poetry match up, he said. It
would be very hard for people to look back and say,
You know what, Obama didnt do what hes
promised. I think they could say, On a bunch of
fronts he still has an incomplete. But I keep a
checklist of what we committed to doing, and weve
probably accomplished 70 percent of the things that
we talked about during the campaign. And I hope as
long as Im president, Ive got a chance to work on
the other 30 percent.

It would be bad form for the president to anticipate

an election result before it happens, but clearly
Obama hopes that just as Clinton recovered from
his partys midterm shellacking in 1994 to win reelection two years later, so can he. There was
something odd in hearing Obama invoke Clinton.
Two years ago, Obama scorned the 42nd president,
deriding the small-ball politics and triangulation
maneuvers and comparing him unfavorably with
Ronald Reagan. Running against Clintons wife,
Obama was the anti-Clinton. Now he hopes, in a
way, to be the second coming of Bill Clinton.
Because, in the end, its better than being Jimmy
Carter.

But save the planet? If you promise to save the

planet, might people think you would, you know,
actually save the planet? He laughed, before shifting
back to hope and inspiration. I make no apologies
for having set high expectations for myself and for
the country, because I think we can meet those
expectations, he said. Now, the one thing that I
will say which I anticipated and can be tough
is the fact that in a big, messy democracy like this,

Last month, I made my way through the West Wing

talking not only with Obama but also with nearly
two dozen of his advisers some of whom spoke
47

with permission, others without hoping to

understand how the situation looks to them. The
view from inside the administration starts with a
basic mantra: Obama inherited the worst problems
of any president in years. Or in generations. Or in
American history. He prevented another Great
Depression while putting in place the foundation for
a more stable future. But it required him to do
unpopular things that would inevitably cost him.

House aides wonder aloud whether it is even

possible for a modern president to succeed, no
matter how many bills he signs. Everything seems
to conspire against the idea: an implacable
opposition with little if any real interest in
collaboration, a news media saturated with triviality
and conflict, a culture that demands solutions
yesterday, a societal cynicism that holds leadership
in low regard. Some White House aides who were
ready to carve a new spot on Mount Rushmore for
their boss two years ago privately concede now that
he cannot be another Abraham Lincoln after all. In
this environment, they have increasingly concluded,
it may be that every modern president is going to
be, at best, average.

He got here, and the expectations for what he

could accomplish were very high and probably
unrealistic, Pete Rouse told me. Indeed, David
Axelrod and David Plouffe, the masterminds of the
2008 presidential campaign, said they cautioned
Obama after his victory to brace himself for a
precipitous drop in his popularity given the severity
of his challenges. I told him at some point that at
the end of 10, his approval rating could be low- to
mid-30s, Plouffe told me.

Were all a lot more cynical now, one aide told

me. The easy answer is to blame the Republicans,
and White House aides do that with exuberance.
But they are also looking at their own
misjudgments, the hubris that led them to think they
really could defy the laws of politics. Its not that
we believed our own press or press releases, but
there was definitely a sense at the beginning that we
could really change Washington, another White
House official told me. Arrogance isnt the right
word, but we were overconfident.

Yet even if the White House saw it coming, this is

an administration that feels shellshocked. Many
officials worry, they say, that the best days of the
Obama presidency are behind them. They talk about
whether it is time to move on. While not in the 30s,
Obamas approval rating in surveys conducted by
The New York Times and CBS News had fallen to
45 percent last month from 62 percent when he took
office just a point above where Clinton was
before losing Congress in 1994 and three points
above where Reagan was before the Republicans
lost a couple dozen House seats in 1982. Joel
Benenson, Obamas pollster, pointed out that even
at 45 percent, the presidents popularity eclipses
that of Congress, the news media, the banks and
other forces in American life. We are in a time
when the American public is highly suspect of any
institution, he said, and President Obama still
stands above that. Obamas team takes pride that
he has fulfilled three of the five major promises he
laid out as pillars of his new foundation in an
April 2009 speech at Georgetown University
health care, education reform and financial
reregulation. And they point to decisions to end the
combat mission in Iraq while escalating the war in
Afghanistan. History will judge Obama that the
first two years were very productive, Rouse says.

The biggest miscalculation in the minds of most

Obama advisers was the assumption that he could
bridge a polarized capital and forge genuinely
bipartisan coalitions. While Republican leaders
resolved to stand against Obama, his early efforts to
woo the opposition also struck many as halfhearted.
If anybody thought the Republicans were just
going to roll over, we were just terribly mistaken,
former Senator Tom Daschle, a mentor and an
outside adviser to Obama, told me. Im not sure
anybody really thought that, but I think we kind of
hoped the Republicans would go away. And
obviously they didnt do that.
Senator Dick Durbin, the No. 2 Democrat in the
upper chamber and Obamas ally from Illinois, said
the Republicans were to blame for the absence of
bipartisanship. I think his fate was sealed, Durbin
said. Once the Republicans decided they would
close ranks to defeat him, that just made it
extremely difficult and dragged it out for a longer
period of time. The American people have a limited

But it is possible to win the inside game and lose

the outside game. In their darkest moments, White
48

attention span. Once you convince them theres a

problem, they want a solution.

And frankly I would settle these days forget

about transformational, how about a transactional
president, somebody people could do business
with? It seems theres an ideological rigidity that
the American people did not sense.

