Having It Both Ways

Three years ago in a book entitled The Least Dangerous Branch, Mr. Bickel, Professor of Law at Yale, gave us a remarkably subtle and discerning interpretation of the Supreme Court’s role in the government of the American people. By ingeniously combining a plea for principled decisions with praise for “the passive virtues,” Mr. Bickel tried, as it were, to have his constitutional law both ways—the way of activating principle and the way of restraining prudence. His aim was to discover the standards which should govern a bold and progressive Court, and at the same time to define the means by which such a Court might passively hold its own exuberance in check. For example, the activism that brought the Court to end segregated education was for him wholly admirable, yet he found the Court no less commendable for having passively postponed decision on the lawfulness of statutes prohibiting miscegenation. In effect, Professor Bickel was telling the Justices that of course they should go out to swim, even specified the branches on which they should hang their clothes, but made it quite clear that there are many occasions when they should not go near the water. Such apparently contrary instructions are not likely to be wholly successful, and a learned critic spoke fairly, I think, when he suggested that Professor Bickel’s formula demands “100 per cent insistence on principle, 20 per cent of the time.”

Politics and the Warren Court is a collection of essays which for the most part originally appeared in popular, rather than technical, journals. They do not, accordingly, display the subtle ingenuity that distinguished the central argument of The Least Dangerous Branch. Yet much of the new collection is based upon the same presuppositions as those which shaped the central argument of The Least Dangerous Branch. One of these presuppositions emerges most sharply in the essay “Curbing the Union,” which deserves particular attention; for it not only helps to expose some of the roots of “the passive virtues,” but clarifies important aspects of Professor Bickel’s thought, particularly the analysis of civil disobedience contained in the two most interesting essays in the new book, “Civil Rights and Civil Disobedience” and “The Limits of Effective Legal Action.”

THE COURT, Professor Bickel tells us in “Curbing the Union,” “is engaged in a continuous colloquy with the nation. Over time, the Court proposes and the nation disposes.” This colloquial theory of constitutional law transforms the decision of a case into the suggestion of a hypothesis. It sees our constitutional history as the by-product of a dialogue between the Justices and the people, a discussion in which the Court sometimes succeeds and sometimes fails in its efforts at persuasion. The theory accentuates the tentative elements in constitutional adjudication and makes an illusion of most finalities in constitutional law. It reminds us that when a decision of the Court is intolerable to the American people the Court probably will allow the critical voice of the people to prevail, either by the simple process of overruling the decision, or the more elaborate devices of finding it distinguishable from previous cases. Professor Bickel’s belief that a Constitution is better kept alive by colloquy than by amendment leads him, for example, to urge that the featureless generalities embodied in the “one man, one vote” formula of the recent decisions on reapportionment be cast out of constitutional law by colloquial means rather than by adoption of the Dirksen Amendment. I suspect that for Professor Bickel much of the force that he finds in the colloquial theory comes from its implied support of the passive virtues. If one comes to see the Court’s decisions as hypotheses submitted to the people in the more or less confident hope that they will be accepted, it seems quite appropriate that the Court should have extensive authority to say whether or not a particular time is fitting for the tentative formulation of a new principle. The passive virtues are almost necessarily central in any scheme of things that accepts the colloquial theory of constitutional law.

As a description of the externals of history the theory is attractive. The Court has, after all, no greater authority than the people are willing to respect. The Justices wear no robes if we refuse to see them. Because the Court knows these facts of power, it is plausible to suggest that its decisions are not answers but proposals. Yet the fact remains that the Court’s sole authority is to dispose of cases and controversies. Its decisions thus must be determinations as well as hypotheses—endings as well as beginnings. Surely the Justices are as conscious of the decisive aspect of their adjudications as they are of the precarious destiny to which public opinion subjects their view of things. It is not surprising, accordingly, that the Court has not found it as easy as Professor Bickel suggests that it should be to tell a litigant that though the Court is on his side it is expedient to keep its sympathy a secret. So long as constitutional adjudications are something much more than colloquies between the judges and the people the passive virtues will occupy, I suspect, a less exalted position than Professor Bickel has given them.

