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"The history of liberty," Justice Felix Frankfurter once noted, "has largely been the history of observance of procedural safeguards" and "the history of the destruction of liberty," Professor Anthony Amsterdam has added, "has largely been the history of the relaxation of those safeguards in the face of plausible sounding governmental claims of a need to deal with widely frightening and emotion freighted threats to the good order of society." These plausible-sounding government claims are being heard today -and they are putting enormous pressure on the Fourth Amendment, the constitutional provision that protects "the right of the people to be secure in their persons, homes, papers, and effects, against unreasonable searches and seizures" and bans the issuance of warrants except upon "probable cause" and certain other conditions. Thus, although the requirement that the police may intrude on a person's liberty or privacy only on the basis of some "individualized suspicion" is the heart of the Fourth Amendment, by utilizing what the dissenters aptly called "a formless and unguided 'reasonableness' balancing inquiry, " the Court has upheld a mass drug testing program that requires no level of individualized suspicion. (A "reasonable" suspicionless search is, or at least used to be, a constitutional oxymoron.)


Reproduced with permission. Copyright the National Association of Criminal Defense Lawyers (1991). All rights reserved.