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Hastings Constitutional Law Quarterly

Abstract

In Board of Education v. Earls, the United States Supreme Court recently held that a high school drug testing programs did not violate the Fourth Amendment to the United States Constitution. The Earls Court reached the correct result, but for the wrong reasons. A review of historical evidence indicates that the framers adopted the Fourth Amendment to deal with a single, specific issue. The framers sought to proscribe physical searches of residences pursuant to general warrants, or without any warrant at all.

Discussion of unreasonable searches in the late eighteenth century primarily focused on three controversies - the John Wilkes cases in England, Paxton's case in Boston, and American opposition to the Townshend Act. All three controversies involved the use of general warrants to search residences.

In Paxton's case, attorney James Otis complained that customs officials "may enter our houses when they please," and "may break locks, bars, and everything in their way." Otis did not challenge searches of warehouses or the seizures of ships owned by his merchant clients - only the searches of residences. Early American statesmen referred almost exclusively to searches of homes when they discussed unreasonable searches.

When the framers adopted the Fourth Amendment, they intended to proscribe only improper physical entries into homes. The Fourth Amendment simply never was intended to govern the issues raised by random drug tests.

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