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Rights at Risk: The Limits of Liberty in Modern America, by David K. Shipler
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An enlightening, intensely researched examination of violations of the constitutional principles that preserve individual rights and civil liberties from courtrooms to classrooms.
With telling anecdote and detail, Pulitzer Prize–winner David K. Shipler explores the territory where the Constitution meets everyday America, where legal compromises—before and since 9/11—have undermined the criminal justice system’s fairness, enhanced the executive branch’s power over citizens and immigrants, and impaired some of the freewheeling debate and protest essential in a constitutional democracy.
Shipler demonstrates how the violations tamper with America’s safety in unexpected ways. While a free society takes risks to observe rights, denying rights creates other risks. A suspect’s right to silence may deprive police of a confession, but a forced confession is often false. Honoring the right to a jury trial may be cumbersome, but empowering prosecutors to coerce a guilty plea means evidence goes untested, the charge unproved. An investigation undisciplined by the Bill of Rights may jail the innocent and leave the guilty at large and dangerous. Weakened constitutional rules allow the police to waste precious resources on useless intelligence gathering and frivolous arrests. The criminal courts act less as impartial adjudicators than as conveyor belts from street to prison in a system that some disillusioned participants have nicknamed “McJustice.”
There is, always, a human cost. Shipler shows us victims of torture and abuse—not only suspected terrorists at the hands of the CIA but also murder suspects interrogated by the Chicago police. We see a poverty-stricken woman forced to share an attorney with her drug dealer boyfriend and sentenced to six years in prison when the conflict of interest turns her lawyer against her. We meet high school students suspended for expressing unwelcome political opinions. And we see a pregnant immigrant deported, after years of living legally in the country, for allegedly stealing a lottery ticket.
Often shocking, yet ultimately idealistic, Rights at Risk shows us the shadows of America where the civil liberties we rightly take for granted have been eroded—and summons us to reclaim them.
- Published on: 2015-02-03
- Released on: 2015-02-03
- Original language: English
- Number of items: 1
- Dimensions: 8.00" h x .83" w x 5.17" l, .81 pounds
- Binding: Paperback
- 400 pages
Review
“Fascinating. . . . Monumental. . . . Shipler is particularly good at weaving together legal history and personal storytelling.” —Richard McGill Murphy, Fortune
“Shipler doesn’t mince words or shy away from the hard issues. . . . The writing is precise, interesting, and frequently moving. . . . His coverage, concreteness, and willingness to candidly take on the range of issues make this a terrific book for anyone interested in our rights and liberties.” —David Kairys, Philadelphia Inquirer
“There are many books about the stories behind Supreme Court cases. Shipler’s distinctive contribution is the thoroughness and originality of his reporting.” —Jeffrey Rosen, The Washington Post
“Fascinating and provocative. . . . This book is a must for readers who want to stay informed of their rights in the shadowy territory where the government’s need for order and security overstep constitutional protections.” — Publishers Weekly, Starred review
“Well-reported. . . . No matter the issue, Shipler humanizes the discussion throughout, linking each topic to stories of real people silenced, marginalized, neglected, bullied, even brutalized by a government that should know better.” —Kirkus
“An eye-opening and troubling look at failures in the criminal justice system that put at risk the rights of all citizens.” —Booklist
“David Shipler's important new book powerfully reminds us that our constitutional rights are little more than words on paper if we fail to take them seriously when it's inconvenient or even painful to do so.” —Linda Greenhouse, author of Becoming Justice Blackmun
“David Shipler’s Rights at Risk is simply a wonderful book. It lays out, more powerfully than anything else I have read, how our constitutional rights have been whittled away in recent years—by presidents and judges and police chiefs. All in the name of national security or safe streets. More than a cry in the night, it is a careful, intensely researched account of a dangerous trend that not enough of us have noticed. Not just law, it is human drama.” —Anthony Lewis, author of Gideon’s Trumpet
“In Rights at Risk, Shipler continues his project of showing us how the constitutional rights we exalt in theory are being undermined in practice. This masterful and illuminating book reports how our criminal justice system frequently omits the justice, and how we are not as free to speak out to and against the government as we might like to think. The Constitution needs our help to survive, and reading this book is a valuable first step to reclaiming our fundamental values of fairness and equality for ourselves and for future generations.” —Susan Herman, President of American Civil Liberties Union and author of Taking Liberties
“Shipler argues that although a basic knowledge of the Bill of Rights by all citizens is not possible to achieve, we need to maintain a robust ‘Constitutional culture.’ By reading this book and discussing it with others, you will be doing your part.” —Portland Book Review
About the Author
David K. Shipler reported for The New York Times from 1966 to 1988 in New York, Saigon, Moscow, Jerusalem, and Washington, D.C. He is the author of five other books, including the best sellers Russia and The Working Poor, as well as Arab and Jew, which won the Pulitzer Prize. Shipler, who has been a guest scholar at the Brookings Institution and a senior associate at the Carnegie Endowment for International Peace, has taught at Princeton University; at American University in Washington, D.C.; and at Dartmouth College. He writes online at The Shipler Report.
