The Rights of the People: How Our Search for Safety Invades Our Liberties

  • By David K. Shipler
  • Knopf
  • 400 pp.
  • Reviewed by Stephen I. Vladeck
  • May 20, 2011

A scholarly work investigating not just the judiciary’s role but also society’s responsibility in the diminution of Fourth Amendment protections.

A student once sarcastically asked me if I could identify the exact ways in which her rights had been abridged by post-September 11th legal developments. Although I gave what I thought was a pretty good answer at the time (“this isn’t just about you,” it began), I wish that I could have directed her to David Shipler’s new study of the interaction between public safety and civil liberties in contemporary American society. The Rights of the People: How Our Search for Safety Invades Our Liberties is the first of two volumes of Shipler’s study.

Despite — or perhaps because of — his lack of formal legal training, Shipler does a masterful job of interweaving poignant anecdotal accounts of his first-hand observations of the gun and narcotics units of the Washington Metropolitan Police Department with trenchant, insightful, and spot-on legal analysis.

A former New York Times correspondent and a Pulitzer Prize-winning author, Shipler provides an all-too-rare synthesis of Supreme Court decisions, statutory developments, and the impact of both on everyday law enforcement operations.

Thus, the narrative is able in one breath to describe encounters in which savvy police officers shape their conduct around the Court’s abstract pronouncements on the various exceptions to the requirement that police searches be conducted with a warrant — one of the several critical protections enmeshed within the Constitution’s Fourth Amendment. By drawing a straight line from decisions rendered by the Supreme Court at its One First Street locale to the high-crime neighborhoods only a few blocks beyond, the monograph forcefully drives home the practical impact of the often hyper-technical criminal procedure jurisprudence of the Supreme Court during the Burger and Rehnquist years.

In that sense, The Rights of the People both explicitly and implicitly conveys a point lost on too many contemporary commentators — that our constitutional protections against governmental intrusion had already been eroded prior to the September 11th attacks. Of course, as Shipler recounts, domestic civil liberties have not fared any better over the past decade, especially in light of a series of federal statutes weakening pre-existing constraints on the government’s surveillance powers. Thus, as the book explains, the USA PATRIOT Act of 2001, the Protect America Act of 2007, and the FISA Amendments Act of 2008 have combined to relax a number of statutory protections that were, prior to September 11th, thought to be vital in protecting civil liberties. But at least where the Fourth Amendment is concerned, one of the monograph’s most convincing analytical conclusions is that, whatever effect the war on terrorism has had on current case law, we were well on our way before the towers fell, thanks largely to the Supreme Court.

Indeed, Shipler’s book may undersell this point, especially to the extent that it neglects the Court’s increasingly hostile approach to lawsuits seeking to recover damages for all governmental misconduct. For example, Shipler might have added to his story how the Supreme Court in its 2009 decision in Ashcroft v. Iqbal made it significantly harder for plaintiffs in such cases to allege sufficient facts in their complaint to survive a motion to dismiss. To similar effect, Shipler could also have noted Pearson v. Callahan, also decided in 2009, in which the Court concluded that, in cases in which a government officer is ultimately entitled to immunity, lower courts need not even bother deciding whether or not the officer actually broke the law — never mind that, without such a statement, the next officer who commits the same alleged misconduct will also be entitled to immunity.

Thus, it’s not just the substance of the Fourth Amendment that the Supreme Court has diluted, which is Shipler’s central point, it’s also the ability of individuals to recover when their (remaining) Fourth Amendment rights are violated. In that sense, Shipler is entirely right to lay much of the fault at the Justices’ feet, and to suggest, as he does in the Epilogue, that one of the solutions may well be for the Court to retrench.

But then the Epilogue takes a telling turn: As Shipler concludes, “Rights that are not exercised are lost. Some have been diminished not only under the chisel of the courts but also by the neglect of ordinary citizens who neither invoke them nor challenge their violators.” This idea — that we, the people, bear some of the responsibility for the erosion of civil liberties — is a critical one, because so much of the modern Fourth Amendment is tied to societal understandings of “reasonableness,” and, as such, to prevailing expectations of privacy.

Whether the decline of such expectations over the past decade is a result of technological advancements, fear of terrorism, or some combination of both, the key point to which Shipler alludes, but which his book doesn’t directly confront, is that criticism of the courts in this field is, in a very fundamental sense, criticism of society writ large. Yes, one of the principal justifications for an unelected judiciary is to provide a counter-majoritarian check on the tyranny of the majority. But it would be beyond naïve to think that popular passion hasn’t been responsible for at least some of the law on what governmental conduct is and is not “reasonable” where the threat of terrorism is concerned.

To that end, additional episodes not discussed by Shipler include a telling case last month, when a federal appeals court judge candidly confessed that he “cannot help but be conscious of the infinitely greater downside risk to our country, and its people, of an order releasing a detainee who is likely to return to terrorism” than an order releasing a criminal defendant who is likely to return to “ordinary” crime. (Esmail v. Obama, D.C. Cir., 2011, Silberman, J., concurring).

Similar inclinations almost surely explain a 2007 decision by the federal appeals court in New York, upholding random, suspicion-less searches of the bags of subway riders solely because of the unique threat posed by terrorism. The problem is not with the judges — who, after all, are human. The problem is with all of us, who have become too willing over the past decade to do that against which Benjamin Franklin so famously railed — to “give up essential liberty to obtain a little temporary safety.”

In that sense, perhaps the only true shortcoming of Shipler’s otherwise compelling work is the extent to which it doesn’t engage the critical issue: how might we begin to change public opinion, such that “I have nothing to hide” is no longer the stock answer to questions about whether governmental surveillance has become too intrusive?

In the end, Shipler’s book is exactly what my former student needs in order to understand how her rights have eroded since September 11th. What this book won’t do is convince her why that wasn’t the relevant question in the first place.

Stephen I. Vladeck is a professor of law at American University Washington College of Law.

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