Gov. Ed Rendell of Pennsylvania, though, is among

the Democrats who grade Obama harshly for not
being more nimble in the face of opposition. Bplus, A-minus on substantive accomplishments, he
told me, and a D-plus or C-minus on
communication. The health care legislation is an
incredible achievement and the stimulus program
was absolutely, unqualifiedly, enormously
successful, in Rendells judgment, yet Obama
allowed them to be tarnished by critics. They lost
the communications battle on both major initiatives,
and they lost it early, said Rendell, an ardent
Hillary Clinton backer who later became an Obama
supporter. We didnt use the president in either
stimulus or health care until we had lost the spin
battle.

The other side would like more ideological rigidity.

Norman Solomon, a leading progressive activist and
the president of the Institute for Public Accuracy,
said Obama has totally blown this great
opportunity to reinvent America by being more
aggressive on issues like a public health care option.
Other liberals feel the same way about gays in the
military or the prison at Guntanamo Bay. Its
been so reflexive since he was elected, to just give
ground and give ground, Solomon told me. If we
dont call him a wimp, which may be the wrong
word, he just seems to be backpedaling. Solomon
added: It makes people feel angry and perhaps
used. People just feel like, Gee, we really believed
in this guy, and his rhetoric is so different than the
way hes behaved in office.

Thats a refrain heard inside the White House as

well: its a communication problem. The first refuge
of any politician in trouble is that its a
communication problem, not a policy problem. If
only I explained what I was doing better, the people
would be more supportive. Which roughly
translates to If only you people paid attention, you
wouldnt be kicking me upside the head. Robert
Gibbs, the White House press secretary, laughed at
the ever-ready assumption that all problems stem
from poor communication. I havent been at a
policy-problem meeting in 20 months, he noted.

Pummeled from both sides, Obama clearly seems

frustrated and, at times, defensive. At a Labor Day
event in Milwaukee, he complained that the special
interests treat him badly. Theyre not always happy
with me, he told supporters. They talk about me
like a dog thats not in my prepared remarks, but
its true.
The friendly fire may bother him even more.
Democrats just congenitally tend to see the glass as
half empty, Obama said at a fund-raiser in
Greenwich, Conn., last month. If we get an historic
health care bill passed oh, well, the public option
wasnt there. If you get the financial reform bill
passed then, well, I dont know about this
particular derivatives rule, Im not sure that Im
satisfied with that. And, gosh, we havent yet
brought about world peace. I thought that was going
to happen quicker.

The policy criticism of Obama can be confusing and

deeply contradictory he is a liberal zealot, in the
view of the right; a weak accommodationist, in the
view of the left. He is an anticapitalist socialist who
is too cozy with Wall Street, a weak-on-defense
apologist for America who adopted Bushs
unrelenting antiterror tactics at the expense of civil
liberties.
When he talked about being a transformational
president, it was about restoring the faith of the
American people in our governing institutions,
says Ken Duberstein, the former Reagan White
House chief of staff who voted for Obama in 2008.
What we now know is that that did not work. If
anything, people are even more dubious about all of
our institutions, especially government. So to that
extent, the transformational side has not worked.

Then again, it is Obama himself, and not just his

supporters, who casts his presidency in grandiose
terms. As he pleaded with Democrats for patience at
another fund-raiser in Washington two weeks later:
It took time to free the slaves. It took time for
women to get the vote. It took time for workers to
get the right to organize.
49

One morning around the 100-day mark in Obamas

administration, the president and his top aides
gathered for their morning meeting in the Oval
Office. As they waited for David Axelrod, who was
running late, someone noted the coming milestone
and asked Obama what surprised him most since
taking office. The number of people who dont pay
their taxes, he answered sardonically.

Office was criticized as an unnecessary luxury in a

time of austerity, no matter that it was paid for by
private funds. On the campaign trail, he thought it
was silly to wear a flag pin, as if that were a
measure of his patriotism, until his refusal to wear a
flag pin generated distracting criticism and one day
he showed up wearing one. Likewise, he thought it
was enough to pray in private while living in the
White House, and then a poll showed that most
Americans werent sure hes Christian; sure
enough, a few weeks later, he attended services at
St. Johns Church across from Lafayette Square,
photographers in tow.

From the start, Obama has been surprised by all

sorts of challenges that have made it hard for him to
govern not just the big problems that he knew
about, like the economy and the wars, but also the
myriad little ones that hindered his progress, like
one nominee after another brought down by unpaid
taxes. Obama trusted his judgment and seemed to
have assumed that impressive people in his own
party must have a certain basic sense of integrity
and that impressive people in the other party must
want to work with him.

Obama came to office with enormous faith in his

own powers of persuasion. He seemed to believe he
could overcome divisions if he just sat down with
the worlds most recalcitrant figures whether
they be the mullahs in Tehran or the Republicans on
Capitol Hill. As it turned out, the candidate who
said he would be willing to meet in his first year
with some of Americas enemies without
precondition has met with none of them. And the
president who in his State of the Union address this
year promised to meet monthly with leaders of both
parties in Congress ended up doing so just half as
often.

Four of the five presidents previous to Obama were

governors who came to Washington vowing to fix
it, only to realize that Washington defies the easy,
and often hollow, rhetoric of change. While Obama
was a senator when he set off on the campaign trail,
he made the same pledges and has encountered the
same reality. The story of the first two years is the
inherent conflict between a guy who ran from
outside to change Washington, gets here and the
situation was even worse than we thought it was, a
senior aide told me. Heres a guy who ran as an
outsider to change Washington who all of a sudden
realized that just to deal with these issues, we were
going to have to work with Washington to fix that.

