From The Law and Politics Book Review

Vol. 9 No. 1 (January 1998) pp. 6-9.

 

KEEPING THE PEOPLE'S LIBERTIES: LEGISLATORS, CITIZENS AND JUDGES AS GUARDIANS OF RIGHTS by John J. Dinan. Lawrence KS: University Press of Kansas, 1998. 259 pages. $35.00 Cloth. ISBN 0-7006-0905-9.

 

Reviewed by Bradley C. Canon, Department of Political Science, University of Kentucky. Email: POL140@ukcc.uky.edu.

 

"Who Are the Best Keepers of the People's Liberties?" asked James Madison in a 1792 essay. The question was frequently debated at that time. Today it rarely is asked because we think the answer is clear. Most Americans think of the courts as the best keepers of our liberties, and this may be especially true of those on the LPBR list.

But John Dinan argues that the question should always be up for debate. Courts, he reminds us, have been prime movers in the civil liberties and rights business for only a half-century. During the first 150 years of our national history, liberty-keeping was not so court-centered; other institutions were major players. Dinan does not see the change as necessarily linear. Our earlier reliance on other institutions did not reflect primitive political development or a poorly understood theory of democracy. As times, problems, and institutional concerns change, so too do our theories of liberty. As law professor Lawrence Friedman explains, "We tend, of course, to look at the past through the lenses of today. It is natural, then, to ask why this or that [right] was missing in the nineteenth century. The nineteenth century has its own viewpoint. To understand the period, we have to look at civil rights and civil liberties as contemporaries saw them" (quoted on p. 33).

KEEPING THE PEOPLE'S LIBERTIES gives us a history of "liberty-keeping" as seen through contemporary lenses. Dinan divides liberty-keeping into three eras, each with its own primary keeper. In the first, lasting from the Revolution until the end of the 19th century, "republican institutions," mainly state legislatures, were entrusted with the task. The second era -- roughly from Teddy Roosevelt's time to World War II -- saw "populist institutions," particularly the initiative and referendum, supersede legislatures, which had fallen into disrepute. In the current era, Americans rely on "judicialist institutions" (why not just "judicial"?) to protect rights and liberties. Dinan devotes three chapters to each era. The initial one explains the theory and design of the period's institutions as they pertain to preserving liberty. The next two focus on how these institutions protected rights and kept liberties respectively.

Much must remain untouched when one discusses the maintenance of liberties throughout American history in 171 pages of text. Moreover, KEEPING THE PEOPLE'S LIBERTIES stems from Dinan's dissertation, so he could not paint with a very broad brush. He chose to explore liberty-keeping in the states. National institutions and events receive little attention. This exclusion does not detract much from the analysis during the first two eras, but is problematic in discussing the judicialist regime. Even at the state level, liberties and rights are a massive topic, so, as a dissertation writer must, Dinan chose to focus on relevant activities in just four states (Massachusetts, Virginia, Michigan and Oregon) over the three eras.

It is obviously asking a lot of a newly minted Ph.D. who needs to get published, but I wish Dinan had broadened his coverage when he revised the dissertation. While he treats the four states as a sample, so to speak, I did not feel I obtained a broad picture of liberty-keeping in the states. Only a smattering of laws, cases and events in other states are mentioned, so I did not really know how the philosophies and doctrines developed or rejected in Dinan's four states fared around the country. The big picture in less detail rather than four small pictures in greater detail would be preferable.

In the republican era, the dominant thinking was that state bills of rights could be best implemented by legislatures. People viewed their provisions less as specific guarantees and more as a solemn proclamation of a civic ethos that the people's representatives were charged with preserving. Often legislatures accomplished this by rejecting invasive proposals as when the General Court of Massachusetts defeated a bill providing for the regulation of religious schools in the 1850s. Sometimes, however, an early legislature expanded liberty to twentieth century proportions as when the mid-19th century Massachusetts and Michigan lawmakers provided that shopkeepers who kept another sabbath day could open their stores on Sunday (a claim the U.S. Supreme Court rejected in BRAUNFIELD V. BROWN, 1961), or when in 1820 Massachusetts legislators mandated that counsel would be provided for indigent defendants in capital cases (a position the U.S. Supreme Court came to 112 years later in POWELL V. ALABAMA, 1932).

