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

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:

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:

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 use of illegal drugs, on or off duty, by Federal employees is inconsistent not only with the law-abiding behavior expected of all citizens, but also with the special trust placed in such employees as servants of the public.

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:

Indeed, the testing component is the only significant part of this executive order. Illegal drugs, by definition, are illegal, so there was little an Executive Order could do about enforcement of existing laws. Clearly, existing judicial practices were perceived by the President to be ineffective. Executive Order 12564 must be seen as a statement that normal judicial procedures were inadequate: only extreme measures, in this case drug tests, would do. (Nock, Steven L., The Costs of Privacy: Surveillance and Reputation in America, [New York, Aldine De Gruyter, 1993], p. 100.)

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):

And it shall be lawful to or for any person or persons, authorized by writs of assistance under the Seal of His Majesty’s court of exchequer, to take a constable, headborough, or other public officer inhabiting near the place, and in the daytime to enter, and go into any house, shop, cellar, warehouse, room, or other place and in case of resistance break open doors, chests, trunks, and other packages, there to seize, and from thence to bring, any kind of goods or merchandize, whatever, prohibited, and uncustomed... (O.M. Dickerson, Writs of Assistance as a Cause of the Revolution, The Era of the American Revolution, Morris, R., Ed. NY, Columbia University Press, 1939, pp. 43-44).

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

...the English believed that common law search warrants were insufficient to curb smuggling. The requirement of articulating the specific location of the contraband before a justice of the peace or magistrate made it difficult for the government to obtain a common law search warrant. The Writ of Assistance, however, had proved itself to be a more effective enforcement tool. By 1760, its use in the colonies had become commonplace. The Writ of Assistance commanded “all” persons to assist an official, when requested, in conducting a search and seizing persons and/or property...The writs were issued without prior judicial screening. Their use was not limited to searching places for particular persons or objects. The writs granted boundless discretion to the officer. (see Greenhalgh, William J. & Yost, Mark J., In Defense of the “Per Se” Rule: Justice Stewart’s struggle to preserve the Fourth Amendment’s warrant clause, American Criminal Law Review, Vol. 31, No. 4, Summer 1994, pp. 1031 - 1040.)

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:

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:

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:

Perhaps most telling of all, as reflected in the text of the Warrant Clause, the particular way the Framers chose to curb the abuses of general warrants—and by implication, all general searches—was not to impose a novel ‘evenhandedness’ requirement; it was to retain the individualized suspicion requirement contained in the typical general warrant, but to make that requirement meaningful and enforceable, for instance, by raising the required level of individualized suspicion to objective probable cause...While the plain language of the Amendment does not mandate individualized suspicion as a necessary component of all searches and seizures, the historical record demonstrates that the Framers believed that individualized suspicion was an inherent quality of reasonable searches and seizures...Protection of privacy, not evenhandedness, was then and is now the touchstone of the Fourth Amendment.

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:

I decline to join the Court’s opinion in the present case because neither the frequency of use nor connection to harm is demonstrated or even likely. In my view the Customs Service rules are a kind of immolation of privacy and human dignity in symbolic opposition to drug use...What better way to show that the Government is serious about its ‘war on drugs’ than to subject its employees on the front line of that war to this invasion of their privacy and affront to their dignity? To be sure, there is only a slight chance that it will prevent some serious public harm resulting from Service employee drug use, but it will show to the world that the Service is ‘clean,’ and—most important of all—will demonstrate the determination of the Government to eliminate this scourge of our society. I think that this justification is unacceptable; that the impairment of individual liberties cannot be the means of making a point; that symbolism, even symbolism for so worthy a cause as the abolition of unlawful drugs, cannot validate an otherwise unreasonable search...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.

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.

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:

• United States v. Jacobsen, 466 U.S. 109 (1984). FedEx employees encounter what turns out to be cocaine spewing from a damaged package and alert the authorities. Suppression of the evidence denied: “Plain View” equivalence.
  
• Walter V. United States, 447 U.S. 649 (1980). Oops! 8mm porno films sent to the wrong address. Inadvertent recipients alert the authorities. Suppression of the evidence denied: “Plain View” equivalence.
  
