How (and why) rotten compromises are made (and justified?)

Sandy Levinson

The Times reported earlier today on the truly disgraceful decision of Senate Democrats on the House Judiciary Committee to capitulate to Republican homophobia by withdrawing an amendment by Senator Leahy that would have allowed, in the Times's language "United States citizens to apply for permanent resident status, known as a green card, on behalf of their same-sex partners."

Senator Charles E. Schumer, Democrat of New York and an author of the measure, said that not including the provision amounted to “rank discrimination.” But he ultimately concluded, “As much as it pains me, I cannot support this amendment if it will bring down the bill.”

Similarly, Senator Al Franken, Democrat of Minnesota, said: “This is the definition of a Hobson’s choice. In my bones, I believe in equality.”

But [South Carolina Republican Sen. Lindsay Graham, up for re-election in 2014 and desperately afraid that he will be "primaried" by Ted Cruz and his friends] reflected the view of his Republican colleagues when he said: “You’ve got me on immigration. You don’t have me on marriage. If you want to keep me on immigration, let’s stay on immigration.”

Ultimately, Mr. Leahy withheld his amendment “with a heavy heart,” though he can still bring it up on the Senate floor.

Friends, now we should understand why decent people agreed to the 3/5 Clause and why FDR adamantly refused to support a federal anti-lynching bill or, for that matter, was indifferent about the non-extension of the benefits of much of the New Deal to African-Americans in the South.  As Ira Katznelson demonstrates in a brilliant book, Fear Itself, on the Roosevelt and Truman presidencies, FDR needed congressional support for the New Deal, and the only way he could get it from Southern economic liberals (and former Ku Klux Klan members, like Hugo Black) was to promise that it would be, as much as possible, a "whites only" affair.  And, in 1787, the only way to get a Constitution was to capitulate to slaveowners and, for that matter, to the extortionate demands of Delaware and other small states for equal representation in the Senate.  As Madison said with regard to the latter, it was a "less evil" than no Constitution at all, but an evil it remained, and he was absolutely right, as was, obviously, even more the case with the aspects of the Constitution that correctly led William Lloyd Garrison to describe it as a Covenant with Death and an Agreement with Hell.  But, as I myself wrote in the Times during the kerfluffle a couple of months ago about the 3/5 Clause, one sometimes has "to accept some regrettable, even “evil,” means to achieve that end. That’s the way the world works. (Think of the altogether justified alliance with Stalin to defeat Hitler.)" 

But, of course, this is far too facile.  Most of the readers of this blog are not likely to be affected in the least by the withdrawal of the amendment, just as the whites who decided that slavery was "worth it to get the Constitution paid no price--to some extent, of course, Virginia did pay a price for submitting to Delaware's extortion).  And most of those who counseled FDR to accommodate to racism paid little or no price themselves.

One should not gussy up the character of the people with whom mpromises were made in 1787 or in the ;30s.  At worst, Lindsay Graham is simply a bigot; a "best," he is a cowardly opportunist, scared of losting re-election, who after re-election, may "discover" that someone in his family is gay and, like Sen. Portman, suddenly realizes that that person deserves to be treated as a full member of our community. 

Should one be condemnatory of Shumer, Franken, or Leahy, who I assume are genuinely "heavy-hearted" about having to accommodate bigotry?  Is the immigration bill worth selling out one's convictions for (at least until times are more propitious--I presume that FDR would have supported an anti-lynching bill by, say, 1948)?  This is a genuine question.  The answer may well be yes.  The best is often the enemy of the good.  And, let me say, I'm not at all interested in hearing from anyone who is opposed to the immigation bill, not because there's nothing that can be said against it, but becaues that's not really my topic.   Perhaps another way of defining the topic is why should Democrats capitulate to an uncompromising bigot like Lindsay Graham and the faction of the Republican Party for which he speaks?  Is it a good enough response to say that without getting their votes, there is no immigration bill, and one properly pays the "necessary" price to get the greater good (even if those actually bearing the cost are fellow American citizens who happen to be involved in same-sex relationships)?

UPDATE:  This just in from Gail Collins's column in the Thursday, May 23, Times:

The most painful low point in the committee’s deliberations came at the end, when the Democrats gave up on an amendment allowing same-sex spouses the same right as heterosexuals to apply for permanent resident status for their partners. It’s not every day when you hear a senator announce that he had decided to support a move that involved “rank discrimination.” But the Republicans who were needed to get an immigration bill through the Senate had made it supremely clear that if any hint of gay marriage entered the legislation, they were going to take their toys and go home.

Decide for yourself how you feel about this one, people. Stand up for equality or finally get a major bill through the Senate? Defend equality or cave in and hope that the Supreme Court bails you out when it rules on the Defense of Marriage Act next month?

She makes a very good point.  Presumably, if the Court does strike down 'DOMA, as most people seem to think it will--and if it does it, as it should, on equal protection rather than "federalism" grounds--then that might mean that such a bigoted provision of the revised law, assuming it passses, would be unconstitutional.  I say might because existing doctrine is that the US, as a "sovereign power," has plenary (unfettered) discretion to determine who comes in to the country. 
Posted 10:15 PM by Sandy Levinson [link]