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FramedAmerica's 51 Constitutions and the Crisis of Governance$

Sanford Levinson

Print publication date: 2012

Print ISBN-13: 9780199890750

Published to Oxford Scholarship Online: April 2015

DOI: 10.1093/acprof:osobl/9780199890750.001.0001

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Of Compromises and Constitutions

Of Compromises and Constitutions

Chapter:
(p.33) 2 Of Compromises and Constitutions
Source:
Framed
Author(s):

Sanford Levinson

Publisher:
Oxford University Press
DOI:10.1093/acprof:osobl/9780199890750.003.0002

Abstract and Keywords

This chapter examines the U.S. Constitution and the compromises that were almost certainly necessary to achieve it, including what may be described as “selling out” the (legitimate) interests of one group in order to achieve the greater goal of establishing a constitutional order. It first considers the views of John Rawls about concessions that accompany constitutions and sometimes include waiving what one might consider fundamental norms of justice. It then discusses two central issues that generated the most famous and enduring “great compromises” during the Philadelphia Convention that made the U.S. Constitution a political possibility: political representation and slavery. It also looks at Congress as a forum for compromises about representation.

Keywords:   compromises, U.S. Constitution, constitutional order, John Rawls, concessions, justice, Philadelphia Convention, political representation, slavery, Congress

The Philadelphia Convention—like all other constitutional conclaves—teaches a variety of lessons about constitutional formation. One is that there is a basic decision involved between continuing with some existing set of “rules laid down” or choosing instead what one thinks best for the social order, even if the latter requires significant transformations from the status quo. This, to a great extent, involves a discussion of legal rules, such as those established by the Articles of Confederation, which are discussed extensively in Chapter 16. But there are other rules, including moral rules (or norms), that are inevitably a part of any discussion of what constitutions should say. But do these moral norms have absolute priority when designing constitutions? “Free constitutions,” James Madison once wrote, “will rarely if ever be formed without reciprocal concessions.”1

Do such concessions sometimes include waiving what one might consider, for very good reason, fundamental norms of justice? Ideally, we hope that the answer would be a resounding no. This answer would be offered by anyone influenced by John Rawls, the dominant American political philosopher since World War II. Rawls's A Theory of Justice (1971) used as its central conceit the notion of deriving basic norms of politics behind a “veil of ignorance” that limited one to having almost no knowledge of his or her own concrete social reality (including, for that matter, gender identity). Rawls argued that under such circumstances—especially if additional assumptions about risk aversion are held—rational decisionmakers would almost automatically choose (so long as they remained “rational”) what all of us would readily accept as the basic norms of justice and “fairness.” Since one would not know what one's identity (in terms of race, gender, religion, economic resources, etc.) would be when the veil was lifted, one would (p.34) make sure that everyone was guaranteed certain basic rights and liberties. It is not my intention to offer any further analysis of the Rawlsian argument; many bookshelves could be filled with both critiques and defenses of Rawls's positions. Rather, there is simply no reason to believe that the U.S. Constitution, or any other constitution in the history of the world, was drafted under Rawlsian conditions of fundamental ignorance of one's own situation and the linked inability to predict whether one would be the beneficiary or loser under any particular proposed constitutional settlement. Constitutions are always drafted in what might be called “real time” by people who have a very strong knowledge of the groups with which they identify. Not surprisingly, they are primarily concerned with protecting the perceived interests of those groups. This is to say only that constitutions are the products of political struggle and invariably respond to what might be termed “facts on the ground.” The desire to actually achieve a constitutional settlement thus may require a willingness to compromise one's basic convictions, including what may be described—especially by critics—as “selling out” the (legitimate) interests of one group in order to achieve the greater goal of establishing a constitutional order.

To be sure, I suggested in the last chapter that readers detach themselves from the immediate political moment by contemplating the powers they would wish (or at least be willing) to grant the (unknown and unpredictable) president who will be elected in 2016 (or 2020) and inaugurated in 2017 (or 2021). This invitation gestures to Rawls; by adopting a longer time horizon, we can tame some of the partisan passions almost necessarily present if we focus on known political leaders or groups. The question facing anyone grappling with issues of constitutional design is whether people can successfully lift their eyes from present actualities and take a longer-term perspective. Still, even if able to do that, one would inevitably be required to decide among conflicting values and therefore discern what kinds of compromise one would be willing to make.

I. Concrete Struggles (and compromises) in Philadelphia

The delegates who did come to Philadelphia were hardly agreed on many basic issues. Consider only the two central issues that generated the most (p.35) famous and enduring “great compromises” that made the Constitution a political possibility: political representation and slavery.

A. The basis of representation

1. The Senate

Representation is obviously a major issue facing any constitutional designer. Any decisions reflect debatable resolutions to profound questions of political theory. But those decisions inevitably have real consequences for the various interests—each eager to maximize its own power—contending in the here and now over the shape of a new government. But for now we focus on the issue that admirers of the Convention call the Great Compromise: the resolution of the deep conflict between large and small states over representation in the Senate. By definition, proportional representation based on population favors large states; equal representation, small states. The Great Compromise was to have one house committed to each principle. The House of Representatives would rest on proportional representation, while the Senate would be organized around the equal representation of states. This meant that Delaware, which was the smallest state (population of about 59,000 in the 1790 census), would have the same number of senators as Virginia, the largest state (population of 691,000, if one included its slaves). Indeed, the delegates from Delaware had been instructed—apparently at the behest of John Dickinson, one of the delegates—by the legislature that picked them to walk out of the Convention if the principle of equal representation was not adopted. In the late eighteenth century, the population ratio of Virginia to Delaware was approximately 11.5:1; today, the comparable ratio is that of California to Wyoming, approximately 70:1.