www.shiplerreport.blogspot.com
Excerpt. © Reprinted by permission. All rights reserved.
Introduction
The Insolence of Office
Society in every state is a blessing, but Government, even in its best state, is but a necessary evil; in its worst state, an intolerable one.
—Thomas Paine, Common Sense, 1776
On July 11, 1787, as the Constitutional Convention debated how to determine apportionment in the House of Representatives, James Madison spiced up a dense discussion with several pointed warnings about governmental authority. The question was whether to trust the House itself or to impose the constitutional requirement of an impartial census every decade. “All men having power ought to be distrusted to a certain degree,” Madison declared. He spoke of “the political depravity of men, and the necessity of checking one vice and interest by opposing to them another vice & interest.”
In the end, the census was chosen to deny House members control over the composition of their own body. It was one of many precautions that have come down to us in the Constitution’s separation of powers and in the Bill of Rights, whose provisions were designed to restrain government from trampling on people’s liberties.
Yet people remain vulnerable. They do not play on a level field against a potent executive branch. Their constitutional rights are routinely overwhelmed, largely out of sight In criminal courts, where few citizens go to watch; in police interrogation rooms, where the public is not allowed; in the closed offices of prosecutors and immigration bureaucrats; and in schools whose authorities show the next generations of Americans that elements of the Bill of Rights can be suspended, evaded, or ignored. This does not happen everywhere all the time, but often enough to damage the constitutional culture. On their way to jail, to deportation from the country, or to expulsion from school, those who confront the muscle of the state frequently see their rights bruised, their liberties wounded. This book is about some of those people. Therefore, it is about all of us.
When compared with other high- income countries, the United States does poorly in limiting governmental powers—only ninth in a field of eleven selected by the World Justice Project for its Rule of Law Index—behind Sweden, the Netherlands, Australia, Austria, Japan, Canada, Spain, and France. Among seven countries of Western Europe and North America, the United States is ranked last.
This seems surprising, since the framers were intensely wary as they created a federal government. With the excesses of British colonialism fresh in their minds, they hobbled the new regime with checks and balances among three branches and circumscribed it with the venerable right of habeas corpus, which allows anyone arrested the right to summon his jailer to court to justify the imprisonment. That was enough to forestall arbitrary rule, the convention delegates believed, and they wrote the Constitution on the assumption that government would have no power that was not expressly given by the people.
That was not enough for the states, which demanded more specific guarantees as the price of ratification. Protections were then provided in the first ten amendments, the Bill of Rights, which spelled out liberties that government could not invade. These were not purely American inventions. The framers were reviving traditional principles in English law that they had seen abandoned by the British crown, so they drew from the Magna Carta of 1215, the 1689 English Bill of Rights, and the unwritten body of rules and precepts known as English common law.
The end result displayed three salient characteristics. First, it was concise and broadly worded, avoiding the long-winded specifics typical of other constitutions. When there are intricate details, a right not listed may be taken as a right denied. Instead, the framers found strength in brevity, which keeps the Constitution alive by allowing each generation room to reconsider limits on governmental behavior, to reinterpret the meanings of “unreasonable searches,” “cruel and unusual punishments,” “probable cause,” and other key concepts. As Chief Justice John Marshall declared in 1819, the Constitution was “intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs.”
