Robert E. Gladd,
Thesis work-in-progress internet edition:

UNLV Institute for Ethics & Policy Studies

Chapter 4,
Drug testing and Constitutional law:

clamorem et uthesium

We have all heard the phrase “hue and cry,” which most simply take to mean social clamor or indignant uproar over some public controversy. And, if ever there were a widespread, sustained, and vociferous modern “hue and cry,” the concern over and campaign against drug abuse ranks at the top, with many polls reporting sentiment ranking “drug abuse” as our number one social problem and “domestic threat.” A core question examined by this thesis is whether the “threats” posed by recreational intoxication and “addiction” are sufficiently grave as to overwhelm our law enforcement infrastructure and consequently justify abrogation of the privacy provisions of the Constitution through suspicionless drug testing programs. What of this contemporary “hue and cry” from a historico-jurisprudential perspective?

According to William J. Cuddihy’s exhaustive 1990 Claremont College Ph.D. Dissertation Origins and Original Meaning of the Fourth Amendment (cited by Justice O’Conner in Vernonia v. Acton et ux) “hue and cry,” was much more than a mere colloquial expression in the European middle ages from which we trace our American jurisprudential heritage—it was a legal term of art, one we today would equate with vigilante mob “justice” and/or deputization of the private sector for the suppression and/or punishment of wrongdoing. The 1950’s “b-movie” image of angry villagers—pitchforks, clubs, axes, and torches held high—marching en masse on Baron Frankenstein’s castle to mete out a bit of harsh summary justice comes readily to mind. Such is indeed historically accurate; formally announcing a “Hue and Cry” obligated one’s fellow citizens to participate in the ensuing unbridled pursuit and searches of suspects. Cuddihy finds the earliest official references to Hue and Cry—clamorem et uthesium—in 13th century European legal documents.

Cuddihy’s work traces the development of social norms and codified legal restraints against excessive search and seizure doctrines from ancient times through the period of the American Revolution. He recounts in minute detail the evolution of practices involving civilian-led or assisted Hue and Cry episodes into general warrantless searches conducted by formal authority, codifications of unencumbered “general warrants,” and, finally, the English and colonial applications of “General Writs of Assistance”—which were in effect Hue and Cry gussied up in Parliamentary statute, the intent of which was the augmentation of the relatively meager resources of officialdom with the enforced assistance of the private sector.

A small sample of Cuddihy illustrates the 15th to 17 century developments:

Between 1485 and 1642, the English law of search and seizure underwent a radical transformation. With other factors, that transformation caused the equally far-reaching changes that began to occur in English thought on search and seizure a century later, after 1580.

The Tudor monarchs had not only the capacity but mighty incentives to enlarge the general search into a powerful weapon of social, political, economic, and intellectual control. During the Tudor and early Stuart periods, the applications of the search process proliferated from three to fifteen categories: (1) vagrancy, (2) recreation, (3) the apparel that the lower classes wore, (4) the hue and cry, (5) the Crown’s pursuit of accused persons, (6) the recovery of stolen possessions, (7) game poaching, (8) economic regulation, (9) sumptuary behavior, (10) bankruptcy, (11) weapons, (12) the customs and importation, (13) the guilds, (14) censorship, and (15) the suppression of political and religious unrest.

In all fifteen categories, the law authorized general searches during all or part of the period from 1485 to 1642. Everything from the food that an Englishman put in his mouth and the cap that he wore on his head to the thoughts circulating in his mind came to furnish legal pretexts for the government to inspect his home. English law defined a man’s house as his castle in 1485 and as his government’s castle a century later.

Parliament, the Stuart kings of 1603-49, and local governments all participated vigorously in this expansion, but the Tudors were the master architects, for the methods of general search that they pioneered changed but little over the next three centuries despite the multitude of uses to which they were put. This growth in the types of searches, in turn, was a major impulse to the protests that initiated the movement for a right against unreasonable search and seizure. (Cuddihy, Vol I, pp. 80 - 82)

Cuddihy cites numerous instances detailing the evolution of Hue and Cry and its investigative progeny through the next hundred-odd pages of his dissertation. Particularly noteworthy are his recitations of the use of Hue and Cry to suppress the “debaucherous recreation by workers and servants.” (p. 315) He also makes what is for our purposes a most telling observation:

Incorporation of the general search into the hue and cry was especially significant. A cornerstone of criminal procedure for a millennium, the hue and cry applied whatever methods it absorbed against the growing list of problems that it addressed after 1580: theft, poaching, vagrancy, and dissent. One effect was to insure that numerous houses could be searched not only when plots against the government were afoot but every time someone’s shirt was stolen or a deer was poached to feed some hungry mouths. While the religious controversies of the 1580s and 1590s generated a stream of routine general searches, the simultaneous incorporation of the same kind of searches into the hue and cry turned the stream into a continuous flow.

Once entrenched as an essential element of the hue and cry, general warrants and promiscuous searches were all but guaranteed an extended longevity, for the hue and cry was an indispensable component of Tudor-Stuart law enforcement. The counterpart to the modern police force in Tudor-Stuart England consisted of little more than a night watch of citizens in each town to discourage nocturnal brigandage and several dozen unpaid justices of the peace superintending several times that number of sheriffs, unsalaried constables, and lesser officials.

