What are the core values of the U.S. Constitution?
“We, the people,” the poetic expression of the idea of democratic self-government, is surely at the head of the list.
Most of us would probably add the values guarded by the addendum to the Constitution, the Bill of Rights: free speech, freedom of religion, due process and equal treatment under the law. Then there are values central to governing: checks and balances, the separation of powers and federalism.
Larry Kramer, a constitutional law scholar, former dean of Stanford Law School and now the president of the William & Flora Hewlett Foundation, believes a less appreciated idea should be first among equals. In a speech at the University of Pennsylvania Law School this week, Kramer makes the case for compromise as a core constitutional value.
Compromise, of course, is a dirty word and an unused skill today. That is exactly why Kramer’s mission of rescuing its historical prominence is so important.
The ultimate goal of the Constitution and the young country was republicanism – small r – or government by the people, not by a monarch. That did not and could not simply mean majority rule; majorities could themselves act in undemocratic and unjust ways. In James Madison’s words, it was vital to limit “the will of the society to the reason of the society.”
The system of checks and balances was designed to ensure deliberation, negotiation and compromise – not to stop it. “For the use of a constitutional check is not meant to conclude a dispute,” Kramer says. “It is meant to begin one: to force the kind of public debate needed for ‘the reason of the society’ to emerge and coalesce.”
There hasn’t been a great deal of negotiated reason emerging from our separated powers lately. The usual term for this condition is gridlock, and it actually has its champions.
Why has the ability to negotiate and compromise atrophied?
Kramer rounds up several of the usual suspects. The sophisticated and wealthy network of “intense demanders” – interest groups and lobbyists – can make compromising costly for elected officials. The “outrage industry” of talk radio, hacktivists and cable news rewards zealots. And while the political parties have become more ideologically homogeneous and party line votes more common, politicians can now finance their own, very expensive campaigns. Party discipline has gone the way of school spankings.
Importantly in my mind, Kramer does not blame the usual Political Public Enemy #1 – polarization.
Americans have been deeply and emotionally divided before. What is different is how politicians in government have responded. “Decreased willingness to negotiate and compromise is the behavior that defines political polarization,” Kramer says. “Polarization is an outcome, in other words, not a cause: the outcome of reduced willingness to meet the other side somewhere in the middle.”
Gridlock is a choice. The skill and will to overcome it has been overruled.
The Hewlett Foundation has launched The Madison Project to help bipartisan efforts to resurrect the foundational virtues of negotiation and compromise. It is a task that would humble Madison himself.
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