Balkinization  

Wednesday, June 13, 2012

On "The Spirit of Compromise"

Sandy Levinson

In my interview with Scott Horton, I noted that I had not yet read Amy Gutmann’s and Dennis Thompson’s new book The Spirit of Compromise: Why Governing Demands It and Campaigning Undermines It (Princeton University Press, 2012).  What I said in particular was


I haven’t yet read the Gutmann and Thompson book,. but I’m not sure, at the end of the day, that one can make very useful general arguments about compromise. All of us, presumably, recognize that there are occasions for drawing lines in the sand, even as we also must, unless we’re truly fanatics, recognize that politics requires a willingness to settle for significantly less than we might wish, not least in order to preserve social peace.

I have now read the book, and I would have answered the question differently, for one of the striking things about their book, written, of course, by two world-class political theorists, is the degree to which they seem to agree that it is difficult, perhaps impossible, to make “general arguments about compromise” in the sense of providing algorithms for when one should or should not compromise. Indeed, one of their major contributions, which has important ramifications for jurisprudence as well as politics, is a critique of theorists like Ronald Dworkin, who proffers a notion of “integrity” that depends on a strong notion of philosophic coherence—and a concomitant rejection of what he disdainfully calls “checkerboard compromises.”  (Indeed, one reason Dworkin basically disdains legislative decisionmaking and prefers a strong judiciary, identified by him as "the forum of principle," is that it is not subject to the same pressures to engage in "unprincipled," phillsophically incoherent, compromises.  “Integrity,” for Dworkin, rests on an assumption that American society (at least) is founded on a sufficiently “common ground” that all legislation can ultimately be tested against the degree to which it rests on this “common ground.” Guttmann and Thompson, correctly, I believe, describe us as a more ideologically divided society. They therefore argue in behalf of a notion of “classic compromise [that] depends on the willingness of all sides to sacrifice something to achieve a common good that improves on the status quo when common ground does not exist or cannot be found” (p. 202). One of their major foci is the Tax Reform Act of 1986, which, they argue, “as a whole was inconsistent with any single set of principles,” an attribute that in fact is “a sign of success” as a compromise (103).  "Incoherence" is therefore not necessarily the worst thing that can be said about a piece of important legislation.  The more important question is whether, all things considered, we are, as a society, better off with it, as against maintaining the status quo.

The book is quite short and easily readable. Indeed, I wish it were longer, for I would have liked to read their analyses of some other class “compromises” in Congress (their major subject), including, for example, the Missouri Compromise or the Compromise of 1850 (which William Freehling would rename the “Armistice of 1850,” it is surely not because either achieved any kind of common understanding of the goodness or badness or slavery, but, instead, adopted a true “checkerboard” that made slavery legal in some territories and illegal in others. They seem to endorse the Compromise of 1850 on the grounds that it "brought ten years of relative peace, and more important, bought time for the North to gain population and industrial strength.  As a result, the government that Lincoln eventually led had the resources necessary to save the union" (p. 130".  This rests not only on debatable normative judgments, but also, and perhaps more imporantly, on empirical debates as well.  Paul Finkelman, for example, has recently argued, in a response in the Pepperdine Law Review to my own lecture on compromise, that the South would have been easier to defeat in 1850 than it turned out to be in 1861-65.  If we agree with Finkelman, does that offer independent grounds to reject the Compromise, on top, for example, of its inclusion of an even more dreadful Fugitive Slave Law?

It is, I think, telling that Dworkin has, with the exception of a never-reprinted book review in the Times Literary Supplement of Robert Cover’s Justice Accused, never truly addressed the issue of slavery. Avishai Margalit, an Israeli philosopher whose work is of interest both to me and to Gutmann and Thompson, distinguishes between anguishing but acceptable compromises, and what he calls “rotten” compromises, such as those involving slavery, that are presumptively unacceptable, unless the alternative is truly the equivalent of the heavens falling. I am inclined to be a neo-Garrisonian who therefore describes the 1787 Constitution as a “covenant with death and an agreement with hell.” But, perhaps, there are occasions to make “pacts with the devil,” if one believes, for example, that it would have been catastrophic not to achieve some kind of (provisional) constitutional settlement in 1787 and that any such settlement required such a pact. The obvious question, then, is whether the same justifications work not only in 1820 and 1850, but also in 1860, when Lincoln could presumably have averted the war (and 750,000 deaths) had he acquiesced to allowing slavery into the territories (since he emphasized that he had no wish to touch slavery in the states where it was already legal).

