This is Jerry Goldman again, the principal author of Chapter 15, "Order and Civil Liberties." This chapter contains some of the most engaging issues in all of American government characterized by the original dilemma of government, freedom versus order. Let me touch on some of the big issues. The best way to approach this chapter is by following the path laid out in the Bill of Rights, which as you recall was appended to the original Constitution as the deal in favor of ratification back in 1788.

 Why a bill of rights? Well, at the time people held the view that the national government was the greater threat to tyranny. You might ask why? So to lower the risk to liberty, the framers appended a list of limitations on the government to assure that there would be no interference with the freedoms gained by the colony-states. Religious freedom was first on the list, but this concept needs unbundling because it is in fact two separate freedoms. The next freedom involves freedom of expression. It too needs unpacking because it is actually more than one freedom. Moreover, what counted for expression in 1787 is hard to fit to forms of expression we employ in the 21st century.

The Bill of Rights now applies to government at all levels, not just to the national government. This change came about through small steps taken by the U.S. Supreme Court. This incrementalism is characteristic of the courts. You might ask why this is so for courts but not for Congress or the President?

Some liberties will not be found in precise terms in the Constitution. Take the right to privacy. No one today denies that Americans possess such a right. But its source in the fundamental law is problematic. Is it possible to then derive additional rights from such an unspecified right? And if it is possible to derive new rights from existing rights, do such derivations by courts and unelected judges pose special problems in a democracy?