BOOKS-ON-LAW/Past-Perfect - June 1999; v.2, no.6

Alexander M. Bickel (1924-1974) was born in Romania and later went to Harvard Law School, from which he graduated summa cum laude.  In the 1952 Court Term, he served as a law clerk to Justice Felix Frankfurter.  He assisted the Justice in preparing an historical memorandum, urging that Brown v. Board of Education be reargued.  Starting in 1956, he taught at Yale Law School, where he was first a Chancellor Kent Professor of Law and Legal History and thereafter a Sterling Professor of Law.  A frequent contributor to the New Republic and the New York Times, Professor Bickel represented the latter in the Pentagon Papers Case (1971).  He also defended President Richard Nixon’s order to dismiss special Watergate prosecutor Archibald Cox.

Though published posthumously, The Morality of Consent (Yale University Press, 1975) was based on Bickel’s William C. DeVane lectures delivered in 1973 at Yale University.  The book consisted of five parts, and addressed such varied topics as constitutionalism and Burkean thought, citizenship, civil disobedience, freedom of speech, and moral authority and intellectual thought.

Professor Bickel was, perhaps, the last great constitutional conservative of this century.  Virtually free of partisan influence, he argued continually for judicial restraint.  This theme may be found in some of his more noted works, including The Least Dangerous Branch (Bobbs-Merrill, 1962), Politics and the Warren Court (Harper & Row, 1965), and The Supreme Court and the Idea of Progress (Harper & Row, 1970).  He also authored the first part of History of the Supreme Court of the United States: The Judiciary and Responsible Government: 1910-1921 (vol. IX, Macmillan, 1984).

The review that follows was written by Professor Alan M. Dershowitz and was originally published in the New York Times Book Review on September 21, 1975 (pp. 1-2).   (It is reprinted with permission of Professor Dershowitz.)

Ronald K.L. Collins & David M. Skover, Editors, Books-on-Law
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The Morality Of Consent
Alexander M. Bickel
New Haven, CT: Yale University Press, 1975
Cloth: $10.00
Pp. 156

This short but provocative volume, completed just one week before Alexander Bickel’s death, is a fitting testimony to the author’s extraordinary, though tragically brief, career as a constitutional scholar, lawyer and teacher.  In just a hundred and a half literate pages, we are treated to vintage Bickel insight into every major political issue of the decade, from the civil rights movement, to the Warren Court, through the frenetic university upheavals, and -- inevitably -- to Watergate.

But this is no jumble of themes; it is a tapestry woven by a master of the subtle color and texture.  Bickel does not merely restate history; he relates events and movements one to the other in ways that are both challenging and disturbing.  He sees the Nixon Presidency and Watergate as the "utterly inevitable" consequence of the undisciplined liberalism and "result-orientation" of the Warren Court.  A strange relationship, probably wrong, and surely overstated.  But Bickel makes out a plausible case: the Imperial Presidency, he argues, is a "leaf from the Warren Court book," since they both justify the aggregation of power as a necessary means for doing "more effectively what other institutions, particularly Congress, do not do very rapidly or very well."  The Warren Court, he argues, was engaged in a quest for "moral imperatives"; it was willing -- indeed it "took the greatest pride in" -- "cutting through procedure to substance."  If the Warren clique could proudly boast of finding shortcuts around legal niceties to achieve its conception of the "right" and the "good," why should the Nixon gang -- which had a broader popular mandate than the Warren Court -- comply with such legal obstacles as the search warrant and the right to bail in its march to the right and good society based on the Gospel according to [John] Mitchell, [Robert] Mardian and [H.R.] Haldeman?

Bickel’s account of modern legal history comes fully adorned with both villain and hero.  The villain is moralistic liberalism with its various champions, from the Social Contractarian Jean Jacques Rousseau to the constitutional absolutist Justice Hugo Black.  The hero is "Whig-Conservatism," with its champion Edmund Burke and his judicial successors Oliver Wendell Holmes Jr. and Felix Frankfurter.

The "liberal contractarian model," Bickel explains, rests on the vision of inalienable rights which predate society and are derived "from a natural, if imagined, contract"; it is "moral, principled, legalistic, ultimately authoritarian."  The "Whig model," on the other hand, rests on "a natural skepticism" which recognizes "human nature as it is seen to be."   It is "flexible, pragmatic, slow-moving, highly political"; its goal is "an imperfect justice, for there is no other kind."  Not surprisingly, Bickel declares the Burkean tradition "my own model," and proceeds to argue how it has been the excesses of liberalism that have produced the most enduring wounds to our body politic.

His examples tend to the polemical, and they are not always convincing.  Bickel points out that Chief Justice Roger Taney, author of the Dred Scott decision which held that the descendant of an African slave could not be an American citizen, "was a liberal" to whose philosophy "the concept of contract was central."   From this ad hominem he seeks to persuade us that liberalism, with its emphasis on the original contract, contributed to the reification of racism into our pre-Civil War constitutional history.  But he fails to show how Taney’s racism can any more be attributed to his liberalism than can Burke’s anti-Semitism be attributed to his conservativism.  The sad truth is that the evils of the human condition transcend labels such as liberal and whig.  No political group has a monopoly on vice or virtue.