He has yet to fully decide whether he is of

Washington or apart from it. During the health care
debate, Obama had Emanuel cut deals with the
pharmaceutical industry, while Axelrod presented
the president as above the old business as usual.
Perhaps we were nave, Axelrod told me. First,
hes always had good relations across party lines.
And secondly, I think he believed that in the midst
of a crisis you could find partners on the other side
of the aisle to help deal with it. I dont think anyone
here expected the degree of partisanship that we
confronted. Emanuel said Republicans adopted a
strategy of poisoning the public well. Part of what
they were doing was not just making us grind it
out, he told me. They were souring the country on
the mood of the country.

Obama does little to disguise his disdain for

Washington and the conventions of modern politics.
When he emerges from the Oval Office during the
day, aides say, he sometimes pauses before the
split-screen television in the outer reception area,
soaks in the cable chatter, then shakes his head and
walks away. Hes still never gotten comfortable
here, a top White House official told me. He has
little patience for what Valerie Jarrett, a senior
adviser, calls the inevitable theatrics of
Washington.

Still, Obama plays the partisan game as well. After

months of quiet negotiations, some administration
officials thought they were close to a package of
new financial regulations with Republican support
when, to their chagrin, the White House decided to
use the issue to wage a high-profile and politically

But in politics, theater matters, whether it should or

not, a lesson Obama keeps relearning, however
grudgingly. His decision to redecorate the Oval
50

useful battle with Wall Street special interests. At

that point, the chances for a deal across party lines
collapsed, administration officials said, and Obama
was left to rely almost entirely on Democratic votes.

largely powerless. Other presidents took refuge at

Camp David, but Michelle Obama has told dinner
guests that her husband does not care for it all that
much, because he is an urban guy. He blows off
steam on the White House basketball court. Come
on, man, youve got to make that shot, he chides
aides who play with him.

Obama advisers who left the White House recently

have been struck how different, and worse, things
look from the outside. As he made a round of
corporate job interviews after stepping down as
White House budget director, Peter Orszag was
stunned to discover how deep the gulf between the
president and business had become. Id thought it
was an 8, but its more like a 10, he told me. And
rather than wasting time debating whether its
legitimate, he added, referring to his former
colleagues, the key is to recognize that its
affecting what they do.

The most obvious sign of strain is in his hair. Hell

probably be unhappy with me for saying, but Ive
noticed hes gotten a little grayer, Defense
Secretary Robert Gates told me over the summer.
These kinds of decisions do that to people. But
the stress of the job remains mostly unspoken. We
usually will talk about writing the condolence
letters, Gates added. But other than that, we dont
dwell on it. If anything, Obama more often than
not bucks up young members of his staff, reminding
them that politics, like life, is full of cycles and they
will someday be able to tell their children that they
were part of something big.

Insulation is a curse of every president, but more

than any president since Jimmy Carter, Obama
comes across as an introvert, someone who finds
extended contact with groups of people outside his
immediate circle to be draining. He can rouse a
stadium of 80,000 people, but that audience is an
impersonal monolith; smaller group settings can be
harder for him. Aides have learned that it can be
good if he has a few moments after a big East Room
event so he can gather his energy again. Unlike
Clinton, who never met a rope line he did not want
to work, Obama does not relish glad-handing.
Thats what he has Vice President Joe Biden for.
When Obama addressed the Business Roundtable
this year, he left after his speech without much
meet-and-greet, leaving his aides frustrated that he
had done himself more harm than good. He is not
much for chitchat. When he and I sat down, he
started our session matter-of-factly: All right, he
said, fire away.

While Clinton made late-night phone calls around

Washington to vent or seek advice, Obama rarely
reaches outside the tight group of advisers like
Emanuel, Axelrod, Rouse, Messina, Plouffe, Gibbs
and Jarrett, as well as a handful of personal friends.
Hes opaque even to us, an aide told me. Except
maybe for a few people in the inner circle, hes a
closed book. In part because of security, just 15
people have his BlackBerry e-mail address. On long
Air Force One flights, he retreats to the conference
room and plays spades for hours, maintaining a
trash-talking contest all the while, with the same
three aides: Reggie Love, his personal assistant;
Marvin Nicholson, his trip director; and Pete Souza,
his White House photographer. (When I asked if he
had an iPad, Obama said, I have an iReggie, who
has my books, my newspapers, my music all in one
place.)

By all accounts, Obama copes with his political

troubles with equanimity. Zen is the word
commonly used in the West Wing. Thats not to say
he never loses his temper. He has been known to
snap at aides when he feels overscheduled. He cuts
off advisers who spout information straight from
briefing papers with a testy Ive already read that.
He does not like it when aides veer out of their
assigned lanes, yet they have learned to show up at
meetings with an opinion, because he zeroes in on
those who stay silent. He was subdued during the
Gulf of Mexico oil spill, when he found himself

Jarrett attributes Obamas equilibrium to his

upbringing. Hes really different, she told me.
Its rooted in his sense of self and how he grew up
with a single mom, living at times on food stamps,
working as a community organizer. As Gibbs put
it: He has a remarkable way of focusing on the big
picture and the longer term. Its not to say that hes
immune from criticism. But he can categorize in his
head the difference between whats a setback,
51

whats a bump along the way and whats just

noise.

