CONSTITUTIONAL RIGHTS: MYTHS AND REALITIES

Vol. 14 No. 2 (February 2004)

CONSTITUTIONAL RIGHTS: MYTHS AND REALITIES by Christopher E. Smith. Belmont, California: Thomson/Wadsworth, 2004. 240 pp. Paper $35.95. ISBN: 0-534-63965-8.

Reviewed by Mary W. Atwell, Department of Criminal Justice, Radford University. Email: matwell@radford.edu .

As scholars such as Lawrence Friedman and Samuel Walker note, since the late twentieth century Americans have inhabited a legal culture that places a strong emphasis on rights. In CONSTITUIONAL RIGHTS: MYTHS AND REALITIES, Christopher Smith offers students of criminal justice and legal studies an excellent opportunity to look closely at common assumptions about the meaning and application of these legal protections. The book is written and structured in a way that makes it especially suitable for classroom use, but anyone who is not already a constitutional rights expert could find benefit and enjoyment in reading it.

One of Smith's purposes is to distinguish actual definitions of rights from popular beliefs about their nature and effect. He begins each section with an example of "conventional wisdom," such as "The Eighth Amendment's prohibition against excessive fines prevents judges from imposing financial penalties that are disproportionate to the crime or otherwise unfair." He then offers a clear explanation of how that widely-held belief is actually mistaken or deficient, citing cases that modify the scope of the right. Smith illustrates how a right may exist in the law and even be spelled out in opinions by the Supreme Court, but may remain largely symbolic, lacking in substance. Rights may be only theoretical-symbolic rather than actual-if courts do not interpret them to afford real legal protections for individuals, if there are no reasonable remedies for their violation. My students like to cite the example of the sleeping or intoxicated lawyer provided to the indigent client as an example of a right that is so circumscribed by a series of interpretations as to be rendered meaningless.

Additionally, a right may become merely a hollow promise if officials in the criminal justice system choose to disregard it. The latter point makes an excellent argument for using this book in a class for future criminal justice professionals. Smith repeatedly demonstrates that legal rights become reality only if those who work in the system have the knowledge, professionalism, and ethics to see that they are respected, especially among those least likely to assert them.

Even those familiar with the American legal system often misuse the term "rights" to mean something other than a legally protected interest. Early in the text, Smith defines the concept and distinguishes rights from power or authority. He also separates constitutional rights from interests that may be protected by statute or contract. The guarantees afforded by the Constitution, and especially those listed in the Bill of Rights, reflect the American traditions of individualism and preference for limited government. Although students likely have been exposed to those concepts in a number of their courses, too often those who look forward to careers in the criminal justice system are inclined to interpret the Bill of Rights as if it offered a game plan to tie the hands of those charged with enforcing the law. At the same time, many undergraduates seem to harbor an overly idealistic notion of the impartiality of the judicial branch, assuming that courts rule on rights-related cases based on a set of eternal principles. The examination of Supreme Court cases in Smith's book makes the case that justices, consciously or not, often fit their interpretations of the constitution to their own values and preferences. A virtue of the first three chapters-the image of rights, the definition of rights, and the implementation of rights-is the author's clear and balanced explanation of the imprecision with which people translate the words of the Constitution into practice.

After the introductory section, Smith devotes a chapter each to the first, fourth, fifth, sixth, eighth, and fourteenth amendments. Beginning with an overview and then taking each relevant provision within the amendment, he describes conventional wisdom about the section's meaning and discusses how the right has actually been interpreted. He reiterates the theme that much language in the Constitution is ambiguous. How long should a defendant wait for the "speedy trial" promised in the Sixth Amendment? Who makes up an impartial jury? What punishments are cruel and unusual? What constitutes due process? Who is entitled to equal protection and what does it mean? Even words that seem quite precise "Congress shall make no law . . . abridging freedom of speech" do not mean exactly what they say. For this reason, the gaps between conventional wisdom and the application of the law may be quite large. Smith successfully makes this point for each provision he discusses. His goal is not to provide readers with a complete history of the jurisprudence relating to each amendment but to offer sufficient examples to show the gaps between common assumptions about constitutional rights and their actual meanings.

A chapter on the "War on Terrorism" adds a timely element to the discussion. While Smith acknowledges the need to balance individual rights against the demands of national security, he illustrates how the Bush administration has created categories of persons, such as "unlawful combatants" and "enemy combatants," who stand outside the protections set out in the Constitution. For such individuals, rights assumed by most American citizens become merely symbolic. If the purpose of the Bill of Rights is to protect people from excessive government intrusion and control, how can that same government be allowed to decide when it will abide by constitutional limits?

The last chapter deviates from the pattern of citing conventional wisdom and then explaining its misconceptions. Instead, Smith summarizes points made throughout the text in seven "lessons" showing how the court can "move" the meaning of a right through a new formulation. He reiterates that rights are not really "enduring" if a new majority on the Supreme Court can reinterpret their meaning, that many rights are only symbolic because no remedies exist for their violation, that the protection of rights often rests on the discretion of criminal justice officials, and that rights are especially vulnerable to compromise during times of national crisis. Finally, he advocates that citizens need to use the political process to give substance to constitutional rights.

Although scholars with a strong background in constitutional law could find value in this work, it is a book primarily for students, designed to promote informed discussion in a classroom setting. I found it extremely well suited to that purpose. Smith's format-a sort of written Socratic method-would stimulate thought and debate. Undergraduates could be assisted in coming to grips with a more sophisticated understanding of constitutional rights, both as ideals and as reality. The author provides an excellent glossary and a helpful list of cases to assist their inquiry. I look forward to teaching a class where I have the opportunity to use CONSTITUTIONAL RIGHTS: MYTHS AND REALITIES.

REFERENCES:

Friedman, Lawrence M. CRIME AND PUNISHMENT IN AMERICAN HISTORY. New York: Basic Books, 1993.

Walker, Samuel. POPULAR JUSTICE: A HISTORY OF AMERICAN CRIMINAL JUSTICE. New York: Oxford University Press, 1998.

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