But even Bickel’s overdrawn examples succeed in making an important point.   The Dred Scott decision does demonstrate the dangers of emphasizing the rights of "citizenship" rather than "personhood."  And it is arguable -- though not at all obvious -- that the Warren Court acted regressively when, more than a century later, it unwittingly echoed Taney’s litany about the centrality of citizenship to the rights conferred by our constitution.

"Citizenship," wrote Warren in several important decisions, is "that status, which alone assures the full enjoyment of the precious rights conferred by our constitution."  If that is so, argued Bickel, then the non-citizen -- the alien, the visitor, the expatriate -- can be denied these rights with impunity.

Surely it is preferable, as Bickel suggests, for a government to operate "under a constitution to which the concept of citizenship matters very little, that prescribes decencies and wise modalities of government quite without regard to the concept of citizenship."

Bickel’s argument against preferential university admissions based on race is convincing as well, at least to this reader.  But, interestingly, it rests on the very moralisms and natural rights for which he so roundly criticizes the liberals.   Is this really Bickel speaking" "to reject an applicant .  .  .   who has met established, realistic  .  .  .  qualifications in favor of a less qualified candidate [just because the less qualified candidate is black] is morally wrong and in the aggregate disastrous."  "If the Constitution prohibits exclusion of blacks .  .  .  on racial grounds, it cannot permit the exclusion of whites on similar grounds," here we have pure, doctrinaire constitutional moralism!  Precisely the kind we might expect from Justices Black or Douglas.

Where is Burke’s flexible, pragmatic recognition of situational and imperfect justice?  From whence does the principle of meritocracy -- a principle to which I join Bickel in subscribing -- derive, if not from classical liberal premises?  Would not a true Whig argue that the realities of past social injustice require some temporary compromise with the principle of meritocracy, at least until a significant number of blacks are introduced into the mainstream of American higher education?  What Bickel fails to tell us is why certain kinds of controversies call for a pragmatic, compromising solution.

At bottom, Bickel’s jurisprudence -- of which this volume is the most coherent and general treatment -- is a prescription for normalcy, for crisis-avoidance.  His vision of the good society is not a static one where correct principles prevail and govern, it is a dynamic society of "untidy accommodations" between competing principles, of "fundamental tensions that are bound to exist."  The role of the judiciary is "to ease rather than finally resolve" tensions, to "invent compromises and accommodations before declaring firm and unambiguous principles."

His vision presupposes "moderation" by the competing forces; it can work -- as Bickel acknowledges -- "only when there is forbearance and continence on both sides."  It cannot survive "the politics of moral attack."  And therein lies the crucial difference between Bickel and the classic civil libertarian: Bickel’s prescription for cure is to avoid the disease; he has constructed a magnificent hospital for preventive medicine, but failed to include an emergency ward.

Having lived through the Nazi holocaust, Bickel shared Learned Hand’s conviction that when liberty dies in the hearts of the people "no constitution, no law, no court can save it [or] even do much to help it." [L.H.: May 21, 1944 speech, reprinted in The Spirit of Liberty, Irving Dilliard, ed. (Knopf, 1952), p. 190)]  Cataclysmic crises kill liberty and must therefore be avoided at all costs.  There is little sense in constructing a system whose purpose it is to conserve liberty during period of "extremis," since that task is doomed to failure.

The civil libertarian, on the other hand, designs his constitutional system for maximum survivability.  He is willing to forego significant benefits during periods of normalcy in order to improve the chances, even slightly, of keeping the spark of liberty ignited during times of stress.

In the end both Bickel and the civil libertarian seek the same goal: the preservation of liberty in a world where the vast majority of people have no appreciation of it, except when it is taken away.  The history of mankind’s responses to crises does not point unambiguously to one approach or the other, neither is villainous nor heroic.   It all depends on the values of those in power.  I, for one, would not hesitate to embrace the Bickel approach if I could be assured that those who governed would be as humane and compassionate as Alexander Bickel.  But if history teaches one verity, it is, as our Supreme Court once cautioned, that no nation has the "right to expect that it will always have wise and humane rulers.  .  .  ."

The last eight pages of The Morality of Consent contain a complete bibliography of the late author’s numerous books, scholarly articles and shorter topical publications.  A perusal of this extraordinary catalogue tells one much, but not nearly everything about Alexander Bickel’s contribution to the life of the law during the past few decades of this country’s history.  It tells nothing of his role as intellectual provocateur to the generation of students he taught at Yale (I was fortunate enough to have been among them.)  Nor does it tell of his role as constitutional lawyer in some of the most important cases to have come before the Supreme Court during this decade.  Most tragically, it only hints at what might have been, had Alexander Bickel lived out his full life span.

© Ronald K.L. Collins and David Skover, 1999.