-Submitted by David Drumm (Nal), Guest Blogger
Governor Rick Scott (R-Florida) imagines that welfare recipients were likely drug addicts so he signed a law that mandates drug testing before they can receive cash benefits from the state. “The goal of this is to make sure we don’t waste taxpayers’ money,” Scott said. How’s that working out? About 2 percent have tested positive and ninety-six percent proved to be drug free — leaving the state on the hook to reimburse the cost of their tests.
Financially, Florida taxpayers may save a whopping $40,800-$98,400 for a program that has been predicted to cost $178 million. That’s before the legal costs from a threatened ACLU challenge to the law’s constitutionality.
Scott has never been one to let constitutional niceties get in the way of a political issue that’s sure to anger voters. Anger directed at welfare recipients is a classic motivator from the Reagan era that has never gone out of style.
If the ACLU follows through, they will probably rely on two federal court decisions. The first is the Supreme Court opinion in Chandler v. Miller (1997). In that case, the Supreme Court held that:
Georgia’s requirement that candidates for state office pass a drug test does not fit within the closely guarded category of constitutionally permissible suspicionless searches.
As in Georgia, Florida’s testing of welfare recipients is symbolic, not “special.” Welfare recipients “do not perform high risk, safety sensitive tasks, and the required certification immediately aids no interdiction effort.” As J. Ginsburg wrote: “The Fourth Amendment shields society from state action that diminishes personal privacy for a symbol’s sake.”
The other case is Marchwinski v. Howard (2003), wherein the United States Court of Appeals for the Sixth Circuit, in a rehearing of the case en banc, split 6-6 on the constitutionality of a Michigan law that required drug testing of welfare recipients. The tie vote had the effect of affirming the district court’s judgment striking down the program. No opinion was issued for the en banc rehearing.
H/T: FourthAmendment.com, WTSP10, Tampa Bay Online, Steve Benen, ACLU.
Dean, you are ignoring the operators who populate the abyss that occurs BETWEEN the leech and the producer….both of whom are essentially dependant on the economic climate and the rules and regulations that are enforced to create that climate…both, at the moment, are being strained and victimized….
@AY
“Do you think people other than WHITE MALE slave/property owners would have ever been able to vote if the Constitution was still static.”
The ability to amend our Constitution pretty clearly demonstrates that it is not static, and the amendments have remedied your concern.
Let’s see, it is allegedly unconstitutional for a non-producing leech to take a drug screen to receive public assistance ie. food stamps, housing, etc. and to remain sucking on the goverment tit. However, it is not unconstitutional for a working producer to have the Gestapo confiscate his/her hard earned money to pay for the non-producing leech. How does that work? Is the ACLU going to include the working producer in the lawsuit? No way.
I think someone is going to confuse M with facts and logic. You know, I do not think I would want to live in a society with a static doctrine…It reminds me of what Russian is like. They have the same basic structure and bill of right, yadda, yadda…but it has historically been conservatively interpreted…This analogy also speak well of the reason to be against Sharia Laws….Do you think people other than WHITE MALE slave/property owners would have ever been able to vote if the Constitution was still static…..hmmmm…there are some reasons to visit the past….
@mahtso
“A living Constitution says that in interpreting the Constitution, Justices and judges should consider history, tradition, precedent, and modern needs.”
Then, as Jefferson exclaimed, the Judiciary truly is a despotic branch.
“[T]he opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves, in their, own sphere of action, but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.” –Thomas Jefferson
I am of the belief that the judges cannot go beyond their own sphere, except where specifically provided for by law. The strength of the courts lies with their duty to refuse to give force or effect to anything they find to be beyond the constitutional limits of power granted to the other branches, or themselves.
The Framers gave us the means to amend our constitution so that we may address our “modern needs”. Inconvenience is not an excuse to bypass the means provided. As we all know, expediency is the tool of the tyrant.
Here is the letter of Jefferson in which he more fully explains his position:
Executive vs. Judiciary.—You seem to think it devolved on the judges to decide on the validity of the Sedition law. But nothing in the Constitution has given them a right to decide for the Executive, more than the Executive to decide for them. Both magistrates are equally independent in the sphere of action assigned to them. The judges, believing the law constitutional, had a right to pass a sentence of fine and imprisonment; because the power was placed in their hands by the Constitution. But the Executive, believing the law to be unconstitutional, were bound to remit the execution of it; because that power has been confided to them by the Constitution. That instrument meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the Legislature and Executive also, in their spheres, would make the judiciary a despotic branch. Nor does the opinion of the unconstitutionality, and consequent nullity of that law, remove all restraint from the overwhelming torrent of slander, which is confounding all vice and virtue, all truth and falsehood, in the United States. The power to do that is fully possessed by the several State Legislatures. It was reserved to them, and was denied to the General Government, by the Constitution, according to our construction of it. While we deny that Congress have a right to control the freedom of the press, we have ever asserted the right of the States, and their exclusive right, to do so.
