In The Morality of Consent,1 the late Alexander M. Bickel begins the task of constructing a liberal political philosophy that avoids the optimistic authoritarianism afflicting so much of contemporary liberal thought. In Bickel’s view, there is a strain of thinking traceable to Edmund Burke and the English Whigs of the 18th century that leads to a perspective on present-day problems far more serviceable, more prudent, and more compassionate than the “moral, principled, legalistic” contractarian tradition that Bickel finds written, in particular by judicial progressives, into modern American political doctrine. “The Whig model,” says Bickel, “begins not with theoretical rights but with a real society. . . . Limits are set by culture, by time-and-place-bound conditions, and within these limits the task of government informed by the present state of values is to make a peaceable, good, and improving society.”
Readers should not leap too quickly to the conclusion that such a set of seemingly safe-and-sane axioms contains no surprises. In Bickel’s audacious hands the Whig tradition yields, among other things, an attack on the concept of citizenship and a defense of civil disobedience. As to the first argument, Bickel says that although the concept of citizenship had some meaning and some point in classical Greek political theory, in the doctrines of John Locke, and in English law, the framers of the U.S. Constitution broke away from the notion of the “indelible, inalienable status of citizenship,” if for no other reason than to attract immigrants. “The original Constitution,” says Bickel, “presented the edifying picture of a government that bestowed rights on people and persons and held itself out as bound by certain standards of conduct in its relations with people and persons, not with some legal construct called citizen.” Citizenship, Bickel argues, as contrasted with mere habitation, made its inauspicious debut as a significant distinction in American politics with the Dred Scott decision and, with the Slaughter-House cases of 1873, once again receded until its revival in a few cases by the Warren Court.
The application of the concept is, Bickel argues, “regressive . . . parochial, and exclusive. A relationship between government and the governed that turns on citizenship can always be dissolved or denied. . . . No matter what the safeguards, it is at best something given, and given to some and not to others, and it can be taken away. . . . Emphasis on citizenship as the tie that binds the individual to government and as the source of his rights leads to metaphysical thinking . . . and more particularly to symmetrical thinking, to a search for reciprocity and symmetry and clarity of uncompromised rights and obligations, rationally ranged one next to and against the other. Such thinking bodes ill for the endurance of free, flexible, responsive, and stable institutions and of a balance between order and liberty.”
That balance for Bickel relies heavily upon the prudential restraint of government, and of powerful individuals within government. His first book, published in 1957, was a study of Justice Brandeis’s unpublished opinions. Why unpublished? Because their object, frequently, was evidently to persuade within the Court itself, or to avoid drawing attention too sharply to an unfortunate implication of a majority view that might otherwise be exploited in future litigation. “The most important thing we do,” Bickel quotes Brandeis as saying, “is not doing.”
This view of the art and craft of judicial behavior formed and enlightened the remainder of Bickel’s voluminous writings on politics and the Constitution. His most famous elaboration of the notion was a detailed exploration of means and justifications by which the Court can dispose of cases while avoiding judgment on constitutional issues, which he codified under the phrase “the passive virtues.”
It is instructive to see how much of a piece Bickel’s later writing is with his earlier work, as his view of the necessary restraints of process-mindedness upon judges and their need for political prudence slowly ripens into a conviction that all political actors—not judges alone—are required to adhere to the “morality of process, which is the morality of consent.” The Court, Bickel saw early, in company with others, being electorally irresponsible, “has no earth to draw strength from.” Later, Bickel’s view of the grounds upon which an inference of consent might be properly founded grew, very much in harmony with his earlier understanding of the Court’s vulnerability. Like judges, independently acting “individuals are under a duty to ration themselves, to assess occasions in terms of their relative as well as absolute importance,” and even the popular branches of government, to which judges should defer, nevertheless in the American constitutional order possess their legitimacy not by “a presumed theoretical consent but a continuous actual one, born of continual responsiveness.” Thus it is not electoral results alone or even principally that for Bickel comprise the earth that the popular branches of government draw strength from, “for majorities are in large part fictions. They exist only on election day and they can be registered on very few issues. To be responsive and to enjoy consent, government must register numerous expressions of need and interest by numerous groups, and it must register relative intensities of need and interest.”
Civil disobedience, in Bickel’s view, was one method by which intensely held interests might be expressed. “It is because on most issues we command no definite answers grounded in solid and generally shared values that we value an open, responsive, varied, and continual process of law-formation and provide numerous stages of decision-making, most of them provisional, and numerous opportunities for revision and resistance, including civil disobedience.” This to be sure is not the whole story, since civil disobedience, to claim legitimacy as part of a normal process of political give-and-take, relies heavily upon the good intentions of the users thereof. “The use of civil disobedience not to redress grievances on the assumption of the continued operation of the system and by plausible appeal to its own principles, but against it, ought not be tolerated. Civil disobedience is one thing, revolutionary activity quite another, and the difference between them is told not only by their manner but also by their objectives.”