Petty constables and their power to requisition assistance were the linchpin of the system. A constable or two was usually selected in each parish, manor, or village on the expectation that he would suppress most crimes and catch wrong-doers on a part-time basis while still working full-time at his accustomed profession. Whenever the magnitude of the crime exceeded the individual resources of local officials, they commandeered their neighbors into helping them. In effect, the overburdened constable forcibly deputized every adult male in the vicinity whose assistance he thought might be appropriate to accomplish his assigned task. General search warrants were a frequent device for expediting this process, for nearly all of them authorized the bearer not only to search all suspicious places but also to requisition such assistance as he needed to do so. The general warrant and its power to commandeer assistance were interwoven elements in a system of penurious law enforcement.

Furnished with such a warrant, a constable could call out his neighbors and oversee a prolonged, far-reaching search. To accomplish lesser results today, however, would require a multitude of specific search warrants, each obtained from a magistrate after due cause shown, and numerous full-time policemen to serve those warrants. (Cuddihy, pp. 194-96)

Except where the present-day War on Drugs is concerned, for which our puny federal constabulary feels compelled to resurrect the Hue and Cry, Fourth Amendment heritage notwithstanding. Recall Ronald Reagan’s Executive Order 12564 (“Drug-Free Federal Workplace Order”) and its most revealing passage:

The “law-abiding behavior expected of all citizens...” Such compliance was to be enforced extrajudicially through the use of the employee drug test. Steven L. Nock observes:

In other words, General Writs revisited. According to Cuddihy and other historians, it was the reviled General Writs and the abuses they permitted in the colonies that were among the primary causes of the American Revolution. For example, as recounted by O.M. Dickerson in Writs of Assistance as a Cause of the Revolution, “[W]rits of Assistance were legalized by a series of acts of Parliament giving the customs officers authority to search for and seize uncustomed goods.” Dickerson cites pertinent provisions of the 1664 Act, (13 and 14 Car. II, c. 11, cl. 5):

General enlistment of the private sector in the unfettered search for whatever prohibited goods the government thought it exigent to suppress. Greenhalgh and Yost note that, by the 1750’s

As Cuddihy makes incontrovertibly clear in the more than 1,200 pages of his dissertation devoted to the 18th century colonial political and legal conditions, revolution, and codification of the Bill of Rights, it was the explicit intent of the victorious American revolutionists who framed our Constitution to enshrine in our Bill of Rights a clear condemnation and prohibition of arbitrary and excessive searches that had for centuries taken place under color of the Hue and Cry.

The implications for indiscriminate drug testing

As discussed elsewhere in this thesis, the three U.S. Supreme Court drug testing rulings to date (Skinner, Von Raab, and Vernonia) all include the full text of the Fourth Amendment and acknowledge its centrality to their holdings, stipulating that drug tests in fact constitute “searches” within the purview of the Amendment. The threshold questions, as enumerated by the Court, are thus far:

[1] Whether those seeking to test are “state agents.” This question owes to the distinction made between Constitutional protections afforded citizens against governmental activities and the tort remedies applied to privacy violations committed by private parties. This distinction is crucial to the legality of all manner of indiscriminate surveillance of employees and others in the private sector. It is in many ways a spurious distinction. Recall my citation of Griggs v. Duke Power. In Griggs, the Court upheld the constitutionality of Title VII of the Civil Rights Act, specifically with respect to illegal employment discrimination. Employers may not discriminate on the basis of non job-related criteria. The nominal issue in Griggs was race—the exclusion of blacks from employment with or promotion within Duke Power on the basis on irrelevant paper-and-pencil tests and diploma requirements. The language of Title VII refers to “race,” “gender,” “religion,” and “national origin.” Griggs makes no mention of “political affiliation” (or age, hair color, preferred TV shows, favorite sports teams, and so on). No one seriously doubts, however, that an employer inquiring into, say, the political convictions and/or affiliations of employees or job applicants would be in violation of a constitutionally protected privacy right. The right to political and otherwise “associational” privacy is by now a Constitutional commonplace. The only logical and moral interpretation of Griggs is that if it’s not demonstrably job-related, it’s Constitutionally impermissible, and is fundamentally much more than a tort issue.

A second issue arises out of the “state agent” public/private distinction. Courts hold that where the government mandates or is otherwise significantly involved in the enactment of drug testing policy, Fourth Amendment restrictions are more closely implicated. Officials invariably assert that private firms and institutions implement suspicionless drug testing for health, safety, and productivity reasons having no connection to government requirements or exhortations. A short web hop over to the federal Center for Substance Abuse Prevention (CSAP) online catalog belies the claim. Among the numerous pro-testing materials available—courtesy of your tax dollars—two items are particularly vivid:

We’re Putting Drugs Out of Business
Organization: Partnership For a Drug Free America Year: 1987 Format: Ad slick Topic: Alcohol and Other Drug Intervention/Treatment, Workplace Target Audience: Employees Setting: Government and Workplace Readability: Easy Availability: Partnership For a Drug Free America, 405 Lexington Avenue, 16th Floor, New York, NY 10174

This is a black and white ad slick of a closed door. The door reads “Corporate Drug Testing.” The top of the slick reads “At This Point Your Alma Mater Doesn’t Matter.” The bottom of the slick says, “We’re Putting Drugs Out of Business.” Also included are facts about drugs in the workplace and how much money is lost because of drug use.

