He bolstered his point with a quote from James Madison’s address to the First Congress on June 8, 1789:
If [these rights] are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the Legislative or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights.46
Indeed, the strongest constitutional case for the exclusionary rule may lie in the separation of powers, the Constitution’s ingenious division of authority among the executive, legislative, and judicial branches. Without the judiciary’s tool of suppressing evidence, the foundation of the Constitution is undermined, argues the libertarian conservative Timothy Lynch. “When agents of the executive branch (the police) disregard the terms of search warrants, or attempt to bypass the warrant-issuing process altogether, the judicial branch can and should respond by ‘checking’ such misbehavior,” Lynch writes. “The most opportune time to check such unconstitutional behavior is when prosecutors attempt to introduce illegally seized evidence in court.” He believes that the legislature cannot constitutionally alter the exclusionary rule, because it is a judicial function integral to the judiciary’s warrant-issuing power.47
But judges have been stripping themselves of the power, often by weighing the benefit of suppressing evidence against the risk of releasing people who are presumed guilty. “Some guilty defendants may go free or receive reduced sentences as a result of favorable plea bargains,” White wrote for the majority in Leon. “The magnitude of the benefit conferred on such guilty defendants offends basic concepts of the criminal justice system.” He referred to studies showing that suppressed evidence freed 0.6 to 7.1 percent of felony defendants.
Brennan replied derisively:
The language of deterrence and of cost/benefit analysis, if used indiscriminately, can have a narcotic effect. It creates an illusion of technical precision and ineluctability. It suggests that not only constitutional principle but also empirical data support the majority’s result. When the Court’s analysis is examined carefully, however, it is clear that we have not been treated to an honest assessment of the merits of the exclusionary rule, but have instead been drawn into a curious world where the “costs” of excluding illegally obtained evidence loom to exaggerated heights and where the “benefits” of such exclusion are made to disappear with a mere wave of the hand.
Rights and risks coexist in a complex tension that was reduced to a simplistic observation by Judge Benjamin N. Cardozo: “The criminal is to go free because the constable has blundered,” he declared sardonically as he refused to adopt the exclusionary rule for New York State in 1926.48
His line is often quoted by opponents of exclusion, but it was a “misleading epigram,” in Justice Brennan’s view. Evidence is suppressed not because the constable has blundered, “but rather because official compliance with Fourth Amendment requirements makes it more difficult to catch criminals. Understood in this way, the Amendment directly contemplates that some reliable and incriminating evidence will be lost to the government; therefore, it is not the exclusionary rule, but the Amendment itself that has imposed this cost.” So, we are back to the risks of freedom.
The same argument found support from the retired justice Potter Stewart. “Much of the criticism leveled at the exclusionary rule is misdirected; it is more properly directed at the Fourth Amendment itself,” he wrote in the Columbia Law Review. “The exclusionary rule places no limitations on the actions of the police. The Fourth Amendment does.… Police officers who obey its strictures will catch fewer criminals.… That is the price the framers anticipated and were willing to pay to ensure the sanctity of the person, the home, and property against unrestrained governmental power.”49
But is it a price that we are willing to pay in a time of terrorism? Justice Brennan offered a warning: “The task of combating crime and convicting the guilty will in every era seem of such critical and pressing concern that we may be lured by the temptations of expediency into forsaking our commitment to protecting individual liberty and privacy.”
SUSPICIONLESS SEARCHES
The lure is almost irresistible, especially in this era. Forsaking privacy to law enforcement seems to offer sanctuary from terror in many forms, not only the terror brought by the suicidal ideologue but by the lone school shooter, the child rapist and pornographer, the purveyor of narcotics.
It was the terror of narcotics that propelled a divided Supreme Court into a rash of rulings that allowed suspicionless, warrantless drug and alcohol testing in various settings. In 1989, the tests were precisely targeted, at U.S. Customs employees50 and railroad workers,51 because of the risks those personnel might pose to others. Then that legitimate opening was widened step by step. “Following those rulings, more than forty federal agencies began conducting drug tests under an executive order for a drug-free federal workplace,” the constitutional scholar David M. O’Brien observes.52 A Justice Department attorney who challenged this dragnet practice lost in the D.C. Circuit in 1992, and the Supreme Court denied review, sweeping away a measure of privacy for government workers by allowing tests of all federal employees, even those not in positions to threaten public safety or enforce narcotics laws.53 The quaint notion that individualized suspicion was necessary for a search to be “reasonable” had disappeared, and the Fourth Amendment seemed to be evaporating from the landscape like a shallow pool of water in a hot sun.
