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Great things come from compromise – like the Constitution and Bill of Rights, for instance.

October 17, 2011

As a mediator I know the value of compromise.  At the outset of a mediation session, I often say to the disputants that compromise is the essence of mediation, that one must give up something to get something and that the resolution must work for both sides to succeed.

Over the summer I was greatly disappointed when listening, on the radio or on TV, to congressional leaders who obstructed the compromises required at the time to deal with our so-called debt ceiling crisis.  I have written about this before. See, https://karpmediation.wordpress.com/2011/07/29/no-transcendence-in-the-debt-ceiling-debate/ .  I was not impressed with their chest-thumping and intractability based on their election-based motives of self-promotion for their political bases.

On the other hand, I am aware that great political leaders in the past could compromise to achieve great things – notably in the creation of the US Constitution and the all important Bill of Rights thereafter appended.

Therefore I hold out hope that great things can happen again from compromise on Capital Hill, particularly but not only given the Jobs Crisis about which we hear so much today.

I only wish that Congress would pay attention to the past, and read what I read.

I am elated and hopeful as I now read a biography of John Marshall, the fourth Chief Justice of the United States Supreme Court, which biography I am thoroughly enjoying at the moment.

In it, author Jean Edmund Smith, among many other things, explores the Virginia Convention proceedings in which John Marshall was involved as a delegate to consider ratification of the new Constitution.

In the chapter on ratification, the intensity of the passions –  for and against – leaps off of the pages.  In arguing the value of ratification, James Madison, also a delegate at the Virginia Convention, remarks:

“‘It is worthy of our consideration … that those who prepared [the Constitution] found difficulties not to be described in its formation: mutual deference and concession were absolutely necessary.  Had they been inflexibly tenacious of their individual opinions, they would never have concurred.’” Smith, John Marshall: Definer of a Nation, p. 139 (Henry Holt and Company, Inc., 1996).

The final vote at the Virginia convention was close – 89 for ratification, 79 against. Id. at p. 141.

One major issue, in which conciliation came to the rescue, was whether or not the Constitution should be amended first before ratification or ratified first and then amended.

At the website of the University of Missouri – Kansas City School of Law, an essay on the Bill of Rights is available which attests to the compromise and the great work that later resulted (http://law2.umkc.edu/faculty/projects/ftrials/conlaw/billofrightsintro.html):

“In the ratification debate, Anti-Federalists opposed to the Constitution, complained that the new system threatened liberties, and suggested that if the delegates had truly cared about protecting individual rights, they would have included provisions that accomplished that.  With ratification in serious doubt, Federalists announced a willingness to take up the matter of  a series of amendments, to be called the Bill of Rights, soon after ratification and the First Congress comes into session.  The concession was undoubtedly necessary to secure the Constitution’s hard-fought ratification…. [¶] In the end, we owe opponents of the Constitution a debt of gratitude, for without their complaints, there would be no Bill of Rights.”

In fact, we owe both sides a debt of gratitude for their wisdom in making the concessions necessary to give us both the Constitution and the Bill of Rights.

Truly, great things come from compromise.  It is the essence of success in all things, whether in mediation, or in Congress, or simply in our daily lives.

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