Book Review: Rights at Risk: The Limits of Liberty in Modern America

December 1, 2012 • Commentary
This article appeared in California Lawyer on December 1, 2012.

Rights at Risk: The Limits of Liberty in Modern America
By: David K. Shipler
Knopf, hardcover; $28.95, 379 pages

Early this year, Beverly Greer went to the jailhouse to bail out her son Joel. She visited an ATM and borrowed money from family, because the sheriff’s office in Brown County, Wisconsin, told her it wouldn’t accept checks or credit cards, and bail bondsmen are illegal in that state. But when deputies ran her $7,500 in bills past a drug‐​sniffing dog, it “alerted” to the presence of drugs, and the cops confiscated the money under asset‐​forfeiture laws that do not require them to prove guilt. It took four months for Greer to get her money back.

It’s just a day in the tawdry life of America’s half‐​century war on drugs — a cruel and unending conflict with no victors, no conquests, only casualties. And as David K. Shipler explains in Rights at Risk — concluding his two‐​volume study of the pulverizing of constitutional rights in the drug and terrorism wars — the reliability of drug‐​sniffing dogs may be the latest mass delusion. However keen their noses, undertrained dogs and biased handlers can lead to arbitrary and subjective enforcement. A 2011 Chicago Tribune study found that K-9 units falsely alerted far more often when led around cars with Hispanic drivers than when sniffing cars driven by whites. Worse, 90 percent of U.S. currency contains detectable traces of cocaine and other drugs. This pervasive contamination led the Ninth Circuit to rule that canine detection is insufficient grounds for forfeiture. Yet such practices continue, and dog alerts can still establish probable cause for searches. Given other precedents that let officers detain people without technically arresting them, or “ask permission” to search without telling them they can say no, the exceptions now swamp the Fourth Amendment’s warrant requirement.

Shipler’s overall argument is that such abuses of criminal procedure are part of a general breakdown in civil liberties, the sixth such episode in American history after the Alien and Sedition Acts, Lincoln’s arrests of quislings during the Civil War, the Wilson‐​era Palmer Raids, Franklin Roosevelt’s undermining of the Constitution during World War II, and the internal espionage of the Cold War. During crises, government tightens its grip, and citizens — from fear or patriotism — hesitate to criticize authorities or to defend unpopular dissidents. Thus even when courts have drawn clear lines, enforcement is not always conscientious.

After 9/11, Americans were willing to swallow not just the surveillance and arrest of innocent foreigners, but also betrayals of free expression. In 2007 a member of Fred Phelps’s cult — infamous for heckling soldiers’ funerals with anti‐​gay slurs — was arrested for flag desecration under a Nebraska law nearly identical to the one invalidated back in Texas v. Johnson (491 U.S. 397 (1989)). “The street,” writes Shipler, “is a long way from the legislature and the courtroom. It’s a place where police and prosecutors frequently make up rules as they go along, creating slippage between what is written by the lawmakers and the judges and what is done in the intricate, fast‐​paced moments of enforcement.”

Such examples are crucial and vivid, but Shipler’s theory explains only half the data. He is silent about violations of the constitutional right to private property, or the freedom of entrepreneurs to pursue trades without arbitrary interference, or the overriding of procedural protections by administrative agencies brandishing power to write and enforce their own rules. Where the warrant requirement has been neutered by technicalities and rationalizations, the Fifth Amendment’s public use clause was obliterated in Kelo v. City of New London (545 U.S. 469 (2005)), and cases like City of New Orleans v. Dukes (427 U. S. 297 (1976)) and Williamson v. Lee Optical Co. of Oklahoma, Inc.(348 U.S. 483 (1955)) have largely nullified the individual’s right to make economic choices. These other betrayals do not fit the pattern of liberty being jeopardized during successive waves of national insecurity. Indeed, these precedents were endorsed by civil liberties heroes; Williamson was written by Justice William Douglas. Shipler’s reserve on such matters gives the impression that threats to freedom come primarily from zealous conservatives — when in fact, even vigilant defenders of speech, privacy, or the rights of criminal procedure share the blame for shrugging at the Constitution’s promises.

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