Online Alexander Bickel symposium: Bickel and Bork beyond the academy

Roger Pilon is vice president for legal affairs at the Cato Institute and the founder and director of Catos Center for Constitutional Studies. He holds Catos B. Kenneth Simon Chair in Constitutional Studies and is the founder and publisher of the Cato Supreme Court Review.

A spirited debate over judicial review was unfolding in the legal academy when Alexander Bickels The Least Dangerous Branch appeared in 1962. Often abstract, arid, and abstruse, the cottage industry that followed will likely be the focus of others in this symposium, coming as they do from that world. Ive had the good fortune to spend the better part of my career beyond those ivied walls where, as Judge Robert Bork and Justice Antonin Scalia have said, few have had the time or inclination to follow such arguments. Yet Bickels thesis, at least, did have real world consequences through the offices of his close Yale Law School friend and colleague, Judge Bork, who has written that Bickel taught him more than anyone else about the Constitution. Because Ive been intimately involved in that outside debate, that will be my focus here.

I allude, of course, to the fact that Bork, after he left Yale, and whatever his several differences with Bickel, drew nonetheless on Bickels two main themes the countermajoritarian difficulty and the passive virtues to become the dominant figure in the rising conservative legal movement, with its call for judicial restraint a direct response to the judicial activism and the rights revolution conservatives saw coming from the Warren and Burger Courts. Whether in the pages of National Review from the late 1950s, in the aftermath of the Goldwater takeover of the Republican Party in the late 60s and on through the 70s, the emergence of the Federalist Society in 1982, or through the Reagan administrations judicial appointments, Bickels influence on the Bork brief for judicial restraint was at the center of the increasingly influential conservative political debate concerning the courts.

But a funny thing happened along the way. During the mid-70s a tiny band of libertarians, rooted for the most part in that emerging conservative political movement and, in academia, in philosophy and law, began to question the conservative thesis. After all, didnt the nation spring from the idea of natural rights? And werent courts instituted to secure those rights by limiting government power? Indeed, what was it with this judicial deference to majoritarian democracy, the very process that had given us the Leviathan against which conservatives (and libertarians) were otherwise railing?

Thus the debate over the conservative movements jurisprudential soul began. Long dominated by Borkian conservatives, it has slowly shifted over the years in the libertarian direction not entirely, to be sure, but significantly. Drawing on both theory and history, libertarians have called for a more active judiciary not to be confused with liberal judicial activism first to defend rights, as in Lucas v. South Carolina (1992) and Lawrence v. Texas (2003), then to challenge powers, as in Lopez (1995), Morrison (2000), and the Obamacare cases, where six of the twelve judges who had ruled on the merits by the time the Supreme Court granted cert. were sufficiently engaged to hold that Congress had exceeded its power under the Commerce Clause, as the Court itself just ruled and as libertarians had argued long before conservatives came to that view for fear of unleashing the courts. Two years ago, nearly all academics and many conservatives gave that argument little chance.

Its that story, about how the Bickel-influenced Bork thesis has played out, and declined, over the several decades during which the conservative legal movement has grown, quite outside of academia, that I want to tell, in the limited space I have, and at least as I saw and lived it. But lets start by putting Bickel in a proper setting, and that takes us far back.

Back to Bickel

To summarize and vastly oversimplify, Bickels often subtle arguments in fact, the very idea of a countermajoritarian difficulty and of the need, accordingly, for courts to indulge the passive virtues taken together speak volumes about his constitutional vision. Hes not an originalist, as Bork has convincingly demonstrated. Hes a small d democrat, his intellectual roots in the Progressive/Populist movement that in time would invert the Framers Constitution through the New Deals constitutional revolution the Populists believing themselves vindicated, even as actual power shifted to Progressive elites who would sit on everything from the New Deals National Labor Relations Board to Obamacares Independent Payment Advisory Board.

The intellectual underpinnings of that movement drew variously from German ideas about good government (Bismarcks social security scheme), British utilitarianism (replacing natural rights theory), and the emerging social sciences (enter the social engineer), all of which infused the idea of law as policy and hence as legislation aimed at providing the greatest good for the greatest number. That vision stood in sharp contrast with the older idea of law as principle, grounded in liberty, property, and contract, secured by courts enforcing those rights as well as such legislation as might be necessary to flesh them out, to provide a limited set of public goods, strictly defined, and to do whatever else might otherwise be constitutionally authorized.