We're Putting Drugs Out of Business
Organization: Partnership For a Drug-Free America Year: 1987 Format: Ad slick Target Audience: College Students and Employees Setting: Government and Workplace Readability: Easy Availability: Partnership For a Drug-Free America, 405 Lexington Avenue, 16th Floor, New York, NY 10174

This slick pictures seven test tubes. Six test tubes have a clear substance in them and one test tube has a black liquid in it. The test tube that has a black liquid in it reads “Positive.” The top of the slick reads “Four Years of College Down the Tube.” The bottom of the slick says “We’re Putting Drugs Out of Business.” Also included are facts about drugs in the workplace and how much money is lost due to drug use.

The first item clearly implies that, indeed, your C.V. counts for nothing, that the drug test shall have “controlling force”—Title VII and Griggs notwithstanding. The second item additionally implies, in rather creative fashion, a workplace drug abuse prevalence of 14.3% (1 out of 7 positive). Neither address the fact that the bulk of health, safety, and productivity losses in industry owe to factors other than illicit drug use. Both prove “state agency” with respect to private sector drug testing, as does the easily obtained Federal Register announcement below:

[Federal Register: February 19, 1997 (Volume 62, Number 33)] [Notices] [Page 7468-7469] From the Federal Register Online via GPO Access [] [DOCID:fr19fe97-85]

DEPARTMENT OF HEALTH AND HUMAN SERVICES Substance Abuse and Mental Health Services Administration

Center for Substance Abuse Prevention; Notice of Meeting

Pursuant to Public Law 92-463, notice is hereby given of the meeting of the Drug Testing Advisory Board of the Center for Substance Abuse Prevention in April 1997. The Drug Testing Advisory Board (DTAB) is having a 3-day scientific meeting to discuss drug testing alternative specimens and technologies as they apply to workplace drug testing programs. The entire meeting is open to the public; however, attendance by the public will be limited to space available. The first two days will consist of presentations on the principles and criteria of workplace drug testing program requirements and industry representatives discussing alternative specimens/technologies (urine, hair, saliva, sweat, and non-instrument based on-site tests). The presentations will be focused on the following areas for each alternative specimen/technology: specimen collection and chain of custody, initial test reagents and procedures, confirmatory test procedures, internal quality control program, reporting test results, interpreting test results, and an external quality assurance program. On the third day, the DTAB will review the presentations, identify areas of concern, and make recommendations concerning those specimens/technologies for workplace drug testing. Interested persons may present information or views, orally or in writing, on these issues pending before the Board. Those desiring to make formal presentations should notify the contact person before March 7. A coordinator for each alternative specimen/technology will select the presenters. The presenters who will discuss the underlying principles and criteria for each major topic are required to submit their presentations in writing at least four weeks before the meeting. These will be shared with all presenters at least 3 weeks before the meeting. The presenters describing how each type of specimen and/or technology satisfies, or does not satisfy, the requirements (each presentation is limited to 15 minutes) are required to submit their presentations in written form at least two weeks before the meeting. These will be shared with all presenters. An agenda for this meeting and a roster of board members may be obtained from: Ms. Giselle Hersh, Division of Workplace Programs, Room 13A-54, 5600 Fishers Lane, Rockville, MD 20857, Telephone: (301) 443- 6014. Substantive program information may be obtained from the contact whose name and telephone number is listed below.

Committee Name: Drug Testing Advisory Board. Meeting Date: April 28-30, 1997. Place: DoubleTree Hotel, 1750 Rockville Pike, Rockville, Maryland 20852. Open: April 28-30, 1997, 8:30 a.m.-5:00 p.m. Contact: Donna M. Bush, Ph.D.; Executive Secretary, Telephone: (301) 443-6014 and FAX: (301) 443-3031.

Dated: February 12, 1997. Jeri Lipov, Committee Management Officer, SAMHSA. [FR Doc. 97-3956 Filed 2-18-97; 8:45 am] BILLING CODE 4162-20-P

Or, review the drug testing program implementation advice provided to employers by the U.S. Department of Labor website:

Drug and alcohol testing by itself is not a substance abuse program. Many companies, however, believe that, when combined with the other components of a comprehensive substance abuse program, testing can be an effective deterrent to substance abuse and an important tool to help employers identify workers who need help.

Though setting up a testing program is not a simple process, every year more and more companies of all sizes are doing so. Some establish programs because they are required to by state or federal laws or regulations. Others test to take advantage of incentive programs made available through the state or an insurance provider. Still, others do so because it is the right business decision for the company...

Drug testing has been gaining in popularity in the private sector for the past decade. During that time, many safeguards and confidentiality measures have been developed to ensure the quality and accuracy of drug testing. In addition, laws and regulations have been passed that govern how programs must be set up and run. Before implementing a testing program, you would be well advised to contact an individual or organization with expertise in drug and alcohol testing issues to help you establish your program.

Right. Who ya gonna call? Well, the partisan, self-interested, pro-surveillance individuals and organizations smiled upon and promoted by the government.

