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Shaping Modern Constitutional Theory: Bickel and Bork Confront the Warren Court

Published online by Cambridge University Press:  05 August 2009


Today constitutional theory is marked by the staying power of originalism, interest in nonjudicial constitutional interpretation, and reconsideration of when judicial review is “countermajoritarian.” Alexander M. Bickel and Robert H. Bork shaped these concerns in the 1960s and early 1970s while they were close friends and Yale faculty colleagues. Both recognized that the Warren Court's liberal activism, when considered in the aftermath of legal realism, demanded a clearer theory of the limits of legitimate judicial power. This article examines their legal and constitutional thought in this period and then briefly surveys how their ideas continue to configure constitutional theory. Current defenders and opponents of originalism are still compelled to wrestle with the imprint of positivism, formalism, and judicial restraint Bork gave the doctrine. Current challenges to the “countermajoritarian difficulty” in favor of nonjudicial interpretation must contend with this influential formulation of Bickel, and they owe more to the Bickel of constitutional “colloquy” than has been appreciated.

Research Article
Copyright © University of Notre Dame 2003

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I gratefully acknowledge the critical comments Gary L. McDowell gave on an early draft of this article.

1. The court posed a countermajoritarian difficulty because of its tension with the axioms of government by consent and legislative creation of public policy. This difficulty could be overcome only on the basis of “enduring values” or fundamental “principles” capable of legitimating and restraining its action. Bickel, Alexander M., The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Indianapolis, IN: Bobbs-Merrill, 1962), pp. 24, 239Google Scholar. See also pp. 25, 203, 236, 239.

2. Laura Kalman defines “legal liberalism” as “trust in the potential of courts, particularly the Supreme Court, to bring about ‘those specific social reforms that affect large groups of people such as blacks, or workers, or women, or partisans of a particular persuasion; in other words, policy change with nationwide impact’” (Kalman, , The Strange Career of Legal Liberalism [New Haven: Yale University Press, 1996], p. 2Google Scholar, quoting Rosenberg, Gerald, The Hollow Hope: Can Courts Bring About Social Change [Chicago: University of Chicago Press, 1991], p. 4)Google Scholar.

3. In thus labeling Bork's originalism I do not enter ongoing technical debates in jurisprudence and the philosophy of law. Bork should be regarded as a positivist because, as will be illustrated below, part 4, section B, pp. 337–42 below, he accepts the most general statement of its two core theses. First, he understands law as “fundamentally a matter of social fact” (Leiter, Brian, “Positivism, Formalism, Realism,” Columbia Law Review 99 [1999]: 1141CrossRefGoogle Scholar), or stated more precisely for Bork's case, “as the command of a sovereign” (Vandevelde, Kenneth J., Thinking Like a Lawyer: An Introduction to Legal Reasoning [Boulder, CO: Westview, 1996], p. 151Google Scholar, see also, p. 114). Second, Bork thinks that “what the law is and what the law ought to be are separate questions” (Leiter, “Positivism”, p. 1142Google Scholar). Bork's approach to adjudication is generally formalist because he treats legal reasoning as a rule-bound, syllogistic (if not “mechanical”) process that constrains judicial discretion and can reach a relatively limited (if not “one and only one”) legal outcome. Compare Leiter, , “Positivism,” pp. 1145–46Google Scholar and Vandevelde, , Thinking, pp. 67–68, 116, 153Google Scholar with Schauer, Frederick, “Formalism,” Yale Law Journal 97 (1988): 509548CrossRefGoogle Scholar.

4. The precise definition of legal realism has been contested since the 1930s, and while the immense literature on the subject cannot be examined here, recently its core claim has been aptly described: “in deciding cases, judges respond primarily to the stimulus of the facts of the case&what they think would be ‘right’ or ‘fair’ on these facts—rather than [to] legal rules and reasons.” Leiter, Brian, “Legal Realism,”in A Companion to Philosophy of Law and Legal Theory, ed. Patterson, Dennis (Cambridge: Blackwell, 1996), pp. 261–79, 269–70Google Scholar.

5. The best history of the process/restraint tradition is Duxbury, Neil, Patterns of American Jurisprudence (New York: Oxford University Press, 1995), pp. 205–99Google Scholar.

