The Supreme Court’s ruling in Maryland v. King, which permits police to take a DNA swab of anyone they arrest who is suspected of a serious crime, is the latest infringement on our civil liberties.
The five-justice majority based the decision on a non-historical and shallow interpretation of the Fourth Amendment. The amendment was written to protect individuals against unjustified searches and incursions on the privacy of person and property by law enforcement.
The Fourth Amendment has its roots in English Common Law. Its most memorable expression comes from Sir Edward Coke in Semayne’s Case (1604), when he stated, “The house of everyone is to him as his castle and fortress, as well as his defense against injury and violence as for his repose.”
Violations of this right to privacy were inflicted on the American colonists in order to expedite British revenue-gathering. The Excise Tax of 1754 allowed searches of the homes of colonists and seizures of “prohibited and un-customed goods” without a warrant.
Any breach of the Fourth Amendment privacy has always required a warrant based on probable cause. In Katz v. U.S. (1967), the Supreme Court determined that a search occurs when a person expects privacy in the thing searched and believes that the expectation is reasonable. By extension, the court ruled in Kyllo v. U.S. (2001) that authorities scanning a home with an infrared camera without a warrant constituted an unreasonable search, which is barred by the Fourth Amendment.
In Monday’s ruling, the Supreme Court violated all of the above. The rationale that Justice Anthony M. Kennedy used whereby he equates the swabbing of a suspect’s cheek without a warrant to fingerprinting is pernicious.
First, the opening of the oral cavity to collect DNA is a violation of a person’s bodily integrity. In taking a DNA sample, the most intimate details of a person can be discovered. Second, to place DNA into a national database without a conviction, since a suspect may indeed not be guilty, places at risk a person’s most intimate genetic and medical history. How safe is this information when even the nation’s national security secrets were compromised by WikiLeaks? Certainly, such an invasion of privacy by DNA retrieval without a warrant can ruin the life of an innocent person.
Of course, there are those who contend that DNA collection with a shared federal database can solve some horrific crimes and put some dangerous criminals in jail. While this is true, it must be asked: Is the potential for better law enforcement worth the diminution of our constitutional rights? Is it worth the violation of an innocent person’s human rights? As Justice Antonin Scalia stated in his dissent, “The Fourth Amendment lists ‘persons’ first among the entities protected against unreasonable searches and seizures.”
The answer is a resounding no.
In Robert Bolt’s play, “A Man for All Seasons,” there is a poignant scene in which Will Roper says he would “cut down every law in England” to get at the devil (a criminal). To which Sir Thomas More responds, “When the last law was down, and the devil turned around on you, where would you hide, the laws all being flat? Do you really think that you could stand upright in the weeds that would blow then?”
American civil liberties are under attack as never before. The Obama administration’s spying on Fox News reporter James Rosen, the attempt by government to take away the right to bear arms, the forced purchase of health care, and the Health and Human Services mandate obliging religious institutions to violate their moral code are indicative of the precarious state of our constitutional rights.
It is imperative that our civil and religious leaders speak out before our hard-fought freedoms are no more.
Michael P. Orsi is chaplain and research fellow in law and religion at Ave Maria School of Law in Naples, Fla.