In any event, Gutmann and Thompson argue both that actual governance requires what they call a “mindset” disposed toward compromises and that political campaigning, especially at present, rewards a very different mindset that stands too much on rigid principle and therefore disdains compromise. I think this is an important insight. One possibility is trying to change the mindsets, though they agree that democratic politics in fact depends on an ideal mixture of both dispositions. It is therefore a question of what I’m often tempted to call, in every class that I teach, “Goldilocks-calibration” of trying to find the “just right” mixture. They also talk about some institutional changes that might help retilt the current distribution of mindsets. For example, one might require more open primaries (in which all citizens, and not only “members” of a given party, could vote. Or one might lengthen the terms of office of members of the House in order to weaken, at least a bit, the costs of what has become the “permanent campaign.” They make an extremely important point, which I wish that Anthony Kennedy especially would read, that the real “corruption” of money in politics is precisely that members of Congress must not only spend an inordinate time raising money, but also that it is easier to raise money if one presents oneself as “tenaciously” committed to given views and that one will never compromise those views with the demonized enemies on “the other side.” So we have managed to construct a distinctly “part-time legislature,” in the sense of time allocated to actual legislative responsibilities, composed of people who increasingly have every incentive to resist the very possibility of compromise. This is exacerbated by the fact that former Speaker Newt Gingrich basically created the Tuesday-Thursday House of Representatives that, among other things, means that legislators no long actually live in DC and, therefore, that they ever more rarely actually socialize with anyone who thinks at all differently from the way they do.

If I have a criticism of the book, it is that it isn’t radical enough in its institutional analysis. They conclude their penultimate chapter by quoting the Beatles: “You tell me it’s the institution. Well, you know. You’d better free your mind instead” (p. 203). This fits, of course, with their emphasis on “mindsets.” I don’t deny the importance of mindsets, but I think that mindsets are inevitably responses to institutional structures. They are obviously aware of this; it’s simply that I wish they had spent more time on the institutional structures that are constitutionally embedded. Consider, for example, Mitch McConnell’s notorious rejection of any collaboration with Barack Obama because of his admitted near-obsession with making Obama a one-term president. With regard to the actualities of governing America between 2009-2013, this is simply awful, for all of the reasons well delineated by Gutmann and Thompson. Yet McConnell recognizes the importance of presidential elections, not least because of their true “winner-take-all” aspect, by which the winner gets to appoint basically all high-level members of the Executive Branch. And I believe McConnell correctly believes that Ted Kennedy elected George W. Bush in 2004 because of Kennedy’s willingness to compromise with Bush on No Child Left Behind and then the prescription drug bill. “Compromises” between Congress and a President will almost always redound in the President’s favor, and why would a member of the opposition party wish to enhance a first-term President’s election prospects? So, for me, addressing the problems they (and Thomas Mann and Norman Ornstein) identify as contributing to the dysfunctionality and pathology of our political system requires at least bringing up the possibility that we are ill served by a “separation of powers” system operating under an ever sharper “separation of parties” (to pick up on an analysis identified with Rick Pildes and Daryl (no relation) Levinson. Perhaps we really do need to move toward a parliamentary system. Or, as Jacob Gerson has suggested, perhaps we need to “unbundle” the executive branch and mimic, to at least some degree, what commonly happens in multi-party parliamentary systems, where portfolios within the government are held by members of a number of different parties. Or, as I suggested in my NYTimes op-ed, we could limit the present gridlock either by allowing presidents to appoint, say, 10 senators and 50 representatives, upon election, or eliminating the presidential veto (almost) entirely (by, for example, limiting vetoes to legislation that the President believes, with an opinion from the OLC backing him/her up, that the legislation is unconstitutional).

