The Morality of Consent

...His arguments for judicial restraint, his final insistence that universities must remain neutral in the political struggles of the late 1960s, his belief throughout that we must resign ourselves to the imperfections of the social justice we can achieve—these positions stood alongside what in another man would have been labeled simply as arguments of the conventional Left...

...Bickel's friends attest that his life's importance lay in more than what he wrote, wonderful though that writing was...

...Since government is not to be formally limited in the tasks it can legitimately perform, society must be limited in its demands...

...Bickel argues that this is as it should be —that even if in other areas of public life the term "citizen" is accorded more importance than in Constitutional law, it is the Court's disrespect which is the proper attitude...

...Burke is, for Bickel, not primarily the social conservative whose defense of existing institutions and values was all the stronger for knowing how artificial they are...

...Instead of a government which is safe for liberty only when it does notact, Burke gives us a government which can act, and act safely, because it is bound by something more compelling than the empty, formalistic rights wrested from it in some abstract and long-forgotten contract...

...It is, surprisingly enough, the tradition exemplified by Edmund Burke...

...One commonly thinks of contractarianism as a doctrine whose early exponents, at least, despaired of the possibility that human beings could come to reasoned agreement about most political matters...

...it is better not to give at all than to put in the state's hand another possible instrument of oppression...

...Bickel in fact opposed much of the practice of civil disobedience that accompanied the Vietnam war...

...it leaves in the hands of government powerThe Morality of Consent by Alexander Bickel Yale $10.00 ful means of coercion, and contents itself with issuing pious warnings about the uses of those means...

...The idea of a contract that individuals make with the state carries with it the idea of an irreducible obligation to the state: this obligation is given in return for benefits, it is true, and presumes to base itself on willing consent, but in fact the bounds of that consent are very wide, and within them the duty of an individual is to obey...

...on the contrary, he insists that individuals who choose to disobey a given law are obliged to act in a way that honors the idea of law...

...Bickel sees these things in Burke, and appreciates them...

...The limitation is unnecessary because for Bickel there is another, more appropriate tradition on which modern liberalism can rest, a tradition of state action without the dangers of moral absolutism...

...For to Bickel the belief that citizenship is crucial in political life is as dangerous as the belief that individuals are bound to the state by a contract—and dangerous for the same reasons...

...One might answer Bickel's description of dangers by insisting once again on the limited nature of the functions that this kind of state can rightfully exercise...

...For the same reasons, Bickel refuses to condemn in any general way the principle of civil disobedience...

...Even in the case of the right to vote, Bickel says, "it is not the Constitution" but only lesser law "that ties...

...One of these arguments is to be found in an essay on the idea of citizenship—an idea which, in its American context, a more conventional mind than Bickel's might have thought-deserving of a special Burkean reverence...

...To give the baldest example, this country drafts aliens into the military service...

...One who knows students of Bickel's knows that this burden he placed on private institutions was a burden he took on himself...

...But in fact, says Bickel, the idea of a political contract is only a notion that happens to have "captured" the name of liberalism...

...the only government that could be tolerated, therefore, was a minimal and morally unprepossessing one...

...He says that the notion of citizenship has practically no standing in American Constitutional law as a basis on which the state may distinguish among individuals...

...And even Bickel's writing alone poses a special challenge: it is hard to mark the resting place of a mind that insisted on how few such places there are, and that was prematurely stilled in its travels...

...the best of those he taught are quite clearly marked by their experience of him, and by the particular honesty and tolerance which reflect him...

...but even more important, one feels specially grateful for his voice at a time when moralism of the Right and Left is too much with us, and the necessity for practical consent is too often forgotten...

...Not all of Bickel's Burkeanism, of course, is Burkeanism of the Left...

...what he requires as well is caution and self-control in society, if government is not to be asked to do things it should not...

...Bickel emphatically denies any such reverence...

...Yet this stance also demands a special kind of self-discipline in society...

...but his Burke is even more the proto-utilitarian Burke of the "computing principle," who insisted on judging political action by the costs and benefits in particular cases rather than on the basis of fixed ideas about rights and obligations, and who therefore insisted that government, if was to act, needed not merely the abstract consent of society but its real and express consent...

...He by no means thinks that this conscience should be an unself-critical one...

...For one thing, its defense of liberty is from Bickel's point of view too weak...

...but such an answer would not satisfy him...

...If he had not been so rare a man, one could more easily conclude that we are safe with the relationship he envisioned among government, individuals, and private institutions...

...We find Bickel continuing his task of rescuing American liberalism from the corruptions to which it has lately fallen prey, without sacrificing the heart of that liberalism itself...