Madison, a Virginian, was appalled by equal representation of states and was determined to reject the idea. But he was ultimately persuaded to accept it. The reason was not that he changed his mind about its merits in some abstract sense; rather, he accepted as credible the threat by Delaware and its allies to simply walk out of the Convention, torpedoing the whole project of constitutional revision. (Perhaps it was also relevant that the small states outnumbered the large ones and that the voting rule (p.36) in Philadelphia was by state, not by individual delegates.) If one believed, as did Madison and many other delegates to the Philadelphia Convention, that the United States would not long survive under what they viewed as a thoroughly inadequate Articles of Confederation, failure to achieve a new constitution would doom the Union. Thus came about the Great Compromise, by which the Constitution became a genuine possibility and the Union was preserved.

2. The House of Representatives

But the Senate was not the only forum for compromises about representation. The House represents states on the basis of their population. This may seem a simple enough notion, until one addresses the all-important question: how, precisely, would the delegates define the population that to be “represented”? Recall the comparison offered above between Virginia's and Delaware's populations. As a matter of fact, Delaware was also a slave state, as were most states in 1787. A 1783 case decided in Massachusetts did suggest that slavery was no longer legitimate in that state, so perhaps we can say that the approximately 379,000 persons counted in the 1790 census from that state were all “free.” New Hampshire, with its population of 96,540 in 1790, was also “free,” inasmuch as slavery had seemingly been legally and morally delegitimated there as well. But slavery did not end in New York until 1827,2 which means that the population recorded in at least the first four censuses included both free persons and slaves.

The central question was whether the basis of representation in the House would rest only on the free population or on the entire population instead. Note that this differs significantly from arguing that representation should be based either on the number of people entitled to vote or the actual voters. We are referring to the most elemental distinction between free (even if subordinated) persons, such as women and children on the one hand, and slaves on the other. The decision was to adopt the Three-Fifths Compromise, whereby the representation base was computed by adding the number of all free persons and three-fifths of the slaves. Thus, 100 free persons and 100 slaves would compute as a total of 160 persons. If the representation were based only on free persons, then there would be (p.37) no “bonus” for slave states. Whatever one thinks of the three-fifths rule, it had nothing to do with slaveholders believing that their slaves were only three-fifths human. The slave states would have been utterly delighted to count each slave as a whole person, so long as no right to vote was attached to that status. It was the anti-slave states that insisted on slaves counting as only three-fifths of free persons, and that was indeed a compromise from their preferred outcome that slaves not count at all in computing the basis for representation. And, after all, why should they count? There was no plausible argument that those entitled to vote in a slave state would take the interests of slaves into account, though there were arguments made at the time about women being “virtually represented” by their husbands, fathers, or brothers. (One need not agree with such arguments with regard to the wives, children, or sisters. However, it was widely thought at the time to be a good argument, whereas no one made similar virtual representation arguments that required masters to identify with their slaves and thus take their interests into account.)

So the outcome in Philadelphia was that slave states got an enormous bonus with regard to the number of representatives they would be electing. And this bonus scarcely stopped at the entrance to the House of Representatives. Given that the president was elected via the electoral college, in which the vote allotted each state was the total of its number of representatives and its two senatorial votes, slave states also gained additional power to select our chief executive. This might help to explain why seven of the first nine presidents were slave owners—the two exceptions being the Massachusetts presidents, John Adams and his son John Quincy Adams, each of whom served only one unsuccessful term. John Adams, however, would have been reelected in 1800 had it not been for the slavery bonus that gave Thomas Jefferson the advantage. Moreover, John Quincy Adams was elected by the House of Representatives, given that none of the candidates received a majority of the electoral votes. (The House votes by state, with each state delegation having one vote, so Adams had to concern himself only with gaining a majority of the states in the House rather than a majority of the actual representatives.)

The three-fifths rule affects not only the House and the presidency; inasmuch as it is presidents who nominate members for the Supreme Court, it also helps to explain why the Supreme Court was consistently (p.38) pro-slavery until 1861. So, the three-fifths rule takes us fully into the belly of the beast, in other words, the quite literally “compromised” nature of the original Constitution and the utter inapplicability of any “veil of ignorance” notion associated with Rawls's ideal political process.

B. Collaborating with slavery

Hard-wired structures versus parchment barriers

Thus, the second great compromise—and one may believe that it was more important to the nature of the American Union than the makeup of the Senate—involved slavery. Three important aspects of that compromise were found in the Constitution: (1) the fugitive slave clause, (2) the protection of the international slave trade until 1808, and (3) the three-fifths clause.

It's worth taking a few moments to distinguish among these three aspects of the Constitution. The first one, the fugitive slave clause by which states promised to return any slaves who had “unlawfully” escaped from a slave state, might be described, in the dismissive words used by James Madison in the forty-eighth Federalist, as a “parchment barrier.” That is, the text of the Constitution did not include a mechanism of enforcement; nor, as is well known, did it even use the words slave or slavery. Slave states had to rely on the good faith of other states, some of which were already quite dubious about the legitimacy of slavery. Yet one had to believe that these latter states would readily comply with the implicit promise to return fugitive slaves (and not only indentured servants who decided to renege on their contractual commitment to work for a certain number of years before becoming a full-scale member of the free labor force).