Talking with Obama and his aides, its eerie to hear

echoes of Clinton and Bush. Obama says the easy
issues never make it to him, only the hard ones;
Bush often said the same thing. Obama says our war
with terrorists will never end in a surrender
ceremony; Bush often said the same thing. Obama
says he does not want to kick problems down the
road; Bush often said the same thing. In the days
leading up to the 1994 midterm elections, Clinton
mocked Republicans for promising to balance the
budget while cutting taxes, saying, Theyre not
serious. In our conversation, Obama used some
variation of the phrase theyre not serious four
times in referring to Republican budget plans.

There is certainly no shortage of noise. But as

Obama gets back on the campaign trail, aides have
noticed his old spirit again. He particularly enjoys
the so-called backyard sessions on the lawns of
supporters. Thats the happiest Ive seen him in a
long time, an aide said. After one, Obama told the
aide, This reminds me of Iowa on the bus.
Nostalgia for the good old days of the campaign
afflicts any White House in trouble. After all, those
were the romantic moments when all was possible,
when tens of thousands of people would gather in
Grant Park to tear up over the promise of what will
be. But in sober moments, Obama understands how
selective the memories really are. The mythology
has emerged somehow that we ran this flawless
campaign, I never made a mistake, that we were
master communicators, everything worked in lock
step, he told me. And somehow now, as president,
things are messy and they dont always work as
planned and people are mad at us. Thats not how I
look at stuff, because I remember what the
campaign was like. And it was just as messy and
just as difficult. And there were all sorts of
moments when our supporters lost hope, and it
looked like we werent going to win. And were
going through that same period here.

That is not to say the three men are alike; indeed,

they are vastly different. But putting ideology aside,
Obama at times seems to be a cross between his two
predecessors. Like Clinton, he digs into the
intellectual underpinnings of a policy decision,
studying briefing books and seeking a range of
opinions. Some aides express frustration that he can
leave decisions unresolved for too long. But like
Bush, once he has made a decision, Obama rarely
revisits it. And like Bush, he runs a pretty
disciplined operation; he started our interview a
half-hour ahead of schedule, just as Bush sometimes
did. Clinton, on the other hand, still runs on Clinton
Standard Time. Just a few weeks ago, he was more
than six hours late for a scheduled interview with
another journalist. One constant among all three: It
took Clinton and Bush some time to really grow
into the presidency, until they wore it comfortably.

In covering the last three presidents, I have watched

as each has been tested, albeit in very different
circumstances Clintons impeachment over false
testimony under oath about an affair with a White
House intern, Bushs drive to begin a war that
would drag on for years at enormous cost and
Obamas struggle to turn around the worst
economic crisis since the Great Depression. They
are starkly variable crises, but some dynamics are
familiar: presidents who live and die by polls insist
they are not important when they fall; they argue
that they are focused on principle, not politics, when
its almost always a mixture of both; they
acknowledge difficulties but say they will pass; they
portray themselves as courageous when flying
against public opinion; they complain that the news
media distort the situation and fuel division; they
blame their opponents for practicing the politics of
destruction and obstruction.

As Obama looks to the experiences of Clinton and

Reagan, who both rebounded from midterm
debacles to win re-election, the lessons differ. In
Reagans case, the House was already in
Democratic hands, so during his first two years, he
forged coalitions of Republicans and conservative
Democrats. After the opposition was strengthened
in the 1982 elections, that was no longer viable, and
Reagan began working more with Democratic
leaders. Clinton likewise changed course after the
1994 elections, emphasizing more incremental,
piece-by-piece change rather than sweeping
proposals and pursuing goals like welfare reform
and balanced budgets when he could agree with
Newt Gingrichs new majority.

52

Clinton, though, was more instinctively centrist than

Obama is, and his revival owed much to other
factors, particularly his leadership after the
Oklahoma City bombing and his budget standoff
with Gingrich during the partial government
shutdown. Some argue Obama might be better off
with at least one Republican chamber so he too has
a foil as Clinton did. But it is unclear if Obama is as
agile a politician as Reagan or Clinton. Hes no
Bill Clinton when it comes to having the ability to
move and to wiggle, says Joe Gaylord, a top
Gingrich adviser. I find rigidity in Obama that
comes from his life in liberalism. Ken Duberstein
likewise doubts Obamas capacity for adjustment.
Theyre much better at the art of campaigning than
the art of governing, he said.

cooperate with you. You start implementing your

program as you promised during the campaign. The
other party pushes back very hard. It causes a lot of
consternation and drama in Washington. People
who are already cynical and skeptical about
Washington generally look at it and say, This is the
same old mess weve seen before. The presidents
poll numbers drop. And you have to then sort of
wrestle back the confidence of the people as the
programs that youve put in place start bearing
fruit.
To better understand history, and his role in it,
Obama invited a group of presidential scholars to
dinner in May in the living quarters of the White
House. Obama was curious about, among other
things, the Tea Party movement. Were there
precedents for this sort of backlash against the
establishment? What sparked them and how did
they shape American politics? The historians
recalled the Know-Nothings in the 1850s, the
Populists in the 1890s and Father Charles Coughlin
in the 1930s. He listened, the historian H. W.
Brands told me. What he concluded, I dont
know.