• Burdeau v. McDowell, 256 U.S. 465 (1921). Private party theft of documents subsequently used as evidence in a mail fraud case. Suppression of the evidence denied: “Plain View” equivalence. This case cites seven prior decisions in summary justification of the public/private distinction:
  
  “We do not question the authority of the court to control the disposition of the papers, and come directly to the contention that the constitutional rights of the petitioner were violated by their seizure, and that having subsequently come into the possession of the prosecuting officers of the government, he was entitled to their return. The amendments involved are the Fourth and Fifth, protecting a citizen against unreasonable searches and seizures and compulsory testimony against himself. An extended consideration of the origin and purposes of these amendments would be superfluous in view of the fact that this court has had occasion to deal with those subjects in a series of cases. Boyd v. United States, 116 U.S. 616, 6 Sup. Ct. 524; Adams v. New York, 192 U.S. 585, 24 Sup. Ct. 372; Weeks v. United States, 232 U.S. 383, 34 Sup. Ct. 341, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; Johnson v. United States, 228 U.S. 457, 33 Sup. Ct. 572, 47 L. R. A. (N. S.) 263; Perlman v. United States, 247 U.S. 7, 38 Sup. Ct. 417; Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 Sup. Ct.182; Gouled v. United States, decided February 28th, 255 U.S. 298, 41 Sup. Ct. 261, this term.
  
  “The Fourth Amendment gives protection against unlawful searches and seizures, and as shown in the previous cases, its protection applies to governmental action. Its origin and history clearly show that it was intended as a restraint upon the activities of sovereign authority, and was not intended to be a limitation upon other than governmental agencies; as against such authority it was the purpose of the Fourth Amendment to secure the citizen in the right of unmolested occupation of his dwelling and the possession of his property, subject to the right of seizure by process duly issued.
  
  “In the present case the record clearly shows that no official of the federal government had anything to do with the wrongful seizure of the petitioner’s property, or any knowledge thereof until several months after the property had been taken from him and was in the possession of the Cities Service Company. It is manifest that there was no invasion of the security afforded bythe Fourth Amendment against unreasonable search and seizure, as whatever wrong was done was the act of individuals in taking the property of another. A portion of the property so taken and held was turned over to the prosecuting officers of the federal government. We assume that petitioner has an unquestionable right of redress against those who illegally and wrongfully took his private property under the circumstances herein disclosed, but with such remedies we are not now concerned.” In other words, you can sue a private transgressor for civil damages, but it’s not a constitutional issue—even if the private intrusion effects your prosecution by the government. Moving along to the cases cited in Burdeau:
  
• Gouled v. United States, 255 U.S. 298 (1921). Evidence of criminal fraud obtained by ruse. An Army Intelligence Department operative made an ostensible “social call” on the defendant, whereupon the operative gained access to and removed certain incriminating papers. The Court ruled that the evidence was obtained illegally.
  
• Silverthorne Lumber Co. Inc, et al. v. United States, 251 U.S. 385 (1920). Evidence obtained without a warrant subsequent to corporate defendant’s refusal to obey a subpoena. Lower court conviction overturned.
  
• Perlman v. United States, 247 U.S. 7 (1918). Documents originally intended for use in a civil patent infringement suit subsequently used in a grand jury proceeding. The Court ruled here that the government could indeed use the evidence.
  
• Weeks v. United States, 232 U.S. 383 (1914). Warrantless search for evidence of illegal gambling activity, in the course of which authorities gained entry to the suspect’s home through the aid of a neighbor who informed them of the location of a house key. The Court ruled the search unconstitutional. Importantly, this case is the first of the Chandler precedents to explicitly point out the original intent of the Fourth Amendment, citing the history of General Warrants and Writs of Assistance:
  
  “The history of this Amendment is given with particularity in the opinion of Mr. Justice Bradley, speaking for [232 U.S. 383, 390] the court in Boyd v. United States, 116 U.S. 616, 29 L. ed. 746, 6 Sup. Ct. Rep. 524. As was there shown, it took its origin in the determination of the framers of the Amendments to the Federal Constitution to provide for that instrument a Bill of Rights, securing to the American people, among other things, those safeguards which had grown up in England to protect the people from unreasonable searches and seizures, such as were permitted under the general warrants issued under authority of the government, by which there had been invasions of the home and privacy of the citizens, and the seizure of their private papers in support of charges, real or imaginary, make against them. Such practices had also received sanction under warrants and seizures under the so-called writs of assistance, issued in the American colonies. See 2 Watson, Const. 1414 et seq. Resistance to these practices had established the principle which was enacted into the fundamental law in the 4th Amendment, that a man’s house was his castle, and not to be invaded by any general authority to search and seize his goods and papers. Judge Cooley, in his Constitutional Limitations, pp. 425, 426, in treating of this feature of our Constitution said: ‘The maxim that ‘every man’s house is his castle’ is made a part of our constitutional law in the clauses prohibiting unreasonable searches and seizures, and has always been looked upon as of high value to the citizen.’ ‘Accordingly,’ says Lieber in his work on Civil Liberty and Self-Government, 62, in speaking of the English law in this respect, ‘no man’s house can be forcibly opened, or he or his goods be carried away after it has thus been forced, except in cases of felony; and then the sheriff must be furnished with a warrant, and take great care lest he commit a trespass. This principle is jealously insisted upon.’ In Ex parte Jackson, 96 U.S. 727, 733, 24 S. L. ed. 877, 879, this court recognized the principle of protection as applicable to letters and sealed packages in the mail, and held that, consistently [232 U.S. 383, 391] with this guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures, such matter could only be opened and examined upon warrants issued on oath or affirmation, particularly describing the thing to be seized, ‘as is required when papers are subjected to search in one’s own household.’”
  