To be sure, Congress passed the Fugitive Slave Law in 1793 that provided some teeth to the guarantee. However, there were no guarantees in 1787 that Congress would in fact pass such a law; nor is it absolutely clear—from a reading of the grant of powers to Congress in Article One, Section 8 of the Constitution—that such a law would necessarily be constitutional. (As a matter of fact, the Supreme Court, in an 1842 opinion by Justice Joseph Story of Massachusetts, did uphold the Fugitive Slave (p.39) Law as within Congress's power, largely on the grounds that any other conclusion would imperil the Union—as might well have been the case.) Moreover, there was the felt need in 1850 to pass a new Fugitive Slave Act, as part of the so-called Compromise of 1850, inasmuch as the mechanisms established in 1793 were scarcely thought sufficient to protect slaveowners as fully as they desired. Abraham Lincoln, for all of his resolute anti-slavery beliefs, defended the 1850 Act as part of carrying out the bargain with slaveowners living in states that recognized the legitimacy of slavery. The 1850 Act was generated by the fact that American politics in the 1840s and thereafter amply demonstrated that many of the residents of non-slave states—and state leaders responsive to these residents—were not at all eager to comply with their ostensible duties to return alleged fugitives.

The protection of the international slave trade for twenty years took a somewhat different form; it was presented as an absolute limitation on the powers that Congress had been assigned in Article I, Section 8. One might well think, for example, that Congress's power to regulate interstate and international commerce easily reached to prohibition of the slave trade. Maybe yes, maybe no. The real point is that it didn't matter. The international slave trade was given an embedded status for two decades (at which time Congress in fact prohibited American participation in the international slave trade). But what if Congress had jumped the gun by passing a prohibitory law in, say, 1802? One might easily enough say that it would have been unconstitutional for Congress to do so, but who, precisely, would get to say? Perhaps the president, arguably under a constitutional duty to veto any such legislation, whatever his own beliefs about slavery. But one can also imagine that someone involved in the international slave trade would have run to the nearest court, claiming that Congress had no authority to stop the trade prior to 1808. This involves the question, among other things, of judicial review, which will be the subject of later discussion.

A gigantic leap of faith might not have been necessary in 1787 with regard to protection of the international slave trade at least until 1808, compared with the somewhat vaguer promises contained in the fugitive slave clause, but there was still no self-enforcing mechanism for the bargain struck in Philadelphia. One had to trust Congress not to pass a statute (p.40) abolishing the trade, or trust the president to veto such a statute, or trust the judiciary to invalidate any such act that was, perhaps, passed over a presidential veto.

It was entirely different, though, with regard to the three-fifths clause. All one had to do was count the population in the constitutionally mandated census—an important part of the Constitution, incidentally—and then multiply the number of slaves by three-fifths to get the total population by which representation would be calculated. To return to a central theme of this book, it provides nothing about which to have a conversation as to constitutional meaning; there is only a settled rule, the violation of which—by, say, the concerted refusal of a majority of free state representatives to seat the “extra” representatives sent by slave states—would trigger a basic collapse of the polity and, perhaps, civil war.

III. Reflections On Compromise

It is worth taking some time to reflect on some of the broader problems presented by the notion of “compromise.” Is a willingness to compromise necessarily a virtue, or does it sometimes raise the most troublesome of questions? One view was well expressed by Edmund Burke in 1775, in his great speech criticizing the policies of King George III and his ministers vis-à-vis the American colonies, which he gave just weeks before the outbreak of revolutionary violence at Concord and Lexington and more than a year before the American Declaration of Independence. “All government—indeed every human benefit and enjoyment, every virtue and every prudent act—is founded on compromise and barter.”3 Madison's emphasis on the necessity of “reciprocal concessions” in order to form “free constitutions” can be viewed as supportive of Burke's insight.

These eighteenth-century insights are certainly not absent from our present understanding of politics. A basic textbook written by the late political scientist Clinton Rossiter began: “No America without democracy, no democracy without politics, no parties without compromise and moderation.”4 More recently, an anguished 2011 article by former Representative Mickey Edwards decrying the partisanship of contemporary (p.41) American politics notes that the very absence of a “consensus” in our 300-million-person polity makes it even more necessary to recognize that “compromise is the key ingredient in legislative decisionmaking.”5

Especially illuminating in this regard is a remarkable book, Constitution by Consensus, written in the aftermath of over two years of intense meetings and debates among a group of diverse Israelis about what form a written constitution for that country might take. The group was not so diverse as it might have been; it included no Israeli Arabs, for example. But it certainly drew from both the secular and sectarian Jewish communities, as well as from strong nationalists and more cosmopolitan liberals. The first section of the book is a group of essays titled “I Believe,” in which the participants write quite candidly of their mixed feelings regarding their common enterprise. The chair of the group, Arye Carmon, refers to “compromise as an integral element” of resolving the “existential need in Israel now.”6 Not surprisingly, the word compromise reappears often in the various statements and in a final collective statement acknowledging that necessary “compromises and concessions will be painful” in order to achieve the goal.7 There is, however, no guarantee that compromises—because they are painful—will in fact take place. There is only the expression of a strong belief that a failure to compromise may be fatal to the future of the Israeli project, however defined.

