Lessons from Lincoln: A Comment on Levinson

Abstract

I have not actually counted, but my strong impression is that in Professor Levinson's engaging lecture on "Compromise and Constitutionalism," the ratio of question marks to periods is much higher than in most English prose. His lecture raises lots of questions and offers only a few very tentative answers. And this cautious approach seems appropriate to the subject. The ethics of compromise essentially involve the problem of how to live morally in a morally disordered world-a world in which the people we live with and care about are morally disordered, and in which we know that but not always when or how we ourselves are morally disordered. It would be surprising if there were clean, orderly, demonstrable solutions to that problem.

Levinson is right, I think, to steer away from the extremes. At one extreme, one might conclude that every choice boils down to a simple matter of "calculating the costs and benefits"-an approach Levinson says Alexander Bickel attributed to Justice Brandeis in the matter of dissenting opinions. The practical danger of this approach is obvious enough-those who take it will end up sacrificing their integrity and their moral commitments altogether. The familiar anecdote about Churchill and the woman who indignantly rejects an indecent proposition for five pounds but admits she would accept a proposition for five million pounds seems pertinent here.

At the other extreme, what we might call the "purity position" views willingness to compromise as a kind of moral deficiency: ideally, a personor a judge or politician-should always act in accordance with his or her highest moral commitments and should never enter into commerce with persons or parties who reject or depart from those commitments. Though sometimes describing compromise as a "temptation", Levinson nonetheless appears to reject the purity position, and so would I. In fact, I regard the purity position as profoundly immoral. Purists are morally self-indulgent, I believe, valuing their own virtue above the welfare of their fellows. They incline to hubris, because they fail to take seriously the possibility that they might be wrong and that those who disagree with them may be right. In assuming their own superior virtue, they fall into self-deception, like the Pharisee in Jesus' parable of the Pharisee and the publican.s Political purists endowed with power (of which the twentieth century had more than its share) are particularly reprehensible: in their self-serving certainty they can inflict vast suffering on those around them.

So, what to do? If compromise is morally perilous but also necessarynot only practically but morally necessary-and if there is no comprehensive body of categorical rules telling us when to compromise and when to hold firm, are we then relegated to completely ad hoc, intuition-driven choices? Or are there at least presumptive precepts that might guide us in confronting these challenges?