By contrast, the courts of the republican era played a secondary role: they superintended the forms of legislation and applied common law rights in the absence of contrary legislation, but otherwise deferred to legislative wisdom.

By 1900 the public came to see legislatures, often dominated by railroads and other corporate interests, as anti-republican institutions, as obstacles to the achievement of popular policies. Thus state constitutions written in the late 1800s usually limited legislative powers and even the length of their sessions. By the early 1900s about half the states followed in the footsteps of California's Hiram Johnson by allowing the public to by-pass the legislature altogether by making laws and adopting constitutional amendments through direct initiatives and referendums. Occasional initiatives expanded liberties as when Oregon abolished sabbatarian laws in 1917 or when California voters in the middle of the gangster era (1934) provided that arrestees must be taken immediately to a magistrate for a hearing.

But direct populism is a two-edged sword as Oregon voters showed when they outlawed all private schools in the state (a proposal rejected in other states' legislatures) in order to cripple Catholic education. (This was soon overturned by the U.S. Supreme Court in PIERCE V. SOCIETY OF SISTERS, 1925). Indeed, while we have moved well beyond the populist era, initiatives can still pose threats to liberty. Colorado voters' recent approval of an anti-gay rights constitutional amendment has fueled debates among activists and scholars about the unintended consequences of Hiram Johnson's contribution to democracy.

Nonetheless, the adoption of populist institutions was much more related to battles over economic regulation and more responsible politics (e.g., the direct primary, recall elections), or even oddball questions like Daylight Savings Time than to civil liberties questions. Moreover, initiatives can settle only a few questions. Thus Dinan overemphasizes the linkage between populist institutions and civil liberties. During this era, for instance, legislatures or courts in half the states adopted the exclusionary rule in search and seizure (an expansion not noted by Dinan).

Also relevant and largely unheralded in the discussion, the populist era saw the courts hone the sharp edge of judicial review. While this was primarily done in economic regulation cases, judges often saw judicial review as a protection of constitutional liberty (see Gillman, 1993). In short, this era saw a major expansion of judicial protection of liberties, albeit not what we think of today as civil liberties or rights. But as Friedman reminds us, each era has its own viewpoint about liberties. Importantly, the expansion of judicial review built a solid platform for the judicial protection of modern civil liberties in the next era.

Dinan has even more difficulty doing justice to the judicialist era. He is right, of course, that the locus of liberty-keeping shifted to the courts. But unlike the republican and populist eras, a national champion of liberty arose in the modern era out of the famous and seminal CAROLENE PRODUCTS (1938) Footnote 4; state institutions went from battleground to skirmish ground. Now the federal courts wielded the sword and shield of liberty and the clashes played out in the newly built marble temple in Washington. For friends of liberty, state institutions became irrelevant at best and hostile at worst. But because Dinan's focus is on the state as arena, he finds it awkward to discuss liberty-keeping in a manner comparable to its discussion during other eras.

Even so, state courts do advance liberty in our judicialist era, even to heights the U.S. Supreme Court refuses to climb. Heeding Justice Brennan's (1977) call, state high courts have engaged in a "new judicial federalism", finding rights in their own constitutions that the U.S. Supreme Court can not or will not find in the national constitution. Dinan does not focus on the new judicial federalism as a phenomenon, perhaps because it is widely discussed elsewhere or perhaps because he finds little of it in his four states.

State court expansion of liberties did have to contend with significant opposition in legislatures or among the public. Voters in California and Florida curbed their supreme courts' efforts to expand search and seizure protections beyond those accorded by U.S. Supreme Court decisions. Dinan notes that Massachusetts's highest court engaged in a long and seemingly successful struggle to abolish the death penalty against legislative resistance. But as we all know, the California Supreme Court's attempt was not only unsuccessful, it generated retaliation against the court when three justices went down to defeat in a 1986 retention election.

