This March 21st marks the saddest anniversary in the history of the American experience. On this date in 1989, the Supreme Court ruled that the protections guaranteed all Americans in the Constitution don’t apply to us. The Court handed down its infamous opinion in the National Treasury Employees Union v. Von Raab case. This ruling served as the catalyst for mandatory drug testing.
I’ve always been intrigued by this decision. We Americans pride ourselves on our “exceptionalism.” As President Ronald Reagan, the pioneer of governmental work place drug testing, once opined: America stood as a “shining city on a hill.” When I hear stories about people being forced to urinate on demand in front of others, doctors and HR professionals serving as unlicensed agents of law enforcement, and Americans being forced to prove their innocence without the aid of an attorney I have my doubts. In the latter case, it’s especially egregious that people are threatened with loss of their livelihoods if they attempt to assert their Fourth Amendment right against “unreasonable searches and seizures” WITHOUT EVEN BEING ACCUSED OF A CRIME.
The fact the Supreme Court expressed this sudden abnegation of the concept of privacy befuddles me. In 1973 it ruled that a woman had a solemn right to privacy if she desired an abortion. Sixteen years later it issued another decision stating people lack a right to privacy if they would like a job. I don’t understand the reasoning here, but, then again, I’m not an attorney.
This decision allowed for a new series of disturbing tactics America’s so-called “war on drugs”. I recall reading Primo Levy’s account how guards would force concentration camp inmates to urinate in front of them. In German society at the time, doctors worked as agents of the State to eliminate undesirables. While Americans love our “Happy Hours” we hold a special distain for drug addicts; at least the ones not working in the entertainment industry or playing professional sports. I’m not placing drug testing on par with the Holocaust, but the eerie parallels are difficult to discount.
It’s even harder to ignore Americans’ cavalier attitude towards this erosion of Constitutional protection. Many people argue that drug testing makes society “safer.” I reply that the two most horrible expressions in the English language are “consumer protection” and “public safety”. They can be used to justify anything. Benjamin Franklin once wrote, “He who would sacrifice liberty for security deserves neither.”
I always cite Justice Antonin Scalia’s dissenting opinion as one of the best commentaries on civil rights. It belongs in the same category of great American orations such as “The Gettysburg Address”.
There is irony in the Government’s citation, in support of its position, of Justice Brandeis’ statement in Olmstead v. United States,277 U. S. 438, 277 U. S. 485 (1928) that “[f]or good or for ill, [our Government] teaches the whole people by its example.” Brief for Respondent 36. Brandeis was there dissenting from the Court’s admission of evidence obtained through an unlawful Government wiretap. He was not praising the Government’s example of vigor and enthusiasm in combatting crime, but condemning its example that “the end justifies the means,” 277 U.S. at 277 U. S. 485. An even more apt quotation from that famous Brandeis dissent would have been the following:
“[I]t is . . . immaterial that the intrusion was in aid of law enforcement. Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning, but without understanding.”
Id. at 277 U. S. 479. Those who lose because of the lack of understanding that begot the present exercise in symbolism are not just the Customs Service employees, whose dignity is thus offended, but all of us — who suffer a coarsening of our national manners that ultimately give the Fourth Amendment its content, and who become subject to the administration of federal officials whose respect for our privacy can hardly be greater than the small respect they have been taught to have for their own.
(Retrieved from https://supreme.justia.com/cases/federal/us/489/656/case.html#679 3/21/15.)
In his “Farewell Address” George Washington warned that America “should not go abroad in search of monsters to fight.” Recently we engaged in an effort at nation building for a society that hadn’t had “freedom”, “liberty” or “democracy” in over 6,000 years. Instead of trying to turn the Middle East into the paragon of Jeffersonian Democracy, we should focus on assuring our own liberty here at home.