Freedom and the Court: Civil Rights and Liberties in the United States

ALTHOUGH, as David Fellman points out, the American people, both in political theory and in public law, have been committed for more than two hundred years to the "primacy of civil liberties in the constellation of human interests,"¹ these civil liberties do not exist in a vacuum or even in anarchy but in a state of society. It is inevitable that the individual's civil rights and those of the community of which he is a part come into conflict and need adjudication.²

It is easy to state the need for a line between individual rights and the rights of the community, but how, where, and when it is to be drawn are questions that will never be resolved to the satisfaction of the entire community. Liberty and order are difficult to reconcile, particularly in a democratic society such as ours. We must have both, but a happy balance is not easy to maintain. Yet as a constitutional democracy, based upon a government of limited powers under a written constitution, and a majoritarianism duly checked by carefully guarded minority rights, we must be generous to the dissenter. In John Stuart Mill's exhortation, "all mankind has no right to silence one dissenter...[for] all silencing of discussion is an assumption of infallibility." Even near-unanimity under our system does not give

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