Rights at Risk: The Limits of Liberty in Modern America” by David K. Shipler
By Jeffrey Rosen,
“Rights at Risk” is David K. Shipler’s second book about the human stories behind the great constitutional cases that have shaped our civil liberties before and after Sept. 11, 2001. As in his first book, “The Rights of the People,” Shipler, a former chief diplomatic correspondent for the New York Times, combines a journalist’s eye for detail with a sense of moral indignation about what he argues are the many ways the U.S. legal system has curtailed the rights of the accused, many of them poor and powerless minorities.
“Using legally approved tricks and lies, the detective coerces a false confession,” Shipler writes. “Hiding facts that support innocence, the prosecutor forces a dubious plea of guilt. The judge sentences for acquitted conduct, as she is allowed to do. The defense attorney for the poor, overworked because of underfunding by the state, fails to summon sufficient resources to investigate and rebut. The legal immigrant is deported with no meaningful access to constitutional rights. These intrusions are woven into the statutes and enabled by courts.”
Shipler is especially convincing about flaws in the system that led to systemic failures of justice, such as the false confessions that were identified in around 20 percent of the 271 convictions later reversed by DNA evidence of actual innocence. He tells stories like that of Martin Tankleff, a 17-year-old who falsely confessed, under police pressure, to killing his parents in their Long Island home and was released after serving 17 years of a 50-year term when new evidence of his innocence came to light. Shipler identifies a series of reforms that could deter false confessions, including forbidding the police to lie to suspects by making up evidence, forbidding subtle suggestions of leniency in exchange for confessions, barring the questioning of children without a parent or a lawyer, and videotaping interrogations from beginning to end.
There are, of course, many books about the stories behind Supreme Court cases. Shipler’s distinctive contribution is the thoroughness and originality of his reporting: By interviewing the protagonists in landmark cases, he uncovers some surprising and relevant facts. Writing about Snyder v. Phelps — the 2011 case in which the Supreme Court, in an 8-1 decision, held that the First Amendment protects the Westboro Baptist Church’s right to engage in hateful, homophobic protests at military funerals — Shipler tells of reaching the daughter of Fred Phelps, the church leader, while she is driving to picket one of the funerals. Shirley Phelps-Roper tells Shipler that the police often kept the protesters away from the funerals, and she wasn’t disturbed that few surviving family members would see the hateful signs because the survivors weren’t her targets. “It’s not about where we’re standing. It’s about the words,” she told Shipler. This undermines one of the central assumptions of Justice Samuel Alito’s lone dissenting opinion: that the protests could be banned as intentional infliction of emotional distress because the Phelpses “expected that [their] verbal assaults will wound the family and friends of the deceased.”
Shipler then follows the Phelps clan into another controversy, when Phelps-Roper is charged with flag-desecration in Nebraska, despite the fact that the Supreme Court ruled flag desecration laws unconstitutional in 1989. The county prosecutor tells Shipler that the Supreme Court decision isn’t entitled to respect because it was decided by a 5-4 vote, and he invents a novel theory that Phelps-Roper was uttering “fighting words” by having her son stand on the flag. On the eve of the trial, the prosecutor dropped the charges, and a federal judge later struck down the Nebraska flag-desecration law. By reminding us that the Constitution is shaped as much by local prosecutors, legislators, judges and activists as by Supreme Court justices, Shipler helps us understand that those on opposite sides of constitutional controversies claim the Bill of Rights as their own.
Although Shipler frames his book as a record of unrelenting defeats for liberty, several of the most inspiring stories tell a more complicated, and sometimes hopeful, tale. For example, Zacarias Moussaoui, who confessed to having planned a Sept. 11 hijacking and pleaded guilty to planning to fly a plane into the White House, was spared the death penalty because jurors viewed his “unstable and dysfunctional family” as a mitigating factor. The unexpected mercy so moved Moussaoui that he asked to withdraw his guilty plea, declaring, “I now see that it is possible that I can receive a fair trial even with Americans as jurors.” (Unfortunately for him, there was no legal basis for granting the request.)
Shipler also tells of the relatively small indignity suffered by Raed Jarrar, a young man born in Iraq and married to an American who was forced by Transportation Security Administration officers at John F. Kennedy airport in New York to cover up an antiwar T-shirt declaring, in Arabic and English, “We Will Not Be Silent.” Jarrar sued the TSA official and JetBlue airlines for “intentional discrimination” and for violating his First Amendment rights, and eventually agreed to settle for $240,000, donating $50,000 to the ACLU to cover its out-of-pocket expenses. The result seems like a small vindication for what Shipler rightly calls one of the “small violations of large principles.”
This is not a politically neutral account of what Shipler calls “the limits of liberty in modern America”: Although he notes a poll in which Republicans were more likely than Democrats to support as essential the right to a fair trial, the right to free speech, and the right to march and protest, he nevertheless puts the primary blame on “federal judges nominated by Republican presidents” for undermining “the courts’ modern role as defenders of individual rights.” In light of bipartisan victories for free speech such as the 8-1 decision siding with Westboro Baptist , this partisan note seems uncharacteristically simplistic in an otherwise impressively nuanced and textured book. More satisfying is the earnest hope with which Shipler concludes: “If every American school taught the Bill of Rights in a clear and compelling way . . . then every citizen would eventually feel the reflexive need to resist every violation.”
Jeffrey Rosen is a law professor at George Washington University and a co-editor, most recently, of “Constitution 3.0: Freedom and Technological Change.”
RIGHTS AT RISK The Limits of Liberty in Modern America By David K. Shipler Knopf. 379 pp. $28.95