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

By Henry J. Abraham | Go to book overview

I
Introduction

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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1
The Limits of Freedom ( Brunswick, N.J.: Rutgers University Press, 1959), from the Foreword (unpaginated).
2
Although some would object, the terms "rights" and "liberties" are used interchangeably in this book. They are to be distinguished from all the other rights and freedoms individuals may enjoy under law because they are especially protected, in one manner or another, against violations by governments. (In Canada, the term "civil rights" refers exclusively to private law -- the legal relationship between person and person in private life.) See J. A. Corry and Henry J. Abraham , Elements of Democratic Government, 4th ed. ( New York: Oxford University Press, 1964), pp. 234-9.

-3-

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Freedom and the Court: Civil Rights and Liberties in the United States
Table of contents

Table of contents

  • Title Page iii
  • Preface vii
  • Contents ix
  • I - Introduction 3
  • II - The "Double Standard" 7
  • III - The Bill of Rights and Its Applicability to the States 26
  • IV - The Fascinating World of "Due Process of Law" 79
  • V - The Precious Freedom of Expression 124
  • VI - Religion 172
  • VII - Race: the American Dilemma 242
  • Appendix 313
  • Bibliographical Note 317
  • General Index 323
  • Index to Court Cases 331
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