Perhaps the more important historical pattern to

consider is this one: The last four presidents who
failed to win a second term were all challenged in
their own party. Lyndon Johnson was driven out of
the race in 1968 after nearly losing the New
Hampshire primary to Eugene McCarthy. Gerald
Ford fended off Reagan in 1976 but went on to lose
the general election to Carter, who likewise had to
beat a primary challenger four years later, Ted
Kennedy, before falling to Reagan. And George H.
W. Bush had to overcome Patrick Buchanan before
losing to Clinton in 1992.

Obamas conclusions are still being formed. He has

learned that Washington is even more broken than
we thought, as one aide put it. He has trusted his
own judgment as he disregarded advisers who told
him to scale back health care at various stages. And
he has found that his vaunted speaking skills are not
enough to change the dynamics of governance.
One of the lessons he has to learn is What is the
best form of communication for him with the
American people, the historian Doris Kearns
Goodwin told me. Hes so good in front of an
audience, and I get the sense that he needs the
energy off the audience. And so speaking to
television cameras doesnt really do that.

So it is a high priority for Obama to prevent any

intraparty fight in 2012, and to date, despite the fire
from the left, no serious challenger appears on the
horizon. Putting Hillary Clinton in the cabinet may
turn out to be one of Obamas smartest moves,
because it not only eliminated her as a would-be
challenger, but it also should presumably squelch
the will-she-or-wont-she speculation that otherwise
would have played out for months. (Instead, the
guessing game has her replacing Biden on the
ticket, however fanciful that might be.)

As we talked in the Oval Office, Obama

acknowledged that the succession of so many costly
initiatives, necessary as they may have been, wore
on the public. That accumulation of numbers on
the TV screen night in and night out in those first
six months I think deeply and legitimately troubled
people, he told me. They started feeling like:
Gosh, here we are tightening our belts, were
cutting out restaurants, were cutting out our gym
membership, in some cases were not buying new

As the first African-American president, Obama is

more aware than most of the limits of looking back.
But he also has read enough presidential
biographies to know he is not the first to encounter
rocky times. History never precisely repeats itself,
Obama told me. But there is a pattern in American
presidencies at least modern presidencies. You
come in with excitement and fanfare. The other
party initially, having been beaten, says it wants to
53

clothes for the kids. And here weve got these folks
in Washington who just seem to be printing money
and spending it like nobodys business.

Melody Barnes, the presidents domestic-policy

adviser, says the biggest problem was that after
eight years of Bush, Obamas supporters were very
eager to change everything right away. The pentup demand across every issue area around
science, around education, around health care,
immigration, you name it there was a lot of
desire to finally get these things done, she told me.
Every segment of the population had something
that was very important to them that they really
wanted to put over the finish line.

And it reinforced the narrative that the

Republicans wanted to promote anyway, which was
Obama is not a different kind of Democrat hes
the same old tax-and-spend liberal Democrat.
Emanuel told me that the cascading crises in
Obamas early days exacted a lasting toll. The
seeds of his political difficulty today were planted
in taking those steps, he said. White House
officials largely agree they should not have let the
health care process drag out while waiting for
Republican support that would never come. Its not
what people felt they sent Barack Obama to
Washington to do, to be legislator in chief, a top
adviser told me. It lent itself to the perception that
he wasnt doing anything on the economy. Plouffe
agreed that guilt by association with Democratic
lawmakers did not help. When you swim in those
waters, youre going to be affected by that, he said.
I do think hes paid a political price, somewhat, for
having to be tied to Congress.

Obama is preaching patience in an impatient age.

One prominent Democratic lawmaker told me
Obamas problem is that he is not insecure he
always believes he is the smartest person in any
room and never feels the sense of panic that makes
a good politician run scared all the time, frenetically
wooing lawmakers, power brokers, adversaries and
voters as if the next election were a week away.
Instead, what you hear Obama aides talking about is
that the system is not on the level. Thats a phrase
commonly used around the West Wing its not
on the level. By that, they mean the Republicans,
the news media, the lobbyists, the whole
Washington culture is not serious about solving
problems. The challenge, as they see it, is how to
rise above a town that can obsess for a week on
whether an obscure Agriculture Department official
in Georgia should have been fired. At the same
time, as Emanuel told me, We have to play the
game.

Still, for all the second-guessing, what you do not

hear in the White House is much questioning of the
basic elements of the program Obama aides,
liberal and moderate alike, reject complaints from
the right that the stimulus did not help the economy
or that health care expands government too much,
as well as complaints from the left that he should
have pushed for a bigger stimulus package or held
out for a public health care option. We asked for
more stimulus than we ended up with, Larry
Summers, the outgoing national economics adviser,
told me. But we fought as hard as we could, and I
believe we got as much as Congress was ever going
to give us at that time.

As Brands, the historian, put it, Itll be really

interesting to see if a president who is thinking long
term can have an impact on a political system that is
almost irredeemably short term in its perspective.
Id rather be a really good one-term president than
a mediocre two-term president. So Obama told
Diane Sawyer of ABC News last January at another
low point, just after the Republican Scott Brown
captured the Massachusetts Senate seat held for
decades by Ted Kennedy, costing Democrats their
filibuster-proof control of the upper chamber and
jeopardizing the presidents health care plan.

