If I could recommend one book to the lay reader about what is going in our courts, sadly, it would not be my own: It would be David K. Shipler’s, The Rights of the People: How Our Search for Safety Invades Our Liberty. (If the reader had the taste for an earthier assessment of what it is like practice law, then, of course, I would recommend Taking Back the Courts.) This is the sort of reporting that won Shipler a Pulitzer Prize for his reporting at The New York Times.
Legal practitioners know that the Constitution, although a guarantor of certain fundamental rights, is not written in stone. Instead, the Constitution is worked and reworked each generation to meet the needs of the nation it serves. Thus, although the Fourth Amendment prohibits unreasonable searches and seizures, the courts are free to tinker with what is, and is not, regarded as reasonable. In times of perceived national threat, the courts reflexively trade a desire for security for liberty. The result is an assault on civil liberties under the guise of such rhetorical flourishes as “the constitution is not a suicide pact.”
We are often tempted as a nation to trade security for liberty. Our first Alien and Sedition Acts were passed but seven years after ratification of the Bill of Rights, in response to fear of all things French after the revolution of 1789 showed just how far popular passion could go. It was a crime, under these acts, to write with too much hostility about the government.
Liberty took a beating during the Civil War, too, when President Lincoln suspended the writ of habeas corpus, and speech too critical of the government was transformed into a crime. Indeed, hundreds of newspapers were shut down for a time. Eight papers that remained open were forbidden the use of the United States mail.
Fear overtook reason again during the First World War. An Espionage Act led to the prosecution of a couple thousand antiwar protestors; socialist newspapers could not be sent through the mail; and, in 1918, a new Sedition Act criminalized dissent.
During the Second World War we gratuitously imprisoned Japanese-Americans and German-Americans in concentration camps without hearings of any sort, and we experimented with military tribunals for the trial of men for acts committed on our shores.
We went a little haywire again during the Cold War, seeing communists everywhere, and imprisoning those who, like my father in-law, refused to take an oath of loyalty to the United States.
And today, Shipler argues, we labor under a new threat, this one external, a threat of terrorism, and so in the post 9/11 era, government once again expands at the expense of the people. Habeas corpus is at risk. Surveillance is on the rise. And the constitution, that seemingly noble document that is supposed to protect we the people from our government, has been stretched like Silly Putty to justify all manner of warrantless searches.
Shipler is convincing in his brief sketch of the manner in which the constitution’s protection of liberty expands or contracts depending on the national mood. But he is at his best doing what he was trained to do: reporting. He does more than report on what takes place in the streets. Although he is a non-lawyer, he has read the leading constitutional cases. He writes about the law without the quirky idiosyncrasy of a law professor looking for tenure. He writes the way we should all write, as a citizen who cares.
Shipler was embedded with the Washington, D.C., police force for a while, accompanying police officers on nightly patrols through the city. What he saw won’t shock criminal defense lawyers: police officers routinely engage in illegal stops, and justify it by saying that the ends, getting illegal guns and drugs off the streets, justify the means. The officers resort to free-wheeling tactics better suited to Hobbes’ state of nature and then justify their conduct when challenged with half-truths and sometimes outright lies. The true casualties in these confrontations are communities, in this case communities of color, brutalized by officers who behave like occupying invaders, rather than community resources.
One needn’t be Black and poor to experience this. It is enough to be Muslim. Shipler writes about the prosecution of Brandon Mayfield in Portland for his supposed role in the Madrid bombings of 2004. The FBI had the man all but sent to death row based on a bogus analysis of a finger print that it claimed was Mayfield’s. If Spanish lawmen had not insisted the print was not a match, Mayfield might well have been convicted.
He writes as well of librarians, and the FBI’s routine misuse of so-called “national security letters” to avoid the requirement that a warrant be reviewed by a judge before private records are searched. Not since the CIA and FBI were turned loose on domestic dissent in the 1960s and 1970s has the government been so bold, so aggressive, in its surveillance of Americans who live and think outside the mainstream.
Criminal defense lawyers will read this book with a weary sense of recognition. Shipler has compiled in one volume evidence of all we see in the day-to-day practice of law. There is nothing new here, save the elegant presentation of all that the government is now doing in the name of security.
How the general public reacts to this book will be the real litmus test. My hunch is that the book will assume iconic status among dedicated civil libertarians, but be scorned by the right, who will regard Shipler’s former affiliation with the New York Times as some sort of proof that he hates America, that he is part of the media-academic conspiracy to undermine the nation. It is unlikely the book will persuade those walking down the middle of the road, without strong commitments on civil rights and liberties.
That’s a shame. We get the government we deserve, Shipler reminds us. If we are prepared to live like so many sheep, herded, prodded, penned by shepherds with badges, the government will be sure to oblige us, and judges will more often than not oblige with novel interpretations of the law. I love this book. You should too.