Second, unlike the constitutions of many other nations, ours does not bestow rights but recognizes rights that we already possess. Any doubt on this point is snuffed out by the Ninth Amendment, which states explicitly that the enumeration of rights does not “deny or disparage others retained by the people.” Key sections dictate what government may not do: “Congress shall make no law,” begins the First Amendment. “The right of the people . . . shall not be violated,” states the Fourth. “No person shall be held,” begins the Fifth, continuing in a string of negatives. The negatives, the proscriptions against government, are the most potent protections.
Third, all the obstacles to overweening authority are built into the brick and mortar of the Constitution so that individual liberty does not depend on the goodwill of particular officials. Madison and others, understanding the universality of human foibles, made sure that protections were lodged deeply within the system itself. They erected interlocking barriers to autocracy, one right relying on the others so that none thrives without reinforcement by the rest. As a result, critical provisions of the Bill of Rights, stitched together to get the Constitution ratified, function more coherently than their fractious political origins might have predicted. Government cannot be held accountable without the guarantee of freedom of speech and the press in the First Amendment. Justice cannot be served unless upheld by the Fifth Amendment’s requirement that no one “be deprived of life, liberty, or property, without due process of law,” which cannot be effected without the ingredients of that “due process” that are specified in the Sixth Amendment: the rights to counsel, to public and speedy trial by jury, to confront and summon witnesses.
Most helpful customer reviews
9 of 11 people found the following review helpful.
For All Concerned Americans!
By Kevin Currie-Knight
Whether you are on the political right, left, or center, this is a book that you need to read. I don't say it lightly, and "must read" is a term thrown around to the point of cliche. But that's what I mean... if you are concerned American, you simply must read this.
Journalist David Shipler has done us a service with Rights at Risk. Most of use have grown up believing that our adversarial justice system is quite fair, that our right to speak, peaceably demonstrate, and petition the government "shall not be infringed," that we have a sphere of personal privacy guaranteed us by our Constitution and government. In this book, Shipler recounts just how much these used-to-be truths are eroding. Particularly, ever since Sept. 11th (but certainly not ONLY since then), our justice system has become more weighted toward the rights of the prosecution, our First and Fourth amendment rights have become subject to much more 'balancing" (where government courts get to decide when rights are outweighed by compelling government interests), and more.
Much of the book is spent on civil rights...rights to a fair and speedy trial, rights to a trial by jury, rights delimiting what police and prosecutors can do. One concern Shipler is concerned to document is the murky territory of what counts as a coerced confession. Police can lie to suspects (claiming they have evidence they don't have), employ pretty harsh psychological tactics to wear suspects down, threaten suspects with fictitious legal action in order to scare them into confession, etc. (And this is not even close to what the military allows...even during the Obama administration). Another concern for Shipler is the gross imbalance between the resources prosecutors have and those given to state-provided defense counsel ("If you cannot provide one, one will be appointed to you..."). These are worries because the abilities of police to manipulate suspects into confession, and the gross imbalance between resources of the prosecution and state-provided defense, both seriously undermine the adversarial nature of our justice system, tipping the scales in favor of the state. And when this happens, argues Shipler, it is not only that rights are being infringed, but we get a lot more false positives (convictions of innocents) than is compatible with justice.
Shipler also focuses on our First (rights of speech, free assembly, and petition of government) and fourth (search and seizure) rights. In the wake of Sept. 11, and our eagerness to avoid other terrorist acts, For me, the saddest of the stories Shipler recounts was of an Arab American male in an airport wearing a shirt where "We will be heard" was written both in English and Arabic. Officers asked him to remove the short, or put another shirt on over top. When he asked why (and expressed trepidation that their request had basis in law), he was threatened with removal from the airport and/or arrest. (When he brought up the American First Amendment, his report is that one of the officers said something like "In America, people don't really care about Constitutional rights.") There are other examples: people arrested (or threatened with arrest) for hanging flags upside down, removal of demonstrators from the President's speaking events because they had on shirts criticizing the president, and the relegation of demonstrations to areas known as 'free speech zones.' What may be most troubling here is that even though it is not against the law to wear shirts with political messages in airports or at presidential speaking events, according to Shipler, this doesn't often occur police who in all likelihood KNOW this from at least threatening folks with arrest.