Of course, as Dinan notes, state legislatures can also be friends of liberty. Many have repealed sodomy laws (in contrast to the U.S. Supreme Court's BOWERS V. HARDWICK decision in 1986) and some have been solicitious of minority religious practices (e.g., the Oregon legislature repealed its law against peyote use after the Supreme Court upheld it in OREGON EMPLOYMENT DIVISION V. SMITH, 1990.) With the Burger and Rehnquist courts wielding the sword and shield more timidly, there is ample room for more liberty-keepers.

KEEPING THE PEOPLE'S LIBERTIES makes a couple of useful and special contributions to the law and courts literature. Most simply, it reminds us that the problem of liberty-keeping is at least as old as the republic. While Dinan is not the first to explore nineteenth and early twentieth liberty, the focus is infrequent enough to lull us into thinking sloppily that, except for the Civil War and syndicalist laws, no real incursions into civil liberties occurred before the 1920s, or, worse yet, into thinking that nobody defended liberty before the courts assumed the mantle. In my Civil Liberties course, for example, I almost never discuss anything before the ABRAMS (1919) and SCHENCK (1919) period. While I would hardly turn Civil Liberties into a history course, Dinan's work will help me teach students that liberty-keeping is not just a modern concern.

Dinan also reminds us of the long tradition that maintaining our liberties and right is everyone's concern. The argument for a strong judicial role in protecting these constitutional guarantees is a convincing one in both logic and experience. Legislative and executive actions are, as they must be, primarily concerned with addressing everyday problems efficiently; liberty is usually a secondary consideration. And, as we know, the public and its representatives will at times sacrifice degrees of liberty to help rid the country of Communists, terrorists, and drugs.

But even in modern times, legislatures and executives do advance the cause of liberty with some frequency and a concerned citizenry must encourage and reward this. If other institutions abandon a concern for liberty, if they say this is the courts' job, the nature of liberty-keeping will alter dramatically. Liberty will become just another government function, on a par with keeping Social Security solvent or improving traffic safety. Dinan's answer to Madison's question is that all institutions and all citizens are the best keepers of our liberties. When we forget that, we will be in big trouble.

In one sense, however, KEEPING THE PEOPLE'S LIBERTIES is somewhat disappointing. Dinan's approach to liberty-keeping is essentially historical. But as I absorbed its long history, questions about patterns and future change came to my mind. Are there any explanatory patterns that cause shifts in theories of liberty-keeping and in the primacy of protective institutions? Are changes in liberty-keeping a function of changes in ideological and institutional strength? If so, can we predict and even shape to some degree the course of liberty in the future?

While prescience is always in short supply and, as Yogi Berra once reminded us, the future is hard to predict, is it asking too much of an author who has just swept us through a 200 year chronicle of liberty-keeping to offer a few considered judgments about what broad changes in liberty-keeping might occur in the future?

 

REFERENCES

 

Brennan, William J., "State Constitutions and the Protection of Individual Rights," HARVARD LAW REVIEW 90: 489-504 (1977)

Gillman, Howard, THE CONSTITUTION BESIEGED: THE RISE AND DEMISE OF LOCHNER ERA POLICE POWER JURISPRUDENCE, (Durham NC: Duke University Press, 1993)

 

Cases

ABRAMS V. U.S., 250 US 616 (1919)

BOWERS V. HARDWICK, 478 US 186 (1986)

BRAUNFIELD V. BROWN, 366 US 599 (1961)

OREGON EMPLOYMENT DIVISION V. SMITH, 494 US 872 (1990)

PIERCE V. SOCIETY OF SISTERS, 268 US 510 (1925)

POWELL V. ALABAMA, 287 US 45 (1932)

SCHENCK V. U.S., 249 US 47 (1919)

U.S. V. CAROLENE PRODUCTS, 304 US 144 (1938)


Copyright 1995