There was nothing at all inevitable about the secession of the American colonies from the British Empire. A willingness on the part of King George III and Lord North to compromise and barter, or to adopt more moderate policies, might have fundamentally transformed subsequent world history. The events of 1775–1783 exemplify what can happen when an obtuse officialdom refuses to compromise and instead stands on ostensible principle, in this case, the continued sovereign authority of the British Parliament over its colonies.

Similarly, one can view the events of 1787–1790 as equal exemplars of the importance (and presumptive goods) attached to a willingness to compromise. There simply would never have been a Constitution without the two especially important compromises involving slavery and the Senate. But the addition of the Bill of Rights itself can be viewed more as a compromise by supporters of the Constitution (like Madison) than as a reflection of any deep conviction that the addition of so many “parchment (p.42) barriers”—likely to make little difference to the actual governance of the new political system—would truly enhance the Constitution. (As a matter of fact, the Bill of Rights was almost entirely irrelevant to the American constitutional order until well into the twentieth century.)

Moreover, consider an all-important 1790 dinner arranged by Thomas Jefferson, motivated, as he later wrote, by his belief “that reasonable men, consulting together coolly, could [not] fail, by some mutual sacrifices of opinion, to form a compromise which was to save the union.”8 The Compromise of 1790, as Stanford historian Jack Rakove labels it, accomplished this goal by trading Jefferson's support for national assumption of states' war debts—a windfall for financial speculators—in return for Hamilton's support for establishing the new nation's capital along the Potomac River in what would of course come to be called Washington, D.C.

One can fast-forward to the aftermath of the shellacking taken by Democrats in the 2010 midterm elections, when President Obama negotiated a compromise with Senate Republicans that, among other things, extended all the Bush-era tax cuts for two years. Castigated by many members of his own party, the president answered them at a news conference, noting that the United States is

a big, diverse country and people have a lot of complicated positions[;] it means that in order to get stuff done, we're going to compromise … This country was founded on compromise. I couldn't go through the front door at this country's founding. And if we were really thinking about ideal positions, we wouldn't have a union.9

So is this a set of stories designed to vindicate Burke and underscore the necessity of compromise and, concomitantly, to scoff at those stiff-necked persons resistant to compromise? Is everything subject to compromise, or are there circumstances when one expects people to draw lines in the name of presumed absolutes? Should we understand President Obama to in effect praise those anti-slavery delegates who accepted the various compromises on slavery (which had the consequence of entrenching the oppression of his wife Michelle's ancestors) lest they risk the dissolution of the Union?

(p.43) Return to Israel—one of the few countries in the modern without a formal written constitution—and consider the following statement made by a member of the Israeli Knesset in 1948 during the debate over whether the new country should adopt a written constitution:

I would like to warn: the experience of drafting a constitution would necessarily entail a severe, vigorous uncompromising war of opinions. A war of spirit, which is defined by the gruesome concept of Kulturkampf … Is this a convenient time for a thorough and penetrating examination of our essence and purpose? It is clear that there is no room for any compromises, any concessions or mutual agreements, since no man can compromise and concede on issues upon which his belief and soul depend.10

A similar comment was offered by the Israeli minister of welfare: “The Jewish people are willing to resign themselves to many things,” said Yitzhak Meir Levi, “but the moment the issue touches upon the foundations of their faith, they are unable to compromise. If you wish to foist upon us this type of life or a constitution that will be contrary to the laws of the Torah, we will not accept it!”11 These turned out to be winning arguments, inasmuch as Israel did not in fact adopt a canonical written constitution. As Arye Carmon and his associates emphasize, Israel will get a constitution in the twenty-first century only if those like Levi agree to compromise in return for similarly anguished compromise from their secular opponents.

Perhaps Americans are tempted to view comments (or threats) like those above as simply an example of sectarian intransigence that we in this country were blessedly spared in our own halcyon days of 1787 and the drafting of our own Constitution. We did get a Constitution, purchased through two central compromises and a host of smaller ones. There was, one might argue, relatively little kicking the can down the road for decisions to be made later on. Instead, slavery was protected, and small states did get their disproportionate power in the Senate.

But consider now arguments made by another Israeli, the philosopher Avishai Margalit, in his recent book On Compromise and Rotten Compromises.12 As the title suggests, he sharply distinguishes between acceptable compromises and those that should be condemned as “rotten” (p.44) and therefore indefensible, except perhaps (and therefore perhaps not even then) in the most exceptional of conditions. He defines a “rotten political compromise” as one that agrees “to establish or maintain an inhuman regime, a regime of cruelty and humiliation, that is, a regime that does not treat humans as humans.”13

It takes no great feat of imagination to think of slavery in this context and therefore to ask whether the U.S. Constitution was purchased through a truly rotten compromise, what abolitionist William Lloyd Garrison so memorably called “a covenant with death and an agreement with hell” that, indeed, led to further compromises to preserve the Union, such as the already-mentioned dreadful strengthening of the 1793 Fugitive Slave Act in the interests of slaveowners as part of the Compromise of 1850. (A distinguished historian refers to the collection of bills passed in 1850 as the Armistice of 1850, precisely because it responded to the already-existing tensions between North and South that exploded into full-fledged war roughly a decade later.14) Margalit quotes Garrison's statement that “with the North, the preservation of the Union is placed above all other things—above honor, justice, freedom, integrity of soul.”15 There is more than a trace of similarity between Garrison and Rabbi Levi quoted above, but does that automatically lead us to condemn one or the other?