It is simply beyond dispute that our government is deeply involved in the marketing of drug testing in all workplace domains, public and private-sector. Anyone in need of more evidence need only examine the activities of The National Alliance for Model State Drug Laws (click here), a federally-funded non-profit tax-exempt § 501(c)(3) “charitable organization” whose mission is to help state legislatures enact comprehensive anti-drug laws that include indiscriminate drug testing of private sector employees.The supposedly public/private distinction delineating the boundary of the reach of the Fourth Amendment has beeen hammered into oblivion.

[2] Whether the state or its designee has a compelling interest sufficient to trump individuals’ privacy rights. This question turns on empirical assertions of exigency: are the nature, extent, and cost of drug abuse in fact sufficiently adverse to warrant extreme measures? As we have seen elsewhere in this work, the pertinent characteristics and aggregate severity of the drug problem—and the likelihood that indiscriminate drug testing can serve as a significant deterrent—are hotly disputed by a host of competent researchers. Moreover, laws exist to deal with the “problem.” Twentieth century American law enforcement agencies bear no resemblance whatever to their feeble 16th century constabulary antecedents. Enforce the law within the law; extrajudicial measures are beyond the pale of Constitutional legitimacy.

[3] Whether the privacy intrusions are minimal relative to legitimate state interests. Constitutional validity should not be regarded as a function of the proximal “severity” of the intrusion. Yes; collection of a urine sample is less invasive than that of an IV blood sample, and far less invasive than, say, forced stomach pumping or body cavity examinations in search of contraband. But “loss of privacy” need not even entail physical contact and/or bioassay. If an unmarked police van outfitted with the latest surveillance technology monitors your house without cause, its operatives capable of listening to your most intimate conversations and monitoring your movements via ultrasonic, infrared, or other imaging equipment, your privacy has been violated as surely as had your blood been drawn or stomach forcibly evacuated—and arguably all the more reprehensibly for the stealth employed.

[4] The purpose of the testing. Prosecutorial or “administrative?” Following a trend developed in the lower courts over the last generation, the Supreme Court has allowed “administrative” or “special needs” exceptions to the “probable cause” and “warrant” requirements of the Fourth Amendment. In short, since positive drug test results are supposedly “confidential” and not referred for prosecution—despite the fact that they constitute “scientific evidence” of recent criminal conduct—the Court majority finds them acceptable as mere non-discretionary and “evenhanded” administrative functions for which the probable-cause evaluating function of the magistrate is rendered unnecessary. In Skinner v. Railway, Justice Kennedy sings the praises of this curious nuance of evenhandedness, arguing that “arbitrary” would be his (hallucinatory) spectre of magistrates abusing their power by opting to “arbitrarily” issue warrants without cause against targeted individuals. Better to trade in this type of speculative (and preposterous) arbitrariness for the operational evenhandedness of indiscriminate investigation. Consider for a moment, however, Justice O’Conner’s dissenting rejoinder in the Vernonia high school drug testing case:

Lest anyone think that such Fourth Amendment fastidiousness is the exclusive preserve of the more “liberal” drug-war-softie minority on the Court, conservative Justice Scalia’s Von Raab dissent is illuminating:

Suspicionless drug testing policy is nothing less than a Constitutionally-repudiated resurrection of clamorem et uthesium that tramples on legitimate privacy rights forged in a noble and costly revolt against tyranny. It is a policy that “strict constructionists” ought rush to repudiate, one that cannot be shown to be efficacious; one that is undeniably repugnant to Constitutional and ethical principle. Political “conservatives” vowing to enact policies that at once “work” and hew to “original intent” ought give the matter more serious thought than they have to date.

“There is no Constitution at Disneyland; we have our own laws here.”

We seem to be in some ways reverting to a feudal society. Well-heeled gated communities sometimes sue for property tax exemption on the grounds that they provide their own “municipal services,” including armed security patrols. Similarly, large corporations frequently field their own internal security operations and deal with suspected transgressors with methods that many feel trample on constitutional rights.

The above-cited Disney quote appeared in the press on November 4, 1996 (AP, Las Vegas Review-Journal, p. 4B) in a story concerning allegedly excessive security practices at Disneyland. The remark was reportedly made by a Disney security supervisor to the mother of a young Disneyland employee who had been detained by Security and held incommunicado for several hours after she neglected to turn in her uniform after leaving her job at an ice cream shop on the premises. The news item also recounted additional episodes wherein guests suspected of shoplifting were similarly detained and subjected to prolonged interrogation and intense pressure to confess, sign releases, and pay summary “civil damages” on the spot as a condition of release from “custody.” Earlier last fall, similar stories appeared in central Florida papers regarding the same types of security practices at Disney World in Orlando. Critics complained that Disney, owing to its enormous economic clout in the area, effectively operated a private extrajudicial fiefdom, with the off-the-record assent of a local law enforcement establishment quite content to let Disney administer its own brand of “justice” for the mostly petty offenses the park encountered, thereby lightening the load on the overburdened police.

Was Democracy Just a Moment?

Excerpted from an article by Robert D. Kaplan, Atlantic Monthly, December 1997

Of the world’s hundred largest economies, fifty-one are not countries but corporations. While the 200 largest corporations employ less than three fourths of one percent of the world’s work force, they account for 28 percent of world economic activity. The 500 largest corporations account for 70 percent of world trade. Corporations are like the feudal domains that evolved into nation-states; they are nothing less than the vanguard of a new Darwinian organization of politics...

