The Morality of Consent [Paperback]

I remember Alexander Bickel's "The Morality of Consent" from the mid-1970s when it had just been published and I had just began the practice of law. I was excited to walk from my home on Capitol Hill to a bookstore about one-half mile away to purchase the book and read what Bickel had to say. I have visited the book several times in the intervening years and recently turned to it again as a lawyer who is approaching retirement. The book read differently to me now than it did then. Some of the specifics of the book may show their age. But this book remains a classic of American legal thought. Reading it again reminded me of what I found valuable in the law over the years.

Alexander Bickel (1924 -- 1974) came to the United States as an immigrant at the age of 14 with his Roumanian Jewish parents. He served in the Army during WW II, graduated from Harvard Law School, clerked for Supreme Court Justice Felix Frankfurter, and taught at Yale Law School for many years. As a thinker, Bickel was rare and independent. He was a political liberal who supported Robert Kennedy's campaign for the presidency in 1968, and a judicial conservative. Bickel was a critic of what he deemed the judicial activism of the Warren Court; he also criticized the Supreme Court's decision in Roe v. Wade, which was recent when this book appeared. Bickel was a great admirer of Edmund Burke. Indeed, besides wanting to revisit Bickel for himself, I was prompted to reread this book again by several reviews and comments here on Amazon of late on Burke's "Reflections" and the work of his great opponent, Thomas Paine's, "The Rights of Man".

It is important to place Bickel's book in its historical context. Written in the 1975, the turbulence that had rocked the United States for the past 15 years was fresh in Bickel's mind. Under the heading "Moral Duty and the Limits of Civil Disobedience", Bickel identified (p. 112) three types of overlapping protests that conceivably could have shook the United States to its foundations: the white Southerners's violent opposition to Civil Rights beginning in the mid-1950s, the follow-up action of the Civil Rights movement and its supporters, and the protests against the War in Vietnam, especially in the Universities. Bickel suggested that the abuses of Watergate had to be seen and understood against the violent and lawless society America had seem in danger of becoming. With the distance of time from these turbulent events, it is possible to take a measured look at Bickel.

The opening essay in this book, "Constitutionalism and the Political Process" sets out the basics of Bickel's judical thought. Bickel contrasts the social contract philosophy of inalienable "natural rights" independent of society that he finds developed in the work of John Locke with what he calls the "Whig model" as developed by Burke.
This model, for Bickel, takes society as it is and works to improve it through gradualism, compromise, and process rather than through abstract moral principle. It is based upon tentativeness, provisionalism and skepticism. Its values are those of process and of the ideal of law. The effect of this teaching, for Bickel, is for the courts to limit their tendency to abstract, moral pronouncements in favor of the virtues of procedure and restraint. This restraint, for Bickel, respects the ability of other portions of society to develop and work out compromises among competing legitimate interests over time. Bickel writes: (p4)

"The Whig model assesses human nature as it is seen to be. It judges how readily and how far men can be moved by means other than violent, that is to say,how far they can be moved by government. The values of such a society evolve, but as of any particular moment they are taken as given. 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. That, and not anything that existed prior to society itself and that now exists independently of society is what men have a right to. The Whig model obviously is felxible, pragmatic, slow-moving, highly political."

In the following essays in the book, Bickel develops his Whig outlook by examining legal issues, such as the concept of citizenship, and the extent of the right of free speech under the First Amendment. (Bickel had been counsel to the New York Times in the celebrated "Pentagon Papers" case.) Bickel also includes a lengthy and difficult essay, written with the violence of his times in view, of the proper moral scope and limitations of civil disobedience. Broadly, Bickel finds civil disobedience proper when the protestor is willing to put himself at risk and to suffer the possible legal consequences of his protest (as Socrates did as recounted in Plato's "Apology"). Bickel rejects forms of civil disobedience that have as their goal the coercion of other persons or the outright rejection of the institutions and values of the society.

In the final essay in the collection, "Moral Authority and the Intellectual", Bickel criticizes the Universities of his day for their failure to articulate the values of study, effort, and the disinterested search for truth in the face of criticisms of and protests from students. Bickel's concerns over the politicizing of the University have a contemporary feel. Bickel concludes this essay with the following summation of his position regarding the "morality of consent". (p. 142)

"If most of the thihgs that politics is about are not seen as existing well this side of moral imperatives, in a middle distance, if they are not seen as subject on both sides of a division of opinion to fallible human choice, then the only thing left to a society is to succumb to or be seized by a dictatorship of the self-righteous. ... But if we do resist the seductive temptations of moral imperatives and fix our eye on that middle distance where values are provisionally held, are tested, and evolve within the legal order -- derived from the morality of process, which is the morality of consent -- our moral authority will carry more weight. The computing principle Burke urged upon us can lead us then to an imperfect justice, for there is no other kind."

Bickel's combination of political liberalism and judical conservatism, his skepticism and his respect for how society finds its way to its values, make him a provocative thinker worth getting to know. I am more inspired, and chastened, by his thoughts today than I was as a fledgling lawyer more than 30 years ago.

Robin Friedman