And they argue that any mistakes affected things

only at the margins. Theres all this talk in this
town if we had done energy before health care, if
we had focused more on small business, if we had
done an Oval on the economy instead of Iraq, we
would be doing better, Dan Pfeiffer, the
communications director, says. I dont believe that.
We could always do things differently, and there are
plenty of things I wish I had back. But I dont know
theyd change the overall trend.

Its a good line, but its one of those things easier

said in the first or second year of a presidency. By
54

the third, it starts to become an actual choice. Forks

in the road require a president to decide if he will
advance ideas that will genuinely change the
country even if deeply unpopular or if he will opt
instead for a safer route that does not put re-election
at risk. Obama aides like to argue that he has
already demonstrated willingness to put aside
politics by bailing out the banks and automakers,
decisions that he saw as critical to preventing
greater economic catastrophe (and that ultimately
cost taxpayers far less than initially feared).

Obama made Rouse interim chief of staff. Rouse

initially resisted moving into Rahm Emanuels
corner suite until colleagues threatened to move his
files for him. Messina jokes that Rouse will turn off
the Oval Office lights after eight years and before
assuming his new job, running Obamas
presidential library.
Rouse is managing a slow-motion White House
shuffle. By years end, there will be a new chief of
staff, a new national-economics adviser, a new
budget director, a new chairman of the Council of
Economic Advisers and a new national-security
adviser, among others. Axelrod and Messina expect
to leave by spring to set up Obamas re-election
effort, and Plouffe will almost certainly come into
the White House in a senior role.

But would he jeopardize re-election absent an

immediate crisis? The choice may confront him
soon after the midterms when his bipartisan fiscal
commission reports back by Dec. 1 with plans to
tame the national deficit with a politically volatile
menu of unpalatable options, like scaling back
Medicare and Social Security while raising taxes.
Obama also anticipates putting immigration reform,
another divisive issue fraught with political danger,
back on the table. If the question is, Over the next
two years do I take a pass on tough stuff, he told
me, the answer is no.

There are a lot of lessons learned in the last two

years in terms of how we might improve internal
communication, encourage greater accountability
without discouraging individual initiative, said one
aide familiar with the discussions led by Rouse and
Messina. Obama has been aggravated by friction
among his advisers. Hes a little frustrated with the
internal dysfunction, the aide said. He doesnt
like confrontation. But his initial choices to fill
open slots have been drawn largely from his
administration, suggesting more continuity than
change.

Obamas aides say they will most likely set up their

re-election campaign around next March, roughly
the same as when Bush and Clinton incorporated
their incumbent campaign operations. They are
more optimistic about 2012 than they are about
2010, believing the Tea Party will re-elect Barack
Obama by pulling the Republican nominee to the
right. They doubt Sarah Palin will run and figure
Mitt Romney cannot get the Republican nomination
because he enacted his own health care program in
Massachusetts. If they had to guess today, some in
the White House say that Obama will find himself
running against Mike Huckabee, the former
Arkansas governor.

Rouse and Messina see areas for possible bipartisan

agreement, like reauthorizing the nations education
laws to include reform measures favored by
centrists and conservatives, passing long-pending
trade pacts and possibly even producing scaled-back
energy legislation. Youll hear more about exports
and less about public spending, a senior White
House official said. Youll hear more about
initiative and private sector and less about the
Department of Energy. Youll hear more about
government as a financier and less about
government as a hirer.

With that campaign on the horizon, Obama asked

Pete Rouse and Jim Messina to begin thinking about
the next phase of his presidency, not just personnel
but also priorities and message. Never mind that
Rouse was among those who wanted to leave for
years, he has been saying he wanted out of politics
but never says no to Obama. Indeed, when Rouse
told colleagues he wanted to leave the White House
by the end of this year, Messina bet him $400 that
he would not. Well see what happens, Rouse told
me when I asked about the bet last month. Then

Obama expressed optimism to me that he could

make common cause with Republicans after the
midterm elections. It may be that regardless of
what happens after this election, they feel more
responsible, he said, either because they didnt do
as well as they anticipated, and so the strategy of
just saying no to everything and sitting on the
55

sidelines and throwing bombs didnt work for them,

or they did reasonably well, in which case the
American people are going to be looking to them to
offer serious proposals and work with me in a
serious way.

But what sort of agenda? Not as sweeping and not

as provocative, say some advisers. It will have to
be limited and focused on the things that are
achievable and high priorities for the American
people, Dick Durbin told me. Tom Daschle said
Obama would have to reach out to adversaries.
The lessons of the last two years are going to be
critical, he told me. The key word is inclusion.
Hes got to find ways to be inclusive.

I asked if there were any Republicans he trusted

enough to work with on economic issues. The first
name he came up with was Senator Judd Gregg of
New Hampshire, who initially agreed to serve as
Obamas commerce secretary before changing his
mind. But Gregg is retiring. The only other
Republican named by Obama was Paul Ryan, the
Wisconsin congressman who has put together a
detailed if politically problematic blueprint for
reducing federal spending. The two men are
ideologically poles apart, but perhaps Obama sees a
bit of himself in a young, substantive policy thinker.

Rendell thinks otherwise. Dont care so much

about bipartisanship if the Republicans continue to
refuse to cooperate, he advised. Do what you
have to do. Fight back. At the same time, he said,
stop moaning about what he inherited: After the
election, Id say no more pointing back, no more
blaming the Bush administration. Its O.K. to do
that during the campaign and then stop. But to do it
as much as we do it, it sounds like a broken record.
And after two years, you own it.