The number of residential communities with defended perimeters that have been built by corporations went from 1,000 in the early 1960s to more than 80,000 by the mid-1980s, with continued dramatic increases in the 1990s. (“Gated communities” are not an American invention. They are an import from Latin America, where deep social divisions in places like Rio de Janeiro and Mexico City make them necessary for the middle class.) Then there are malls, with their own rules and security forces, as opposed to public streets; private health clubs as opposed to public playgrounds; incorporated suburbs with strict zoning; and other mundane aspects of daily existence in which—perhaps without realizing it, because the changes have been so gradual—we opt out of the public sphere and the “social contract” for the sake of a protected setting. Dennis Judd, an urban-affairs expert at the University of Missouri at St. Louis, told me recently, “It’s nonsense to think that Americans are individualists. Deep down we are a nation of herd animals: micelike conformists who will lay at our doorstep many of our rights if someone tells us that we won’t have to worry about crime and our property values are secure. We have always put up with restrictions inside a corporation which we would never put up with in the public sphere. But what many do not realize is that life within some sort of corporation is what the future will increasingly be about.”...

“The government of man will be replaced by the administration of things,” the Enlightenment French philosopher Henri de Saint-Simon prophesied. We should worry that experts will channel our very instincts and thereby control them to some extent. For example, while the government fights drug abuse, often with pathetic results, pharmaceutical corporations have worked through the government and political parties to receive sanction for drugs such as stimulants and anti-depressants, whose consciousness-altering effects, it could be argued, are as great as those of outlawed drugs....

Even J. P. Morgan was limited by the borders of the nation-state. But in the future who, or what, will limit the likes of Disney chairman Michael Eisner? The UN? Eisner and those like him are not just representatives of the “free” market. Neither the Founders nor any of the early modern philosophers ever envisioned that the free market would lead to the concentration of power and resources that many corporate executives already embody. Whereas the liberal mistake is to think that there is a program or policy to alleviate every problem in the world, the conservative flaw is to be vigilant against concentrations of power in government only—not in the private sector, where power can be wielded more secretly and sometimes more dangerously.

Umpire Regimes

This rise of corporate power occurs more readily as the masses become more indifferent and the elite less accountable. Material possessions not only focus people toward private and away from communal life but also encourage docility. The more possessions one has, the more compromises one will make to protect them. The ancient Greeks said that the slave is someone who is intent on filling his belly, which can also mean someone who is intent on safeguarding his possessions. Aristophanes and Euripides, the late-eighteenth-century Scottish philosopher Adam Ferguson, and Tocqueville in the nineteenth century all warned that material prosperity would breed servility and withdrawal, turning people into, in Tocqueville’s words, “industrious sheep.”

Are we to understand that we leave our Constitutional rights at the entrance to the mall and the factory gate? That once we pass through the turnstile at the theme park or the door of the corporate office, we leave our citizenship and our Bill of Rights behind and are accorded in return mere virtual green cards or visas revocable at the whim of the proprietors? That what we need is an Ambassador to Disney? The construction of consulates within our corporate enclaves, Gallerias, and gated communities?

That to get and keep a job (obtain a driver’s license? rent an apartment?) we must partake of the drug war Holy Communion—its chalice the Pyrex beaker; its confessional the secured bathroom stall; its Keeper of the Sacred Writ William J. Bennett; its papal Grand Inquisitor Gerald B.H. Solomon?

obsta principiis

Writing for the 8-1 majority in the recent Chandler v. Georgia decision (Docket 96-126), Justice Ginsberg once again reinforces the notion that private sector privacy violations are outside the scope of the Fourth Amendment, opining that “we do not speak to drug testing in the private sector, a domain ungarded by Fourth Amendment constraints. See United States v. Jacobsen, 466 U.S. 109, 113 (1984).”

In the most general and mundane sense, it is indeed the case that private sector privacy violations are tort issues, not constitutional ones. If, for example, Penthouse Magazine surreptitiously acquires and publishes, say, in flagrante delicto photographs of a celebrity and his or her consort, Mr. Guccione’s attorneys will not find themselves defending at Orals before the Supreme Court. This type of violation and similar invasion of privacy and “misappropriation of likeness” offenses are in fact civil tort issues.

But, such intrusions are far removed in character and intent from those posed by suspicionless private sector drug screens. And, if we follow closely the chain of precedents back in time from Chandler, we are perplexed to learn that there isn’t much “there” there, in terms of arguments and principles that validate indiscriminate commercial workplace drug testing. Moreover, the emphatic and repeated Court apology that drug test results are purely “administrative” and not “prosecutorial” is shown by these precedents to be unnecessary—private employers could indeed forward positive drug test results to the authorities for prosecution, for such could be construed from several of these cases as also tantamount to the ostensibly narrow and long-recognized “plain view” exception to the probable cause and search warrant requirements of the Fourth Amendment.

