When Everyone’s Ox Is Gored : Intrusive Drug Tests May Make Civil Liberties Popular Again

In recent years the American public and the U.S. Supreme Court have held the Fourth Amendment’s protection against unreasonable searches and seizures in low esteem.

Neither body has cheered a doctrine that excludes important evidence from criminal trials because of how the police found it. Politicians have made careers attacking such “legal technicalities.”

In recent weeks, the Supreme Court has issued a series of decisions cutting back Fourth Amendment restrictions on searching persons and their belongings for illegal drugs. Most significant of these may be the decision issued last month permitting broad-scale drug-testing of certain U.S. Customs Service employees. In the short run, this position marks another invasion of privacy legitimated by the “war on drugs.” The long-term impact may prove surprising, however. It might make the Fourth Amendment popular again.

In the mid-18th Century, American merchants howled when English officials claimed the authority to search homes and businesses without showing a judge that they had good reason for the search. Their outrage became a rallying cry for the Revolution and later inspired the Fourth Amendment.

Today, those who decry unreasonable searches and seizures are not prominent merchants. Usually, they are drug dealers. The Burger and Rehnquist courts have treated Fourth Amendment claims accordingly, finding ways to cut back the amendment’s reach and enforcement. Despite the complaints of civil libertarians, no one seems to mind much. Most people are not drug dealers, after all.

By contrast, broad-scale drug-testing will affect many law-abiding citizens.

In late March the court issued two drug-testing opinions. In the most far-reaching and controversial of the two, the court held that the government could require all Customs employees who apply for promotion, either to a position involved in the “war on drugs” or one that involves carrying a firearm, to take a drug test.

The court said that the government could require such employees to take a drug test even if the government has no suspicion that the employee used drugs. And the testing would not require a warrant or other judicial authorization.

The main importance of this decision, like many by the court, will be symbolic. Although the Customs Service could show no direct link between drug usage and corruption or malfeasance by its employees, and although only five employees had tested positive out of 3,600 examined, both the government and the court majority thought the interests in favor of testing were “compelling.”

What was compelling was the symbolism. Those in government connected with the “war on drugs” would serve as drug-free examples to the rest of the nation. If these government employees could remain drug-free, so might the rest of us.

The ruling applies only to certain customs employees, but it has broader ramifications. Its precedent will legitimate broad-scale drug-testing in many governmental contexts.

It also may have an indirect impact on legal challenges to the many drug-testing schemes set up by private employers and institutions. Although these challenges will not depend on the Constitution because they are not government-mandated, the court’s treatment of the Fourth Amendment sets an example of legal leniency. If forced testing does not violate the fundamental law of the land, then perhaps lesser laws will not be violated either.

If mandatory drug-testing becomes more common, it will also become a more public, and less judicial, issue. And here it is ordinary middle-class Americans who face a major privacy invasion.

How would you feel if your employer required drug-testing? You would receive notice of the testing requirement and make an appointment. At the appointed time and place, after producing a photo ID, removing outer garments such as a coat or jacket, and handing over belongings, you would be given the sample bottle.

Then, you would have the option of urinating behind a partition or in a bathroom stall. A monitor of the same sex would stand nearby to verify the “normal sounds of urination.” After receiving the sample, the monitor would check it for normal color and temperature. Then it would go to a lab for analysis. This is the procedure followed in the Customs case.

Whether drug-users or not, employees subject to such testing will feel the threat of public consequences for private, consensual conduct, as well as the threat of false positive test results. This is Big Brother in a big way.

Drug abuse has had devastating consequences in modern America. Politicians urge us to declare war on drugs and to free government from legal restraints more appropriate to peacetime. In its decision on the Customs Service drug-testing program, the Supreme Court has enlisted in the war.

The only virtue of the decision is that it may reawaken the public to the privacy protections of the Constitution. Americans may reconsider the nature of their war when they discover that its battle cry is the sound of forced urination.