Alexander Bickel and the Post-Realist Constitution

Abstract

This article examines the career and major writings of Alexander M. Bickel. It identifies the major themes that marked Bickel’s work, the fundamental principles that guided his thinking, and the changing social and political pressures that shaped his constitutional jurisprudence and then reshaped it over the years. It considers his efforts to incorporate and supercede the jurisprudential insights that legal realism highlighted, the importance of his close relationship with Justice Felix Frankfurter, his commitment to the early civil rights movement and Brown v. Board of Education, his subsequent transformation into a stinging critic of the later Warren Court, and finally his last efforts to develop a “conservative” constitutional and political philosophy. The article concludes that Bickel’s jurisprudence will remain provocative and insightful because it focused on the fundamental tensions inherent in the American constitutional structure and, thus, will remain relevant to the challenges that the nation’s constitutional government will confront in the future. Finally, it suggests that Bickel’s problematic but fascinating book, The Least Dangerous Branch, will stand as his most enduring monument as a constitutional theorist and that his brilliant collection, Unpublished Opinions of Mr. Justice Brandeis, will be recognized as his most incisive achievement as a constitutional historian.