When ‘Strict Construction’ Becomes Loosey-Goosey : Supreme Court: Conservatives say they want a “strict-constructionist” justice. But what they mean is a “loose constructionist”--the looser the better.

Once again there is an opening on the U.S. Supreme Court and once again a Republican President has assured the Nation that his nominee is a “strict constructionist,” by which he means a judge who will feel bound by a literal, historical reading of the Constitution and refuse to distort the document in order to further his own social and political goals.

The terms “conservative” and “strict constructionist” are often used interchangeably, but in my field of special interest, constitutional-criminal procedure, these labels are likely to describe very different kinds of judges.

The reason is that the provisions of the Constitution dealing with the rights of the accused contain more explicit textual instruction than other parts of the document and “conservative” judges are likely to chafe at the legal restraints on government they find there. For example, they are likely to view the search warrant requirement or the need for the police to act on “probable cause” as serious impediments in the war against crime.

But conservative judges often manage to overcome, or ignore, these anti-government provisions by not being “strict constructionists.” They do not adhere to the text. They do not look for answers in history. In this area, more often than not, it is the “liberal judges” who take interpretation seriously, not the conservatives.

National Treasury Employees Union vs. Von Raab, a highly publicized drug-testing case decided last year, is a good illustration. That case upheld a drug-testing plan for certain Customs Service employees even though the program requires neither a warrant nor any individualized suspicion of wrongdoing. The majority utilized a general “reasonableness” test or a general “balancing” approach and concluded that “the need to conduct warrantless, suspicionless searches . . . outweigh the privacy interests of employees engaged directly in drug interdiction, and of those otherwise required to carry firearms.”

That the government’s interests prevailed is hardly surprising. This is usually the result when the court utilizes what the dissenters aptly called “a formless and unguided ‘reasonableness’ balancing inquiry.” Privacy interests did not, and could not be expected to, outweigh what the majority called “a national crisis in law enforcement” caused by the drug problem.

After reading the majority opinion in Von Raab , one is entitled to ask: What happened to the Fourth Amendment? In light of the amendment’s text and history, how could the court uphold searches conducted without a warrant and absent any level of individualized suspicion?

If drug testing is a “search” (and the court was quick to recognize that it is, because one has a reasonable and legitimate expectation of privacy in the personal information contained in one’s bodily fluids), and if individuals do not lose their Fourth Amendment rights merely because they work for the government (and the court has assured us that they do not), how can a public employee be tested without any suspicion particular to him simply because he is a member of a large group that includes some who use drugs? After all, no court has ever, or would, approve a “dragnet” or “blanket” search of all people in a particular neighborhood on the ground that such a police operation would turn up criminal conduct on the part of some people--as undoubtedly it would.

The answer is that in the last quarter-century the court has viewed the Fourth Amendment as a flexible standard that permits fairly wide-open balancing of public and individual interests when government programs are directed at special problems. In these instances (originally inspection of residential and commercial buildings for possible health and safety violations), the court has carved out an exception to traditional search and seizure restraints for what have been variously called “inspections,” “regulatory searches” or “administrative searches.”

I have read the text of the Fourth Amendment again and again, but I have been unable to find anything resembling or suggesting an “administrative search” exception. Moreover, such a doctrine turns the Fourth Amendment topsy-turvy. It leaves the law-abiding citizen more vulnerable to invasions of privacy than the person accused or suspected of crime.

Those who want a law-and-order justice appointed to the Supreme Court should at least get their terminology straight. The last thing they want is a “strict constructionist.” What they are really looking for is a “loose constructionist”--and the looser the better.