More on compromise

Sandy Levinson

Two friends made important points about m previous post.  Dennis Thompson, co-author of The Spirit of Compromise, notes that the term "rotten compromise," used by the Israeli philosopher Avashi Margalit in hid book On Compromise and Rotten Compromise, identifies those compromises that are truly evil and basically to be ruled out categorically save for truly exceptional circumstances.  In my own book Framed, when discussing compromises, I distinguish between the compromises on slavery, arguably truly "rotten," and that on the Senate, which was simply truly awful, but not "rotten."  

My friend Akhil Amar has made another point with regard to the compromises on slavery.  The three-fifths clause, for example, was far worse than extending the slave trade until 1808, as awful as that was, precisely because the latter included a time limit--it was "sunsetted--whereas the 3/5 clause, like the fugitive slave clasue, afflicted our politics forever, or at least until destroyed by the slaughter of war. 

So, to return to the capitulation of Senators Leahy, Shumer, and Franken to mean-minded Republican homophobia, how does one classify it?  Is it truly "rotten," which means that one should condemn them?  I have a hard time believing it meets the tests for ultimate "rottenness," though, frankly, I think it comes close.  But it may be a mistake to assess any given compromise in terms of some acontextual metric of awfulness;  it is necessary also to ask about the goodness of what one is getting in return.  That is, one really does have to engage in cost/benefit analysis.  Thus the alliance with Stalin is justified because the good of defeating Hitler, for which the alliance was absolutely necessary, dominated the evils of Stalin.  So it probably is necessary, against my own desire not to, to discuss the merits of the immigration bill.  I.e., is it really so good that it is worth betraying one's principles, or is it only a marginal improvement over the status quo (not least because it makes the necessary path to citizenship far too long)? 

But Akhil's point is also absolutely crucial:  The Democrats are not entrenching Graham's bigotry into the indefinite future.  What they're doing is saying, "well, we don't have the votes now to prevail, but the minute we do, we will vote to welcome same-sex partners to the US on the same terms that we're willing to accept heterosexual partners of US citizens."  So, again, on the scale of compromises, this is far less bad not only than the 3/5 compromise, which required an unattainable constitutional amendment to get rid of, but even the extension of the slave trade until 1808, which entrenched that for 20 long years.  Here, the compromise is "entrenched" only so long as the Republicans have enough votes to be be obstructionists.  Once the immigration act is passed, then there is nothing whatsoever that should prevent the senators in question from offering a free-standing bill and doing whatever it takes to break a filibuster.  This compromise may be a lot like Bush v. Gore, good for this case (or case) only.  That is surely easier to accept than something truly entrenched (though it is important to acknowledge that the costs of the compromise are paid for by others). 

A final point:  I remain truly uncertain why a decision striking down DOMA would automatically mean the end of the prohibition on same-sex partners, even if the decision is based, as it should be, on equal protection.  If it's based on "federalism," then there's simply no reason to believe that the US has a constitutional duty to recognize marital status as defined by a foreign country's law.  (If there were, this would generate a potential problem with regard to polygamous marriages recognized as thoroughly legal in other systems.) 
Posted 5:33 PM by Sandy Levinson [link]