"One of the Major Problems of Our Society": Symbolism and Evidence of Drug Harms in U.S. Supreme Court Decisions
Husak, Douglas, Peele, Stanton, Contemporary Drug Problems
When a government action impinges on important individual rights, the United States Supreme Court is compelled to identify the harms it perceives in a behavior or practice in order to assess the constitutionality of a statute, a government policy, or a penalty. We select the six most recent cases in which the Court has expressed views about the harms it attributes to drug use. We conclude that the recent history of such Court justifications shows that they are almost entirely symbolic. Although several Justices in minority opinions have themselves made this point, only in the most recent such Court decision did the majority label a government action against drugs as symbolic and thereby conclude that it did not justify the infringement of constitutional rights involved. This view of the Supreme Court is the best glimpse available of the kind of arguments official policy-makers rely on to justify drug proscriptions.
The Court changes direction
Supreme Court decisions have consistently allowed the state to intervene to protect individuals and society at large from the perceived dangers of illicit drugs-despite the infringement of various constitutional rights that such interventions involve. This willingness to uphold drug regulations and penalties despite their conflicts with individual rights was unexpectedly broken by the Court's decision in Chandler v. Miller.' The disputed statute required candidates for Georgia state offices to certify they had a negative drug test 30 days prior to qualifying for nomination or election to office. Speaking for an overwhelming majority (8-1), Justice Ginsburg indicated that the State presented no realistic evidence of a drug problem among State officeholders-indeed, counsel representing Georgia admitted as much. As a result, Ginsburg reasoned, the legislation was "symbolic"2 and did not overcome the presumption of individualized suspicion required for searches embodied in the Fourth Amendment.
Ginsburg's argument in Chandler was seemingly at odds with the Court's decisions in previous drug-testing cases, most notably in National Treasury Employees Union v. Von Raab.3 Ginsburg admitted that the government had also lacked evidence of drug abuse among customs workers, the population subjected to drug testing in the latter case. Still, the mission of these customs workers was alleged to be highly sensitive-the " `first line of defense' against the smuggling of illicit drugs into the United States."4 This attempt to distinguish Von Raab seems to represent a reversal of Court reasoning that is difficult to explain in the terms adopted in the majority's decision. As Rehnquist pointed out in his lone dissent in Chandler, the employees for whom testing was permitted in Von Raab could hardly be said to occupy more sensitive public positions than such highranking state officials as the gubernatorial candidates to be tested in Chandler. Georgia had sought to justify its drugtesting requirement by pointing out that "the use of illegal drugs draws into question an official's judgment and integrity; jeopardizes the discharge of public functions, including antidrug law enforcement efforts; and undermines public confidence and trust in elected officials."5 In Rehnquist's view, these rationales were persuasive; "Surely the State need not wait for a drug addict, or one inclined to use drugs illegally, to run for or actually become governor before it installs a prophylactic mechanism."6
Rehnquist and the majority differed in Chandler, then, about whether and under what conditions legislation is symbolic. Ginsburg does not explain exactly how the Court decides that a given law is symbolic. For the purposes of this article, we define government action as symbolic when it is not likely to remedy an existing harm, or if indeed the existence of the harm to be remedied has not been established. As we will see, the allegation that a drug proscription, policy or penalty is "merely symbolic" has frequently been made by Justices who believed a law to be unconstitutional. …