Prerequisite: None

Exam Type: No Exam

Our reading course on “Compromise” is brand new, so this description is necessarily tentative with regard to specific assignments. What sparks my desire to offer the course is the seeming hostility in contemporary American society to the idea of compromise and the insistence instead that people stand firmly behind given principles or goals come what may. Politics almost always requires compromise, though, at the same time, we certainly admire people who in given contexts were unwilling to compromise and, from our perspective, helped to push society forward. So the first meeting of the course will focus on the basic notions of compromise and steadfastness to principle. One possibility is reading a book by the Israeli philosopher Avishai Margalit, On Compromise and Rotten Compromises (Princeton University Press), though I may simply ask you instead to read a couple of pieces of my own which are in fact indebted to Margalit’s discussion. We will then certainly look at what is surely the most important example of compromise in American constitutional history, concerning slavery. We will also look at what is often labeled “the Great Compromise,” by which each state got an equal vote in the Senate. The latter is often capitalized, the former never, but both were viewed by those who acquiesced in them as what we might call “necessary and proper” in order to get agreement on the Constitution in the first place. So we will read some of the debates at the Philadelphia Convention and elsewhere (including The Federalist, about the felt necessity to accept what was recognized at the time as repulsive. We will also definitely read two classic speeches, one by Abraham Lincoln (the “Peoria Address”), the other by Daniel Webster (the “Seventh of March Speech”), both of which address the aptly named Missouri Compromise and the Compromise of 1850. The key question is why, if those two compromises are acceptable, Lincoln rejected the Kansas-Nebraska Act of 1854 and other proposals to extend slavery into the territory even at the price of risking the Civil War that of course came. We will also probably read Lincoln’s First Inaugural Address as well as Frederick Douglass’s critique of that address, as well as some other materials by both Lincoln and Douglass about the aims of the War (i.e., to “restore” the Union or to eradicate slavery).

We will probably then turn to considering the role that compromise might play for the Supreme Court itself, along two quite different dimensions. The first, perhaps typified by Marbury v. Madison itself, involves the Court stepping back from a confrontation that might prove institutionally damaging. Alexander Bickel wrote about the “passive virtues,” which, to some extent, offered a laundry list of methods by which the Court could evade deciding certain hot-potato cases on the merits. (Gerald Gunther notably said of Bickel that he wanted the Court to be 100% principled 20% of the time, and that for Bickel it was basically a political, rather than a “legal,” decision as to when the Court would in fact take a case and decide it on the merits.) One might want to put Brown II, where the Court determined that desegregation should take place “at all deliberate speed” in this category as well. But a second judicial reality is what might be termed “internal compromise” among the justices, where opinion-drafters write, or other justices sign, opinions that from their own perspectives contain some real flaws, in order to gain necessary votes (for the opinion writer) or, in effect, to be “good sports” if one is asked to sign an opinion about which one has strong reservations and, especially, not to dissent. Ronald Dworkin famously based his jurisprudential theories around a mythical lone judge, “Hercules,” whose task was to discern the “right answer” to any legal conundrum and, presumably, to enunciate that answer for all of us to be guided by. He never addressed the phenomenon of a multi-member court and what Hercules should do other than write solo opinions.

We will, of course, have only twelve hours together, over six meetings. I am tempted look at presidential pardons or amnesties as presenting, at least on occasion, a classic conflict between seeking justice, including punishment, and, instead, doing what is thought best to achieve some kind of social concord. Did, for example, Lincoln’s call in the Second Inaugural for “malice toward none and charity toward all” imply that Jefferson Davis and Robert E. Lee ought not be tried for treason (even assuming, which is not self-evidence, that they committed treason?) and, indeed, should be pardoned? One can also look at the decision by the African National Congress to accept a Truth and Reconciliation Commission in lieu of punishing the perpetrators of the apartheid policy in South Africa as a notable instance of compromise. Finally, if there is time, we might also look at whether certain political structures encourage or inhibit the possibility of compromises. Consider in this context certain voting rules, including “ranked-choice voting” as an alternative to “first-past-the post” or the use of party primaries to select candidates. This is the topic of a recent book by Sarah E. Anderson, Daniel Butler, and Laurel Harbridge-Yong, Rejecting Compromise: Legislators’ Fear of Primary Voters.

There will, of course, be no exam or extensive writing requirement. Each student will, however, be asked/required to write a single response paper, of approximately 600-750 words, on the readings assigned during a given week (of the student’s choice). One of the purposes of these response papers is to enable the members of the class to set the agenda for our class discussion rather than my simply doing that week after week. I am also hopeful that circumstances will once again allow us to meet for a dinner at the conclusion of the final class.

Note: This reading group will meet on the following dates: 9/7, 9/21, 9/28, 10/19, 11/2, 11/16