Are there times to reject compromise in the name of higher values? Should one accord some validity to the dictum Fiat justitia ruat caelum, usually translated as “May justice be done though the heavens fall”? Or, on the contrary, should everything be subject to sacrifice in order to prevent such a dire outcome? Consider an exchange at the Virginia ratifying convention between George Mason, a leading opponent of ratification, and James Madison regarding the Constitution's guarantee of a twenty-year period protecting the international slave trade before Congress could regulate (and presumably ban) it. Mason was willing to accept the prospect of union without “the Southern States,” by which he meant Georgia and South Carolina, which apparently would not accept a Constitution that did not protect the slave trade. As Pauline Maier writes in her magisterial history of the ratification debates, “Mason was ready to leave those states out of the Union unless they agreed to discontinue ‘this disgraceful trade.'     ” What was Madison's response? “  ‘Great as the evil is, a dismemberment of the Union would be worse.'  ”16

(p.45) Two recent discussions of Henry Clay—known to American history buffs as “the Great Compromiser”—are illuminating. In the first, historian Andrew Cayton, reviewing two books on Clay,17 noted that both authors appeared to view “compromise as an unqualified good … Good men (Clay) compromise; bad men ([John C.] Calhoun) don't.” But, wrote Cayton, “that approach obscures the obvious fact that … sometimes people value a sense of justice above everything else. After all, had the Founders of the Republic pursued compromise in 1776, there might never have been a Union to save. Similarly, the price of compromise in 1850 was prolonged enslavement for millions.” Indeed, if one privileges compromise above all, particularly when viewed as instrumentally necessary either to form the Union (as in 1787) or to save it (as in 1850), then what do we wish to say about Abraham Lincoln, who refused to compromise on the issue of extending slavery into the territories of the United States? Had he been willing to compromise, it would almost certainly have prevented the war that broke out in 1861 and cost the lives of a full 2 percent of the American population. Lincoln, of course, could not have known in advance the full costs of the war, but he certainly had reason to know that he was choosing war by what many viewed as his intransigence on the issue of allowing slaves in the territories. Cayton concludes his review by stating that “we remember Lincoln more than Clay, in short, not just because he saved the Union, but also because he insisted that a Union worth saving was a Union that stood for something more than itself.”

At least as interesting as Cayton's review was the second discussion, in the maiden speech of Kentucky's Senator Rand Paul to his new colleagues—he was swept in by the “Tea Party” tidal wave in November 2010—in which he took the occasion to distance himself from his Kentucky predecessor Henry Clay. Paul noted that on arriving in Washington, “one of my new colleagues asked me with a touch of irony and a twinkle in his eye, ‘Will you be a great compromiser?'”18 To his credit, Paul took the question with consummate seriousness and devoted his first speech to answering it. He began by describing Clay's life story as, at best, sending a “mixed message,” given that so many of his compromises involved slavery. He critically compared Clay with other great Americans of the time, including William Lloyd Garrison and Frederick Douglass. He also spoke at length about Cassius Clay, a cousin of Clay's who became an abolitionist.19 (p.46) “Cassius Clay was a hero,” said Paul, “but he was permanently estranged from Henry Clay. Henry Clay made no room for the true believers, for the abolitionists.” And then Paul asks the key question: “Who are our heroes? Are we fascinated and enthralled by the Great Compromiser or his cousin Cassius Clay?”

Presumably, it occasions no surprise that Paul casts his own vote for Cassius against Henry. “As long as I sit at Henry Clay's desk, I will remember his lifelong desire to forge agreement, but I will also keep close to my heart the principled stand of his cousin, Cassius Clay, who refused to forsake the life of any human simply to find agreement.” And perhaps it occasions no surprise that the Washington Post headlined a commentary on the speech, “Rand Paul, the Great Uncompromiser,”20 in which Dana Milbank, quoting a number of historians, takes Paul to task for his seeming disrespect to Henry Clay. He notes, altogether accurately, that Abraham Lincoln was also a great admirer of Clay. Finally, Milbank plays the counterfactual history card, suggesting that Clay's compromises, including the Compromise of 1850, were eminently defensible: they in effect purchased the North additional time to prepare for the oncoming war. Had secession occurred in 1850, Milbank argues (again quoting some eminent historians) the Confederacy might well have been successful. Not only is there no way of knowing this for sure, but there is also a recent argument by Paul Finkelman, one of leading historians of slavery, that the North was even stronger than the South, relatively speaking, in 1850 than in 1860, so a civil war at that time might have led to an easier Union victory at less cost than 2 percent of the entire population of the United States.21 At the very least, this illustrates the inevitable admixture of abstract principle and empirical consequences in making basic decisions about the legitimacy of compromise—and the selection of one's heroes.

So, for better or worse, one must ask if the heavens would have fallen had there been no Compromise of 1850 or even no Constitution at all in 1787 (or, perhaps, as George Mason suggested was possible, a Union that did not include South Carolina or Georgia?). If the Philadelphia Convention had failed, it is certainly likely that there would have been at least two, possibly three, separate countries taking form, distinguished, among other ways, by their stance toward chattel slavery. Was it worth entrenching slavery into the Constitution through, most importantly, the three-fifths clause, which gave (p.47) slave states a huge bonus not only in the House of Representatives but also in the electoral college? More to the point, how do we calculate worth?