Thus it appears that Bickel’s emerging political philosophy places not only a heavy and necessary burden upon the capacity of political actors to calculate prudentially, but also relies greatly upon their willingness to undertake or to attend to empirical inquiry. This is an amusing irony to those who recall Bickel’s own cordial antipathy to empirical social science. Yet it is an inescapable implication of his emerging position for, otherwise, the criteria Bickel emphasizes as crucial in determining the legitimacy and appropriateness of a given line of action may be too easily invoked by cynics or by the misguided, without fear of effective rebuttal.
Bickel does not stress, but might later have come to do so, a strength of his view from the standpoint of the political system, if not from the standpoint of individuals within it—that a system guided by Bickel’s notions of prudence and restraint would tend to foster the making of relatively small mistakes in judgment, and would tend to have a limited capacity for undertaking large, disastrous schemes of self-improvement. In a heterogeneous society filled with persons and groups having greatly differing interests, the alternatives to accepted political processes and to consent as a means of legitimizing public action do indeed look as ugly as Bickel suggests. “If the streets belong to the people, they are going to belong to all the people, not just young radicals. Self-righteousness and zealotry are human attributes, not political positions. If they are tolerated on the Left, they will gain ascendancy on the Right.”
_____________
II
As readers of COMMENTARY undoubtedly well know, Alexander Bickel was not only a teacher of law, a legal historian, and a writer of political philosophy, but also a political activist, certainly one of the most successful Americans of his time whose participation in the public arena was grounded solely in knowledge and its application to public problems. He aspired to have an impact upon his time, to expound the Constitution and the laws not only to his students but to his colleagues in the law schools, to Supreme Court Justices, and to the nation at large. And so he did. Like his revered mentor, Felix Frankfurter, Bickel became law professor to his generation. The political arena gave Bickel his agenda; in this respect he followed an honorable tradition of scholarship in public law, which in the law journals and case-books consists primarily of learned commentary upon current events. But he spread himself far beyond the places where legal scholars gather, in COMMENTARY2 and in the New Republic, before bar associations and at college commencements, on the New York Times Op-Ed page and in front of congressional committees.
There is no special course of training in our universities, nor any particular niche in American society for persons who become public philosophers. Indeed the very idea of there being such creatures as public philosophers—writers who address contemporary problems with sufficient detachment, learning, and discrimination to merit such an honorific title—is open to the skepticism of any attentive reader of most current commentary on events of the day. Alexander Bickel himself more than once wondered about the social problem posed by this curious deficit in American political life. Now that he is gone, it seems obvious enough that it is not alone an especially favored position in society that produces people who can add to the common understanding of public problems, but also a peculiar combination of qualities and talents, and most of all, perhaps, what Bickel’s colleague Leon Lipson discerned in Bickel as the acceptance of “an ethical . . . obligation to put oneself in the flow” of events.
It may be that there are more people who are willing to do this than are able, who can muster the quick wit, the firm opinions, the capacity to be irritated into engagement by headlines or enticed into public rumination by congressional committees or editors, and, of course, the solid foundation of pertinent knowledge that Bickel had instantaneously at his command. James Boswell put the matter felicitously in his observation of a politician and thinker whom Bickel particularly admired when he exclaimed over “the extraordinary promptitude of Mr. Burke, who while he is equal to the greatest things, can adorn the least.”
Adornment is precisely what Bickel brought to such occasions as the Dick Cavett show on the night he polished off a whole flock of notables singlehandedly in defense of a Supreme Court ruling upholding certain restrictions on obscenity, or the Yale Alumni meeting in which, when asked, “What is happening to morality today?,” he replied, “It threatens to engulf us.” His eye ever fixed “on that middle distance where values are provisionally held, are tested, and evolve within the legal order,” Bickel jumped into any number of current controversies, but as his central principle came to be that of defending a prudent middle ground—a ground which by the lights of some of his friends he now and again miscalculated—he was never very predictable to the handicappers who assign the labels “liberal” and “conservative” to participants in public discussion.
Avoiding these labels, and having something fresh and worthwhile to say on nearly everything takes, as I have argued, a singular talent. It also requires a certain bravery, a willingness to make a few of the mistakes in public that elected politicians cannot afford to make and which in any event can on balance serve to advance public discussion on principled lines.
