When rights aren’t rights

Shaun was just about to clock out after a long day at work when Marge, his asshole manager, pounced on him. “Inspection time!” she sang as she shoved a small plastic cup into his hand.

He frowned at it. “What’s this?”

“Collection container, of course. Go pee in it. And while you’re doing that, I’ll be going through the contents of your locker. Hope you don’t have any drugs in you or on you!”

Shaun never used drugs. But his locker contained his backpack, and his backpack contained a set of rather, well, private photos his girlfriend had given him that morning. He’d been looking forward to examining the photos closely after he got home from work.

Marge grinned as if today was the most wonderful day of her life.

“You can’t do this to me!” Shaun said. “It’s unconstitutional!”

Is Shaun right? Or is he going to have to pee in a cup and let Marge paw through his personal property if he wants to keep his job?

Let’s begin by clarifying which part of the US Constitution is in question—the 4th Amendment, which says:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

It looks as if Shaun’s got a good point, right? Marge’s behavior appears to be an unreasonable search, and she certainly didn’t have a warrant based upon probable cause.

But there’s a problem: the 4th Amendment (and the rest of the Bill of Rights) limits only the actions of the government. It does not apply at all to individuals or organizations that aren’t a part of or agents of the government.

When it was originally written in the 18th century, the Bill of Rights applied only to the federal government and not to the states. But that changed by the 20th century, when the US Supreme Court held that the “due process” language of the 14th Amendment—which does specifically include states—should be interpreted to mean that much of the Bill of Rights now applies to states as well. This is called the Incorporation Doctrine. It’s an interesting legal trick, made even more intriguing by the fact that SCOTUS (the Supreme Court of the US) has refused to incorporate the Bill of Rights in its entirety. Bits and pieces of the Bill of Rights have never been incorporated and do not apply to states. The most notable of these excluded bits, perhaps, is the right to a grand jury.

But the entire 4th Amendment has been incorporated, which means state (and local) governments as well as the federal government must abide by its rules.

What this means for Shaun is that if he and Marge are federal employees, he’s probably correct in his assertion of a constitutional violation. Ditto if he and Marge work for any state or local governmental agency, including public schools. But if they work for a private company, Shaun is out of luck—the 4th Amendment has no bearing at all in that case.

I’ve focused here on the 4th Amendment, but it’s important to note that the general principles apply to the rest of the Constitution as well. Unless an action is taken by a government agent acting within the scope of her employment (i.e., as part of her job), the Constitutional rights are irrelevant.

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