SACRIFICING LIBERTY FOR...

SACRIFICING LIBERTY FOR THE SAKE OF THE GAME. They�ve almost grown tiresome, the relentless complaints that center on the conspicuous lack of public and political outrage over the manifest evidence that this administration seems to consider the Bill of Rights to be a bathmat. Where, I wonder, have these people been living for the past 25 years or so? The popular culture -- most notably, television and the movies -- have worked overtime to convince Americans that the Bill is little more than a series of loopholes through which dive criminals, fakes, and mountebanks, usually played by James Rebhorn. More recently, and especially on FOX's admittedly compelling 24, the Bill is the magic portal through which scary terrorists land in our midst. (I keep waiting for the week in which Kiefer Sutherland, as uber-agent Jack Bauer, digs up James Madison and beats him silly.) Politicians who find the people's liberties inconvenient, of course, delight in a popular culture that so devalues them.

And, of course, as the old Monty Python routine has it, there's sport.

A little more than two decades ago, a star basketball player named Len Bias took too much cocaine and died. This jump-started an anti-drug hysteria that ground the Fourth and Fifth Amendments into a pulp, and which hasn't yet seriously abated. A mania for drug-testing erupted, turning what was a slippery slope into the side of a glacier. In 1995, the Supreme Court of the United States (in Vernonia School District v. Acton) upheld the random drug-testing of high school student-athletes at least in part because, the Court argued, presumably with a straight face, that students were "increasingly rude during class." (That it was Justice Antonin "Flip 'Em Off In Church" Scalia who wrote this opinion is proof that irony is not lost in the law.) Vernonia led, inevitably, to Board of Education v. Earls, which expanded random testing without cause to include all high-school extracurricular activities -- in this case, a school choir. The private sector marched along in merry step; testing is now an accepted part of looking for, and keeping, a job. As is historically the case with the tailoring of civil liberties, drug testing was originally sold as a public-safety issue (airplane pilots and subway motormen), but it quickly morphed into an instrument of social and cultural control (obstreperous wrestlers and teenage sopranos). Consequently, we are raising a generation taught almost from birth, by its primary cultural influences and by all the important institutions in its life, public and private, that its Fourth and Fifth Amendment rights are, at best, theoretical and, at worst, a dangerous luxury.

Now comes, of course, the current Chicken Littling regarding juiced-up baseball players, and we're living the Len Bias time all over again, except this time for a different class of pharmaceuticals. All the elements of the essential dynamic remain in place, including the blithe dismissal of the spirit of Amendments Four and Five in pursuit of the Greater Good -- in this case, believe it or not, the essential integrity of the Baseball Record Book and Major League Baseball in general. Mike Lupica of the New York Daily News is one of the country's most respected sports columnists, so this from last Sunday can be said to be fairly representative. Keith Olbermann of MSNBC, whose coverage of the civil liberties aspects of the NSA spying scandal has been admirably thorough, is similarly strong on the need for action NOW! Undoubtedly, it will be forthcoming, and history tells us it will not be limited to the various precincts of professional baseball.

And, yes, I am aware that the Bill of Rights legally enjoins only government action, but its spirit is supposed to animate all of American society, and government hardly need exert itself in the abridgement if it can sub-contract the job to everyone else. Why should Drug Test Nation get all bothered about being a territory within Wiretap Nation? After all, if you're not doing anything wrong, what do you care?

--Charles P. Pierce

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