Our courts, it would appear, have forgotten (or ignored) the SCOTUS opinions in Mississippi v. Johnson (1867) and Hatahley v. United States (1956). I was appauled to see Judge Phillips, in the Log Cabin Republicans case, declare that her injunction was directed at the United States of America, just as I was when Judge Vinson thought the same thing was “implied” by his decision. The Court was pretty clear in Larson v. Domestic (1949) when it said; “The issue here is whether this particular suit is not also, in effect, a suit against the sovereign. If it is, it must fail, whether or not the officer might otherwise be suable.”
The judges cannot attack the sovereign. It is the sovereign from which they draw their authority. It is as ludicrous as the employee telling the boss what their job is, and expecting them to heed their command. We operate under a Separation of Powers Doctrine. Encroachment upon the duties or authority reserved for the others, without explicit granting of an exception (i.e. impeachment) is an usurpation. Jefferson understood that.
Ok I will tell,
no 2nd the and 3rd the = they…there.
BTW, AY rules!
Sorry for the typos…sticky fingers…don’t ask and I won’t tell. 🙂
M,
The erroneous myths include the idea that people applying for welfare are more likely to be users of illegal drugs. It has been proven to be a false intuition by many studies easily available for your perusal on the net. The the game is always shown to be not worth the candle. So it goes with myths and the biases the tend to perpetuate..
M,
Your point is….Either you want it as a living (dynamic) document or static….From your posts it is hard to tell your position, other than perpendicular…
Dynamic: a : marked by usually continuous and productive activity or change
Static: 1. pertaining to or characterized by a fixed or stationary condition.
2. showing little or no change: a static concept; a static relationship.
3. lacking movement, development, or vitality: The novel was marred by static characterizations, especially in its central figures.
Which one serves you best….Pick one…and then get back to us…
Anonymously Yours,
I don’t expect any of the others to weigh in, but maybe this will help. On December 14, 2010, the Supreme Court Blog posted an interview with Erwin Chemerinsky:
Q. Within the context of the “conservative assault” you discuss in the book, can you please define the terms “living constitution” and “strict constructionist”?
[A:]
****
A belief in a “living Constitution” rejects the notion that the meaning of a constitutional provision is the same in 2011 as when it was adopted. A living Constitution says that in interpreting the Constitution, Justices and judges should consider history, tradition, precedent, and modern needs. There always has been a living Constitution and hopefully always will be. The opposite of a living Constitution is a dead Constitution and no society can be governed under that.
M,
This is from Wiki….I do admit…What you stated was spurious at best.
In statistics, a spurious relationship (or, sometimes, spurious correlation or spurious regression) is a mathematical relationship in which two events or variables have no direct causal connection, yet it may be wrongly inferred that they do, due to either coincidence or the presence of a certain third, unseen factor (referred to as a “confounding factor” or “lurking variable”). Suppose there is found to be a correlation between A and B. Aside from coincidence, there are three possible relationships:
A causes B,
B causes A,
OR
C causes both A and B.
In the last case there is a spurious correlation between A and B. In a regression model where A is regressed on B but C is actually the true causal factor for A, this misleading choice of independent variable (B instead of C) is called specification error.
Because correlation can arise from the presence of a lurking variable rather than from direct causation, it is often said that “Correlation does not imply causation”.
http://en.wikipedia.org/wiki/Spurious_relationship
I am sure most people that have gone to law school…could tell you the basics of Marbury….It does not really matter if you think that it was from wiki…What you think and what you write are clearly an ambulation and intended to misguide…
I so agree with you that we have lost a bunch of basic rights. If you will look when the happened, it was a republican appointed court on the 4th think Noriega and Bush I. The 4th has no applicability outside of the US. Think Iraq and Bush II. Bush I had Rhenquist and Bush II had Rhenquist and Roberts. I am not going to check this statement as you’ll claim I wiki’d it. I will state again for clarification and I will ask anyone else to chime in that is schooled in Law, I think your statement about a static and a living constitution are spurious at best. I may be wrong but I think you are yanking our chains.
