In the New York Times, Akhil Reed Amar and Neal K. Katyal: Why the Court Was Right to Allow Cheek Swabs. From the introduction:
Justice Scalia summarized his scathing dissent from the bench — a rare act that signals sharp disagreement. His opinion opened with these lines: “The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence. That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment.”
But the Fourth Amendment’s text is not nearly so simple as he makes it out to be. It merely requires that all searches and seizures be not “unreasonable.” Its words do not distinguish between intrusions seeking “evidence of crime” and other sorts of intrusions — say, to collect revenue, or preserve public safety.
Justice Scalia failed to identify even one source from the founders articulating the ultraprecise rule that he claims is the central meaning of the Fourth Amendment. And his version of the Fourth Amendment would lead to absurd results…
(Thanks to Michael Perry for the pointer.)
Posted at 12:21 AM