Comments:

The problem with your Kennedy/McConnell comparison is that it implies that McConnell was offered, or would have been prepared to reject, legislation roughly comparable (from the standpoint of McConnell’s political interests/beliefs) to NCLB and the prescription drug bill (from the standpoint of Kennedy’s). In other words, Bush offered Kennedy legislation that Kennedy thought moved things significantly in the right direction, even if not as far as Kennedy would have liked. Leaving aside the question of whether Republicans exaggerated their opposition to certain elements of Obama’s legislative agenda (eg, the individual mandate), does anyone believe that McConnell or the vast majority of Republicans “really” thought that Obamacare, Dodd-Frank, cap and trade, or what have you moved things in the right direction?
 

I think I would point out that part of the decline in compromise is due to a glaring failure over the last few decades of one of the key preconditions for compromise:

A belief that the entire compromise will be implemented.

Take, for example, the "Help Americans Vote Act": It was a legislative compromise, which coupled easier registration with a push to clean up voter rolls. But, only the first half of that compromise ever was implemented. In fact, the Justice department is actively suing any state that attempts to clean up their voter rolls, and is denying them access to a citizenship status database in violation of the law.

Similar examples exist in the case of amnesty for illegal aliens coupled to border enforcement.

You can't get people to compromise if they believe, based on the evidence of past behavior, that they'll lose what they give up, and never get what they gave it up for.
 

"...for one of the striking things about their book, written, of course, by two world-class political theorists, is the degree to which they seem to agree that it is difficult, perhaps impossible, to make “general arguments about compromise” in the sense of providing algorithms for when one should or should not compromise."

I'd always thought it obvious that good politics is made by adults more than rules. I took Dworkin's "Hercules" to be an imagined ideal and "consistency" to be no more than the consistency we imagine ourselves having rather than something that actually exists, a necessary dual consciousness of faith and irony, of a lawyer for example, (not a judge) committed to the advocacy of his paying client.

The focus on rules and algorithms makes us dumber, less aware. And here there's a simple way to make my point:

There's an elephant in this room and it's sucking up so much air I'm surprised there's any left to breathe.

Seth Edenbaum
 

Campaigns are based on promises of general principles to the voters.

When a majority of the voters grant control of the government to a party, then the general principles of that party reflect he will of the voters and are not subject to compromise.

What is subject to compromise is the means of achieving those general principles.

For example, if the GOP campiagns and wins on balancing the budget without raising taxes, then that end is non-negotiable. However, how the existing tax revenues will be spent is subject to compromise.
 

Our yodeler's view of compromise:

"For example, if the GOP campiagns and wins on balancing the budget without raising taxes, then that end is non-negotiable. However, how the existing tax revenues will be spent is subject to compromise."

starts with a premise that as a practical matter would be politically impossible, making his "permitted" compromise meaningless.

*****

Sandy's reference to the Compromise of 1850 and to Paul Finkelman bring to mind that Paul and Donald R. Kennon, as editors, have a new book "Congress and the Crisis of the 1850s. Paul's "Introduction: A Disastrous Decade" is available via SSRN. (I do not have the URL.) In 17 pages Paul does a masterful job in setting up what happened in that decade and what followed in 1861.
 

Brett's view on compromise:

"You can't get people to compromise if they believe, based on the evidence of past behavior, that they'll lose what they give up, and never get what they gave it up for."

display's his zero sum approach to change since the founding.
 

It reflects my not sleeping through the last thirty years.

Compromise, by definition, involves giving up something to get something. A trade. Trades do not take place absent trust, without some belief that you'll get what you were promised after you pay up.

Take immigration: We had an amnesty during the Reagan administration. The border enforcement part of that compromise never happened. This is rather directly the reason another amnesty is now politically impossible: Nobody really believes the promises of enforcing the border that are supposed to keep the amnesty from attracting more illegal immigration.

You can't welsh on deals, and expect to make more deals. It's as simple as that.
 

