Bickel's Constitution: The Problem of Moderate Liberalism

Alexander Bickel's three most comprehensive books explore a common constitutional-political theme, the manner in which sound political judgment should guide judges and scholars who authoritatively interpret the United States Constitution. Yet the works differ, and the differences illuminate a dual development of Bickel's understanding: a growing fear of the contemporary obstacles to politic constitutional judgment, and a growing thoughtfulness in coming to grips with these obstacles. The Least Dangerous Branch had invented politic techniques for applying the judiciary's principles. The Supreme Court and the Idea of Progress cautioned against judicial application, by novel techniques, of an impolitic egalitarian faith. The Morality of Consent, upon which this paper concentrates, elaborates Bickel's turn from the techniques of judicial power to the wise direction of judicial power. The paper considers the direction that Bickel proposes.