6. Brown v. Board of Education, 347 U.S. 483 (1954)Google Scholar.

7. Bickel polished jurisdictional techniques for “stay[ing] the hand”of the Court with such doctrines as “standing,” “case or controversy,” “ripeness,” “justiciability,” and “political questions,” all of which the Court could use to deny itself the hearing of a case. Bickel, , Least, pp. 71, 132, 113, 111–98Google Scholar; Bickel, Alexander, “The Original Understanding and the Segregation Decision,” Harvard Law Review 69 (1955): 63, 65CrossRefGoogle Scholar.

8. Bickel, , Least, pp. 143, 156, 240Google Scholar. Bickel, regarded the “all deliberate speed” formula for the implementation of Brown as a laudable example of the process of “colloquy” (pp. 250–54)Google Scholar.

9. Wechsler, Herbert, “Toward Neutral Principles of Constitutional Law,” Harvard Law Review 73 (1959): 135CrossRefGoogle Scholar; Bickel, , Least, pp. 4965Google Scholar.

10. Ibid., pp. 16, 18.

11. This point also has been noticed recently as part of an analysis of the ‘turn to history.’ See White, G. Edward, “The Arrival of History in Constitutional Scholarship,” Virginia Law Review 88 (2002): 485–633, 564–67CrossRefGoogle Scholar.

12. Bickel, , Least, pp. 16 (quote), 15–19, 91, 96, 103–104 (quotes), 104110Google Scholar.

13. Ibid., 16 (quote), 24 (quote), 25–26 (quote), 26 (quoting Rostow, Eugene V., “The Democratic Character of Judicial Review,” Harvard Law Review 66 [1952]: 193–224, 208)CrossRefGoogle Scholar.

14. Bickel, , Least, p. 56Google Scholar.

15. Kelly, Alfred H., “Clio and the Court: An Illicit Love Affair,” Supreme Court Review 1965: 131Google Scholar.

16. Purcell, Edward A. Jr, “Alexander M. Bickel and the Post-Realist Constitution,” Harvard Civil Rights-Civil Liberties Law Review 11 (1976): 527, 538 (quote)Google Scholar.

17. Ibid., pp. 542–43.

18. Bickel, , The Supreme Court and the Idea of Progress (New York: Harper and Row, 1970)Google Scholar. Bickel's intellectual shift has been analyzed most closely by Purcell, who faults him for viewing American politics as pluralistic, yielding a picture too “sanguine” and “simplistic and mechanical.” On this view Bickel disregarded “the fact that ‘pluralism’ simply meant that the wealthier, more powerful, and better organized groups would continue to dominate government” (Purcell, , “Bickel,” pp. 554, 555Google Scholar). While pausing to note that Purcell's description of the simple fact about pluralism is not as clear to other jurisprudential writers, see Whittington, Keith E., “Extrajudicial Constitutional Interpretation: Three Objections and Responses,” North Carolina Law Review 80 (2002): 836–39Google Scholar, my analysis of Bickel does not require resolution of this fundamental dispute about the American political system. Instead I focus on Bickel's linkage of the growing controversy over judicial review (an empirical feature of the era, whatever one's view of the political system) to the lack of adequate normative theories for establishing how adjudication might resolve political conflicts without becoming regarded as illegitimate.

19. Bickel, to Bork, , 28 04 1969Google Scholar, Alexander Mordecai Bickel Papers, Manuscripts and Archives, Yale University Library (hereafter, “Bickel Papers”) Series I, Box 10, folder 195.

20. Sweezy v. New Hampshire, 354 U.S. 234, 255, 266–67 (1957)Google Scholar. Bickel described this as “an opinion of the first importance” (Bickel, , Idea, p. 33Google Scholar).

21. Ibid., p. 34.

22. Ibid.

23. Ibid., p. 47. These charges were “erratic subjectivity of judgment,” “analytical laxness,” “intellectual incoherence in many opinions,” and “imagining too much history” (p. 45)Google Scholar. For analysis of specific cases see pp. 47–81, 103–73Google Scholar.

24. Ibid., p. 99.

25. Ibid.

26. Bickel, , “Some Observations on the Function of the Federal Judiciary,” [6 pp.] 26 02 1971, p. 2, Bickel Papers, Series VIII, Box 37, folder 23Google Scholar.

27. Bickel, , Idea, p. 107Google Scholar.

28. Ibid., pp. 94–95. Bickel, similarly criticized Hobson v. Hansen, 269 F. Supp. 401 (1967)Google Scholar; Bickel, , “Skelly Wright's Sweeping Decision,” The New Republic, 8 07 1967, pp. 1112Google Scholar.