There are very good reasons to believe that our collective history would have been very different had the Convention not succeeded. As political scientist David Hendrickson has well argued, the Philadelphians were consumed by the fear that multiple countries in what we today think of as the United States would no more be able to remain at peace than the multiple countries sharing the European continent. Thus the overwhelming necessity for a peace pact, which—as we all know—almost inevitably requires compromises, often with extraordinarily unattractive enemies (or, more accurately, those one wishes to turn into former enemies.) Truly “imposed” peace settlements, like that at Versailles after World War I, rarely prove stable and indeed may provoke such a backlash on the part of the ostensibly victimized state that it ends up triggering yet another war. The so-called Reconstruction Amendments added (i.e., imposed on defeated white Southerners) in the immediate aftermath of the Civil War, particularly the Fifteenth Amendment prohibiting denial of the right to vote on grounds of race, had remarkably little effect on the law of race relations until almost a century later, not least because the Compromise of 1877 basically sacrificed the interests of beleaguered African Americans to those of Southern whites who were ever more welcomed back into the Union they had tried to leave.

As already noted, the compromise over slavery was not the only one deemed necessary to purchase acquiescence to the Constitution that was signed on September 17, 1787. There was also the decision to accept the extortionate demand of Delaware and other small states for equal voting power in the Senate. As a matter of fact, as Jack Rakove noted, Madison correctly viewed this as a “defeat, not [a] compromise”22 for a very simple reason: American bicameralism, unlike many bicameral systems around the world, gives each house a death lock over any legislation passed by the other. We have a constitution filled with veto points, and among the most important of these is the ability of what Madison regarded as an indefensibly structured Senate to kill any and all legislation it finds unacceptable. A “compromise” might have allowed, say, the House, with the support of the president, to override a senatorial veto with an attainable supermajority, as is possible in some European bicameral systems. We pay the costs (p.48) every day, even over two centuries later, for both of the great compromises that procured the 1787 Constitution.

Even if one finds the Senate as created by the Constitution loathsome—the best that Madison could do, as we shall explore at greater length later, was to describe equal voting power in the Senate as a “lesser evil” (to having no Constitution at all)—would one describe it as a “rotten compromise” similar in its moral offensiveness to slavery? Or would one consider that an example of rhetorical “wretched excess”? Politics, as both Burke and President Obama suggested, is indeed the art of accepting all sorts of “lesser evils,” and one might well agree with Madison that equal voting power in the Senate was a price worth paying in 1787. This does not in the least suggest that we should not wish in our own time to have a better Constitution than the one we have, but that's a different topic.

Perhaps the correct analogy is the price paid in 1945 to gain assent to the creation of the United Nations, which involved not only the “great power” veto system in the Security Council but also the de facto granting of extra representation to the USSR by giving seats to Ukraine and Belarus. That the particularities of the veto system may make little sense two generations later—and, indeed, may do a great deal of damage to prospects for a stable world order—does little to demonstrate that it was a mistake in 1945. Rather, the mistake is feeling ourselves indelibly wedded to such institutional structures long after their rationales have ceased to make much sense.

One might argue that one of the differences between the two “great compromises” of 1787 was that those who made the compromise with regard to voting power in the Senate bore the costs. That is, states such as Virginia were the big losers in the decision to give equal voting power to Delaware and Rhode Island, just as the United States and the rest of the West paid a marginal cost by giving the Soviet Union extra representation in the General Assembly. Bargaining, by definition, involves a willingness to bear direct personal costs in order to attain a desired goal. Madison, as one of Virginia's delegates, ultimately decided that it was a cost worth paying by Virginians, as did the Virginia ratifying convention when it decided to grant its own assent to the Constitution. And Virginia was the big beneficiary of the Three-Fifths Compromise, which increased its power in the House and the electoral college (and therefore the White House and the Supreme Court appointed by presidents). But the parallel doesn't (p.49) really work, for the obvious point is that those who paid the primary costs of the Great Compromise involving slavery, the slaves themselves, were in no plausible sense represented in Philadelphia or the beneficiaries of the successful founding of a new political order. Slavery did ultimately end, but only as the result of a catastrophic war, itself fundamentally caused by various aspects of the Constitution, and its carnage.

IV. Structuring Compromises

It is worth noting that some structures may be more conducive to encouraging compromise than others. We shall certainly have occasion to discuss this further when considering institutions like bicameralism or the presidential veto. But the question of how one assures a tilt toward compromise was very much at the center of organizing the Philadelphia Convention. A number of decisions made compromise easier than it might otherwise have been. Consider the remarkable fact, almost incomprehensible to anyone living today, that the vow of secrecy taken by all of the delegates was maintained through the entire Convention (and for many years afterward, for that matter). There were no leaks, period. This has led the political theorist Jon Elster, studying the procedures involved in the drafting of a number of national constitutions, to argue that, in many important respects, the opacity characteristic of the Philadelphians is far preferable to transparency, at least if one wishes to reach agreement. This is the case precisely because transparency, by definition, means that often-intense outsiders can monitor the deals on offer and do whatever they can to thwart them, even threatening retribution against their ostensible representatives, should they be viewed as compromising vital interests.23 This is obviously an empirical assertion, and full consideration is beyond the scope of this book. It is certainly plausible, though; assume for argument's sake that it is correct.24 Does this suggest that one should actively prefer compromise-producing structures, even if that means reduced transparency in the process by which agreements are produced? Carrie Menkel-Meadow has written that “the brilliance of our Framers … was not only in the substance of their constitutive documents, but in the processes they selected to create them,”25 including, most obviously, secrecy. If Elster and Menkel-Meadow are correct in (p.50) linking the success of the Convention, assuming that one in fact admires the outcome, to the almost complete opacity of its process, does this have any implications for the institutions actually designed in a constitutional convention? If opacity is thought conducive to gaining a constitution in the first place, then why would one not infer that it would be equally conducive to gaining more desirable legislation than a transparent political system?