Such was the main business although, alas, not the only business of the Old Court, nowhere more evident than in its splendid Lochner decision in 1905. But as legal realism, with its conflation of politics and law, took hold in American legal thought, the Court began to cave, doing so systematically after FDRs Court-packing threat, as we know. The Constitutions core doctrine of enumerated powers was eviscerated in 1937; the Bill of Rights and judicial review were bifurcated in 1938, with economic and property rights the main victims; and the nondelegation doctrine was jettisoned in 1943, giving us the modern executive state. To oversimplify, but not by much, the Constitution became a largely empty vessel, to be filled by transient majorities, though more realistically by those best situated to work the new system and the courts were restrained from hearing a vast array of regulatory and redistributive complaints.

The democratic fig leaf that purported to justify this new order dominated both academic and popular opinion for decades thereafter and still does to a large extent but it began to slip embarrassingly as the civil rights movement came on the scene. Majoritarian will might suffice to restrict disfavored economic liberty and property rights if you didnt think too deeply about it but fundamental rights were another matter, especially those of people unable to get redress through the democratic process unlike property owners and business people, presumably. In this context, the most important test of the judicial restraint that flowed from the New Deal came, of course, in Brown v. Board of Education (1954). Steeped in this intellectual and jurisprudential tradition, and clerking at the time for Justice Felix Frankfurter, who had serious reservations about the opinion, if not the decision, Bickel would later try to square that decision with his majoritarian principles and with his belief that the Court got it right also, a Term later, when it refused to hear Naim v. Naim, a challenge to Virginias anti-miscegenation statute.

The effort was less than successful. Bickel granted that the principle was the same in both cases, but given the intensity of the opposition to Brown, especially in the South, he asked whether it would have been wise, in that context, for the Court to have decided Naim. Thats a political question, of course, which the Court answered, implicitly, by ducking the issue, which Bickel defended. When he wanted or needed to, therefore, he could rise above principle, and he could because he seems to have been working with multiple principles, not all of them grounded in the Constitution. Given that he believed also that judicial review needed to be consistent with the theory and practice of political democracy, he was able to be selective with his enduring principles, as he was in rationalizing the Courts handling of Naim. All of which brings us back from his passive virtues theme and its nonjusticiability elements, indulged in Naim, to the theme that seems most to have animated Bickels thinking, the countermajoritarian difficulty.

Why a difficulty? The most plausible explanation, I believe, is the simplest, as is often the case: He really was a small d democrat, which means, as a practical matter, a majoritarian. Not that he was oblivious to the majoritarian difficulty, of course, but its far and away the minor theme and, still more, an unfocused theme. Nor was he oblivious to the problem of factions, though he minimized it. For Bickel, the heart of the democratic faith is government by the consent of the governed. To be sure, the good society will not only want to satisfy the immediate needs of the greatest number he located legitimacy in the consent of a present majority but will also strive to maintain enduring general values, for which courts are better fitted than legislatures, he wrote. Still, nothing in the complexities of our system can alter the essential reality that judicial review is a deviant institution in the American democracy.

Indeed, he went out of his way to press that point, repeatedly. Its as if he latched on to the countermajoritarian difficulty early in his thinking and it became the prism through which all else was seen including the Constitution itself. For Bickel, as for Bork, it was all about majoritarian democracy. They parted over originalism: Bickels Justices would extract his enduring principles less from the document than from the tradition of our society and of kindred societies that have gone before, in history and in the sediment of history which is law, and . . . in the thought and the vision of the philosophers and the poets. Borks Justices would extract them from the Constitution, or so he believed.

The Madisonian Constitution

Fast forward to 1990 and the echoes of Bickel in Borks seminal statement, following his failed Supreme Court nomination: In The Tempting of America, which inspired the growing conservative legal movement for years, Bork wrote that the central problem for our constitutional courts is the resolution of the Madisonian dilemma, namely, that in wide areas of life majorities are entitled to rule, if they wish, simply because they are majorities, yet there are some things majorities must not do to minorities, some areas of life in which the individual must be free of majority rule (emphasis added). Responding shortly thereafter in the Wall Street Journal (Rethinking Judicial Restraint), I wrote that that gets Madisons vision exactly backward. Madison held that in wide areas individuals must be free because theyre born free, but in some areas majorities may rule, not because theyre inherently entitled to, but because weve authorized them to. That gets Americas presumptions and burdens right.