Even if such an alliance emerges, though, the next

two years will be mostly about cementing what
Obama did in his first two years and defending it
against challenges in Congress and the courts.
Even if I had the exact same Congress, even if we
dont lose a seat in the Senate and we dont lose a
seat in the House, I think the rhythms of the next
two years would inevitably be different from the
rhythms of the first two years, Obama told me.
Theres going to be a lot of work in this
administration just doing things right and making
sure that new laws are stood up in the ways theyre
intended.

Obama will own it for another two years, or six if

he can find his way forward. As an author, Obama
appreciates the rhythms of a tumultuous story. But
who is the protagonist, really? At bottom, this
president is still a mystery to many Americans.
During the campaign, he sold himself or the idea
of himself more than any particular policy, and
voters filled in the lines as they chose. He was, as
he said at the time, the ultimate Rorschach test.
Now the lines are being filled in further. With each
choice Obama makes, he further defines himself for
better or worse in Americans minds. He says he
knows where he is going and is gathering
momentum despite the hurdles ahead. As he told a
group of visitors during the week last spring that
Congress passed health care and his administration
reached agreement on an arms-control treaty with
Russia, I start slow, but I finish strong.

As a senior adviser put it, Theres going to be very

little incentive for big things over the next two years
unless theres some sort of crisis. Yet Obama and
his aides still scorn Bill Clintons small-bore
approach. Its fair to assume youre not going to
see school uniforms play a big role in the next two
years, Plouffe told me. His view is you cant
spend two years playing four-corners. Before he
left, Emanuel told me: Im not of the view that you
do nothing. I think youve got to have an agenda.

He will have to, if the history he is writing is to turn

out the way he prefers.

Peter Baker is a White House correspondent for The Times and a contributing writer for the magazine.

56

Is the Imperial Presidency Inevitable?

HARVEY MANSFIELD
New York Times
March 11, 2011
In The Executive Unbound, Eric A. Posner and Adrian Vermeule, law professors at Chicago and Harvard,
respectively, offer with somewhat alarming confidence the Weimar and Nazi jurist Carl Schmitt as their
candidate to succeed James Madison for the honor of theorist of the Constitution.
James Madison until now the father of the
Constitution a theorist of rights, the social
contract and consent of the governed, is to cede his
place to a man who when confronted with the choice
between liberal democracy, Communism and
Nazism, chose the last. Lets see what our authors
say on behalf of this remarkable substitution.

THE EXECUTIVE UNBOUND

After the Madisonian Republic
Eric A. Posner and Adrian Vermeule
249 pp. Oxford University Press. $29.95.

Madison, taken as spokesman for all the founders, provides, they argue, the basis for liberal legalism, the
view that the rule of law can be sustained by the separation of executive, legislative and judicial powers. This,
Posner and Vermeule say, is legalism because Madison supposes that the formal separation of the three powers
in the Constitution can of itself prevent the tyranny of one of them. True, Madison himself, in Federalist No. 48,
disparaged mere formal limitations with his famous phrase parchment barriers, declaring that strong words on
fancy paper will have no power to deter tyranny and support the rule of law. But neither do the Constitutions
words, the authors respond. They see little difference between mere words of exhortation demanding good
behavior and words backed up by separate powers in the Constitution that are intended to prevent one power
from acting alone.
According to Posner and Vermeule, we now live under an administrative state providing welfare and national
security through a gradual accretion of power in executive agencies to the point of dominance. This has
happened regardless of the separation of powers. The Constitution, they insist, no longer corresponds to
reality. Congress has assumed a secondary role to the executive, and the Supreme Court is a marginal
player. In all constitutional showdowns, as they put it, the powers that make and judge law have to defer to
the power that administers the law.
Carl Schmitt enters as the one who best understood the inevitability of unchecked executive power in the
modern administrative state. He saw that law, which always looks to the past, had lost out to the executive
decree, which looks to resolve present crises and ignores or circumvents legal constraints.
But as Posner and Vermeule develop their argument, Schmitt fades away, and is replaced by an incongruous
reliance on the rational actors of game theory. The two authors mean to show that although the formal
separation of powers no longer has effect, the president as a rational actor is still constrained through public
opinion and politics; even a strong executive needs to appear bipartisan and to worry about popularity ratings.
So there is no solid reason to fear executive tyranny, and we should feel free to enjoy the benefits of the
administrative state.
Posner and Vermeule rest their argument on necessity, on what could not be otherwise. History and social
science, they say, prove that under modern conditions the administrative state is the only way for the nation to
meet the challenges it faces. But their analysis also shows that informal checks remain necessary: the
calculations and political maneuvering presidents engage in to retain their credibility replace the formal checks
Madison described. Thus the Constitution is false but works anyway.
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But what about those benighted people the Tea Partiers, for example who oppose the administrative state,
who believe that the cost of increased executive power may lead to crises brought on by defaulted debt? And is
not the administrative state of the New Deal and its successors a fairly recent event, hardly inevitable but
chosen by the American people? Once chosen, it is hard to change, but is change impossible? Is it not arguable
that over time the administrative state, with its inexorable expansion, makes itself unfeasible because of the
costs it incurs and the opposition it engenders?
To judge this book, let us return to the Madisonian Constitution, which has one central feature not discussed or
even mentioned by Posner and Vermeule. For Madison, the main danger addressed by the Constitution is not
executive tyranny but majority tyranny. Any government has to worry most about the abuse of power by those
with whom power is placed and in a republic, that is the people. Madisons fear, stated very prominently in
Federalist No. 10, is about majority faction, not usurpation by a minority or a single executive. He and
Alexander Hamilton wanted a strong executive that would show its strength by standing up to the people,
avoiding (in the phrase of Federalist No. 71) servile pliancy to their random wishes. For them, the sort of
executive we today consider strong, in the image of Andrew Jackson and Franklin Roosevelt, is actually weak
because it excites and furthers the majoritys possibly tyrannical desires.
In fact, the people today both love and hate the administrative state, and together our two parties register that
ambivalence. With regard to welfare, Democrats are for it, Republicans against it; with regard to national
security, the situation is reversed. We do have two recent examples of presidents who have stood up against
majority opinion: George W. Bush with his surge in Iraq and Barack Obama with his health care plan. But
Posner and Vermeule would say, with reason, that both the surge and the health care plan extended the
administrative state. For them, democracy consists in giving the people what they want, and the test of a good
president is his credibility with the majority, not his responsibility to the law or the Constitution.
Madison, be it noted, was one of the first to define responsibility in a republic as the virtue of officers of
government toward the people. But Posner and Vermeule have no room for this kind of virtue in their model, no
room for human responsibility. They assume that politicians, obeying the tenets of game theory, automatically
follow the cues of public opinion, and for that reason their thinking is actually much more mechanistic than
Madisons.
My advice to the authors is, first, to toss out Schmitt from their construction; they dont really believe (or know)
him. Then they should reconsider whether formal institutions like the separation of powers in the Constitution
are as insignificant as they say. True, the president manages his news conference to sustain his credibility, but
reporters come to it because he is the president, not because he is a rational actor.
Posner and Vermeule belong to the school of legal realism, now dominant in law schools, which believes the
law is always the consequence of some power greater than the law, in their case the rational calculation of
benefit and cost. Like most economists, they can see no reason for resisting such calculations.
Yet Posner and Vermeule still claim to hold to the rule of law. They do not object to being called professors of
law. Students listen to them and readers buy their books because they teach the law, not because they are
professors of executive domination, servants of the administrative state. It seems that the rule of law cannot be
sustained without the formality and the majesty of a system of law that people -respect.