If one believes that one explanation for the present polarization and gridlock in American politics is too much transparency, might one suggest greater secrecy and therefore reduced accountability (save perhaps for whatever accountability attaches to the final product of the compromise, e.g., the text of the Constitution itself, a medical care bill, or whatever)? To a significant extent, this turns democracy, which is often thought to require a great deal of transparency in order to gain an adequate sense of the public opinion on which most democratic theories rely, into a negative rather than a positive attribute of a political system. Precisely this is argued by former Obama budget director Peter Orszag in an article forthrightly titled “Too Much of a Good Thing: Why We Need Less Democracy”: “Our current legislative gridlock is making it increasingly difficult for lawmakers to tackle the issues that our central our country's future,” he writes. He calls for “jettison[ing] the Civics 101 fairy tale about pure representative democracy.” Instead, we should “begin to build a new set of rules and institutions that would make legislative inertia less detrimental to our nation's long-term health.” Orszag advocates, among other things, the increasing use of “more independent institutions,” such as commissions of independent experts who are empowered to make binding decisions unless Congress affirmatively overrules them.26 In fact, the accountability mechanisms that are generally thought to be the sine qua non of representative democracy may assure the near inability to make decisions at all about important issues of public policy—particularly if much of the relevant electorate is taken by the idea of an “uncompromising” champion of their interests doing battle against an often-demonized opposition. Transparency might have doomed the Philadelphian enterprise and therefore assured that the United States had no Constitution at all. (p.51)

V. The Central Question: Was the Constitution Worth It?

What does one think about the U.S. Constitution and the compromises that were almost certainly necessary to achieve it? Does the willingness to compromise bring honor to the Framers? Do we share Margalit's view that the entrenching of certain slaveowner interests was ultimately a morally indefensible “rotten settlement” because it required accepting chattel slavery? Recall his definition of “rotten compromise”: “an agreement to establish or maintain an inhuman regime, a regime of cruelty and humiliation, that is, a regime that does not treat humans as humans.” Can there be any doubt that this describes chattel slavery in America?

It is often argued, altogether accurately, that one cannot make an omelet without breaking some eggs. And, to revert to Burke, we properly honor those who make significant concessions, even regarding their most precious values at times, in order to achieve or preserve peace. Indeed, it is no coincidence that Margalit is a longtime critic of many Israeli policies vis-à-vis Palestinians and laments the uncompromising rigidity of many Israeli positions, just as he is critical of similar rigidity on the part of Palestinian leadership. Thus he describes the aim of his own book as “provid[ing] strong advocacy for compromises in general, and compromises for the sake of peace in particular.”27 But there are limits, and his notion of rotten compromise is just such a limit. Ultimately, better no peace than a rotten compromise that preserves the peace by the ruthless subjugation of others.

But was peace or war the dilemma facing the Philadelphians and those called upon to ratify the Constitution afterward? One might believe the answer was yes, for the strongest arguments for ratification in fact involved the various threats—today we would speak of national security—facing the young country from Great Britain, France, Spain, and many American Indian tribes, some of them former allies of Great Britain in the Revolutionary War. After all, a basic purpose of the new Constitution, enunciated in the Preamble, is to provide for the common defense.

Alexander Hamilton offered an especially broad exegesis of this basic constitutional end when he wrote in Federalist 26 that the “powers [relating to the common defense] ought to exist without limitation, because (p.52) it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent and variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed.” To adopt a modern phrase, one might ask if it was rational to view the United States in 1787 as facing an “existential threat” to its very existence. If so, that carries implications not only for the assignment of powers to the new government—in other words, whatever is necessary to meet the threat—but also for the making of compromises requisite to getting a constitution in the first place. In this context, think of the alliances countries enter into when fighting a war, particularly a war that is viewed as involving existential threats. The United States notably allied with Stalin's Soviet Union in order to fight (and defeat) Nazi Germany. There are times, as recently argued by Harvard Law Professor Robert Mnookin, that one must indeed make “pacts with the devil,” even if, obviously, one wants to minimize the occasions for doing so.

I conclude with the following three questions:

  1. 1. If one assumes that the consequences of not reaching agreement in Philadelphia or not ratifying the proposed Constitution would have been dissolution of the Union and bloody warfare, resulting from the two or three countries being carved out along the Atlantic coast, does that justify the compromise on slavery and the consequent costs imposed on the slaves themselves?28 If one defends the compromise on such basically consequentialist grounds, what implications does that have for those charged with drafting constitutions in the twenty-first century? Think only of the process of drafting new constitutions in Iraq or Afghanistan. How much of, say, the rights of women or of those who don't share a particular vision of Islam would one be willing to sacrifice in order to gain (relative) peace and avoid civil war and possibly catastrophic bloodshed, not to mention the bleeding over of such wars into adjacent countries like Iran and Pakistan?

