Fall 2023 • Reading Group
Exam Type: No Exam
This is the second itertation of this course and will reflect some lessons learned from last year. Its origin is the contemporary polarization within American politics and the widespread view that compromise with one’s political opponents is something to be avoided if at all possible. Yet is is a basic reality of politics that compromise is often necessary if anything is to be accomplished. How, if at all, do we decide when accommodations are preferable to hard-and-fast adherence to principle. The course with therefore begin with your reading a book by Israeli philoospher Avishai Margalit, ON COMPROMISE AND ROTTEN COMPROMISES (Princeton University Press). The next three classes will in effect consider the realities of the most important compromise made in the formation of the United States Constituiton, i.e., that regarding slavery. 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). Douglass in a way will be a brooding omnipresence in the course, for we will also read him, and other leading African-American thinkers at the time, about modes of resisting slavery, including his encomium to John Brown.
The War formally ends, of course, but that simply sets up the problem of “reconstruction” and what it means. What are, for example, the implications of Lincoln’s Second Inaugural and its call for “Malice toward none and Charity for all.” Does that, for example, vindicate the decision not to try Jefferson Davis for treason and the pardon issued by President Andrew Johnson for Davis and thousands of other former Confederates? We will, during that class, also consider an essay on the policy of “unconditional surrender” adopted during World War II, as well as the Russian-Ukranian War that may or may not still be continuing come the fall. In any event, we can discuss whether it will or did end through compromises, perhaps even rotten ones.
We will then take a sharp turn in our fifth class to consider the compromises that practicing lawyers make when deciding to represent clients and present certain arguments. In particular we will read a striking essay by legal philosopher David Luban about two German lawyers during the Nazi period for any insights they might offer about the complex notion of “professional responsibility.” In our final class, we will 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. There will be no exam or extensive writing requirement, though each student will 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.
Note: This reading group will meet on the following dates: TBD.