Lately I keep finding myself in arguments regarding the 4th Amendment and the notion of drug testing welfare recipients. I’m frankly a little confused as to why I keep having this argument, especially since it’s almost always with a person who proclaims they adore the constitution in an almost religious way. So why are they always so anxious to violate it to make a point? The 4th reads as follows:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Welfare drug testing proponents claim that the government has a right to test everyone who applies for assistance because…why, exactly? The text of the 4th clearly states that citizens have the right to be “secure in their persons” against “unreasonable search and seizure”. The US Supreme Court has ruled that urine, blood and hair samples constitute a search and giving up the internal contents of your person is a search. So where’s the probable cause? Being poor and needing aid is not probable cause. This kind of search is called a “suspicionless search” and can only be conducted when the government can show a “special need”. The special need slippery slope has already slid citizens down in the name of public safety, expectations of “fit” government employees and the current and imaginary future drug addictions of children.
Once I bring up suspicionless searches and “special need” the next point always centers on private employers drug testing their employees. Here I can reassure the Constitution loving debater that yes, private enterprise does indeed trump the 4th, except in a handful of states where the employer must show suspicion before testing anyone. So how does applying for government aid differ from applying for a job at a private company? An individual makes a choice and applies for a job possibly having other choices available. Any one of us can be left without a choice between true hardship and public assistance. The people who choose jobs that allow drug testing have entered into a legal agreement and accept those terms, while the Constitution protects us all, and in the case of the 4th, specifically from the government! Asking a citizen to provide the private contents of their body up for examination to avoid falling into abject poverty does not meet the requirements outlined in the 4th. There is no probable cause, except the suspicion that their economic circumstance may make them drug users.
The impairment of individual liberties cannot be the means of making a point…symbolism, even symbolism for so worthy a cause as the abolition of unlawful drugs, cannot validate an otherwise unreasonable search.
That’s Justice Scalia, one of the most conservative justices on the Supreme Court. And he also hit the nail right on the head as far as why there’s such a vocal group calling for welfare applicants to pee in a cup. It’s another way to symbolically disgrace the poor. The Protestant work ethic looms large in US history. If a person is prosperous, then they must have worked hard and had god’s favor. If a person is poor, then they have committed the sin of sloth and god has frowned on their behavior. Demonizing the poor has long been a popular way to sweep our problems under the proverbial rug. After all, if the poor are just lazy slobs with bad character, why should we spend any of our resources on them? Once you take away the symbolism of the act, there is no probable cause. No matter how revolting you may find the act of promoting the general welfare via taxation, being poor is not probable cause. The 4th Amendment is there to protect us all from the government criminalizing behavior that is a person’s private business. No matter how insulated you may think you are from the desperation of abject poverty, it can happen to you. So why then, are people in such a hurry to give up their constitutional rights?
Or you can just follow the money. Private industry will always trump individual rights as long as we continue to believe wealth is moral and worthy and the poor are damned.