  2. 2. What if one confidently believes that the failure to achieve consensus would have resulted in three separate countries—call them New England, Mid-Atlantica, and Dixie—that would have grown to interact with one another in the same way that the United States has learned to deal with (p.53) Canada and Mexico, sometimes awkwardly, but only rarely by embarking on war? Is compromise with slavery justified under this latter scenario? Under this set of assumptions, is Margalit correct in saying that the great compromise involving slavery was and remains a rotten compromise that, however explainable, is not defensible?

  3. 3. Can we simply avoid wrestling with such questions by declaring that what was done in 1787 is irrelevant to our own world and its concerns? That was then and this is now, one might say. But on what basis does one decide that the past is or is not relevant? Is there a historical statute of limitations after which it is “unfair” to dredge up what happened “long ago”? If so, when does that occur and, all importantly, who gets to decide when we as a society “move forward” and “put the past behind us” rather than wrestle with what may be monumental past injustices whose consequences resonate even in our own world today? (p.54)

Notes:

(1) James Madison, letter to Edward Everett, August 28, 1830, in Anthony J. Bella Jr., ed., Federalism (New York: Wolters Kluwer, 2011), 104.

(2) This remarkable fact was brought home to many New Yorkers (and other Americans) in an exhibit at the New York Historical Society in 2005, https://www.nyhistory.org/web/default.php?section=exhibits_collections&page=exhibit_detail&id=1643453. See also Ira Berlin and Leslie M. Harris, eds., Slavery in New York (New York: New Press, 2005).

(3) Edmund Burke, “Speech on Conciliation with the Colonies,” March 22, 1775, quoted in Avishai Margalit, On Compromise and Rotten Compromises (Princeton, NJ: Princeton University Press, 2009), 12.

(4) Clinton Rossiter, Parties and Politics in America (Ithaca: Cornell University Press, 1967). Rossiter is probably best known to readers as the editor of the most widely used version of The Federalist.

(5) Mickey Edwards, “How to Turn Republicans and Democrats into Americans,” The Atlantic, July/August 2011, p. 103 (emphasis in original).

(6) Arye Carmon, Introduction, in Arye Carmon and Meir Shamgar, eds., Constitution by Consensus (Jerusalem: Israel Democracy Institute, 2007), 17.

(7) Ibid., 104.

(8) Jefferson's notes, available at http://pasleybrothers.com/mocourses/texts/anas.htm.

(10) Hanna Lerner, Making Constitutions in Highly Divided Societies (Cambridge: Cambridge University Press, 2011), 64, quoting Meir-David Levonstein, Knesset Record 4 (1950): 744.

(11) Ibid., 63, quoting Minister of Welfare Rabbi Yitzhak Meir Levi, Knesset Record 4 (1950): 812.

(14) William Freehling, The Road to Disunion: Secessionists at Bay 1776–1854 (New York: Oxford University Press, 1990), 487.

(15) Ibid., 56.

(16) Pauline Maier, Ratification: The People Debate the Constitution, 1787–1788 (New York: Simon & Schuster, 2010), 284.

(p.407) (17) Andrew Cayton, “To Save the Union,” New York Times Book Review, July 4, 2010, p. BR17, available at http://www.nytimes.com/2010/07/04/books/review/Cayton-t.html?scp=3&sq=Book%20reviews%20by%20Andrew%20Cayton&st=cse.

(19) There was a reason, after all, that Muhammed Ali's original name was Cassius and not Henry Clay.

(21) Paul Finkelman, “The Cost of Compromise and the Covenant With Death,” Pepperdine Law Review 38 (2011): 845, 851–855.

(22) Jack N. Rakove, Revolutionaries: A New History of the Invention of America (New York: Houghton Mifflin, 2010), 372.

(23) See Jon Elster, “Constitutional Bootstrapping in Philadelphia and Paris,” Cardozo Law Review 14 (1992–1993): 549.

(24) Consider in this context the possible political costs of the disclosure of leaked information indicating that the Palestinian leadership bargaining with Israel was willing to make substantially greater concessions than had previously been acknowledged (or defended to the Palestinian people by their ostensible leaders).

(25) Carrie Menkel-Meadow, “The Ethics of Compromise,” in Andrea Kupfer Schneider and Christopher Honeyman, eds., The Negotiator's Fieldbook (Chicago: American Bar Association, 2006),159, citing Dana Lansky, “Proceeding to a Constitution: A Multi-Party Negotiation Analysis of the Constitutional Convention of 1787,” Harvard Negotiation Law Review 5 (2000): 279 and Jack Rakove, “The Great Compromise: Ideas, Interests and Politics of Constitution Making,” William & Mary Law Review 44 (1987): 424. See also Carrie Menkel-Meadow, “Compromise and Constitutionalism: The Variable Morality of Constitutional (and Other) Compromises: A Comment on Sanford Levinson's Compromise and Constitutionalism,” Pepperdine Law Journal 38 (2011): 903.

(26) Peter Orszag, “Too Much of a Good Thing: Why We Need Less Democracy,” The New Republic, October 6, 1011, pp. 11–12.

(28) And, one might well believe, on everyone who had to adjust to a social order founded on the racialized ownership and subordination of other human beings.