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TTC - Civil Liberties and the Bill of Rights

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The civil liberties and constitutional rights our nation's citizens possess—not only in theory, but in the

courtroom, where the state can be forced to honor those liberties—are a uniquely American invention. And

when we were taught history and learned about the Constitution and Bill of Rights, we were always made

aware of that uniqueness, of the extraordinary experiment that gave every citizen of this new nation a gift

possessed by no others. But what, exactly, was that gift?

What liberties and rights did the Founders intend us to have? How do we get from what Professor John Finn

calls the Constitution's "wonderfully elastic and vague" language to the finely tuned specifics of the

Supreme Court's decisions about speech, or abortion, or religion? And while we're on the subject, what is

religion, anyway? Because in forbidding Congress to make any law "respecting an establishment" of it, or

"prohibiting the free exercise" of it, the Founders never bothered to define it, and the answer is more

complicated than it seems.

In fact, as Professor Finn shows in Civil Liberties and the Bill of Rights, almost everything about the

Constitution, no matter how unwavering its words might appear, is more complicated than it seems at

first reading, leaving a legacy of questions that multiplies with each passing decade.

Why have generations of jurists and legal scholars—not to mention legislators, presidents, and

citizens—argued so long and hard about the meaning of what often appears to be unambiguous phrasing?

How is it that several differing Supreme Court opinions—even those on diametrically opposed sides of a

sharply disputed case—can so often all seem plausible? And how has so remarkably sparse a document as

the Constitution nevertheless proven to be so complex a vision of what an ideal polity should be?

A Look at Law as It Relates to Fundamental Questions

In addressing such questions, Professor Finn is interested in far more than law alone. He emphasizes that

this series of lectures, based on Supreme Court opinions from dozens of the Court's most important

landmark decisions, is not a law course where you memorize specific legal tests and principles.

Instead, it "has as its subject,” says Professor Finn, “the relationship of law to the most fundamental sorts

of questions about politics, morality, and human nature."

Thus, as the lectures examine the legal evolution of specific liberties and rights—such as due process and

privacy, jurisprudence about the death penalty, freedom of speech and of religion, and equal

protection—there is always a broad theoretical context to consider. We want to know "the overall

conception of liberties, rights, and governmental powers that most nearly reflects and promotes our best

understanding of the Constitution and the polity it both constitutes and envisions."

In striving to convey that understanding, Professor Finn encourages us to see that "most of the serious

difficulties (and there are many) in the politics of civil liberties arise from conflicts between our

commitments to two or more positive values," or, as Justice Felix Frankfurter once wrote, "what the Greeks

thousands of years ago recognized as a tragic issue, namely, the clash of rights, not the clash of wrongs."

Or, expressed in more practical terms, we live under a Constitution whose meaning is never self-evident, so

that, as Professor Finn notes, "There is usually more than one way to understand a constitutional

provision, usually more than one way to decide a case," with "few, if any, uncontested principles or issues

or questions in the American constitutional order."

Balancing Vital Tensions

Civil Liberties and the Bill of Rights explores the tensions that make up that order—tensions, say, between

our commitment to self-governance, expressed through majority rule and the other democratic principles,

and our simultaneous commitment to constitutionalism and the Bill of Rights, expressed by the need to

keep the majority from acting in ways that trample on liberty.

By emphasizing ongoing efforts to grapple with broad philosophical principles that the Founders sought to

build into the language of the Constitution, this course provides an ideal complement to the more

chronological and descriptive approach offered by The History of the Supreme Court. At the same time, it

also complements the perspectives emphasized by our courses in philosophy and intellectual history that

examine the more purely theoretical underpinnings of the American experiment. For in focusing on the

written opinions of the Court's members—which are illuminating whether written for the majority, in

dissent, or to offer alternative reasons for concurring with a final decision—these lectures directly engage

the approach taken by the Court as it has sought not only to understand the language and principles of the

Constitution, but also to shape them into the working laws of the land.

So though Professor Finn indeed covers many of the most famous landmark decisions also appearing in The

History of the Supreme Court, his course is organized into broad themes, and his method is markedly

different. Taking a "liberal arts approach," Prof. Finn looks at constitutional issues from the perspective of

their foundations in social, moral, and political theory, thereby addressing "questions about the meaning

of justice, questions about the meaning of equality, and questions about the meaning of America itself."

A Chance to See the Evolution of Principles

An example of Professor Finn's ability to reveal the law's evolutionary processes at work comes during his

discussion of the famous 1965 decision in Griswold v. Connecticut, when the Court first recognized an

explicit constitutional right to privacy.

Professor Finn explains how that idea had first been set forth in an article—coauthored by Boston lawyer

Louis Brandeis—in the Harvard Law Review in 1898. Thirty years later—now sitting on the Supreme

Court—Justice Brandeis raised the issue again. But he was raising it in a famous dissent from the majority

opinion, and it would take 35 more years before another majority opinion, written by Justice William O.

Douglas, would finally indicate the Court's agreement: The Constitution does indeed include, even if not

explicitly, a right to privacy—though the Court could not agree on what privacy means.

As an interesting sidelight, Professor Finn notes that the statute against birth control overturned by

Griswold had been placed on the books more than 100 years earlier—enacted as one of the very first of the

antipornography, antiobscenity laws.

Professor Finn's discussion of the Griswold ruling, and the long legal gestation of its underlying principle,

exemplifies the teaching skills that have been honored repeatedly. Also apparent are his passion for his

subject and his ability to convey even the subtlest nuances of the legal and philosophical evolution of

issues such as freedom of speech, freedom of religion, school prayer, privacy, equality, reproductive rights,

affirmative action, and so much more.

And as you might expect from such difficult issues, this is a course filled with nuance—each side of so many

constitutional issues can be presented plausibly. Though none of us will agree with every decision of the

Court or the constitutional interpretations on which they are constructed, it is extraordinary to

experience, so directly, from throughout our history, in the carefully constructed language of the nation's

leading judges, the deliberate flexibility and ambiguity that so often make even opposing opinions

defensible. Indeed, this is among our Constitution's very greatest strengths.

Course Lecture Titles
What Are Civil Liberties?
The Bill of Rights: An Overview
Two Types of Liberty: Positive and Negative
The Court and Constitutional Interpretation
Marbury v. Madison and Judicial Review
Private Property and the Founding
Lochner v. New York and Economic Due Process
The Takings Clause of the Fifth Amendment
Fundamental Rights—Privacy and Personhood
Privacy—The Early Cases
Roe v. Wade and Reproductive Autonomy
Privacy and Autonomy: From Roe to Casey
Other Privacy Interests—Family
Other Privacy Interests—Sexuality
Same-Sex Marriages and the Constitution
The Right to Die and the Constitution
Cruel and Unusual? The Death Penalty
The First Amendment—An Overview
Internal Security and the First Amendment
Symbolic Speech and Expressive Conduct
Indecency and Obscenity
Hate Speech and Fighting Words
The Right to Silence
Why Is Freedom of Religion So Complex?
School Prayer and the Establishment Clause
Religion—Strict Separation or Accommodation?
The Free Exercise Clause—Acting on Beliefs
Free Exercise and "the Peyote Case"
Two Religion Clauses—One Definition?
Slavery and Dred Scott to Equal Protection
Brown v. Board of Education
Equality and Affirmative Action
Equality and Gender Discrimination
Gender Discrimination as Semi-Suspect
The Future of Equal Protection?
Citizens and Civil Liberties