The title of this work comes from a 1792 essay by James Madison, “Who Are the Best Keepers of the People’s Liberties?” How best to secure the rights of people was a question that bore heavily on the founders and still bears heavily on us today. Wake Forest University professor John Dinan examines the success—and lack thereof—of three different political regimes in their ability to “secure the rights” of citizens. The book is a valuable historical investigation, but is sadly disappointing in that it fails to give much help to those who search for political arrangements that will really secure our rights and not trample on them.
The first of the regimes Dinan examines is republicanism, that is, a system of elected representatives. The author finds that in the early days of the nation it was widely believed that elected representatives were best suited to the job of protecting the rights of the people. “[O]f the various public officials who might be charged with this responsibility,” Dinan writes, “legislators were thought to be most capable of representing the popular understanding of rights; legislative assemblies were considered the proper forum for deliberating about the content of rights; and statutes were seen as providing the most effective means of securing their protection.” Neither judges nor the general public were widely looked to as protectors of rights.
How well did republican institutions protect rights? Not too badly, Dinan concludes. Studying a limited number of state legislatures (principally Massachusetts, Virginia, Michigan, and Oregon), he shows that there were some signal successes achieved through legislation—for instance, freedom from ministerial taxes. Dating back to the seventeenth century in both Massachusetts and Virginia, taxes had been levied for the support of the official church. The battle to liberate people from such taxes was won in the legislatures, with the courts fighting a rearguard action on behalf of the vested interests that wanted the taxes to continue.
Another intriguing case Dinan presents is the controversy over protecting citizens against unlawful searches and seizures. Today we think of such protection as a judicial function of relatively recent origin, but that is far from the case. In the nineteenth century the problem of illegitimate searches and seizures by police and officials was much on the minds of the people, and the legislatures acted. The legislative remedy was to make public officials liable for wrongful invasions of individual liberty and property. It was not until the mid-twentieth century that the courts entered the scene with the controversial exclusionary rule, which forbids the use of evidence obtained illegally.
In the latter half of the nineteenth century, a growing dissatisfaction and impatience with legislatures led to the rise of the populist movement. The populists argued that legislatures were too beholden to special-interest groups and their own interest in re-election to do a good job of securing the rights of the people. Accordingly, many advocated popular initiatives and referenda as a means of bypassing or overriding the legislature.
In some instances, it worked. In 1921 a statute in Massachusetts established a censorship board to license movies that did not contain “indecent” material. The people promptly repealed the law by referendum in 1922.
The problem with populism is that it can result and frequently has resulted in laws that are incompatible with any respectable theory of rights. Dinan reports that when the Oregon legislature declined to enact a workmen’s compensation system, “the people resorted to the initiative process to secure their rights.” Compelling employers to obey a government edict on the treatment of injured workers is not a matter of “securing rights,” however. It is a matter of one group’s using the power of the state to get what it wants, overriding the freedom of others. This is a repeated failing in the book: Dinan does not distinguish between true rights and governmentally decreed pseudo-rights.
Finally, Dinan looks at judicial protection of rights. This is also a mixed bag. Sometimes courts have struck down laws that interfered with rights, as in the “substantive due process” decisions of the pre-New Deal Supreme Court. On the other hand, courts have often been guilty of infringing rights in their quest for “fairness.” The Oregon Supreme Court ruled that shopping malls were required to allow people to solicit petition signatures. This, of course, is not “securing a right,” but rather violating the rights of mall owners.
Dinan tamely concludes that his analysis “suggests that an ideal regime of rights protection would combine the advantages of each of these institutions.” Given the sorry record of all three, one might better conclude that all political institutions are dangerous to and have permitted a steady erosion of the people’s liberties.