Document Type
Article
Publication Date
1972
Publication Information
21 Jahrbuch des Öffentlichen Rechts der Gegenwart 603 (1972).
Abstract
This essay is an attempt to analyze, for the non-American reader especially, some of the factors that affect the condition of civil liberties in the United States. It deals mainly with the U.S. Supreme Court and its effort to define the limits of personal freedom within the framework of the American constitutional system. This effort has been a main preoccupation of the Supreme Court during the last two decades or so as the social conflicts besetting America have taken the form, as they usually do, of constitutional conflicts that the Court must eventually decide. Most of these questions have represented deep value conflicts in the society as a whole. Indeed the divisions on the Supreme Court itself are fairly representative of these conflicts. What makes these conflicts, in both the society and on the Supreme Court, so important is that they involved changed perspectives on the nature of a free society.
The first part of this paper describes the social and legal context which both limits and makes possible new interpretations of traditional constitutional norms relating to the fundamental rights of persons. We begin with a discussion of these constitutional norms or ideals and then proceed to indicate some of the factors in American society responsible for the seemingly wide gap between constitutional ideal and reality. This is followed by a discussion of the Supreme Court's main policies in selected areas of American civil liberties together with some of the reasons for those policies. Finally, we attempt to relate those policies to changing political circumstances and to changes in the Supreme Court's own personnel. We conclude with a note on the Court's contribution to the quality of American democracy and on the limits of judicial power in a democracy.
Recommended Citation
Donald P. Kommers,
American Civil Liberties and Constitutional Change,
21 Jahrbuch des Öffentlichen Rechts der Gegenwart 603 (1972)..
Available at:
https://scholarship.law.nd.edu/law_faculty_scholarship/1381
Comments
Donald P. Kommers (1932–2018) was a political scientist and legal scholar well known for his writings on German law and politics and his pioneering work in the field of comparative constitutional studies. He joined the University of Notre Dame's political science faculty in 1963. In 1975, he joined the law faculty in a concurrent position. In 1991, Kommers received the Joseph and Elizabeth Robbie Chair of Political Science. He taught a wide variety of courses on American and comparative politics until turning most of his attention to the constitutional systems of both Germany and the United States. At the University of Notre Dame, he served as the director of the Law School’s Center for Civil and International Human Rights from 1976 to 1981 and as the editor of The Review of Politics from 1981 to 1992. Upon retirement, he continued to teach in the undergraduate constitutional studies program and offered an advanced seminar in comparative constitutional law at Notre Dame Law School.