The Chandler “stare decisis” chronology is as follows:

Unhappily for those claiming “4th-does-not-apply-to-the-private-sector,” these precedents are not uniformly instructive, supportive, or relevant to the public/private issues surrounding mass drug screening. Moreover, the antecedent Boyd case in particular seems to throw cold water on the idea of legitimated extrajudicial expediency of the sort typified by suspicionless private sector drug testing:

The devolution of constitutional privacy

In his 1991 American Business Law Journal article Workplace Privacy and the Fourth Amendment: An End to Reasonable Expectations?(Vol. 29), legal scholar Don Mayer argues that the major drug testing cases have served a central role in the devaluation the original meaning of “privacy” under the Fourth Amendment. Mayer notes that in Fourth Amendment criminal cases generally, “the Court has generally found individual expectations unreasonable, and in civil cases has generally discarded both probable cause and warrant requirements” and that “ the Court’s contractarian thinking encourages the notion that not only statutory but constitutional rights can be explicitly or implicitly waived by the demands of employers or the ‘operational realities of the workplace’.” (p. 631)

Mayer observes that what was once a constitutional “right” has been downgraded to a mere “interest” in competition with other, more powerful interests: an individual interest whose worth must be calculated on the basis of “reasonable expectations.” What are “reasonable expectations”? Well, whatever society is prepared to accept as “reasonable,” a notion with a charmingly bootstrap quality where drug testing cases are concerned. For example, Mayer cites Willner v. Thornburgh (928 F.2d 1185, D.C. Cir. 1991), wherein the majority wrote that

So, the very fact that private sector corporations, “unguarded” by the Fourth Amendment (recall Ginsberg earlier in Chandler), screen for illegal drugs willy-nilly without cause becomes itself the reference standard for “reasonable expectations” under the Fourth Amendment. How conveniently circular.

In essence, on this line of reasoning the scope of the Fourth Amendment is determined by Disney and its corporate brethren, not by the courts. Whatever is required to meet the “operational realities of the workplace” trumps, by virtue of its mere declaration and enactment, an employee’s puny privacy “interest.”

Mayer’s article is thorough and thoughtful, a highly recommended resource, but on one significant point he errs:

I counter that increasing technological sophistication in no way limits the relevance of the original intent and meaning of the Fourth Amendment. If anything, the history so exhaustively recounted by Cuddihy is more relevant than ever. Clamorem et uthesium, be it operationalized through the warrantless breaking down of doors, through mass-production bioassay, or through the indiscriminate use of a breadth of high-tech surveillance devices by employers in pursuit of contraband, clearly remains nothing more than Constitutionally-repudiated tactical expediency. Recall from Burdeau:

In light of Cuddihy (which, of course, the 1921 Court did not have available), one has to conclude that Burdeau was simply in error on this point. Yes the Fourth Amendment is a brake on the activities of the sovereign. It was also, remember, originally intended to restrain those acting as the agents of the sovereign, and the suspicionless private sector drug test is indisputably an enforcement tool of commercial and institutional agents of the contemporary sovereign—abetted by the acqiescence of a predominent social milieau so thoroughly in the thrall of Jefferson’s feared all-consuming material acquisitiveness, and so equally negligent with respect to its duty to defend its inalienable rights.

The observations of John Stuart Mill (On Liberty, Chapter 1) come to mind:

Indeed. James Madison and his co-founders of the new American nation quickly learned that continued exercise of the rights and freedoms they risked their lives for would require a vigilance codified into constitutional constraints focused on far more than any anticipated excesses of a neo-monarchical executive. As recounted by Stanford University constitutional historian Jack Rakove:

Americans entered the Revolutionary crisis confident that they knew what their rights were; after independence, they modified these ideas only modestly. What did evolve, far more dramatically and creatively, were their ideas of where the dangers to rights lay and of how rights were to be protected. At the outset Americans believed that arbitrary acts of the Crown and its colonial officials, including judges of the higher courts, posed the greatest threat, and they accordingly treated the rights of representation and trial by jury as their chief securities against arbitrary rule. It took a decade of experience under the state constitutions to expose the triple danger that so alarmed Madison in 1787: first, that the abuse of legislative power was more ominous than arbitrary acts of the executive; second, that the true problem of rights was less to protect the ruled from their rulers than to defend minorities against factitious popular majorities acting through government; and third, that agencies of central government were less dangerous than state and local despotisms. (Jack N.Rakove, Original Meanings: politics and ideas in the making of the Constitution, 1996, Alfred A. Knopf, NYpp. 289-290)

The drive to require mass suspicionless drug testing is nothing less than the work of “factitious popular majorities” acting through and at the behest of abusers of legislative power, justifying themselves through opinion polls purporting to demonstrate widespread public support for a policy that is plainly unconstitutional (as if constitutional rights were subject to abrogation subsequent to the USA Today/CNN/CASA plebiscite du jour), a false public/private jurispudential dichotomy clearly contradicted by the historical record, a dichotomy long-ago obliterated by politically cross-pollinated, self-interested parties.

Madison and Jefferson would not be amused at the sullying of their moral enterprise.

The moral underpinnings of constitutional rights

The Framers’ “moral enterprise”? Can we document that the founding of the new American nation was fueled by more than expedient, utilitarian considerations? That our Constitution is more than an inadequately detailed insurance contract or chess rulebook?