Harvey Mansfield is a professor of government at Harvard and a senior fellow at the Hoover Institution at
Stanford.

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Targets; Knowledge Points; Objectives

5. The PRESIDENCY

TKO

Cannon Chapters 6 and 11

To Know Objectives

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Describe the relationship between public officials and the media.

Define yellow journalism and muckraking.
Identify the role played by the Federal Communications Commission (FCC).
Assess the Fairness Doctrine.
Identify and state the significance of the Freedom of Information Act (FOIA).
Articulate the progression of the electronic media since its origins in radio through television and eventually to the
internet, as well as why this led to a decline in party loyalties.
Define horse race journalism.
Explain the media roles of watchdog, gatekeeper, and scorekeeper.
Explain the role of the 1st Amendment in relation to the media. Define prior restraint.
Articulate the Supreme Court decision in the Pentagon Papers case.
Define libel and slander.
Identify the political ideology of the majority of the news media.
Explain why news leaks occur often.
Describe the weapons that the government uses to constrain journalists. What are shield laws?
Identify the key roles of the White House Staff and explain why the President chooses the people that he does.
Explain the functions of the presidential veto, as well as why the line-item veto was ruled unconstitutional for presidents.
Discuss the influence of the media on public opinion.
Describe the ways that the President influences Congress to pass legislation.
Explain why the Congress looks to the President for leadership in the area of foreign policy.
Differentiate between an executive order and an executive agreement. Why have they been used more?
Define divided government, as well as explain its potential consequences.
Describe how a presidential candidate chooses a vice-presidential running mate.
Explain the ways that the President can influence the federal judiciary.
Assess both the formal and informal presidential powers. Explain why presidential power has increased.
Summarize the impeachment process.
Identify and state the significance of the War Powers Act of 1973.
Identify the federal offices that require advice and consent of the Senate. Identify the powers that the President shares
with the Senate.
Define executive order and explain why their use has increased.
Define executive privilege.
What is meant by an institutionalized presidency?
Define the rule of propinquity.
Assess the roles of the Cabinet and the heads of these executive departments.
Explain why the President has relatively little power over his cabinet.
Who makes up the Executive Office and the White House Office? What makes them so powerful?
Identify and state the significance of the presidents bully pulpit.
What is the significance of a presidential signing statement?
Define presidential coattails.
Summarize the trends of presidential popularity throughout presidencies.
Identify and state the significance of the court case U.S. v. Nixon (1974).
Identify and state the significance of the Budget and Impoundment Act (1974).
Describe the role of the Vice-President.
Articulate the concept of presidential succession.

The following Illinois SEL goals will govern our classroom:

1.
2.
3.

Develop self-awareness and self-management skills to achieve school and life success.
Use social-awareness and interpersonal skills to establish and maintain positive relationships.
Demonstrate decision-making skills and responsible behaviors in personal, school, and community contexts.

Additionally the following values will be nurtured in all citizens entering this academic arena:
Self Discipline; Compassion; Responsibility; Friendship; Work; Courage; Perseverance; Honesty; Loyalty; Faith

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