Takedown: Crying About the Constitution

Let’s start with a neologism. Status updates of ignorant douchebags have become rampant, and with the advent of what seems like an endless stream of new social media networks, the stupidity goes viral in a disturbingly rapid fashion. Because my plan is to attack these status updates of ignorant douchebags, it is useful to label them from the start. STatus UPdates of Ignorant Douchebags, or STUPIDs for short, are often in all caps, ask for a blind acceptance of questionable statements, call for reposting, and are difficult to trace back to a source. Oh. And they are stupid.

This week’s STUPID:

“Thank you Florida, Kentucky, and Missouri, which are the first states that will require drug testing when applying for welfare. Some people are crying and calling this unconstitutional. How is this unconstitutional???? It’s OK to drug test people who work for their money, but not for those who don’t?”¦ Re-post this if you’d like to see this done in all 50 states.”

A short response, should you need one, could go something like this:

“Calling something unconstitutional is not about being weak, and to suggest that using the Constitution of the United States as a test to determine the validity of laws is ‘crying’ is disrespectful to the Constitution and to America itself.”

There are many other issues with the posting, but I find it quite satisfying to point out lack of patriotism in STUPIDs. It’s kind of playing dirty, but so is drug testing of all welfare applicants.

Let’s look for a second at the 4th Amendment to the Constitution.

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

We’ve all heard of it. The fourth amendment protects you from overzealous police officers who, on a hunch, decide to ransack your home in the hopes of finding “something” illegal, so they can put you in jail. Imagine a situation wherein you anger a local law enforcement officer. Perhaps you reported some transgression of theirs, or maybe you were married to the officer’s sister and then you went through a nasty divorce. Without the fourth amendment, the officer could enter your house, your car, and go through your trash in your kitchen. Collect your feces from your toilet, to try to find something, anything, to get back at you. That bottle of absinthe a friend brought you from France? The Christmas decorations you left up after January 14th? The huge box of candy you gave to your partner? The sex toys you have in your closet? Ridiculous examples, yes, but the point stands – an officer of the law, looking hard enough, has a wealth of resources and state-inspired power to find something incriminating.

But not in my house, not in my car, not in my kitchen, not in my shit. Right? I have never broken any laws (no matter how ridiculous), I am a model citizen, and I have nothing to hide.

This argument is perhaps as old as privacy itself, and it is repeated in STUPIDs all across the Internet. Why would anybody object to drug testing, unless they have something to hide?

It’s not about having something to hide. It’s about the government not having the right to look.

The conservative website (conservative, for fuck’s sake) “The Future of Freedom Foundation” lays it out clearly, quoting Entick v. Carrington, which “ultimately set the basis for the Fourth Amendment”:

“Papers are the owner’s goods and chattels; they are his dearest property; and are so far from enduring a seizure that they will hardly bear an inspection”¦Where is the written law that gives any magistrate such a power? I can safely answer, there is none; and therefore it is too much for us without such authority to pronounce a practice legal which would be subversive of all the comforts of society.”

This was further expanded by the Supreme Court in Boyd v. U.S.:

The principles laid down [by Lord Camden] affect the very essence of constitutional liberty and security. They reach further than the concrete form of the case then before the court, with its adventitious circumstances; they apply to all invasions on the part of the government and its employees of the sanctity of a man’s home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty, and private property, where that right has never been forfeited by his conviction of some public offense.

Simply put, it is an offense to the idea of a free society if the government is allowed to arbitrarily search and/or sieze the property of private individuals. Personal security, personal liberty, and private property are indefeasible rights.

I do not know how to stress this enough. The framers of the constitution felt very strongly about a person’s individual freedoms. Allowing the government to tread on these personal privacies, no matter how innocuous it may seem, is unconstitutional. I am not crying about this. I am not sad. I am not whiny. If you want to argue constitution, argue constitution, but don’t pretend like bringing it into the argument is somehow being a crybaby.

Daniel J. Solove’s article, “Why Privacy Matters Even if You Have ‘Nothing to Hide,'”  further illustrates a variety of reasons why the “nothing to hide” argument is dangerous. His arguments can be applied to this particular situation as follows:

First, allowing the government to gather and maintain bodily fluids is incredibly alarming. From urine or blood, the government can determine if a person has been using drugs, sure. They can also get DNA information, find out about health issues that you are having, and determine if you are pregnant, for example. Suddenly, the drug test is something much larger: the government will have access to a massive amount of information about an entire class of people.

Solove writes, “To what extent should government officials have such a significant power over citizens? This issue isn’t about what information people want to hide but about the power and the structure of government.” Those on welfare have very little power in society. The government has an enormous amount. The constitution was written to protect the meek from tyrants. Of course the right to privacy needs to be discussed here.

