Professor Levinson explores compromises (1) that went into the making of the United States Constitution, and (2) that have occurred in the Supreme Court's constitutional interpretation. He explores these compromises in light of Israeli philosopher Avishai Margalit's distinction between bad compromises and rotten compromises. "Rotten compromises" are indefensible except, perhaps, in the most exceptional of conditions. A "rotten political compromise" is one that agrees "to establish or maintain an inhuman regime, a regime of cruelty and humiliation, that is, a regime that does not treat humans as humans." Under this standard, Levinson identifies as rotten compromises the Constitution's protection of slavery and the Supreme Court's dismissal, shortly after Brown v. Board of Education, of a case challenging Virginia's inter-racial marriage ban. Levinson acknowledges that anti-slavery founders would argue that they had to agree to protect slavery in order to create a country and, likely, avoid future wars. And that Supreme Court Justices would argue that they had to dismiss the Virginia case in order to get the country to accept Brown. Levinson identifies as not-so-rotten compromises the founders granting equal representation to states in the Senate and dismissing the case challenging "under God" in the Pledge of Allegiance.
Compromise and Constitutionalism,
38 Pepp. L. Rev.
Available at: https://digitalcommons.pepperdine.edu/plr/vol38/iss5/2