The Fourth Amendment in an Age of Drug and AIDS Testing

The following article is adapted from an article that appeared in the New York Times Magazine, September 13, 1987. © 1987 New York Times, reprinted by permission. Three quarters of a century ago the Supreme Court expressed some thoughts on constitutional interpretation that bear repeating today (Weems v. United States, 217 U.S. 349, 373): "Time works changes, brings into existence new conditions and purposes. Therefore, a principle to be vital must be capable of wider application than the mischief which gave it birth. This is particularly true of constitutions... [In interpreting] a constitution, therefore, our contemplation cannot be only of what has been but of what may be.

Under any other rule a constitution would indeed be as easy of application as it would be deficient in efficacy and power." The Fourth Amendment 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. The wording of the amendment is succinct and majestic. But it is also vague and general. Thus, whether, and how, to apply it to new conditions has generated great controversy - and none greater than the current agitation over mass drug testing and mandatory or "routine" AIDS testing.