Anonymously Yours
You are spurious with that accusation. Again, ask and receive. Your analysis of Marbury reads a lot like the one on Wikipedia, and I have no idea how accurate it is. (But I do know that there is nothing explicit in the Const. giving the Court the power of judicial review.)
I did not say the Constitution is static and I thought I was clear in that I was offering a critique of the “living” view. My intent was to foster a reasoned discussion. From your tone it appears that, and let’s say this in tandem, your intent is something else.
M,
I let you prove just how uninformed you really are…Unless and until the Sct says that the case is specifically over rules…it is still the law of the land….call me spurious with that accusation….Unless and until they say that the statute or act is unconstitutional it forms the basis for the exercise of judicial review in the United States under Article III of the Constitution.
It was also the first time in western history a court invalidated a law by declaring it “unconstitutional”, a process called judicial review. Thought the concept had been around since Lord Coke….
If I recall Marbury was the first time the Supreme Court declared something “unconstitutional,” and established the concept of judicial review in the U.S.
Take this as a kick in the groin, the idea that courts may oversee and nullify the actions of another branch of government. The landmark decision helped define the checks and balances of the American form of government. So, if they want to say, pick and choose, they must pick and choose the right one.
The real reason that the Sct ruled the the act of the legislature was it reduced the number of Supreme Court justices from six to five, effective upon the next vacancy in the Court. How about that for self preservation. If I recall, Congress acted and cancelled the Supreme Court schedule just to pay them back.
So M, whether if it is a living Document then Marbury is still good law. If is static as you say, then Marbury is bad law and should be over ruled observed. But from the outside looking in it appears that every time the Supreme Court act on a law that has been passed by congress, lets say this in tandem “they are reaffirming that the Constitution is a living and breathing document that changes with the time”, or was the power grab once to preserve themselves sufficient and they do not have the authority to perform Judicial Review.
Anonymously Yours
You are uniformed. Ask and you shall receive. But seriously folks…
My point was this: I know of two views on how to interpret the Constitution; one is based on the notion that it is static (except for amendments) and the goal is to determine what it meant when written. The other is that it is a living document subject to change over time.
I’ll let others address the deficiencies in the first view, but my problem with the “living” view is that there is no certainty. Any question as to whether something is Constitutional must be evaluated now and the Court would be required to see what has changed since it last considered the same question. So a case like Miller that is over ten years old, may not reflect the current physiology and anatomy of that living Constitution. (And yes, Marbury would not be excepted: if the Constitution has changed since that case was decided, then it might be bad law.)
Of course, many people would find the changes to be for the better: Miranda warnings and the decisions that have expanded the definition of cruel and unusual punishment come to mind. But, it is my understanding that we have lost many of our protections, particularly with respect to the 4th A, as life has gone on.
culheath,
Because you don’t say what erroneous myths are reinforced by the drug testing, I cannot form an opinion as to whether you are right or wrong. But the Florida results would appear to help dispel, rather than perpetuate, the notion/stereotype that many of those on welfare are using drugs.
Because I have applied for many jobs that required drug testing, I don’t see drug testing as saying anything inherently bad about the behavior of those without jobs. To the contrary, illegal drug use is a problem that is not limited to any one class.
Pete,
Come now….You think…Never…They wouldn’t would they…..wink…
in the interest of fairness we should drug test legislators and the chief executive too.
from some of the ideas coming out of this bunch i’d say they were getting some good shit.
Rick Scott may personally profit financially from the drug-testing mandate:
http://www.palmbeachpost.com/money/gov-rick-scotts-drug-testing-policy-stirs-suspicion-1350922.html
Furthermore, at least some (and possibly many) of the 2% who tested positive actually were the victims of false-positive results.
There are numerous substances and some medical conditions–foods, legal OTC medications, vitamins, antibiotics, kidney or liver disease, etc–which can create false-positive results on the tests:
http://www.askdocweb.com/falsepositives.html
So not only are any positive test results suspect, but the very reason for the mandate is also suspect.
M,
I guess Marbury v Madison should be rendered so old that the Sct Court does not have to follow it…Makes sense don’t you think…maybe until Miller is Distinguished or patently over ruled or chipped away at….I think its the law of the land…I see the State of Florida trying to distinguish it by the fact that they are still entitled to the money…they just need to get a payee…. call me uniformed please….
mahtso,
I’d oppose it because it’s invasive without foundation or actual purpose and it just reinforces erroneous myths. Not to mention that it’s highly counter productive on several levels.