Antonin Scalia

Scalia's Mixed Drug War Record

Drug cases show the late justice's fickle fidelity to the Fourth Amendment and federalism.

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For many years drug prohibition has been the main factor undermining the Fourth Amendment's ban on "unreasonable searches and seizures." In my latest Forbes column, I explore how Antonin Scalia, who died on Saturday, both assisted and resisted that process during his three decades on the Supreme Court:  

In 1989 the U.S. Supreme Court upheld urine testing of applicants for Customs Service jobs that involved carrying a gun, handling classified material, or participating in drug interdiction. Justice Antonin Scalia dissented, calling the urinalysis program an "immolation of privacy and human dignity in symbolic opposition to drug use." Scalia noted that the Customs Service policy required people to perform "an excretory function traditionally shielded by great privacy" while a monitor stood by, listening for "the normal sounds," after which "the excretion so produced [would] be turned over to the Government for chemical analysis." He deemed this "a type of search particularly destructive of privacy and offensive to personal dignity."

Six years later, Scalia considered a case involving much the same procedure, this time imposed on randomly selected athletes at a public high school. Writing for the majority, he said "the privacy interests compromised by the process of obtaining the urine sample are in our view negligible." Scalia deemed the testing program reasonable, noting the importance of "deterring drug use by our Nation's schoolchildren."

As those contrasting cases suggest, Scalia was of two minds when confronted by the government's efforts to suppress consumption of arbitrarily proscribed intoxicants. The widely revered and reviled justice, who died on Saturday, was appointed to the Supreme Court four years after Ronald Reagan declared his War on Drugs and Nancy Reagan launched her "Just Say No" campaign. During the next three decades, Scalia alternately cheered and criticized the vain crusade to achieve a "drug-free society." While he never questioned the goal, he questioned the means used to reach it more often than his critics on the left might think.

Read the whole thing.

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  1. C,mon, man, there’s a war going on! Everybody knows the Constitution isn’t a suicide pact and the exigencies of war mean sometimes your civil rights get curtailed just a wee bit. Once the war’s over, you’ll get everything back.

    1. And don’t forget the DUI canine exception. It’s right there in the preamble

      1. Dogs aren’t even sentient. Plus they’re cute. How could one violate your rights? Next case.

  2. Those first two cases mentioned in the article (Ha! Now you have to read it!) tell you all you need to know about Scalia. He was deferential to authority and didn’t care one whit about anyone else. Finding a better justice to replace him should be easy, but we all know that ratchet only goes one way.

    1. we all know that ratchet only goes one way.

      There is often that little thingy on the handle you can click to make it go the other way.

  3. Writing for the majority, he said “the privacy interests compromised by the process of obtaining the urine sample are in our view negligible.” Scalia deemed the testing program reasonable, noting the importance of “deterring drug use by our Nation’s schoolchildren.”

    Did he write an opinion on caning?

    1. Well, I can’t find it, but since wicker and rattan are overwhelmingly imported, most instances of the manufacture of cane furnature will be subject to some form of federal trade regulations under the actual and original meaning of the commerce clause (not the post-Wickard nonsense).

      1. “The People rest, Your Honor.”

        1. And the rest of the People?

  4. I’ll forgive him his trespasses on this one. Why? Because the people were waging a war. How could he have known that it was a stupid pointless war whose only purpose was to strip people of their freedom so they could be abused and exploited? No one knew that. He was a judge not a god. Generally he was better than most of his colleagues. I hope his replacement will exercise as much constraint.

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  6. Would it be possible to get the Forbes links to go straight to Sullum’s columns the way they used to? The most recent ones just take me to the main Forbes page, and it’s kind of hard to even find his columns.

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