In Praise of Alexander M. Bickel
IN The Morality of Consent,* 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.
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