The Variable Morality of Constitutional (and Other) Compromises: A Comment on Sanford Levinson's Compromise and Constitutionalism

This comment to Sanford Levinson's Brandeis lecture at Pepperdine focuses on the role and types of compromises made during several stages of constitutional processes, formative and constitutive, interpretive and on-going, as negotiated by Constitutional meaning makers (drafters and Supreme Court 'deciders'), and post hoc justifications. This essay discusses recent work on compromise as institutional design, pragmatic or principled, and regime defining and sustaining. Both the pejorative (compromise is unprincipled) and more positive (compromise accounts for the 'reality' and moral existence of different sides of an issue or polity) understandings of compromise are reviewed, in light of Professor Levinson's scholarship on constitutional formation and judicial opinion writing and negotiation, and other scholars' (e.g., Avishai Margalit, Jon Elster, Robert Mnookin and this author's (Menkel-Meadow) work on compromise generally as a moral and practical issue in constitutional, political, and other forms of negotiated political orders.