Apparently Brett has " ... not [been] sleeping through the last thirty years" because of his fear of illegal immigration. Perhaps if he were a vegan, he might have a tad of compassion for the picker-immigrants who benefit not only consumers (and their health) but the farmers. Immigration is complex, especially in a democracy. Brettt might consider where America would be today but for immigrants. Imagine the expense - and resulting deficits - sealing borders, ousting illegals, even greater policing of air travel, etc. Maybe this might even lead to eliminating mail-order brides.
 

"only the first half of that compromise ever was implemented"

"actively suing any state"

Compromise also requires each side to know the facts and not just distrust the other side based on stereotyping. For instance:

"to protect the accuracy and integrity of Maine’s statewide voter registration list"

The feds reached an agreement with Maine.

http://www.justice.gov/opa/pr/2006/July/06_crt_475.html

Last time Brett raised this issue, I found various more cases. The fact that Florida is doing it in a problematic way as are some others, which after all was the POINT of the law in the first place, doesn't change this.

Brett's selective focus does not show that all 50 states are being stopped from cleaning up their voting rolls.

Compromise and Brett's preferred system of government is going to bring imperfect results. The citation of illegal aliens is curious too given the uptick of enforcement in the Obama Administration.
 

Something I forgot to mention, regarding algorithms and adult behavior, and Professor Levinson's fixation on the flaws in our Constitution.

He's treated it as argument over which of two boats is safer in a storm but ignored the fact the the storm is on. He says one boat has a 60% chance of survival and his opponents say the number is 70 or 75, but at this point the odds of surviving the switch is 50/50 and now is not the time for academic argument.

Kurt Gödel panicked thinking he'd discovered a flaw in the Constitution that could legitimize dictatorship. Some people wonder what he found. Most people just think he was nuts. But he was a mathematician and logician; the flaw he found was language: White>Clear>Empty>Void>Black.
Kurt Gödel, meet David Addington.

Kurt Gödel is not the model of a political thinker.
That is one thing we should not even be debating. Yet here we are.

Seth Edenbaum
 

As to the last comment, some here (including myself) have noted our disagreement with Prof. Levinson on the ability for the significant change he desires and how the Constitution is flawed because we as a society is flawed. Chicken/egg.

But, the Constitution was created in a time of crisis too, so when the "right" time to amend it in some fashion will be is not clear either. I do not think it is now in any significant way but perhaps when the time comes I will not know it. Sometimes, such things are only seen in hindsight.
 

Brett, building a bigger wall is nothing more than a very expensive way to force people to make longer ladders.
 

The crisis at the time the Constitution was created concerned the many problems with the Articles of Confederation, especially the unanimity it required. Compare this to the EU and especially its EURO Zone as attempts are made to address the EU's financial crisis. Yesterday's NYTimes had a provocative OpEd on German limitations that included criticism of Hamilton with an early bailout in America's history. The EU should be so lucky, unless Germany is seeking a bailout from Obama.
 

Shag,
"provocative" no. Stupid, yes.

http://www.cepr.net/index.php/blogs/beat-the-press/germans-flunk-economics-101
 

D.G.:

Thanks for the link. I agree that the OpEd was stupid. But it was also, in my view, provocative as the author's misused American history in questioning Pres. Obama's comments. The author does recognize that one solution for the EU may be adopting a United States of Europe, but sovereignty desires of long historic standing make this unrealistic. Fortunately, it didn't take that long after the Articles of Confederation for the founders here to realize that they would not work well, resulting in the Constitution.
 

A third comment, given that Jack Balkin has just posted again on constitutional faith.

This country more and more reminds me of Lebanon. I won't say it reminds me of Iraq, because that's an insult to Iraqis. I'm not sure the Iraqi civil was inevitable, but if the US were invaded and defeated, the country would dissolve into sectarianism.

Sanford Levinson isn't interested in compromise, only in the idea of compromise. He doesn't pay attention to the details of the political situation. He hasn't considered the possibility of total collapse. For Palestinians compromise means compromise with the people who threw you and all your possessions out in the street. Have Zionists come to terms with that? Has Levinson? I see no evidence.

The German Jewish critic Marcel Reich-Ranicki has said the only German he ever met who fully understood the significance of the Nazi era to the Jewish people was Ulrike Meinhof.