Next, there is the problem of other uses of the data. Anybody who has done any work with human subjects knows that there are strict regulations regarding how to store information and what can be done with it. Will the government have to pass the IRB? Solove continues, “The potential uses of any piece of personal information are vast. Without limits on or accountability for how that information is used, it is hard for people to assess the dangers of the data’s being in the government’s control.” Do you trust the government to act in your best interest at all times?

And finally, there is the issue of everybody’s privacy (not just the untouchable class). Privacy is protected in the constitution for a reason, and allowing certain types of privacy to be violated for certain people is inviting a dangerous precedent to be set. “Privacy is rarely lost in one fell swoop. It is usually eroded over time, little bits dissolving almost imperceptibly until we finally begin to notice how much is gone,” writes Solove.  Are we prepared to let it erode?

If you want to seize a person’s bodily fluids, the essence of their individuality, without due cause, and search it for signs of an illegal activity, you are violating the constitution. Receiving government benefits is not due cause for being searched. Get a warrant for every person who is on welfare, and then we can start talking.

But plenty of jobs require drug testing! This is true, and a completely moot point. People who are taking drug tests for their jobs are not being tested by the government. There is a gigantic difference between a private contract between an individual and an employer and the government blanket testing a group of individuals. The fourth amendment does not protect you from making any sort of private contract that you wish to make. It does protect you from these things being required by the government.

But if you want to get the money, you should have to agree to the test!

Really? No, I’m asking, really? Is this a slope that you want to slip down? Quite literally, there is not a single person in America that does not receive benefits from the government. Do you drive on the streets? Do you get any sort of tax refund? Do you expect the fire department to come to your house in a fire? By the logic presented in the STUPID, every single person should be subjected to an immediate drug test or should not be eligible for government benefits – no ambulance, no fire department, no libraries, no tax breaks, no student loans, no roads, no social services of any kind. It is ridiculous to expect the government to drug test one group of people who receive government benefits and not another group, which is the entire population. Are you willing to be subjected to a drug test, which you pay for, because you use the library? Are we going to drug test the millionaires that are lobbying for the Bush Era Tax Cuts to be extended?

Let’s say you’ve gotten this far and still think that I’m crying about it, that I’m full of shit. Fine.  Let’s talk effectiveness. Drug test the downtrodden in society, and millions of people will test positive (because the majority of people on welfare are on drugs, obviously), and those benefits will be denied, and we (the non-poor) will stop having to give up our money to the freeloaders. Right?  Right? The states that have implemented this policy have certainly saved buckets of money. Like in Florida!

Two percent. Two percent tested positive. Hardly the picture that has been painted of mass junkies leeching off the government. Just to compare, “recent data from U.S. Substance Abuse and Mental Health Services showed that in the population above 12 years old, 8.7 percent use illicit drugs, and 6.3 percent of people 26 and older use drugs.” Fewer people on welfare tested positive for drugs than people in the general population.

So. Unconstitutional. Ineffective. An assault on dignity (although I am pretty sure that those who perpetuate the STUPIDs don’t care about the dignity – or rights, for that matter – of poor people).

When it comes down to it, this boils down to fear. If we can separate our society into two groups, US and THEM, and cast as many negative stereotypes as possible onto THEM, it makes US feel better, safer, like there is no way that WE can ever become THEM. They are drug users, and should be punished for it. We are clean, and can therefore never fall on such hard times. Institute programs to codify those stereotypes, and it provides further insulation for US. But it doesn’t work, and the stereotypes don’t stick, and the constitution was written to protect THEM from being tread on by US.

But no amount of drug testing or stereotyping can protect you from falling on hard times, because some people fall on hard times even if they’ve done nothing to do deserve it. And when that happens, people will stick up for you, too. Even those people who call you out for your STUPIDity.

By Susan

I am old and wise. Perhaps more old than wise, but once you're old, you don't give a shit about details anymore.

4 replies on “Takedown: Crying About the Constitution”

Thank you so much for posting this! It was the most informative and persuasive piece that I’ve read on the topic, and I’ll be referring people here. I especially like the “Are we going to drug test the millionaires that are lobbying for the Bush Era Tax Cuts to be extended?” – it’s a starting point for everyone to agree on this issue.

I’m a bit put off by how your abbreviation builds connections between those with intellectually disablities and bigotry, willful ignorance, and disregard for the rights, dignity, and humanity of marginalized communities.

Other than that you have excellent points.  I just know I can’t share this with my networks because of the (I know unintentional) ableism issue- too many of my friends and colleagues have assumptions made about their views because they appear less than intelligent due to disability, and it would be a dick move to shove it in their faces.

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