Bickel, Alexander M. (1925–1974)

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BICKEL, ALEXANDER M. (1925–1974)

Alexander Bickel was a professor at Yale Law School from 1956 to 1974 and a prolific writer on law and politics. He became the most influential academic critic of the progressive liberal jurisprudence of his time, although he at first made only sympathetic refinements of that doctrine. Having served as a clerk for Justice felix frankfurter and edited some unpublished judicial opinions of Justice louis d. brandeis, he, like they, rejected the old constitutionalism of private rights and unchanging fundamental law in favor of a living law, evolving with social conditions and with a progressive consciousness. His first important book, The Least Dangerous Branch (1962), advanced a variation of Frankfurter's prescription of judicial restraint. Bickel elaborated ways, such as avoiding a constitutional question, by which the supreme court might accommodate political democracy while enforcing the "principled goals" of a more open, humane, and free society.

In The Supreme Court and the Idea of Progress (1970), however, Bickel departed sharply from his role of political tactician for the rule of Supreme Court principle. He attacked the warren court's principles as themselves impolitic. In Bickel's view, the Court, confident that progress required nationalizing and leveling constitutional limits on the electoral process and an extension of desegregation to racial balancing, had imposed an egalitarianism that was subjective and arbitrary. As a result, Bickel argued, the Court had bred a legalistic authoritarianism and threatened the quality of public schools and distinctive communities.

The Morality of Consent (1975) was published post-humously. It examined the turmoil attending the vietnam war, student revolt, and watergate, extended Bickel's critique, and attempted a reconstruction. Bickel portrayed the entire American order as under siege and ill-defended. He saw universities as well as governments and corporations endangered by two extremes of theory—a committed moralism, which tended to a dictatorship of the self-righteous, and a permissive relativism, which would defend nothing and eroded the moral and social fabric. Bickel recurred to Edmund Burke's critique of the French Declaration of the Rights of Man, and then painstakingly set forth his own morality of consent, a morality to sustain not individual claims but the social process of communicating and governing.

Robert K. Faulkner


Faulkner, Robert K. 1978 Bickel's Constitution: The Problem of Moderate Liberalism. American Political Science Review 72:925–940.