Alexander M. Bickel, THE MORALITY OF CONSENT: Civil Disobedience, Revolution, and the Legal Order (Yale: 1975) published posthumously, pp. 108–11.

[108:] …

    When people in the millions or even hundreds of thousands are opposed—intensely, consistently, and on principle—to a law bearing directly on their conduct of ordinary affairs; effective enforcement is possible, if at all, only through military occupation. Effective enforcement in the face of determined and widespread opposition is possible only if the private conduct that is to be regulated is subject to more or less continuous official scrutiny, and to more or less continuous coercion. It makes no difference that the opposition is nationally in a minority. As Walter Lippmann remarked in 1926, writing about Prohibition, "when the object is to regulate personal habit and social custom, the majority which matters is the majority of the community concerned." People in the sort of numbers we are talking about will control some state governments and many other local authorities, and these in turn may decline to cooperate in the enforcement of locally unpopular federal law. But the chief source of the difficulty is not that the federal government lacks the basic police power and is helpless without the cooperation of the states. The heart of the matter is that no normal police and prosecuting activity can be effective in such circumstances, nothing short of the pervasive presence of armed men will do. When elementary public order breaks down, such a presence has proved necessary in the past as a temporary measure; may be necessary on future occasions; and is well within the authority and capability of the federal government. But as a regular and more or less permanent device, it is something from which we recoil, deeming it destructive of the values of a free society and in the end, quite possibly, counterproductive even in terms of its immediate aim. The true alternatives, therefore, are to reduce the opposition by a process of inducement and persuasion, or to abandon the law. Abandonment of the law is not inconsistent with occasional enforcement in pitched circumstances. And abandonment does not have to be formal, at least not immediately; the law may stay on the books for a while, it may even be observed in some parts of the country, [109:] but if it is substantially abandoned in practice, that in the end is what really matters. Noncompliance is contagious, and the statute-book will conform to the practice.

    Dramatic proof of the proposition may be drawn from, two notorious experiences in American history, one the Fugitive Slave Law, the other the Eighteenth Amendment. The Fugitive Slave Act of 1850 was part of that year's broad compromise on the slavery problem, engineered by Henry Clay and seconded by Daniel Webster, an act with firm support in the Constitution, but repugnant to much of the North. Emerson, no wild abolitionist, called it "this filthy enactment," and wrote in his journal: "I will not obey it, by God!" Many Northern states passed "personal liberty laws," as they were called, which were inconsistent with the act, thinly veiled attempts to nullify it. Efforts at enforcement were often resisted by mobs, were in any event not significant, and soon virtually ceased. A hardening and broadening of Northern antislavery sentiment was the result. Nearly three-quarters of a century later, Prohibition was imposed on the country by constitutional amendment, proposed by the necessary two-thirds vote of the Congress, and ratified by the legislatures of ten more states than necessary, forty-six in all. Because some thought the Eighteenth Amendment might, paradoxically, be unconstitutional, the question was carried to the Supreme Court, but the Court held otherwise.¹⁷ In some states Prohibition was effective; in other areas enforcement soon became a shambles. The Volstead Act was, of course, openly disdained. Respectable and substantial people advised violation of it, and public officials condoned violation. Leaders of opinion began to talk of nullification. No enforcement was possible; the law was no law.

    What do these ominous lessons from history teach us? It is first to be remarked that the Fugitive Slave Act was an immoral law, and that the Eighteenth Amendment attempted to regulate conduct that is morally neutral, and as to which one's neighbor or a majority of one's countrymen ought, of right, have no power to impose their views. Such judgments are not to be escaped; they [110:] are always decisive. That is the blunt truth, and we may as well be aware of it. If, on the other hand, a law is a just law, embodying minimal moral requirements that a national majority may properly attempt to impose, then the earlier experiences teach that persuasion and inducement, tasks of political and social leadership and education, must intervene to generate consent and compel obedience. Pronouncement of the law is the first step, and in itself an important persuasive and educational action.

    In 1954-55, in Brown v. Board of Education,¹⁸ the Supreme Court held that at least legally enforced segregation is unconstitutional and must be stopped and disestablished. It is often and easily assumed, however, and the Court at times has shared this assumption, that a rule of constitutional law laid down by the Supreme Court becomes immediately the law of the land, that if it is not, it should be; else the result is a failure of the system, a failure of enforcement, a failure of nerve. In the Little Rock case of 1957,¹⁹ the first school desegregation case after Brown to reach it, the Court said a constitutional rule once laid down by the Supreme Court creates a duty among all persons affected, and especially government officials who are oathbound to effectuate the Court's will to implement that law. The Court did not say that citizens in general are under an obligation to obey the Court's law, but that was the clear implication. When the Court's law affects limited interests and its prestige is sufficient to gain general acquiescence in its will, that is how things work; but not when the Court's judgments touch points of serious stress in the society. For the basis of all law—judicial, legislative, or administrative—is consensual. We are willing, and ought to be willing, to pay only a limited price in coercing minorities. Whenever a minority is sufficiently large or determined or, as in the case of Brown, strategically placed, we do not quite have law. We must then generate a greater measure of consent, or reconsider our stance on the minority's position. We must, in such circumstances, resort to methods other than coercive law; methods of persuasion [111:] and inducement, appeal to reason and shared values, appeal to interest, and not only material but political interest. We act on the realization that the law needs to be established before it can be effectively enforced, that it is, in a quite real sense, still provisional.

    The crucial point is that we engage in a contest of wills. If a majority relaxes in a failure of patience or in discontinuity of purpose as it did after Reconstruction, or if it thinks it can devolve its responsibility on some enforcement officials in Washington and forget about it, as it largely did during Reconstruction, the law is from that moment moribund. If it could have been understood that the Court's decision in Brown and the passage of the civil rights statutes launched a great reforming enterprise, to be carried on by the society as a whole and not merely by the enforcing arm of the federal government, success could at least be possible. Without that common effort such an enterprise may fail. The general practice is to leave the enforcement of judgemade constitutional law to private initiative, and to enforce it case by case, so that no penalties attach to failure to abide by it before completion of a successful enforcement litigation. This means quite literally that no one is under any legal obligation to carry out a rule of constitutional law announced by the Supreme Court until someone else has conducted a successful litigation and obtained a decree directing him to do so. Any rule of constitutional law not put into effect voluntarily by officials and other persons who acquiesce in it, or not taken up by legislation and made more effective by administrative or noncoercive means—any such rule is not in our system an effective rule of law. If there is widespread nonobservance, the resources neither of private litigating initiative nor of the judicial process as such are equal to making it effective. The Court thus interacts with other institutions, with whom it is engaged in an endlessly renewed educational conversation. It is a conversation that takes place when statutes are construed, when jurisdiction is defined and perhaps declined, when the lower federal courts are addressed by the Supreme Court as their "administrative head," and also when large "constitutional issues" are decided. And it is a conversation, not a monologue.

¹⁷ National Prohibition Cases, 253 U.S. 350 (1920).

¹⁸ Brown v. Board of Education, 347 U.S. 483 (1954).

¹⁹ Cooper v. Aaron, 358 U.S. 1 (1958).