29. Bickel, , Idea, pp. 177–78Google Scholar.

30. Ibid., p. 179.

31. Bickel, Alexander M., “Close of the Warren Era,” The New Republic, 12 07 1969, p. 15Google Scholar. The Court should seldom use fundamental principles to attempt a speedy “authoritative resolution of large social and political issues. Speed, however, and the confident, single-minded imposition of solutions to problems of the first magnitude—these have been the hallmarks of the Warren Court” (Ibid.).

32. Bork, Robert H., “We Suddenly Feel That Law Is Vulnerable,” Fortune 12, 1971, p. 115Google Scholar; Bickel, to Kleindienst, Richard G., 25 05 1972, Bickel Papers, Series I, Box 10, folder 223Google Scholar. Seeking to secure for Bork an interview with Chief Justice Warren E. Burger, Bickel described the article as addressing “what [Bork] views as the current malaise of the legal order in this country, including our tendency to over use law and repose a naive and exaggerated faith in it as the sovereign instrument for altering social ills” (Bickel, to Burger, , 12 07 1971, Bickel Papers, Series I, Box 10, Folder 218Google Scholar).

33. Bork, , “Vulnerable,” p. 117Google Scholar.

34. Ibid., pp. 116, 117, 138.

35. Ibid., p. 143 (all quotes).

36. Ibid.

37. “Proposal for an Institute of Legal Theory” [6pp, unpaginated], n d., Bickel Papers, Series I, Box 1, Folder 22Google Scholar. This document lists no author, but its first page bears the holograph notation “Bork” and is filed with correspondence from him whose purport suggests that it reflected the views of both men. See, for example, Bork, to Bickel, , 17 02 1969, Bickel Papers, Series I, Box 1, Folder 22Google Scholar; Bork, to Bickel, , 15 01 1969Google Scholar, Ibid. A similar inference is suggested by the proposal's use of the plural voice, see text accompanying notes 38 and 45 where “one of our basic tasks” and “we” refer to the efforts of the proposed Institute.

38. “Proposal for an Institute of Legal Theory” p. 3Google Scholar.

39. Bork, to Bickel, , 14 10 1968, Bickel Papers, Series I, Box 1, Folder 22Google Scholar. This venture was Bork, Robert H., “The Supreme Court Needs a New Philosophy,” Fortune, 12, 1968, p. 138Google Scholar.

40. Bickel, to Bork, , 9 10 1968, Bickel Papers, Series I, Box 10, Folder 193Google Scholar.

41. Ibid.

42. Bork, , “New Philosophy,” p. 177Google Scholar.

43. Bork, Robert H., “Neutral Principles and Some First Amendment Problems,” Indiana Law Journal 47 (1971): 1Google Scholar.

44. Bork, , “Vulnerable,” p. 143Google Scholar.

45. “Proposal for an Institute of Legal Theory,” p. 4Google Scholar.

46. Bickel, Alexander M., The Morality of Consent (New Haven: Yale University Press, 1975), p. 4Google Scholar.

47. Ibid., p. 5.

48. Ibid., pp. 120 (quote), 119, 140–42.

49. Faulkner, Robert K., “Bickel's Constitution: The Problem of Moderate Liberalism,” American Political Science Review 72 (1978): 934, 937CrossRefGoogle Scholar.

50. See Kronman, Anthony T., “Alexander Bickel's Philosophy of Prudence,” Yale Law Journal 94 (1985): 15671616CrossRefGoogle Scholar.

51. Contesting Faulkner's description of Bickel as a “moderate liberal” (“Bickel”), John Moeller argues that had he remained squarely within the liberal constitutional milieu instead of turning to Burke, “the obvious limiting device would have been some form of interpretivism” (Moeller, , “Alexander M. Bickel: Toward a Theory of Politics,” Journal of Politics 47 [1985]: 136CrossRefGoogle Scholar).

52. Kalman, , Legal Liberalism, pp. 52, 57Google Scholar. See also, above note 2.

53. See Ibid., pp. 60–93; White, “Arrival of History.” See also, Chemerinsky, Erwin, “The Price of Asking the Wrong Questions: An Essay on Constitutional Scholarship and Judicial ReviewTexas Law Review 62 (1984): 1207–61Google Scholar.

54. Wright, J. Skelly, “Professor Bickel, the Scholarly Tradition, and the Supreme Court,” Harvard Law Review 84 (1971): 797, 804–05CrossRefGoogle Scholar.

