High School Drug Testing and the Original Understanding of the Fourth Amendment

54 Pages Posted: 23 Sep 2003

Date Written: 2003


The United States Supreme Court has held that two different high school drug testing programs do not violate the Fourth Amendment to the United States Constitution. In these cases, the Court reached the correct result, but for the wrong reasons. A review of historical evidence indicates that the framers adopted the Fourth Amendment to deal with a single, specific issue. The framers sought to proscribe physical searches of residences pursuant to general warrants, or without any warrant at all. The Fourth Amendment simply never was intended to govern the issues raised by random drug tests.

Discussion of unreasonable searches in the late eighteenth century primarily focused on three controversies - the John Wilkes cases in England, Paxton's case in Boston, and American opposition to the Townshend Act. All three controversies involved the use of general warrants to search residences. In Paxton's case, attorney James Otis complained that customs officials "may enter our houses when they please," and "may break locks, bars, and every thing in their way." As Thomas Davies has noted, Otis's clients were merchants who owned ships and warehouses. But Otis did not challenge searches of warehouses or the seizures of ships - only the searches of homes. Like Otis, other early American statesmen referred almost exclusively to searches of homes when they discussed unreasonable searches.

One might conclude that the historical evidence on the Fourth Amendment is not helpful, and that courts should interpret the amendment based on some modern consensus about reasonableness. At least with respect to the issues raised by random drug testing, no such consensus exists. Compare the voting patterns of Chief Justice William H. Rehnquist and Justice David H. Souter. Justice Rehnquist has voted to uphold random drug testing programs in all six of the cases that the Supreme Court has heard. Conversely, in four cases where Justice Souter has participated, Justice Souter never has voted to uphold a random drug testing program.

Consensus on what constitutes an "unreasonable search" for Fourth Amendment purposes may be limited to warrantless physical intrusions of homes. A search for a modern consensus about the meaning of the Fourth Amendment may reach the same result as a review of the intentions of the framers. When they adopted the Fourth Amendment, the framers only intended to proscribe warrantless physical searches of residences, and physical searches of residences pursuant to invalid warrants.

Keywords: Fourth Amendment, Search and Seizure, Warrants, Constitutional History, American Legal History, Drug Testing, High Schools

Suggested Citation

Steinberg, David E., High School Drug Testing and the Original Understanding of the Fourth Amendment (2003). Hastings Constitutional Law Quarterly, Vol. 30, 2003. Available at SSRN: https://ssrn.com/abstract=446120 or http://dx.doi.org/10.2139/ssrn.446120

David E. Steinberg (Contact Author)

Thomas Jefferson School of Law ( email )

701 B Street
Suite 110
San Diego, CA 92101
United States
619-961-4345 (Phone)

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