An alarming precedent was set today when the U.S. Supreme Court decided 5-4 in Maryland v. King that the police can take DNA samples from those arrested for, but not yet convicted, of a serious offense.
In a devastating dissent joined by three of his colleagues, Justice Scalia explained why the majority’s decision is a big step towards a dangerous loss of liberty and privacy. “Make no mistake about it: As an entirely predictable consequence of today's decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason,” Scalia wrote, reminding us that “Nearly one-third of Americans will be arrested for some offense by age 23.”
While the Maryland statute at issue in this case does provide some safeguards, government guarantees of privacy and confidentiality are far from watertight. Consider the recent problems at the IRS, which include the agency leaking nine confidential applications of conservative non-profits to ProPublica, and leaking the tax return of the National Organization for Marriage – a pro-traditional marriage organization – to a gay rights group.
We suggest that instead of inventing privacy rights – concerning abortion and homosexuality for example – that require a long stretch from the text of the Constitution, the Supreme Court should focus on protecting the privacy rights that are clearly spelled out in the Fourth Amendment. In his dissent, Justice Scalia points out that “The Fourth Amendment lists ‘persons’ first among the entities protected against unreasonable searches and seizures.”
The majority tries to justify its decision by analogizing Maryland’s collection of DNA to the fingerprinting of arrestees for identification purposes. However, Justice Scalia destroys that analogy by carefully demonstrating that Maryland is using DNA not to identify arrestees but to accuse them of additional crimes. We would add that the majority’s contention that there is little difference in intrusiveness between fingerprinting and DNA collection brushes aside the fact that when the government possesses your DNA, it possesses the detailed blueprints for your entire body.
No doubt, some of CFJ’s supporters cheered today’s decision because it advances the important cause of crime solving. We are very sympathetic to that cause, but it must be pursued in a manner that complies with the Constitution’s vital limits on the power of the government. Too often, conservatives forget that big government poses a threat to our liberties not only through out-of-control regulation, taxing and spending, but also through over-zealous crime fighting.
As Justice Scalia concedes,
“Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches. … Today's judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the ‘identity’ of the flying public), applies for a driver's license, or attends a public school.”
We echo Justice Scalia’s points here and note that the noble cause of solving crimes must occupy a lower place in constitutional analysis because, unlike the right to be free from unreasonable searches and seizures, it is not explicitly guaranteed by the Constitution. That could be changed by amending the Constitution, but there is little support for such an amendment.
Finally, Justice Scalia reminds us of the irony of today’s decision:
“[T]he ironic result of the Court's error is this: The only arrestees to whom the outcome here will ever make a difference are those who have been acquitted of the crime of arrest (so that their DNA could not have been taken upon conviction). In other words, this Act manages to burden uniquely the sole group for whom the Fourth Amendment's protections ought to be most jealously guarded: people who are innocent of the State's accusations.”