Recall the assertion proffered in the introduction of this thesis: “Those who framed our Bill of Rights were far more noble than a cynical conspiracy of tariff-averse fur traders and rum-runners motivated by nothing more than a desire to hog-tie authority.” Support for this view is seen in Graham Walker’s Moral foundations of constitutional thought:

Indeed, when the founding generation was framing and ratifying the Constitution, they did not seem to regard their undertaking as simply an assertion of their wills. If we take seriously their overtly moral arguments—and there is no compelling reason not to—we find that they did not imagine themselves to be arbitrarily privileging the conventional wants, and fears of their particular moment in history. Nor, conversely, did they seem to think they were providing a malleable rationale for the indeterminately evolving values of later generations. Rather, they defended their constitutional project as reaching to timeless principles of human nature and political order; for that reason they spoke of its universal significance. (Graham Walker, Moral foundations of constitutional thought: current problems, Augustinian prospects, Princeton University Press, 1990, pp. 10-11.)

While Madison and his colleagues were indeed a practical, empirical, and politically-savvy lot, their erudition with respect to a normative heritage spanning the millenia from Athens through the Enlightment armed them with the intellectual tools and ethical inclination for moral statecraft. Pitting “faction against faction,” while no doubt tactically deft, had a higher normative basis and moral purpose:

The separation between judicial, legislative, and executive power figures as part of a broader constitutional strategy to achieve both “responsibility” and “energy” in government by, among other things, fragmenting political power. The federal separation among states and between state and national authority also embodies this fragmentation. Madison noted that this fragmentation would not be necessary “if men were angels.” But his “reflections on human nature” led him to argue that constitutional fragmentation of power would foster justice by checking ambition with ambition. His argument thus suggests the normative underpinnings of at least a portion of those structural provisions of the implicitly rather than explicitly moral in character.

Augustine exposes the fundamental ontological terms on which we can make sense of Madison’s argument. He thus equips us to reaffirm it. (Walker, op cit., p. 160)

Walker’s intent is to demonstrate how “the normative impasses of contemporary constitutional theory invite an Augustinian scrutiny” (op cit., p 23) that might provide a proper understanding of the moral heritage of procedural, positivist law. He finds fault with those who would deny the relationship:

Every influential scheme of constitutional theory stands, whether openly or not, on some premises of normative morality. Yet most contemporary constitutional scholars—on both the political Left and Right—are unwilling to shoulder the normative burdens of their own enterprise. Instead they profess to believe that morality is arbitrary and relative at its foundations...

Some constitutional theorists contend, for example, that the constitutional prerogatives of democratic majorities ought to be recognized as paramount and ought to be largely exempt from judicial scrutiny. Others devote themselves to arguing that certain fundamental constitutional rights ought to be protected from those same majorities. (Walker, op cit., pp. 10-11.)

Indeed, the record is clear that we can count Jefferson and Madison—the principal architects of the U.S. Constitution—in the latter camp. Contemporary history makes it clear also that we can count Chief Justice Rehnquist—who has yet to encounter a drug testing program he ought strike down—and Judge Bork—who has yet to come upon a constitutional privacy claim he might affirm—in the former:

Chief Justice Rehnquist and former federal judge Robert Bork share a common constitutional philosophy. As expressed in their most theoretically self-conscious essays, this philosophy rests on two basic pillars: a moral nihilism that reduces morality to convention, and a political theory that reduces legitimacy to the will of democratic majorities. Bork has asserted unequivocally that morality is never anything more than a “form of gratification” that people indulge, while Rehnquist has insisted that distinctions between right and wrong are radically subjective preferences, beyond the reach of reason. Hence there exists nothing beyond majority will itself, they argue, that can rightfully bar the majority from establishing, with public force, whichever gratifications or preferences it wills to establish. In other words, Rehnquist and Bork connect the two pillars of their theory by making majority will their conventional surrogate for a real morality. They seek to erect on this foundation a normative theory of interpretation (framers’ intent) and of adjudication (judicial restraint). (Walker, op cit., p. 14)

We know, however, from the ample historical record what the Framers’ intent was with respect to suspicionless searches—an intent made clear by both the plain text and the developmental context of the Fourth Amendment. A proper hewing to “judicial restraint” in such matters, consequently, ought oblige the Court to eschew the ungainly spectacle of expedient “administrative exceptions” departures from constitutional privacy principle codified therein. In Chapter 5 we examine a breadth of evidence speaking to the importance of privacy as a human necessity and a moral good. Suffice it to observe here that a jurisprudential and political respect for privacy can be viewed in the context of an Augustinian humility necessary for the effective long-term functioning of a democracy. Walker argues that

[T]he Augustinian attitude thus has doubts not about the existence of an ultimate, supralegal moral goodness but about the possibilities of its embodiment in human law. It has doubts not about the basic and primary content of the good but about the human ability to discover and respect its politcal and legal entailments.

The imperative of Augustinian caution thus applies with special force to anyone wielding the instruments of political order. Indeed, it supplies a compelling justification for an American constitutional system that fragments both the power to define good and the power to do it. (Walker, op cit., p. 150)


One hopes not only for the courage of one’s convictions, but also for
the courage of one’s doubts in a world of dangerously passionate certainties.
Eric Sevareid, Not So Wild A Dream

Peter Huber’s call for more clamorem et uthesium: Say it ain’t so...