The last chapter is of particular note because it is both in my area (Education) and probably one of the least visible yet rapidly accelerating: students rights in schools. Increasingly, schools put limits on what students can and cannot say, what they can and cannot bring, and even monitoring out of school activity. It is too bad that the recent case of a Minnesota girl who was suspended for what she said both in a facebook thread (that could be only be seen by 'friends') and what she wrote to another student in a PRIVATE facebook chat she was coerced into letting teachers see) was too recent for inclusion in this book. But Shipler does a good job painting a picture of a government who, in the name of keeping educational order, has increased what they allow themselves to do at the expense of students and parents rights. (Remember, school attendance is compulsory, so unless one can afford to pay for a private school, students are forced to attend these schools and, hence, comply with whatever the dictates are).
I do not exaggerate when I say that every concerned American should read this. I would personally love to see this book taught in a high school civics/social studies class, because it does a great job discussing what our Constitutional rights are and the processes by which governments have increasingly whittled them down. Until this becomes assigned reading in high-schools, though (and something tells me that won't likely happen), take it upon yourself.
2 of 2 people found the following review helpful.
Mr.David K. Shipler-The Common Everday People Author Part-2
By AlanWarner
Lynne Stewart is being punished for being the lawyer representing poor and despised people we need more lawyers like her and William M. Kunstler may he rest in peace there is no justice in America for lawyers like Lynne Stewart you ask why would I say that turn to the top of page 104 "She was prosecuted, convicted, disbarred, and sentenced to twenty-eight months in prison......." The section ZONING OUT FREE SPEECH beginning on page 242 is more must read material on what is happening in present day America everyone in this country needs to read this book.
7 of 10 people found the following review helpful.
Highly Recommended
By DWD's Reviews
Last summer I read David K.Shipler's first book on this topic, The Rights of the People: How Our Search for Safety Invades Our Liberties (see my review by clicking here) and I found it to be the most profound book I read that summer and maybe all year. I began my review of that book with this thought:
"I always tell people that the traditional left-right continuum used to describe someone's politics is so inaccurate as to be useless. Really, what is the difference between an aging hippie living on a hill somewhere raising some dope for personal use and telling the government to get out of his business and a Barry Goldwater-type conservative (like me) living by himself on a hill somewhere that tells the government to get its nose out of his business? Some dope. Otherwise, they are both determined advocates of civil liberties - keep out of my business if it is not hurting anyone else."
When I read the first book I was expecting to get a snoot full of political commentary that I disagreed with from a New York Times reporter with a left-wing agenda. To be blunt, I was expecting one of those political attack books that Al Franken, Michael Moore, Ann Coulter and David Limbaugh produce with regularity (Well, Al Franken is busy being a Senator now so I suppose he has stopped). Instead, I found the book to be politically balanced and quite remarkable. This book is just as remarkable, if a little less balanced by the inclusion of a half-dozen snide comments that should have been edited out, in my opinion.
Rights at Risk focuses on multiple topics but here are the chapter titles (with descriptions): Torture and Torment (being abused while being investigated), Confessing Falsely (how some people, especially young people and the mentally impaired, are tricked into confessions), The Assistance of Counsel (the defense side of the trial), The Tilted Playing Field (the prosecution side of the trial), Below the Law (the lack of rights of immigrants, legal and illegal), Silence and Its Opposite (freedom of speech in turbulent times), A Redress of Grievances (spying on protesters, "free speech zones") and Inside the Schoolhouse Gate (freedoms of students and teachers).
"Torture and Torment" includes a discussion of jailhouse torture such as physically abusing suspects and CIA torture. It demonstrates that the famed water-boarding sessions have poisoned several other cases. The good news in the cases of the police abuse is that the system, in the cases Shipler cited, mostly worked to flush out the bad cops. Mostly, but not always. A weaker part of Shipler's argument comes from the discussion of people wanted for trial in America but arrested in foreign countries. He argues, correctly, that many countries do not offer any protection for defendants. But, his arguments are not as tight here and led me to the inevitable conclusion that anyone who confesses to a crime in a foreign country can just claim that they were tortured into confessing and the confession should be dropped. Arrested in Luxembourg? Claim torture and post-traumatic stress disorder. The chapter entitled Confessing Falsely is quite interesting. Shipler discusses the various training methods police learn on how to question suspects and how those very methods can lead to false arrest and false trials and leave the real criminals out on the streets. He also writes about instances in which the rights of the accused were short-circuited in order to facilitate a confession. He includes a recommendations for how to address these problems, including the videotaping of all interrogations and prohibiting the questioning of children without the presence of his or lawyer or a parent.