55. Dworkin, Ronald, “The Jurisprudence of Richard Nixon,” New York Review of Books, 4 05 1972, pp. 2735Google Scholar. Bickel's cautions about judicial power were dismissed as “skepticism about rights” that was incompatible with the “particular moral theory” of “rights against the state” that underlay American constitutionalism (Ibid., pp. 33, 34). Bickel does not seem to have responded publicly, but he thanked a correspondent for a “good, hardhearted response” to Dworkin's essay, adding that “Ronald means no harm, and when in residence in the United States thinks more fairly and more reliably about the legal order, but then he has not been in the United States for some time now. His other difficulty is a tendency to trendiness, as well as, I can't refrain from saying, a trend to tendentiousness” (Bickel, to den Haag, Ernest van, 19 05 1972. Bickel Papers, Series I, Box 10, Folder 223Google Scholar).

56. Ely, John Hart, Democracy and Distrust: A Theory of Judicial Review (Cambridge, MA: Harvard University Press, 1980)Google Scholar. Ely acknowledged Bickel's influence by arguing that the task he had set—overcoming the counter-majoritarian difficulty with “enduring values” or fundamental “principles”—was impossible and that judicial review should only safeguard and facilitate political representation (Ibid., pp. 71–72, 104). See also, above note 1.

57. Kalman, , Legal Liberalism, p. 92Google Scholar.

58. One observer concluded that legal liberals typically offered “advocacy scholarship—amicus briefs ultimately designed to persuade the Court to adopt our various notions of the public good” (Brest, Paul, “The Fundamental Rights Controversy: The Essential Contradictions of Normative Constitutional Scholarship,” Yale Law Journal 90 [1981]: 1109)CrossRefGoogle Scholar. Another opined that most liberal theory “was plainly designed to protect the legacy of the Warren Court” (Tushnet, Mark, “Legal Realism, Structural Review, and Prophecy,” University of Dayton Law Review 8 [1983]: 811)Google Scholar.

59. Bork, “New Philosophy” p. 141Google Scholar.

60. Ibid.

61. Ibid., p. 166. Bork referred to Bickel's “passive virtues” as the theory most able to force the political branches “to face up to hard choices and their consequences” (Ibid., p. 168).

62. Griswold v. Connecticut, 381 U.S. 479 (1965)Google Scholar.

63. Bork, , “New Philosophy,” p. 170Google Scholar.

64. Ibid.

65. Ibid., p. 170. See also p. 177 and Wechsler, , “Neutral Principles.”Google Scholar

66. Bork, , “Neutral Principles,” p. 8Google Scholar.

67. Shapiro, Fred M., “The Most-Cited Law Review Articles Revisited,” Chicago-Kent Law Review 71 (1996): 767Google Scholar. Bork's, “Neutral Principles” is seventh on Shapiro's, “Most-Cited” listGoogle Scholar.

68. Bork, , “Neutral Principles,” pp. 8, 9, 11.Google Scholar

69. Ibid., pp. 6–7.

70. Ibid., p. 7.

71. Ibid., pp. 5 n10 (quote), 4–6.

72. Ibid., p. 3.

73. Ibid., p. 7.

74. Ibid., pp. 7, 16, 8.

75. Ibid., p. 21.

76. Ibid., pp. 14, 13, 11–12.

77. Ibid., pp. 10–11.

78. “Unless we can distinguish forms of gratification [which Bork explicitly denied], the only course for a principled Court is to let the majority have its way.… There is no way of resolving these matters other than by reference to some system of moral or ethical values that has no objective or intrinsic value of its own and about which men can and do differ” (Ibid., p. 10).

79. Ibid. See also pp. 12, 20–21, 30. Noting that Justice Peckham defended the liberty of contract in Lochner with the rhetorical question “‘[A]re we all … at the mercy of legislative majorities?’” Bork wrote that “the correct answer, where the Constitution does not speak, must be ‘yes’” (Ibid., 11, quoting Lochner v. New York, 198 U.S. 45 [1905])Google Scholar.

80. For an introduction to this complex topic, see Mansfield, Harvey Jr, “Edmund Burke,” in History of Political Philosophy, ed. Strauss, Leo and Cropsey, Joseph (Chicago: University of Chicago Press, 1987), pp. 687709Google Scholar.

