Pledge Your Body for Your Bread: Welfare, Drug Testing, and the Inferior Fourth Amendment

ABSTRACT Proposals to subject welfare recipients to periodic drug testing have emerged over the last three years as a significant legislative trend across the United States. Since 2007, over half of the states have considered bills requiring aid recipients to submit to invasive extraction procedures as an ongoing condition of public assistance. The vast majority of the legislation imposes testing without regard to suspected drug use, reflecting the implicit assumption that the poor are inherently predisposed to culpable conduct and thus may be subject to class-based intrusions that would be inarguably impermissible if inflicted on the less destitute. These proposals are gaining increasingly substantial political support, suggesting that the enactment of drug testing legislation is now a real and immediate prospect. Given the gravity of the suspicionless searches at issue, the proposals raise serious concerns under conventional Fourth Amendment doctrine. Nevertheless, there is considerable doubt whether the federal courts will accede to that authority and prohibit the proposed intrusions, given the long tradition of relegating the privacy rights of the poor to inferior and indifferent enforcement. This Article explores these legislative developments and the constitutional context within which they arise, and makes the case for using the impending battle over suspicionless drug testing to reclaim for the indigent the full reach of the Fourth Amendment's privacy right. INTRODUCTION 752 I. POVERTY, PRIVACY, AND THE CONSTITUTION 756 A. The Declared Constitution and the Irrelevance of Class 756 B. The Veiled Constitution and Class Bias 761 1. Bias Embedded in the Privacy Doctrine 763 2. Bias Enforced on the Privacy Doctrine 765 3. Rationalizing Bias: Poverty as a Proxy for Cause 771 II. POVERTY, PRIVACY, AND SUSPICIONLESS DRUG TESTING 774 A. Prelude: Federal Welfare Reform 775 1. The Premise ofthe Addicted Poor 775 2. The Premise of State Dominion 778 3. The Irrelevance of Efficacy 779 B. The Initial Response ofthe States 781 C. The Legislative Groundswell 783 1. The Elimination of Individualized Suspicion 784 2. The Attributes of Testing: Breadth, Process, and Consequences . . 786 D. Two Visions of a Constitutional Response 790 1. Bodily Privacy: A Preface 791 2. Principled Adjudication 794 3. Sub constitutional Adjudication 796 CONCLUSION 803 We are sending the absolutely wrong signal to the next generation about what is needed to get ahead in life if we don't threaten benefits for recipients who won't even lift a finger to help themselves or their children. ... I am hearing from people who accept random drug testing as a condition for their jobs. They see no problem with having people on public assistance doing the same.1 INTRODUCTION In 1275, an English woman named Alice Crese failed to pay Richard of Ely for two shillings' worth of bread.2 Richard brought her before the Court of St. Ives Fair, which ordered that she "pledge her body" for the debt.3 Seven centuries later, the poor still face the prospect of pledging their bodies for the debt of bread. Legislatures across the United States are considering scores of drug testing proposals that will require the indigent to periodically submit to invasive extraction procedures as an ongoing condition of public assistance. …