TTC - Civil Liberties and the Bill of Rights

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Civil Liberties and the Bill of Rights
Course No. 8530
36 lectures, 30 minutes/lecture
Taught By Professor John E. Finn, Ph.D., Princeton University,
Wesleyan University

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 what is religion? In forbidding Congress to make any law "respecting an establishment" of religion, or "prohibiting the free exercise" of it, the Founders neglected to define it. 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. 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:

* Due process and privacy
* Jurisprudence about the death penalty
* Freedom of speech and of religion
* Equal protection
* Habeas corpus.

"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.

Although Professor Finn covers many of the most famous landmark decisions that also appear 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," Professor 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

1. What Are Civil Liberties?
In introducing students to the overall themes of the course and the methods and materials that will be used, we begin by noting that there is no easy or single answer to the misleadingly simple question, "What are civil liberties?"

2. The Bill of Rights—An Overview
The first constitutional document produced by the Philadelphia Convention did not include a bill of rights. We explore the history of the Bill of Rights, beginning with whether and why it was necessary and why it took the form that it did.

3. Two Types of Liberty—Positive and Negative
This lecture focuses primarily on one Supreme Court case and what it teaches about two issues concerning the breadth and scope of the Bill of Rights: the "state action doctrine" and the nature of the rights included in the Constitution.

4. The Court and Constitutional Interpretation
After a brief history of the Court's early years, we take up important institutional issues, including how justices are appointed; the nature and limits of judicial power; how the Court actually decides cases; and the question of when, if ever, the Court should refrain from deciding a case.

5. Marbury v. Madison and Judicial Review
This lecture introduces students to the practice of judicial review—the authority of the Supreme Court and other federal courts to declare some governmental action unconstitutional—on some accounts, the cornerstone of American constitutional order.

6. Private Property and the Founding
One of the Constitution's central purposes, according to the Preamble, is to secure the "Blessings of Liberty." There is little doubt, as we shall see in this lecture, that chief among those liberties at the founding was the right to own private property.

7. Lochner v. New York and Economic Due Process
The Court's protection for private property has waxed and waned. This lecture traces that process from its beginnings through the 20th century, and includes a close look at one of the Court's most infamous decisions.

8. The Takings Clause of the Fifth Amendment
Following the Court's rejection of economic due process, the right to property became substantially less important than it once was. However, a few cases arising under the Fifth Amendment's Takings Clause suggest that the right to property may be more robust than it has seemed over the last few decades.

9. Fundamental Rights—Privacy and Personhood
We continue our examination of the relationship between liberty and community, broadening our focus to include the development of the constitutional right to privacy.

10. Privacy—Early Cases
Though there is no explicit provision in the Constitution that grants a comprehensive right to privacy, concern for privacy does appear in several places, including the Fourth and Fifth Amendments, and other aspects of privacy intersect with the First Amendment's freedom of association.

11. Roe v. Wade and Reproductive Autonomy
Few topics in American law are as emotionally charged, and as doctrinally confused, as the discussion of abortion rights, encompassing not only the law, but also profound moral and political issues, and important questions about the role of the Supreme Court in American society.

12. Privacy and Autonomy—From Roe to Casey
We continue our examination of the consequences of Roe by exploring subsequent litigation, including the most recent cases involving abortion and reproductive autonomy, which have highlighted the issues of judicial power and accountability.

13. Other Privacy Interests—Family
As we have seen, the right to liberty is less a single right than a collection of diverse interests. The same is true of the right to privacy, an umbrella that covers a wide collection of more specific interests, including procreation, abortion, marriage, and sexuality.

14. Other Privacy Interests—Sexuality
Does the Constitution protect the choices we make about sexuality? Few areas of life, it might seem, are as private, but most societies also recognize a collective interest in regulating certain kinds of sexual conduct. We explore several cases that try to define that interest.

15. Same-Sex Marriages and the Constitution
Does the Constitution protect same-sex marriages? No decision by the Supreme Court has addressed this question directly, but we look at several cases that might be relevant to the issue.

16. The Right to Die and the Constitution
Few issues in civil liberties are as controversial as the question of whether the Constitution includes a right to die. We explore several cases that illustrate, in examining this question, how the most fundamental questions in civil liberties are not so much legal as moral.

17. Cruel and Unusual? The Death Penalty
The past few lectures have opened up questions that consider the relationship between self and society, between rights and responsibilities, and indeed about the meaning and definition of life itself. This lecture explores those issues in their most profound form: the death penalty.

18. The First Amendment—An Overview
From a few sparse words in the First Amendment, the Supreme Court has created a huge and complicated jurisprudence. In this lecture, we consider what the Founders may have meant when they sought to protect speech, as well as the equally important question of why they sought to protect speech.