...Bickel argues that this liberalism of Burke's, with its refusal to place rigid limits on state action and its avoidance of the language of fixed obligation, provides a surer guarantee of individual freedom than the contract theorists ever did...

...Instead of giving individuals only infrequently exercised rights and overly restrictive duties, Burke's thought requires government to seek the active and continuing assent of the constituent elements of society...

...The whole contractarian tradition, he says—not just the form Rousseau gave it, and not just the more modern variants—is marked by a moral absolutism of its own, a moralism that is no corruption of it but that lies at its very core...

...when it comes to these laws themselves, there can be no absolute duty to obey...

...that most symbolically charged act of participation in governance to the status of citizenship...

...the same argument that leads to a relatively tolerant view of civil disobedience leads also to Bickel's well-known conservative views of the courts' political role...

...Their actions must not be massive interferences with lawful process, or coercive in their immediate impact, or threatening of violence...

...Once again, Bickel's concern is to avoid embracing the dangers of the contractarian position, to avoid giving the state too-powerful procedures to enforce its will, to avoid doing away with the necessity for practically expressed, day-to-day consent...

...The Alternative: An American Spectator May 1976 29...

...From a state founded on such principles, there is no recourse short of revolution...

...On this reading of things, the troubles that liberalism has found itself in recently cannot be blamed simply on its contractarian beginnings, but come from our demands that the old arrangements, intended for limited and noncontroversial functions, perform a growing number of morally-charged and divisive ones...

...and the job of criticizing it is doubly hard for someone who did not know the man...

...If government needs continuous consent, the judicial as well as the executive branch must subject itself to the constraintswhich that need imposes...

...Burke's language—a language of the concrete, devoid of talk about fundamental duties—strips government of a moral authority that can easily become a self-righteous tyranny, and does so without putting unwanted bounds around the spheres of activity that government can enter...

...otherwise even a government with the weakest of formal claims on individuals will eventually find itself engaged in the moralistic coercion that Bickel despises...

...Bickel enjoins caution and a certain agnosticism on the part of government...

...Since government is to be so limited in the attachments it can demand from individuals, these attachments must be offered freely, and nurtured in other places...

...To do this, Bickel finds it necessary to examine the origins of the liberal tradition and to reconsider the question of what is central to it...

...But these are not obligations imposed by positive law, by the specific laws actually on the books...

...Citizenship, like a contract, assumes that there is some direct and specifiable relationship between individual and state, a relationship from which some people may 28 The Alternative: An American Spectator May 1976 sometimes be excluded—for reasons of behavior, or mental incapacity, or race, or sex, for instance...

...and that possibility, as Locke recognizes, is an unlikely one: "Great mistakes in the ruling part, many wrong and inconvenient laws, and all the slips of humane frailty will be borne by the people, without mutiny or murmur...

...but, it becomes clear, they are arguments which are not in fact surprising, or whimsical, or inconsistent, but which instead follow naturally from Bickel's first principles...

...but in this book, he insists on voicing his opposition in a way that leaves considerable scope for the principle of appeal to conscience...

...otherwise we are not likely to see much of the self-critical posture that Bickel requires individuals to adopt when they consider rejecting the state's claims on them...

...And on the other side, it is an argument which unnecessarily limits the authority of government to act for the good...

...But Bickel would disagree...

...So this obligation is in most matters quite clearly binding, and it can be pressed into the service of a morally aggressive and presumptuous government as easily as it can serve a more modest one...

...he was also a model of intellectual honesty and political courage in a time marked by no great measure of either...

...Yet this last book, compiled from some of Bickel's later lectures and essays, does offer a self-contained argument...

...and Supreme Court decisions in general have maintained that it makes little difference in one's relationship to the state whether or not one is a citizen...

...We usually see the source of modern liberalism in the "contractarian" tradition exemplified by John Locke...

...Much of this book is taken up with such left-Burkean arguments...

...If the enjoyment of rights or benefits in America depends on being a citizen, then those rights and benefits are always in danger, because the word "citizen" can be defined—and redefined—so as to leave some out...

...Bickel himself "would contest its title to it...

...But as things are—as, perhaps, our contractarian history has made us—it is hard to avoid doubting that Americans can be counted on to entertain those well-tempered opinions which alone can sustain Bickel's unlimited and unlimiting state...

...The reason for his contest is of interest...

...It is this kind of nonpartisanship that gives Bickel's stance much of its appeal...

...As Bickel puts it, "What is given can be taken away...

...Bickel called himself a Burkean liberal —sometimes a Whig—and his positions on the political issues of our time were, to many, a source of at least occasional surprise...