Civil Liberties and the Bill of Rights
(By John E. Finn)
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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?
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."
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.
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.”