• Johnson v. United States, 228 U.S. 457 (1913). Can evidence gleaned from a civil bankruptcy proceeding subsequently be used in a fraud case? Yes, said the Court. Such does not constitute “unreasonable search and seizure” and “compelled testimony” in violation of the Fourth and Fifth Amendments.
  
• Adams v. New York, 192 U.S. 585 (1904). Warrantless acquisition of illegal gambling “policy slips.” The Court ruled here that evidence obtained by a “trespasser” could indeed be used against the defendant, that the defendant had tort remedies available with respect to the “trespass” but that the intruder’s “testimony is not thereby rendered incompetent.” Interestingly, this decision contradicts Weeks.
  
• Boyd v. United States, 116 U.S. 616 (1886). The watershed decision in Ginsberg’s stare decisis “4th-does-not-apply” genealogy. Boyd was about allegations of Customs Revenue Law fraud against a glass products importer. Does the subpoenaed production of invoices constitute unconstitutional “compelled self-incrimination”? The Court ruled in this case that, yes it does. Lower court reversed.

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:

“Though the proceeding in question is devested (sic) of many of the aggravating incidents of actual search and seizure, yet, as before said, it contains their substance and essence, and effects their substantial purpose. It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely: by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. Their motto should be obsta principiis.”

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

[m]ore than 85 percent of employers with drug-testing programs tested job applicants . . . Some of the nation’s largest employers, including American Telephone & Telegraph, DuPont, Exxon, Federal Express, Trans World Airlines, and United Airlines . . . What is occurring generally outside government is some indication of what expectations of privacy “society is prepared to accept as reasonable” when the government engages in the hiring process. (Mayer, p. 650)

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:

The fourth amendment was not written with modern conditions in mind. Electronic searching methods through wiretapping, computers, parabolic microphones, or laser and computer assisted microphones that can literally listen through walls were unnkown and unimagined in 1789. Also unknown were biochemical analyses of human hair or waste products, genetic and personality testing, voice-stress analyzers, infra-red and starlight telescopes, and telephoto lenses. Any fourth amendment jurisprudence based on the framers’ intent is therefore likely to look backwards and thus limit the amendment’s relevance to modern conditions. (p. 633)

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:

The Fourth Amendment gives protection against unlawful searches and seizures, and as shown in the previous cases, its protection applies to governmental action. Its origin and history clearly show that it was intended as a restraint upon the activities of sovereign authority, and was not intended to be a limitation upon other than governmental agencies; as against such authority it was the purpose of the Fourth Amendment to secure the citizen in the right of unmolested occupation of his dwelling and the possession of his property, subject to the right of seizure by process duly issued.

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:

Like other tyrannies, the tyranny of the majority was at first, and is still vulgarly, held in dread, chiefly as operating through the acts of the public authorities. But reflecting persons perceived that when society is itself the tyrant—society collectively, over the separate individuals who compose it—its means of tyrannizing are not restricted to the acts which it may do by the hands of its political functionaries. Society can and does execute its own mandates: and if it issues wrong mandates instead of right, or any mandates at all in things with which it ought not to meddle, it practises a social tyranny more formidable than many kinds of political oppression, since, though not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself. Protection, therefore, against the tyranny of the magistrate is not enough; there needs protection also against the tyranny of the prevailing opinion and feeling; against the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them; to fetter the development, and, if possible, prevent the formation, of any individuality not in harmony with its ways, and compel all characters to fashion themselves upon the model of its own. There is a limit to the legitimate interference of collective opinion with individual independence; and to find that limit, and maintain it against encroachment, is as indispensable to a good condition of human affairs, as protection against political despotism.

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 Constitution...as 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)

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:

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.

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