19. Internal Security and the First Amendment
The reasons we protect speech are complex. This lecture explores whether there are times when we might not want to protect it, examining the depth of our commitment and asking who should balance the competing demands of the First Amendment and national security.

20. Symbolic Speech and Expressive Conduct
We begin four lectures that take up thorny questions about the meaning of speech and expression, the scope of the First Amendment's protections, and what we might choose to leave unprotected because it is not "really" speech.

21. Indecency and Obscenity
In several of our lectures we have wrestled with a problem of definition: What is speech? What isn't? In this lecture and the next we take up two different versions of this problem. In this lecture: Is pornography speech?

22. Hate Speech and Fighting Words
We examine the suppression of "hate speech" and the regulation of so-called "fighting words"—the debate over both highlights the tension between our commitment to freedom of expression and our collective interest in protecting values such as civility, social morality, and public order.

23. The Right to Silence
Does freedom of speech include the right not to speak? To refuse, for example, to recite the Pledge of Allegiance, or to tape over the state motto on an automobile license plate? We consider several cases.

24. Why Is Freedom of Religion So Complex?
The relationship between matters of the soul and matters of state is a subject of intense controversy in the United States. In this lecture we begin an extended inquiry into freedom of religion.

25. School Prayer and the Establishment Clause
This lecture considers several cases illustrating two drives once observed by Justice Wiley Blount Rutledge to be "constantly in motion to abridge, in the name of education, the complete division of religion and civil authority."

26. Religion—Strict Separation or Accommodation?
We examine another, perhaps larger, issue that has troubled the Court in recent years: Does the establishment clause require government neutrality toward all forms of religious belief and nonbelief, or does it simply prohibit the government from favoring one religion over another?

27. The Free Exercise Clause—Acting on Beliefs
Holding to a particular religious belief is one thing. Acting on that belief, however, can mean colliding with the rights of others or of the community. At what point should the community's interest in public order restrict an individual's right to free exercise?

28. Free Exercisee and “the Peyote Case”
This lecture examines whether a claim of free exercise can excuse some individuals—simply because they are acting in accordance with their religion—from the application of religiously "neutral" laws that would otherwise prohibit that action.

29. Two Religion Clauses—One Definition?
In a great many cases, the religion clauses work in tandem to secure religious freedom. In some cases, however, they appear to be at odds. We examine two illustrative cases.

30. Slavery and Dred Scott to Equal Protection
Equality has always been one of the basic ideals of the American constitutional order. The original text of the Constitution, however, did not completely reflect this ideal. This lecture examines the Court's treatment of racial discrimination from the Founding to the important case of Dred Scott v. Sandford.

31. Brown v. Board of Education
This lecture explores the NAACP's systematic campaign for school desegregation—led by lead attorney Thurgood Marshall—that culminated in one of the Court's most historic rulings.

32. Equality and Affirmative Action
Does the remedial or benign purpose of affirmative action policies suggest the need for a special judicial test under the equal protection clause? This lecture explores how the Court has answered this question several times and in several ways.

' 33. Equality and Gender Discrimination
The ideal of equality is deeply rooted in our constitutional culture, even if we frequently fail to live up to it. In this lecture we take up one such area—that of discrimination on the basis of gender.

34. Gender Discrimination as Semi-Suspect
The Court has been unable to identify a clear standard of review that should govern gender classifications. We examine the decisions that have produced the Supreme Court's current test for the constitutionality of gender classification, which demands more than simple rationality but less than strict scrutiny.

35. The Future of Equal Protection?
We see the Court's continuing reluctance to use the strict scrutiny standard in a variety of equal protection cases. And we also observe a clear preference—except for cases involving race or gender—to defer to the democratic process.

36. Citizens and Civil Liberties
What overall conception of liberties, rights, and governmental powers most nearly reflects and promotes our best understanding of the Constitution? The final lecture examines how successful we have been in discovering an answer.

___________________________

John E. Finn
Ph.D., Princeton University
Wesleyan University

Dr. John E. Finn is Professor of Government at Wesleyan University, where he has taught for more than 20 years. He earned his B.A. in Political Science from Nasson College, his J.D. from Georgetown University, and his Ph.D. in Political Science from Princeton University.

Professor Finn is an internationally recognized expert on constitutional law and political violence. His public lectures include testimony before the House Judiciary Committee, as well as lectures in Bolivia, Canada, Chile, England, France, Italy, and Spain.

Professor Finn is the recipient of four distinguished teaching awards at Wesleyan University, as well as an award for distinguished teaching by a graduate student at Princeton University.

He is published widely in the fields of constitutional theory and interpretation. He is the author of the highly regarded Constitutions in Crisis: Political Violence and the Rule of Law and coauthor of American Constitutional Law: Essays, Cases, and Comparative Notes, described as “the Cadillac of constitutional law casebooks.”