Alexander Bickel's Philosophy of Prudence

Abstract

Six years after Alexander Bickel's death, John Hart Ely described his former teacher and colleague as "probably the most creative constitutional theorist of the past twenty years." Many today would concur in Ely's judgment. Indeed, among his academic peers, Bickel is widely regarded with a measure of respect that borders on reverence. There is, however, something puzzling about Bickel's reputation, for despite the high regard in which his work is held, Bickel has few contemporary followers. There is, today, no Bickelian school of constitutional theory, no group of scholars working to elaborate Bickel's main ideas or even to defend them, no continuing and connected body of legal writing in the intellectual tradition to which Bickel claimed allegiance. In fact, just the opposite is true. In the decade since his death, constitutional theory has turned away from the ideas that Bickel championed, moving in directions he would, I believe, have criticized vigorously. Given the reverence for Bickel himself (attributable in part, perhaps, to his early death and the sense of unfulfillment one inevitably feels surveying his brief but remarkable career) and the universal regard for his intellectual and literary skills, it is surprising that his influence has remained so limited—so limited, in fact, that today, a little more than ten years after his death, we are in danger of forgetting what it was that he believed and taught.