When the Court forces a constitutional right into retreat, government officials across the country advance to occupy the new ground: They regulate, investigate, intrude, outlaw, and prosecute until they meet the limits the Court decides to draw. The justices finally penciled in some lines on drug testing. A Georgia law requiring a test of any candidate who wished to run for office was struck down eight to one.54 The practice in Charleston, South Carolina, of testing pregnant women for cocaine and referring positive results to the police for prosecution, was overruled six to three.55
Public school students fared less well. In 1995, the Court approved testing all athletes in Vernonia, Oregon, reasoning that children on drugs could injure themselves and others playing sports, and that athletes were models whose narcotics use led other children astray, undermining school antidrug policies. In addition, “Fourth Amendment rights … are different in public schools than elsewhere,” the majority held. “The ‘reasonableness’ inquiry cannot disregard the schools’ custodial and tutelary responsibility for children.”56
Thus emboldened, school officials in Tecumseh, Oklahoma, responded to parents whose parenting had failed. “The mother of a football player caught her son and some of his friends using drugs in her home,” recalled Lindsay Earls, then a sophomore at Tecumseh High School, “so she went to the school board and said, ‘I don’t have control over my son. Is there any way you guys can help me with my son’s drug problem?’ I guess there were a few other parents of kids who were at that party and said, ‘Our kids are out of control. You fix this for us.’ ”
Inviting an arm of the state to monitor your children should have appalled true conservatives touting restrictions on government and the preeminence of family. But no. Parents who distrusted their own teenagers prevailed, and the school board decided to stretch suspicionless drug testing beyond the athletes authorized by the Supreme Court in the Vernonia case to all students who participated in virtually all extracurricular organizations that involved travel or competition. That included the choir, the color guard, and the quiz bowl team—the three that Lindsay Earls belonged to.
She was something of the perfect teenager: an excellent student admired by teachers, a responsible youngster who never did drugs, a “Goody Two-shoes,” as she described herself. Practically alone in her school, she also had that internal gyroscope that kept her on course when individual liberty was challenged.
When the policy was announced, she thought it a joke at first. Tecumseh didn’t have much of a drug problem, and most kids didn’t care about the testing, she said, figuring that since they didn’t use drugs, it wasn’t a big deal. Those wanting to continue extracurricular activities willingly brought a parental permission slip and a four-dollar lab fee, and submitted to random urine tests throughout the year. She guessed that kids who did drugs probably thought they’d get lucky—or they just avoided extracurricular activities that might have given them something fun to do besides smoke pot. One girl, who refused to be tested because her mother objected, was kicked out of the choir.
Lindsay objected, too, but took a different tack. While the tests were random and suspicionless, they were not seen that way in the high school’s culture. The arrival of an office assistant in a classroom to summon a few students by name aroused a buzz of suspicion. “There was no other reason for us to be called out of class,” Lindsay said. “It was supposed to be this hush-hush thing, but everyone knew.”
It also carried a dose of humiliation. The students were led immediately to a bathroom by a staff member who waited outside the closed stall to “listen for the normal sounds of urination in order to guard against tampered specimens and to insure an accurate chain of custody,” according to court papers from the school board.
A positive test required drug counseling in an effort to help, not just punish, and the results would be turned over to the parents but not to the police. Nevertheless, Lindsay had read the Fourth Amendment, was familiar with the principles, and saw this as an unreasonable invasion. Her mother and father regarded their children’s behavior outside of school as a purely parental responsibility, and this suspicionless, warrantless intrusion into the zone of individual and family privacy violated their sense of the spirit of American freedom. “Dad’s always been pretty strong in telling us to be sure you know your rights,” Lindsay said, a teaching reinforced by his position as a social worker dealing with teenagers, many of them in trouble with the police.
Lindsay’s father contacted the American Civil Liberties Union (ACLU), which found Lindsay’s exemplary record ideal for her to be the lead plaintiff in a constitutional challenge (it always helps if your client is “squeaky clean,” as she put it). So the lawsuit was filed, working its way through the lower courts as Lindsay and her younger sister, Lacey, worked their way through a maze of hostility in their hometown.
Despite her family’s sterling reputation, “a lot of people began speculating on my drug problems and my family’s drug-use problems,” Lindsay said a few years later, when she could smile faintly at their fantasies. “People who didn’t know my family were talking about how the only people who would care are kids who are druggies, that we were complainers, just wanted to cause a fuss.” Lacey was targeted by students who parroted their parents’ unfounded accusations that her sister or father used drugs. Lindsay was derided for her frequent appearances in newspapers and on television, as if she were trying to get publicity rather than preserve her rights—their rights. “One kid sent an e-mail saying, What you’re doing is not a Christian thing to do and blah, blah, blah. He didn’t have very good reasoning as to why this wasn’t a Christian thing to do, and I didn’t respond to the e-mail, and I pretty much stopped seeing him.” Her close friends stuck with her.
Outside of school, the verbal attacks got so bad that “I wasn’t allowed to listen to any talk-radio stations, because they were saying such mean things about me especially,” Lindsay recalled. “My parents wouldn’t let me read a lot of letters to the editors of the papers. My parents were very protective about all the terrible things that were being said.”