In his columns for Forbes Magazine, Peter Huber inexplicably sings the praises of a return to the Hue and Cry, this time in the form of digital pursuit of malefactors, deadbeats, and all manner of miscreants. Some excerpts:

Crime and Punishment

by Peter Huber

Forbes, November 20, 1995 at Pg. 210.

Copyright 1995 by Peter Huber. Electronic copies of this document may be distributed freely, provided that this notice accompanies all copies.

...The private system of law and order is gaining power as fast as our desktop computers and communications networks. Wherever you deal with people today, you leave a trail of economic evidence. With every new modem and Web site, merchants, employers, landlords and customers pool their experience about whom to trust and whom not to. In the economic world, we’ve privatized both the trial and the punishment. No preening trial lawyers, muddle-headed judges, or sociopathic juries, nothing but private databases and telephone lines.

Catching the criminal in the first place used to depend on private initiative, too. Under the ancient English law of “hue and cry,” all who heard their neighbor shouting that a felon was at large were bound to join in the pursuit until the malefactor was taken. Failure to take part in the pursuit was itself a crime. Today the hue and cry is electronic, and not just the village but the whole nation can be alerted to the chase. Except that honest burghers don’t chase any more, they walk away.

It isn’t just a matter of self-interest; shunning crooks and psychopaths is a civic duty, as important as paying taxes to maintain prisons. Most honest people know that, and willingly add to the flow of accurate information about how their fellow citizens behave in public dealings. It’s like chatting with your neighbor about a prowler; we don’t do it for profit, we do it for mutual protection.

No new list of rights minted in Washington can possibly stop or change this. There is nothing illegal about hounding known psychopaths off the golf greens and onto the roughs of civilization. To the contrary: Hounding of this sort is an obligation we owe each other. Civil society has always depended on its ability to build trust and punish treachery. The private instruments that analyze, record and describe that trail to others aren’t subject to the constitutional demands of due process that some judges push to dysfunctional extremes. The Bill of Rights doesn’t apply to strictly private conduct. Yes, Congress has passed one or two fair credit reporting laws, but their demands are modest and easily bypassed.

Nor should we want to limit the information economy’s privatization of law and order. As Frank Fukayama describes in his splendid new book, Trust, societies that develop cultures of cooperation prosper and flourish; others don’t. The challenge is to extend trust beyond the traditional family unit or small tribe; the building of microchips, skyscrapers and jet planes requires cooperation on a larger scale. Trust used to depend on family, ethnicity, common nationality and physical proximity. It no longer does. Today trust is forged through electronic networks...

The Computer That Doesn’t Forget

By Peter Huber

Forbes, August 12, 1996, at Pg. 144.

...As Oliver North discovered to his sorrow, electronic files are quite different. He thought that erasing E-mail from his computer erased it from the face of the earth. It didn’t. Computer networks log files in and out, catalog, track, back up and archive with meticulous precision. Electronic file managers faithfully record where records go, on whose instruction. They create records of records, layer upon layer. This isn’t optional. If the machines don’t do this, the network soon dies.

That simple engineering fact has profound consequences for good management, and for privacy, too.

Management by wire creates almost perfect accountability. How many scribbled notes did you write in the last year, and what did they say? How many orders did you bark out on the phone, and to whom? You could hardly begin to guess. Mrs. Clinton probably can’t, either.

But if your office uses computers at all seriously, your E-mail records are immaculate, even if you wish they weren’t. Wiping information off a corporate network completely is very difficult. Wiping it off the Internet is impossible. Once the file goes out, you never get all the downstream copies back. It’s like trying to take back the tune to “Happy Birthday.”...

One hesitates to take on such an august jurisprudential and intellectual eminence as Peter Huber, but with respect to these propositions he is simply wrong. Were things merely a matter of always adding “to the flow of accurate information about each other.” Try selling that ideal to the innumerable frustrated citizens dealing with unresponsive credit reporting agencies that continue to make egregious mistakes which frequently wreak exasperating havoc. Or to those caught up in the error-ridden labyrinths of dealings with the IRS, which, of its own admission makes millions of mistakes each year, some trivial, some downright catastrophic. Try selling the notion of “almost perfect accountability” to the innocent victims of apparitional mass child abuse witch-hunts that result in moral travesties like Wenatchee and McMartin Pre-School. Or to the hapless citizen in Florida that was last year targeted with an anonymous internet hate mail campaign falsely accusing him of being a pedophile, complete with the publishing of his home address.

Huber should know better. His two best-known books, Galileo’s Revenge (of his authorship) and Phantom Risk (which he edited), are erudite and compelling exposes of a long and dismal litany of the recurrent public mass psychoses that so often end up in ludicrous litigation and counter-productive policies. While perhaps some muddle-headed “judges push to dysfunctional extremes” a variety of rights claims (although no one can argue that the right to privacy has faired particularly well at the bench in recent decades), had we access to accurate historical data on the cost/benefit ratios of Hue and Cry pursuits, we might well take pause and give our hard-won system of justice (through publicly administered due process and publicly defended rights) the respect it deserves.

Next up (Chapter 5): beyond the “constitutional,” can we make a more general moral case in defense of privacy?Yes.

Click here to return to the main page,
or just hit your Back Button.