The Morality of Consent

by Alexander M. Bickel

“This short but provocative volume… is a fitting testimony to the author’s extraordinary, though tragically brief, career as a constitutional scholar, lawyer and teacher. In just a hundred and a half literate pages, we are treated to vintage Bickel insight into every major political issue of the decade, from the civil rights movement, to the Warren Court, through the frenetic university upheavals, and―inevitably―to Watergate…. A tapestry woven by a master of subtle color and texture.”―Alan M. Dershowitz, New York Times Book Review
“Presents the core of [Bickel’s] legal and political philosophy…. In the five essays that compose this volume Bickel explores the relationship between morality and law, examining the role of the Constitution and Supreme Court in our political process, the nature of citizenship, the First Amendment, civil disobedience, and the moral authority of the intellectual…. All will be stimulated by Bickel’s thoughtful message.” – Perspective
“[Bickel] wrote with astonishing clarity. It takes no legal training to understand his thinking about the law. Nor does it take a willingness to agree with him. All that’s required of the reader of this important ‘little’ book is a concern that rivals Bickel’s about the future of American society.” – Newsweek
“An illuminating, often a moving book, with all of Professor Bickel’s rare ability to bring law to life in vivid words.”―Anthony Lewis
Alexander M. Bickel, Sterling Professor of Law at Yale Law School, taught at Yale from 1956 until his death in 1974.

Genres: Law, Philosophy, Nonfiction

165 pages, Paperback

First published January 1, 1975

About the author

A legal scholar and expert on the United States Constitution., Alexander Mordecai Bickel was Sterling Professor of Law at Yale Law School, where he taught from 1956 until his death. Bickel graduated Phi Beta Kappa from City College of New York in 1947 and summa cum laude from Harvard Law School in 1949. He was a law clerk for federal Judge Calvert Magruder of the United States Court of Appeals for the First Circuit, and clerked for Justice Felix Frankfurter of the Supreme Court in 1952 and 1953.

Reviews

[Oliver Bateman · Rating 5 out of 5]

i first read this slim volume in law school after finishing bickel's "the least dangerous branch" (which i'll likely re-read in 2022 as well). bickel's remarks - in favor of the "morality of process," neutral first principles, and faith in case-by-case adjudication and procedure-mediated discourse (with some procedures forbidden to all) - hold additional salience now, especially as bickel is removed from those situations (student unrest, warren court decisions) that made him a somewhat controversial figure.

bickel does a nice job of connecting nixon's "what the president says is law"/watergate contretemps with contemporaneous movements on the left to prioritize feeling and morality over fidelity to law, all the while scattering choice lines throughout these essays (people writing ceaselessly of civil war and looming apocalypse engage in "rhetorical inflation" that may hasten the loss of rights they claim have already evanesced). interesting stuff, and because bickel's a better writer than many contemporaries, this book can be read and outlined in 2-3 horus.

[Byung Kyu Park · Rating 1 out of 5]

I put the book down after 5 minutes. With all those unexplained proper nouns flying around, I felt like I was reading yet another uninteresting math paper. Name-dropping is the refuge of erudite men who have, in fact, nothing interesting to say.

[Brent · Rating 4 out of 5]

"Everything can be improved, even radically improved, and change is the law of life. But not everything can be improved instantly, and not all change is good."

Bickel takes Burke as his starting point and contrasts the 18th century philosopher with the "contractarian liberal." To Bickel, this contractarian liberal is a moralist who is ready to implement his own view of right and wrong into society without any regard for the system in place. For Bickel (and for Burke), this approach imprudently risks the destruction of a society that is, though imperfect, far from the wretched wasteland the contractarian makes it out to be. It is the contractarian's elevation of cause over process, cause over legitimacy, cause over all, that tears at the heart of the only genuine source of morality: consent, namely of the people to be governed by a certain procedure. In Bickel's eyes, the Watergate scandal served as the peak of this wrongful valuation of ideology over process. It is Burke's "calculating principle" that allows the legitimized process to weigh certain claims of morality rather than the revolutionary predispositions of the contractarian which risks shaking the imperfect but soundly established foundations of society.

Overall, I found this book helpful. I had read it to gain insight on Bickel's judicial philosophy, but found a more general work of public philosophy. I think this particular book adds value to the philosophy of originalist interpretation as it highlights the role of the court especially as an institution that upholds legitimacy and process over certain moral aims, however noble they may be. Although, this would cause one to wonder why Judge Bork ended up distancing himself from the book's ideas. My biggest misgiving with the book is its generality. It's not even a weakness of the book that it focuses more on abstract ideas and less on how those ideas ought to be applied, as that was Bickel's goal. But I suppose I was a bit disappointed after expecting a more practical examination of legal interpretation. Overall, an insightful book!

[DoctorM · Rating 4 out of 5]

I've never understood why this book seems largely forgotten now. It's one that's always meant a lot to me--- one of the few works of clear political philosophy that I've admired. "Morality of Consent" is a clear and well-reasoned exposition of liberal constitutional theory and a defense of liberal democracy. Very much worth reading.