So were some teachers, who tried to stop the harassment and offered to take Lindsay and Lacey home if it got out of hand. What they did not do, Lindsay said, was use the opportunity to teach about the Fourth Amendment or to open classes to discussions of the case and its significance, to examine the country’s ebb and flow of relations between the individual and the state. They were afraid of being fired, she thought, although it would have been easy enough to consider the issues even-handedly, without taking sides. And so a rare educational opportunity got lost, as it usually does when schools do searches and restrict speech and thereby teach their students all the wrong lessons. The Bill of Rights, studied as an archaic document in history courses, did not seem to have much vitality in America’s heartland.
“It didn’t surprise me a whole lot,” Lindsay said. “Since I’ve been there my whole life, I know what these people find important, and civil liberties hasn’t been shown to be one of those things.” The scary problem of drugs and kids “clouds people’s perceptions.”
The tensions ground on her, but she had wise adult counsel, from her ACLU lawyer, Graham Boyd, who reassured her that she was free to quit, and from her father. “When I was getting fed up,” she recalled, “I was like, ‘Dad, do I really have to keep doing this?’ He was like, ‘You don’t have to, but if it’s something that you really care about, you’ll want to.’ ” And it was. Softly amazed by her fame, teary when telling parts of her story, she was no militant firebrand, just resolute. When she applied to Dartmouth, she wrote of the lawsuit in her essay, which surely helped her get accepted. “I think it made me stick out a bit more than if I’d written about hiking.”
The case was headed for the Supreme Court when Lindsay graduated from Tecumseh High and walked across the stage, on her way to the Ivy League. As she picked up her diploma before an audience of classmates and their families, her guidance counselor shook her hand and said quietly, “I’m really glad that you brought that case. I’m glad I can finally say this to you, but I’m really glad you did what you did.”
Lindsay’s voice broke as she remembered the moment. The counselor had always been friendly to her, but this was his first indication of support. “I was crying so hard when I walked across the stage,” she said.
She had lost in the federal district court, won in the circuit court, and headed down to Washington during spring break of her freshman year at Dartmouth, in March 2002, for oral arguments in the Supreme Court. It was an intense, dizzying experience. “I was sitting between my parents, and I remember my dad kept having to pinch my leg because I was moving around and talking under my breath, and he said, ‘If you don’t be quiet you’re going to have to leave. They’re going to ask you to leave. You have to be still.’ ”
At one point, Justice Anthony Kennedy, his face red as he questioned her attorney, committed a breach of judicial protocol. “Most surprising was Justice Kennedy’s implied slur on the plaintiffs in the case,” wrote Linda Greenhouse for The New York Times. “He had posed to Mr. Boyd the hypothetical question of whether a district could have two schools, one a ‘druggie school’ and one with drug testing. As for the first, Justice Kennedy said, ‘no parent would send a child to that school, except maybe your client.’ ”57
“And I just started laughing,” Lindsay remembered. “I laughed out loud. It was so ridiculous to me that he said that. And a lot of people in the courtroom, people couldn’t believe he could say that. There was kind of a silence, except for my little chuckle, and my dad pinched me and said, ‘Shut up.’ ”
She laughed, but what did she feel? “I was shocked and hurt. It hurt me because he didn’t know anything about me. Everything he knew about me was in those briefs, and everything that he’d seen about me—nothing spoke to the fact that I had ever used drugs, that I’d had a drug problem; it spoke to the fact that I was an outstanding, good high school kid, typical, normal high school kid that wasn’t using drugs. So how could he say that? It blew my mind. It was kind of painful. It made my parents really angry, too. My dad, I remember him fuming for days about that.”
On a Thursday morning that June, Boyd called her in her dorm with the result: The Supreme Court had narrowly ruled, five to four, that such drug testing was constitutional. She cried for a while before passing the bad news on to her parents. “It was really upsetting. I was
really disappointed.”
Unsurprisingly, Kennedy was in the majority, but so was Justice Stephen G. Breyer, who is often on the liberal side. When he visited Dartmouth to lecture during Lindsay’s junior year, she sat next to him at a breakfast and used the occasion to ask if Supreme Court justices ever recognized that they had made a mistake. Yes, he said, “but not in your case.”
The majority opinion, written by Justice Clarence Thomas, emphasized the school’s custodial responsibilities and argued that competitive extracurricular activities, governed by state rules, carry a diminished expectation of privacy. The penalty for refusal to be tested or a positive result was minimal—dismissal from activities—without either academic or legal consequences. (He didn’t mention that the lack of extracurricular involvement damages the chance of getting into a good college.) “Given the minimally intrusive nature of the sample collection and the limited uses to which the test results are put,” Thomas declared, “we conclude that the invasion of students’ privacy is not significant.”58
The school’s policy didn’t pass the laugh test for Justice Ruth Bader Ginsburg. In Vernonia she had voted for testing athletes, accepting the argument that those on drugs might hurt themselves or others. But she couldn’t take seriously the Tecumseh school board’s lawyer as he made a valiant attempt to highlight the dangers of band members wielding musical instruments, Future Farmers of America controlling 1,500-pound steers, and Future Homemakers of America with access to knives.
The Rights of the People Page 22