You know the old adage, "You get what you pay for?" Well, the chapter "The Assistance of Counsel" was disturbing because it proves it. Public defenders in areas that have professional public defender offices are overwhelmed. In states and locales that have court-appointed public defenders from the general ranks of area defense attorneys there are serious issues of quality. Shipler encountered judges that admit to appointing certain defense attorneys over and over because they don't fuss much in court. Others appoint lots and lots of cases to their political contributors. Those attorneys make a good living on the sheer volume of these cases. But, appointing cases based on these criteria is not a solid foundation for justice. On top of that, court-appointed defenders have almost no budget for experts and in most cases, there are no funds available for appeals. It really is stacked against poor defendants.
"The Tilted Playing Field" looks at all of the tools the government has to coerce cooperation, including threats of deportation, violation of probation, plea bargaining and asset forfeiture. I was disturbed by the practice of sentencing based on parts of the case that were dismissed. For example, if you have a gun illegally and are brought up on charges of trafficking drugs and are found not guilty of the drug charge, some courts will still sentence you more severely for the gun charge because of the drug charge, that you were acquitted of.
"Below the Law" discusses the status of legal and illegal immigrants in the justice system. To be blunt, they don't have much status. I was especially disturbed to discover that a great number of immigration judges have no particular experience in immigration law except for a single short class with an online quiz taken the next day (page 144). This makes for poor justice when the judge is not an expert. Would you go to probate court with a judge who know next to nothing about wills? The case of the political refugee who was arrested for not having his papers and was on the deportation list is especially disturbing. Luckily, the refugee learned from other detainees that he did not need papers as a refugee. He told his attorney who educated both the prosecutor and the judge on this legal point. They were directed to a page on their own website that explained the law. (pages 184-5)
The chapter "Redress of Grievances" demonstrates that we spend an awful lot of time spying on groups that exercise their right to protest. While most of these groups would be silly to spy on, Shipler seems that there would never be a need to look at any of these groups at all. I don't know where the line is, but it is clear that some law enforcement groups are over-zealous and act spitefully towards protesters. For example, the Maryland State Police surveilled an anti-death penalty group and listed some of its members in an anti-terrorism database despite having no evidence of a crime. (page 229) In at least one case, Shipler does hurt his own argument. He notes the famed WTO riots in Seattle in 1999 (nicknamed the "Battle in Seattle" by some) one page and argues that the Washington, D.C, police had no reason to be worried about planned demonstrations against World Bank and the IMF meetings six months later. (pages 234-236) Shipler ends the chapter with a long discussion on flag-burning, which has been ruled legal for a long time and is still news to some and the Westboro Baptist Church protesters.
"Inside the Schoolhouse Gate" was the most interesting chapter for me because I am a teacher. It is a maxim that students have the right to express political opinions. But, since attendance at school is compulsory, it is also a maxim that you have the right to attend school and not be harassed. For example, is a Malcolm X t-shirt a threat to white students? Is a Hank Williams, Jr. t-shirt with a Confederate flag on it a threat to black students? Are both, or neither, disruptive to school so that teaching becomes difficult? Can high school newspapers be censored by their schools? (page 274, 278-9) Even worse, in my mind are the speech codes at universities and designated "free speech zones," especially on public university campuses. Silly me, I thought the entire country was a free speech zone. I suppose we don't want students to discover new and different thoughts while being educated...
Shipler concludes with this thought: "If every American school taught the Bill of Rights in a clear and compelling way, if every child knew the fundamental rules that guide the relationships between the individual and the state, then every citizen would eventually feel the reflexive need to resist every violation. We had better begin now, for rights that are not invoked are eventually abandoned."
As a social studies teacher, I wholeheartedly agree and I worry because we are cutting those very classes across the country in order to make sure we pass the math and English standardized tests. The school I taught in last year cut 20% of the social studies classes in the third 9 weeks in order to provide more time for English practice (language arts stuff, not English for non-English speakers) with a prescribed, decidedly non-social studies curriculum. I wonder what was cut?
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