I HAVE SAID that the doctrines developed in the essays on “Civil Rights and Civil Disobedience” and “The Limits of Effective Legal Action” seem to be grounded in the same colloquial presuppositions that underlay Professor Bickel’s previous work. Both essays are concerned with a classic problem of law and morals that has recently come vividly alive. Though Professor Bickel does not explicitly bring his colloquial theory of constitutional law to bear upon today’s problems of civil disobedience, some of the central elements in his analysis are closely related to his insistence upon the tentative character of judicial decisions. Professor Bickel recognizes that law is so deeply affected by public opinion as almost to be its product, and that therefore the boundaries of lawfulness are always in process of redefinition. Accordingly, in his consideration of the “lawfulness” of civil disobedience he tends to be more tolerant than other lawyers have been of acts which violate present law, but which are committed in the hope that the boundaries of lawfulness will be extended to include them. It is, surely, quite natural and appropriate that one who sees decisions as hypotheses tendered for public acceptance should see mass demonstrations and organized protest against the existing order as legitimate comment on questionable principle. Professor Bickel recognizes that the bounds of legality were passed by the marching in Birmingham in the Spring of 1963, and concedes that they may also have been passed in Selma two years later. To make those admissions, however, is not “to have arrived at a sufficient judgment” about the demonstrations.

These are extra-legal processes of law formation, and it is nonsense to apply legal judgments to them. Such a movement is justified because it is right, because behind the force of numbers is moral force, because the law it seeks to establish is right, not because it derives a right from established law.

Now it seems to me uncertain whether Professor Bickel believes that correct moral conviction may claim primacy over legal obligation. I take it that he sees his position as essentially moderate, for he does not hesitate to acknowledge that constitutionally valid laws may be as obligatory to a society’s most militant critics as they are to its most quiescent friends. Yet he matches that orthodox acknowledgment with the assertion that it is proper and admirable for a man to defy constitutionally valid laws that are immoral. Such an admission is surely similar to the radical theory of civil disobedience. I share Professor Bickel’s conviction that the Fugitive Slave laws of 1793 and 1850 were immoral—deeply immoral—and that abolitionist defiance of the laws was fitting and proper. I share his belief that the Civil Rights Act of 1964 “is a just law,” and that defiance of its provisions is reprehensible. I am not at all sure, however, that I share Professor Bickel’s confidence that it was the immorality of the Fugitive Slave Acts that justified defiance and the morality of the Civil Rights Act that justifies compliance. Perhaps my doubts in that matter are affected by my conviction—not shared by Professor Bickel nor by the Supreme Court of the United States—that the Fugitive Slave Laws were in fact unconstitutional, and that it was the abolitionists’ warranted insistence on this that justified their acts of civil disobedience. Professor Bickel tries to legitimate violations of the prohibition laws by branding the 18th Amendment a regulation of conduct that is “morally neutral, and as to which one’s neighbor or a majority of one’s countrymen ought, of right, to have no power to impose their views.” Though there was much to be said in favor of a gentlemanly defiance of the constitutional prohibition laws enacted by Congress, I do not believe that it is possible to elevate that special lawlessness to a high moral plane. In the effort to find a moral parallel between bootlegging and rescuing fugitive slaves Professor Bickel seems to me to have exposed the dangers that are inherent in building a theory of civil disobedience on an undefined theory of morals. It is particularly surprising that a lawyer who sees many of our most important principles of law as tentative hypotheses should apparently see rules of morality—at least of his morality—as fixed.

A NUMBER of essays included in Politics and the Warren Court are so slight as scarcely to warrant republication. A few others that had considerable importance when they first appeared—those on reapportionment in particular—today seem a little flat. Even the most effervescent journalism, with time, loses its vigor. The contrast between the lasting significance of the historical learning that was embodied in “The Original Understanding and the Segregation Decision”—here reprinted as an appendix—and the ephemeral quality of the slighter pieces necessarily dims some of their interest. The closing essay on the School Prayer Cases shows Professor Bickel at his favorite occupation—the tempering of large principles with passive virtues. Because he sees the complete secularization of the public schools as an ultimate ideal, he claims that it would have been “a near disaster” if the Court had sustained the constitutionality of the so-called Regents’ Prayer—the daily ceremonial of New York’s school-children in which they acknowledged their dependence on God, and begged His blessings on their parents, teachers, and country. Yet Professor Bickel regrets the Court’s determination that the exercise must go. Virtuous if unprincipled wisdom would, in his view, have led the Court to avoid decision altogether by a simple denial of the petition to review. Some of us would find an easier, if more cowardly, course towards wisdom in the recognition that the ideal of secularism in education is not so clearly a constitutional principle as Professor Bickel and today’s Court believe it to be. Perhaps the whole notion that our constitutional salvation will be found in the passive and evasive virtues is the reflection of a misleading assumption that the dimensions of basic principle are clear. It is both unfortunate and surprising, I think, that Professor Bickel who so often shows the most sensitive awareness of the relativity of constitutional principle, from time to time finds satisfaction in pretending that we have embodied absolutes in our fundamental charter and now must devise means for their circumvention.