This conversation is as worthless as the contributions of its lowest participants.
 

I acknowledge that the OpEd was ridiculous. But it was also, in my view, revealing as the writer's abused Combined states history in asking Curr. Our country's feedback.buywindows7keys.com The writer does identify that one solution for the EU may be implementing a Combined Declares of European countries, but sovereignty wishes of lengthy ancient status make this improbable. Luckily, it didn't take a lengthy time after the Articles of Confederation for the creators here to realize that they would not work well, leading to the Structure.
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Sandy:

Any comment on our presidency segueing into dictatorship today?
 

I never like "spirit of compromise" and "law of necessity" kind of things. I think these kind of thing made to break the law.
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Only thing I've heard on THAT subject, Bart, has been the sound of crickets. Guess they got what they wanted, and really, really do not want people talking about how.
 

Are Brat and Bert, our dynamic anti-immigrant dyslexic duo preparing to go out on Second Amendment stand-your-borders-patrol? Maybe those cricket-noises are hordes of illegals .... Guys, check under your beds before you go to sleep.
 

Check out the current "The New Yorker" for Jill Lepore's "Benched - The Supreme Court and the struggle for judicial independence" at:

http://www.newyorker.com/arts/critics/atlarge/2012/06/18/120618crat_atlarge_lepore

It runs just over 5 pages. Perhaps the struggle is really over judicial supremacy. And take a peek at George Will's column at the WaPo today where he seems to be suggesting that the Court became more activist.

Our yodeler's reference to dictatorship is a reach and Sandy might not respond to it. But Sandy might respond to the power of the Court today - and its problems - with the upcoming elections in mind.

By the way, some of us critical of David Bernstein's "Rehabilitating Lochner," may find Jill Lepore's comments on it interesting. Perhaps D.B.'s intention is really "Restoring Lochner." Ain't gonna work!
 

Yes, Shag, I would have expected that you'd be perfectly comfortable with the President acting in a dictatorial manner, so long as you like the dictates. The next time there's a Republican in the office, and he refuses to enforce some law you like, you'll scream like a banshee.

And never notice the conflict.
 

Prosecutorial discretion is not exactly a novel thing, including in dealing with undocumented immigrants.

I'm more concerned with breaking the law. As to Republican Presidents doing that. No, seeing what happened in my life time, I wouldn't be surprised.

Cato Institute had an interesting discussion of the move:

http://www.cato-at-liberty.org/obama-administration-adopts-de-facto-dream-act/

"using the president’s administrative discretion to defer deportation actions"

It's shame how much the Cato Institute supports dictatorship.

The move did split the Right.

http://thinkprogress.org/election/2012/06/15/500684/richard-land-immigration/

BTW, it was a Department of Homeland Security directive, not an executive order as such. The Dictator is a film. This is not quite there yet.

This would make a useful separate thread.
 

Perhaps Brett should be reminded, on the 50th anniversary of Watergate, of that Republican "Dick-Tater" Richard M. Nixon.

As Joe notes:

"BTW, it was a Department of Homeland Security directive, not an executive order as such."

Next, if necessary, we'll discuss Iran Contra.
 

OOPS! "40th anniversary." Sorry, time flies when you're having fun.
 

Melissa Harris Perry discussed the off topic issue today and also had a "Eurozone" segment.

http://www.msnbc.msn.com/id/46979745/
 

Shag:

This move would split lIbertarians who support both free immigration and constitutional limited government. Libertarians of all people should know to beware dictators offering favorable policies over the rule of law.

Joe:

Prosecutorial discretion is prioritizing executive resources, not granting a general amnesty from the requirements of the law. This is analogous to a governor not only refusing to enforce driving restrictions on young people, but also awarding them licenses in violation of state law. Dictatorship.
 

Is our yodeler describing libertarian mugwumps?
 

The move in question is a matter of "prioritizing executive resources."

As Cato notes, there is discretion here, and he's practicing it. If there was not discretion, he would not be. A "dictator" would have a lot more power to do things.

Don't cry for me Argentina, quite yet.
 

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