Looking back to lessons of compromise from the founding fathers might just be what lets us move forward through our current political division, a trio of constitutional scholars told New York judges and attorneys who filled the Appellate Division, First Department courtroom Tuesday.
John Feerick, who helped architect the 25th Amendment, said remembering that the country wouldn’t exist if the founders hadn’t put aside their differences provides a great deal of perspective on the present moment.
“We [must] stay at the table, listen across differences, trust the framework enough to do the slow and perfect work of compromise,” said Feerick, a professor and dean emeritus at Fordham Law School. “This is how we shape a better future for all.”
In conversation with Georgetown Law Dean Emeritus William Treanor and Fordham Law Senior Fellow John Rogan, Feerick told the courtroom of judges that today’s political divisions aren’t so different from those between the founding fathers. The men who wrote the Constitution were much more complex and diverse than people usually realize, he said, pointing to vast social, economic, and occupational differences between the men.
“They were not distant figures from history, but shaped by different circumstances, experiences and beliefs, who brought both their strengths and their imperfections to the task of building a new nation,” Feerick said. “What is most remarkable is not simply that these differences existed, but how they were addressed through a commitment to remain at the table so as to listen and to find, however and perfectly, a way forward together.”
For example, Feerick said, Benjamin Franklin acknowledged there were parts of the Constitution he didn’t agree with, but took it upon himself to persuade holdouts to sign the document.
“Having lived long, he had learned to doubt his own judgment and to pay more respect to the judgment of others,” Feerick said. “He urged every member who still had objections to the Constitution to doubt a little of his own infallibility and to put their name to the document. It is perhaps one of the most eloquent statements of compromise in American history.”
Valuing compromise does not mean not voicing objection, Feerick emphasized. He said the objections voiced by delegates who temporarily put their differences aside to sign the document were what spurred the later movement to draft the Bill of Rights and continued pushes against slavery.
Perhaps the clearest illustration that the lessons of the past aren’t so far away from today was the fact that the scholars could pull lessons from Feerick’s work on the 25th Amendment right in front of his eyes.
Rogan said that, to him, the 25th Amendment — drawn up in the wake of President John F. Kennedy’s assassination in 1963 — teaches that those seeking to make change should “seize the moment,” but also look beyond it and think about what else they can accomplish with a moment’s momentum.
“It was realized that if President Kennedy hadn’t been killed, let’s say, he had been left in a coma, there would have been no legal procedure to transfer power to the next official in line of succession,” Rogan said. “That’s what led Congress to do something about that flaw in the Constitution. But the amendment’s framers, very wisely, didn’t frame their solution narrowly.”
Beyond simply creating procedures for declaring a president unable to serve, it also developed a significantly more comprehensive process for filling vacancies in the vice presidency and for voluntary and involuntary transfers of power. The urgency of the moment allowed for a compromise that filled an immediate need and provided for the necessary momentum to sketch out more extensive procedures for the stability of the executive branch.
Dianne Renwick, presiding justice of the Appellate Division First Department, said she was leaving the conversation with a greater understanding of compromise’s role in the rule of law.
“The takeaway, for me, is that collaboration and respectful dialogue can perhaps shape the rule of law and preserve and protect our American dream,” Renwick said at the event’s conclusion. “Perhaps we can all take that with us.”
