I don’t always agree with Scalia, but Monday he really renewed my respect for his integrity. It would have been even more wonderful if any other Republican-appointed Supreme Court Justice had done so.
To set up the issue, read the following words slowly:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Now, with that in mind, please promptly obey any police officer who tells you to open your mouth wid so he can swab your cheek to keep a permanent record of your DNA in a state database.
In a five-to-four decision Monday, the Supreme Court ruled that the state has the authority, when you are arrested, to take and keep a record of your DNA. Right now, if they arrested you and suspected you of murder, they would still have to get a warrant from a judge to search your home. But your body is up for grabs. “The right of the people to be secure in their persons” is pretty much a museum piece at this point.
I understand that rapists have been caught and convicted by these general sweeps. But the fact remains that the state is supposed to submit to rules about who they convict and punish. In the Bible, if you had one trustworthy witness who testified about a murder you were not permitted to convict the person. There had to be two witnesses for a capital crime (Numbers 35.30; Deuteronomy 17.6). It didn’t matter if you, as a judge or civil magistrate, were certain the man was guilty on the basis of one witness. You had to leave him alone. In a free society, sometimes criminals will get away with crime. A free society demands faith in God to mete out justice, rather than the creation of an omnipotent, omniscient god-state.
If the states can do this kind of violation on the basis of an arrest (allegedly only “for a serious offense” but I have no idea what that means), we can expect similar and worse behavior from other institutions, like schools illegally recording student retina scans.
Notice here that I’m not complaining about the state legally acquiring DNA and starting a database. While that would be creepy and I would oppose it, if someone finds I’ve left DNA material somewhere, then I can’t as easily claim I’m not “secure in my person.” But to state that a police officer can simply order me to open my mouth so he can get his swab in there is not just a questionable action in a society with the Fourth Amendment; it is a direct assault on what the words say.
NBC News quoted a court watcher saying that Scalia’s vote “is a surprise in the sense of his general conservatism.”
But why would a Conservative want to overthrow the Constitution? Scalia was just being conservative by striving to preserve the Fourth Amendment. Alito and his faux-conservative ilk are the ones who require an explanation.