America’s Two Constitutions (One for the Rich, One for the Poor)

Ezekiel Edwards

America’s Two Constitutions (One for the Rich, One for the Poor)

Just as when John Edwards speaks about "two Americas," referring to the growing divide in this country between the haves and have-nots, there also exists "two Constitutions" in America, one for the middle and upper classes, and one for the poor.

Poor people across America are accustomed to trading in the Constitution every time they step out on the street. Spend a few days in the South Bronx and you will see that the Fourth Amendment's prohibition against unreasonable searches and seizures has very different meanings for whites and blacks, or for rich and poor.

But increasingly the courts are stripping poor people of their constitutional rights even within the confines of their own homes.

After the Supreme Court's recent refusal to review a decision by the United States Court of Appeals for the Ninth Circuit (thereby allowing the decision to stand) upholding warrantless home invasions of welfare applicants (Sanchez v. County of San Diego, 434 F.3d 916 (9th Cir. 2006)), the Fourth Amendment of our Constitution might as well now read as follows:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ... but upon probable cause ... except for people on welfare, to whom the protections of this Amendment do not apply.”

Here's the case: since 1997, when the San Diego County District Attorney instituted a program called Project 100%, any San Diego resident applying for welfare, even though not suspected of fraud or ineligibility, is subjected to an unannounced home investigation by a fraud investigator from the District Attorney's Office, which includes a home "walk-through" and prying into applicants' most private spaces, including drawers, closets, medicine cabinets, garbage, etc. If an applicant refuses the search at any point, they are denied welfare benefits.

In other words, if a poor person wants to put food on the table and clothes on their family's back, he or she must consent to the home searches, and thus waive their Fourth Amendment rights.

Welfare applicants brought a class action lawsuit challenging the home invasions authorized under Project 100%. The Ninth Circuit, however, found that the home investigations were not "searches" under the Fourth Amendment, and thus they do not implicate the Fourth Amendment, since they were not criminal investigations (even though the investigators' purpose is to uncover fraud, past or present, and if they happen upon any unrelated contraband or wrongdoing, they are duty-bound to report it) and because the applicant could refuse the visit (when, in reality, refusal results in denial of basic necessities for the applicant). Moreover, the court held that even if the investigations are searches, they are reasonable under the Fourth Amendment (even though not grounded in suspicion or based on probable cause), and thus constitutional.

This decision is yet another example of courts criminalizing and marginalizing poor people and deeming them as simply less deserving of constitutional protections. Indicative of the courts' disdain for poor people is its analogy between welfare applicants and convicted criminals on probation to illustrate how certain state-citizen relationships can diminish the citizen's expectation of privacy (since the homes of people on probation and parole can be searched without a warrant on less than probable cause). Even though Project 100% deals merely with law-abiding welfare applicants, not people convicted of crimes and under court supervision --- an important and clear-cut distinction --- to the court they are one and the same.

Another glaring example of the court's deep insensitivity to the plight of the poor is when it writes that "the denial of welfare aid is the only consequence" of an applicant refusing to allow a home invasion. Only consequence? That's like saying, "the only consequence of refusing the home inspections is that the applicants will be unable to feed and clothe their children." Phew! And here I thought the consequences were serious. The court either feels that welfare recipients do not really need or deserve the government's assistance, or it simply doesn't care whether or not they receive it. Ignorance or apathy, pick your poison.

The court did not even have persuasive statistics to suggest that Project 100% had reduced welfare fraud (nor did it discuss how prevalent such fraud was to begin with). It simply noted that applicant denials and withdrawals have increased 7% and 5%, respectively. But this could just as easily be a result of other bureaucratic impediments put in place to reduce the number of welfare recipients, or the result of applicants' unwillingness to surrender their constitutional rights.

Regardless, even if the program was responsible for a modest reduction in fraud, there are other less intrusive, more humane, less coercive means of investigating fraud, such as computer-matching (checking the agency's records with public and private documents), which could when necessary be followed by home visits (refusal of which would not have to result in the denial of benefits). In cases where there exists reasonable suspicion or probable cause to believe that an applicant was committing fraud, more intrusive verification steps could be taken. But for every welfare application, by its very existence, to mandate snooping by a District Attorney investigator through the applicant's home, without any evidence of wrongdoing, and without having first exhausted less invasive verification methods, is unreasonable, and should be illegal.

In the end, San Diego's program requires destitute, often disabled, persons and their families to forfeit all rights to privacy to qualify for life-sustaining government benefits. The government's interest in preventing fraud does not justify highly intrusive searches into what the Supreme Court has referred to as the "sanctity of a man's home" when there exist no grounds of suspicion.

A dissent by Judge Pregerson from the Ninth Circuit's decision not to allow the full court to rehear the case exposes the decision in all its disgrace:

"This case is nothing less than an attack on the poor. San Diego's program strips these individuals of their rights of privacy. These people who are already suffering from disabilities, loss of work, and other hardships must then suffer humiliation and further assaults on their dignity. This is especially atrocious in light of the fact that we do not require similar intrusions into the homes and lives of others who receive government entitlements. The government does not search through the closets and medicine cabinets of farmers receiving subsidies. They do not dig through the laundry baskets and garbage pails of real estate developers or radio broadcasters. The overwhelming majority of recipients of government benefits are not the poor, and yet this is the group we require to sacrifice their dignity and their right to privacy. This situation is shameful."

Indeed it is, and it is time our legal system stopped using a different Constitution, one less robust, less protective, and less inclusive, in cases involving poor people.