_____________
Perhaps the most conspicuous example of this quality of bravery in Bickel’s life was no mistake, but a resounding success: his defense of the New York Times in the Pentagon Papers case. Bickel was asked to defend the Times quite by accident. He had engaged to prepare an amicus brief for the Times on another case—the Caldwell case—and chanced to be nearby when the Times’s own law firm advised capitulation to Attorney General Mitchell’s warning not to publish, and bowed out of defending the paper if the Times decided to go ahead. Bickel accepted the brief, rounded up a former student and his well-known New York firm to back him up, and in a week’s time was arguing before a federal trial judge, a U.S. Court of Appeals, and, shortly thereafter, the U.S. Supreme Court. He won his case, many observers think, by refusing to adopt the hard-line absolutist view of the First Amendment that passes for constitutional law in most American newsrooms. Instead, his defense of the Times was vintage Bickel. In a pivotal colloquy with Mr. Justice Stewart he conceded that, yes, there were conditions which could overcome a strong First Amendment presumption against prior restraint on publication, but that the government had utterly failed to make its case on the facts.
Where is the bravery in this? It may help the reader to know that in his twenty-five years or so in the practice of his profession Alexander Bickel had never before argued a case in any court, save (long ago) a small claim in New Haven, which he lost. But Bickel was right, of course, to bet on himself, as a public man must, if he aspires to leave an imprint on his times (not to speak of his Times), and believes he has the means to make a worthy contribution.
As passionately eager as he was to make that contribution, even here Bickel knew how to draw a fundamental line. Bickel’s colleague, Charles Black, describes a day
when a question was asked him, and when a “yes” might, at the very least, have made possible further movement down the road toward what must have been a much-desired (I dare say the most-desired) goal. The question, mark you, was a close one; an honest and competent man might easily have concluded that the right answer was “yes.” Alexander Bickel had come, on balance, to the opposite conclusion. He said “no,” and a door closed; “no” was not the right answer, not the wanted answer. His name, by low men for low reasons, was doubtless crossed off a list. But it stayed, and stays, on another list—the list of those to whom courage (and therefore honesty) is first.
The highest public office Alexander Bickel ever held was that of the leading academic to be mentioned for the Supreme Court whenever a vacancy occurred, a mantle he gradually assumed as his predecessor in this role, his teacher, Paul Freund, gracefully entered his sixties. Both the honor and the inherent ridiculousness of the position appealed to Bickel. As is also true of the Vice President, every public act and utterance of the academic mentionee is liable to be held against him; his every move is a false move. To someone of a more cautious temperament, this would be uncomfortably inhibiting. Bickel’s view of the matter was quite the reverse, and he seized the bully pulpit gratefully. Cunning calculation was in his view morally debilitating and a waste of time. He was confirmed in this opinion after the assassination of Robert Kennedy, who might well, if elected President, actually have appointed Bickel to the Court. A mature and conscientious student of the law, however, whose opinion was more and more sought after in public and behind the scenes, would rejoice in the opportunities of the moment, would call them as he saw them, and not attempt to second-guess the future. “Ring Lardner assures us,” Bickel said, “that the odds on life itself are six to five against.”
_____________
III
The first time I heard Bickel quote this epigram from Lardner, I can recall no ironic edge of self-reference. Lardner, as it happens, died in his forty-ninth year and Bickel in his fiftieth, just over a year ago. It was less than a year earlier that he discovered how soon Lardner’s odds were to apply to him. During late 1973 and early 1974 he underwent several operations, and grew weaker. The voice, however, as he pointed out, remained strong. His readiness for speculation, for gossip, for disputation, for intellectual roughhouse diminished very little, though he became more straightforwardly affectionate with friends.
A folder in my cupboard testifies to the fact that since 1956, Bickel’s first year of writing for the New Republic, I had been admiring and collecting his work. Less than a decade later, by good fortune, I became acquainted with him and, to my amazement, in due course came to know him fairly well. Now, a correspondingly bewildering experience has been visited upon Bickel’s contemporaries, as our friend, with whom we argued and laughed and sought to get a word in edge-wise, slips away from us and finds his honored place in the intellectual history of our time. It is, surely, a distinction he earned and deserved and would have relished, to “belong to the ages” because of the learning and wisdom he brought to bear on problems that are both immediate and perennial. Yet he belonged to us, too, and we to him, and it is still too soon, I think, for some of us to read his work alone for its manifold intrinsic merits. Rather, we stare at a page and out leaps Bickel in full conversational cry, sounding like a slightly annoyed hive of bees, snatching a quotation from here or there, rolling phrases around, trying this one and that. “The flow of words,” his friend Robert Bork called it, which in flood scarcely brooked agreement, let alone contradiction, for a moment evokes the man himself.
His loves and loyalties ran deep, but very much to persons and to real institutions, not to abstractions. He was devoted to many of his colleagues and students at the Yale Law School, for example, and to the Harvard Law School from which he received his legal education, and whose faculty called him to the Holmes lectureship in 1969. A portrait of Felix Frankfurter, for whom he clerked, hung in his study, and a charcoal sketch of his father, easily mistaken for a portrait of the son, hung in the Bickel living room. The elder Bickel, a lawyer and a Yiddish journalist and poet, brought his family to New York from Rumania in 1938, when Alexander was fourteen. It is not inconceivable that some of the passion in Bickel’s categorical rejection of the “inalienable” and “natural” character of citizenship was the reciprocal of his unaffected embrace of the United States at a relatively advanced age.