81. Purcell, , “Bickel,” p. 559Google Scholar.

82. Bickel, , Consent, pp. 24–25, 87–88, 120–21, 141–42Google Scholar.

83. Ibid., pp. 8–10, 25, 29–30. See also, Moeller, , “Bickel,” p. 126Google Scholar.

84. Bickel, , Consent, pp. 19, 24Google Scholar.

85. Bickel, , Least, pp. 240, 244Google Scholar. See also, Bickel, , Idea, pp. 91–92, 175Google Scholar; Bickel, , “The Supreme Court and Political Democracy,” Federal Rules Decisions 44 (1968): 163–64Google Scholar; Holland, Maurice, “American Liberals and Judicial Activism: Alexander Bickel's Appeal from the New to the Old,” Indiana Law Journal 51 (1976): 1025–50Google Scholar. See also, above note 50.

86. Moeller, , “Bickel,” p. 123Google Scholar.

87. Bickel elsewhere emphasized that he wanted to “foster private initiative and responsibility” in contrast to “the mindless big government boys” who were “apt to want to sweep the chessmen off the board by simply saying, let the government do it all” (Bickel, to Percy, Senator Charles H. [R-II], 10 11 1967, Bickel Papers, Series VII, Box 35, Folder 1)Google Scholar.

88. As Moeller notes (citing Ely, Democracy and Distrust), depending upon how expansively one defines the political process, this approach “can open the door to significant activity by the courts” (Moeller, , “Bickel,” p. 124 n11Google Scholar).

89. To this end Bickel defended civil disobedience and free speech so long as they did not attempt to overthrow the constitutional system. Bickel, , Consent, pp. 115–120, 6264Google Scholar. In the course of defending some limits on speech, Bickel favorably cited Bork, “Neutral Principles” (Ibid., p. 62 n9).

90. Ibid., pp. 25–26, 110–111; Moeller, , “Bickel,” pp. 131–35Google Scholar. Bickel opposed affirmative action (with Philip Kurland) in an amicus brief for the Anti-Defamation League of B'nai B'rith in DeFunis v. Odegaard, 416 U.S. 312 (1974)Google Scholar. Bickel, , Consent p. 132n3Google Scholar. In the manuscript for this book which Bickel left before his death he wrote that “If there is not that common effort [of society as a whole] and thus far there is not where Brown is concerned, the enterprise may fail” (“The Morality of Consent” [n. d., enclosed with Bork, to Hopkins, Jeannette, 27 01 1975], p. V29Google Scholar, Bickel Papers, Series II, Box 16, Folder 67). Bork circled this sentence during his pre-publication review and asked: “Did Alex write this recently? It seems an odd statement in view of all the legislation, affirmative action, etc., of recent years. It had even gotten to the point where, as in DeFunis, Alex was arguing that we had carried Brown much too far and were engaging in reverse discrimination. Of course, he may have meant that we have not done the right things, e.g. upgrading the educational system afforded inner-city blacks” (Ibid., holograph). The sentence from the manuscript is not in the published version. Bickel, , Consent, p. 111Google Scholar.

91. Moeller, , “Bickel,” p. 136Google Scholar.

92. Ibid.

93. Ibid., p. 135.

94. Faulkner, , “Bickel,” p. 935Google Scholar.

95. Ibid., pp. 936, 940. See also, Bickel, , Consent, p. 29Google Scholar.

96. Remarks by Bork, Robert H. in Alexander Mordecai Bickel, 1924–1974, p. 10Google Scholar (available in Yale Law School Library).

97. Assuming that a Democratic president would not have nominated the Republican Bork, his departure reminded Bickel of an old tale from a Western territory that, like Yale, was uniformly Democratic except for a few Republican federal appointees. Four government officials, including a Republican, were trapped by a snowstorm. The three Democrats eventually cannibalized the Republican to survive. They were rescued and convicted of murder, although the jury recommended mercy. But the Republican judge was furious and imposed a harsh sentence: “there used to be 2 Repub[licans] in this country, he said, and you, you miserable sob's, you ate one of them” (Bickel, , “Bork Dinner” [6 pp, holograph], 5 05 1973, pp. 12, Bickel Papers, Series IV, Box 29, Folder 52)Google Scholar.

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113. Friedman, , “Dialogue,” pp. 652, 648–53Google Scholar. On this view “interpretation” becomes the process by which meaning is created, and thus “all branches facilitate a dialogue in which people give content to the constitutional text” (p. 658 n410).

114. Whittington, , Construction, pp. 1 (quote), 115Google Scholar.

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Shaping Modern Constitutional Theory: Bickel and Bork Confront the Warren Court
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Shaping Modern Constitutional Theory: Bickel and Bork Confront the Warren Court
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Shaping Modern Constitutional Theory: Bickel and Bork Confront the Warren Court
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