In so writing I was simply drawing on work that I and others had been doing since the 1970s, if not before, to resurrect the Madisonian Constitution the Constitution in exile, as Judge Douglas Ginsburg put it in a 1995 Cato publication. That meant criticizing the modern liberal inversion that had dominated the field since the New Deal both the pre- and the post-Warren Court versions. And it meant taking on the more recent conservative version as well, which made peace with the demise of the doctrine of enumerated powers (a lost cause, Scalia said over lunch at Cato in 1993), but then urged courts to enforce only those rights that were fairly clearly in the Constitution while remaining otherwise restrained and deferential to the political branches.

A pox on both your houses, we said, and here are just a few early illustrations of that undertaking again, as Ive seen and lived it. In the 70s at Chicago I was writing my dissertation on the theory of rights, drawing in part on Richard Epsteins early work in torts across the Midway. Meanwhile, a young Harvard Law student, Randy Barnett, was rethinking criminal law, while out in San Diego the late Bernie Siegan was writing his majestic Economic Liberties and the Constitution, published by Chicago in 1980. The year before hed attended a rights conference I organized out there, which plumbed the epistemological depths of the subject and included Epstein on property, all of which appeared that year in a special issue of the Georgia Law Review dedicated to the new rights theory a volume the Institute for Humane Studies circulated long thereafter.

We all, plus others, came together again in Washington in 1984 for a conference Cato sponsored on Economic Liberties and the Judiciary, the outline for which I sketched on the back of a paper napkin a year earlier, over lunch with Catos president, Ed Crane. The conference opened with a spirited debate between then-Judge Scalia and Epstein, who said upon moving to the podium that after listening to Nino (whod worked the Bickel/Bork thesis) hed thrown away his notes (when did Richard ever use notes?!) so he could respond afresh, and so he did. Thus was Washington introduced to this third way this unfashionable idea that the courts, per Madison, should be an impenetrable bulwark against every assumption of power in the legislative or executive. Epsteins Takings (1985); Stephen Macedos The New Right v. The Constitution (1986); Cranes Wall Street Journal critique of Bork, Soul of a Congressman (1987); Siegans and my ABA Bicentennial showcase program speeches on Economic Liberties and the Judiciary (1987); a Federalist Society conference on the same subject (1987); Epstein on the Commerce Clause (1987); Catos Center for Constitutional Studies established (1989); Barnetts The Rights Retained by the People (1989); Barnetts and my ABA Bicentennial showcase program speeches on The Forgotten Ninth and Tenth Amendments (1991); the Institute for Justice established (1991); and on it has gone, with a growing group of younger libertarian scholars, lawyers, and judges now well established, and a growing list of publications, including the Cato Supreme Court Review, launched during the Courts 2001 Term.

In sum, Bickel, the uneasy liberal, drew from Felix Frankfurter, Learned Hand, Herbert Wechsler, and others in the judicial restraint school that followed the New Deal constitutional revolution, developing in the process a theory of judicial review aimed at addressing the Warren Courts activism, but one on which his friend Bork, the easy conservative, would go to school, rejecting some elements, but keeping its core, all to inform the conservative critique of that new activism. There things stood, far removed from Madisons Constitution for liberty through limited government, until a new school emerged to call all of that into question.

Progressives and their liberal progeny were all process, the substance to be supplied by popular will, in theory, more often in practice by elite forces. Bickel and Bork rejected such forces, for the most part, but not the wide scope for majoritarian process. They failed to sufficiently appreciate that the Constitutions theory of legitimacy is grounded in the Lockean theory of rights, that the Ninth and Tenth Amendments reflected and instituted the moral and political theory of the Declaration of Independence, our founding document, and that the Civil War Amendments completed the project by applying that theory against the states. Popular will fills offices and, to that extent, authorizes officeholders to act. It does not authorize their offices or actions. If it did, a much shorter constitution would have served. As the Obamacare litigation of the past two years has shown, those first principles are back in play. Madison understood the document hed drafted: the powers of the federal government, properly understood, are indeed few and defined, leaving us otherwise free to plan and live our own lives.