Until near the very end of his life, Bickel spoke seldom of his early years. Life, for him, evidently began in New York, with the City College, the U.S. army, and at the Harvard Law School. He spoke English—he learned it as his fifth language—utterly without accent of any kind—neither Rumanian nor New York nor Harvard—and in an interview a few years before his death mentioned that he read Conrad a great deal.
He paid admiring and amused attention to the theatrics by which people presented themselves—the tactical use of middle names, for example, or the way one dignitary fiddled with his glasses entranced him, as an exercise in subliminal persuasion. I believe that his own shortness of stature annoyed him on this account, since he may have thought it imposed a limitation upon his capacity to rivet attention, when his argument demanded. He needn’t have worried; his voice, a marvelous instrument, really, could fill a room without difficulty, and his manner of dress was imposing—altogether a formidable front, and one he attended to quite knowledgeably and, since it was a mark of his identity to do so, quite without cynicism.
He was also a lover of ceremonies, which he viewed as the “punctuation marks of life, which help us to parse and possess our lives rather than being simply rushed along by them.” Ceremony writ small, is of course gamesmanship, and life’s little opportunities for gamesmanship (no matter who was temporarily in the lead) brought him a connoisseur’s unending delight. He repeated, for example, the remark of the bartender at the no-nonsense downtown San Francisco grill who looked him up and down one spring evening. There stood Bickel, a vision of tourism, resplendent in a tan outrageously coddled by a year at the Center for Advanced Study in the Behavioral Sciences at Stanford, hair slicked back, sunglasses, double-breasted blue blazer complete with gold buttons, ice-cream pants. The bartender handed over two extremely dry martinis and leaned forward to inquire, “How’s everything in L.A.?”
For people who knew Bickel at all well, there is no temptation to credit his high-mindedness to an incapacity to see the seamier, more manipulative, side of things. Rather, his life was the product of choices, consciously made, and the costs paid in full. If it was a good and constructive life, it was because he, with the very considerable aid and comfort of his wife Joanne, made it so.
_____________
IV
It no longer takes the percipience of a Tocqueville to observe that in America, at a quickening pace these last two decades, political disagreement has more and more turned into legal disputation and even constitutional debate. And so more and more we have needed the guidance of commentators grounded in the law and, if possible, enlightened by an understanding that runs beyond the capacity to parse cases and partakes of a well-thought-out political vision, a vision that places legal issues in a historical and philosophical setting.
Good scholarship in constitutional law has always attempted this complex and challenging task. But as the polity at large has begun directly to grapple with such issues as school prayers, reapportionment, school desegregation, busing, benign quotas, and legal requirements on the political process itself, the need has accelerated for discipline and craftsmanship in the framing of issues and the justification of measures in the public arena. Otherwise we stand in peril of conducting our politics without the guidance of principle, or letting our principles, untutored by the legitimate concerns of politics, degenerate into demagogic slogans. “Our problem has been, and is most acutely now,” wrote Alexander Bickel, “the tyrannical tendency of ideas, and the suicidal emptiness of a politics without ideas. . . . Our problem, as much as Burke’s, is that we cannot govern, and should not, in submission to the dictates of abstract theories, and that we cannot live, much less govern, without some uniform rule and scheme of life,’ without principles, however provisionally and skeptically held.”
In one or another of our great law schools there remain first-class constitutional lawyers. Some of them—not many—are in Alexander Bickel’s league. In one or another of our great forums of opinion there are a few—painfully few—commentators who display depth of understanding and who work to consistently high intellectual standards. Yet nobody quite matches the texture of Alexander Bickel’s thought, and especially on the range of issues where his resonant voice was the one so many of us waited to hear. On nearly every page of The Morality of Consent one feels with undiluted poignance the bleak truth of Robert Bork’s observation that the loss of Bickel’s further work in political philosophy is an incalculable national loss.
1 Yale University Press, 176 pp., $10.00.
2 Bickel’s major articles in COMMENTARY include “Reapportionment and Liberal Myths” (June 1963), “The Civil Rights Act of 1964” (August 1964), “The Failure of the Warren Report” (October 1966), “Is Electoral Reform the Answer?” (December 1968), “Judging the Chicago Trial” (January 1971), “The Constitution and the War” (July 1972), “The ‘Uninhibited, Robust & Wide-Open’ First Amendment” (November 1972), “Watergate and the Legal Order” (January 1974), and “Notes on the Constitution” (August 1975), a section adapted from The Morality of Consent.
