Rights For Sale

Brad Plumer has a discussion of requirements that welfare recipients in San Diego submit to warrantless searches of their homes. This kind of policy presents one of the thorniest problems in constitutional law. As some of you will know, the Supreme Court upheld such policies in 1971, and given that the three dissenters were liberals (Douglas, Brennan, Marshall) of the kind nowhere to be found on the current Court, this certainly isn’t going to change anytime soon. Intuitively, one can see the distinction between warrantless searches as a condition of receiving government funds and warrantless searches conducted through more direct compulsion. Still, in the context of the modern regulatory state this seems problematic. As Douglas put it in dissent:

In 1969 roughly 127 billion dollars were spent by the federal, state, and local governments on “social welfare. To farmers alone almost four billion dollars were paid, in part for not growing certain crops. Almost 129,000 farmers received $5,000 or more, their total benefits exceeding $1,450,000,000. Those payments were in some instances very large, a few running a million or more a year. But the majority were payments under $5,000 each.

Yet almost every beneficiary whether rich or poor, rural or urban, has a “house” – one of the places protected by the Fourth Amendment against “unreasonable searches and seizures.” The question in this case is whether receipt of largesse from the government makes the home of the beneficiary subject to access by an inspector of the agency of oversight, even though the beneficiary objects to the intrusion and even though the Fourth Amendment’s procedure for access to one’s house or home is not followed. The penalty here is not, of course, invasion of the privacy of Barbara James, only her loss of federal or state largesse.

That, however, is merely rephrasing the problem. Whatever the semantics, the central question is whether the government by force of its largesse has the power to “buy up” rights guaranteed by the Constitution. But for the assertion of her constitutional right, Barbara James in this case would have received the welfare benefit.

Or as Brad puts it, “farmers receiving agriculture subsidies or companies getting tax breaks don’t have to subject themselves to unannounced raids.” If waiving one’s Fourth Amendment rights based on the receipt of government funds were applied outside of the impoverished, most people would instantly see the problem. Given the number of people who benefit from some kinds of government subsidy, the government could simply abrogate the Bill or Rights through its spending power. This can’t be right. And whether or not its unconstitutional, certainly these kinds of searches without cause are bad policy, for the same reasons. As soon as executives at Archer Daniels Midland agree to waive their Fourth Amendment rights, we can start talking about welfare recipients.

And needless to say, the First Amendment can be implicated by these types of policies as much as the Fourth.