Cruz stands for civil liberties, opposes Supreme Court on DNA

The Supreme Court legalized warrantless DNA testing in Maryland vs. King, further weakening constitutional protections. Photo: Associated Press

WASHINGTON, June 6, 2013 — If you were distracted by media attempts to portray recently-elected Texas Senator Ted Cruz as a dangerous radical, you may find his recent statement on the Supreme Court ruling in Maryland vs. King enlightening.

Following a pattern set by other new-generation Republican leaders like Rand Paul and Mike Lee, Cruz is making himself known as an advocate for civil liberties. These Senators have picked up the torch which Republicans carried during the era of the civil rights movement, fighting again for the cause of the rights guaranteed to every citizen under the Bill of Rights.


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The Supreme Court ruled 5 to 4 in Maryland vs. King that it is legal for law enforcement to forcibly take DNA samples from suspects who have not been convicted of any crime. These samples may be entered into a database for future reference in other criminal investigations.

Law enforcement agencies already take DNA samples from convicted criminals, but this ruling allows them to take samples from anyone taken into custody, including people who are ultimately found innocent or who are ultimately not even charged with a crime. These personal data will then be available for any future search during the course of any criminal investigation, all of this without a search warrant.

In his dissent, Justice Scalia wrote, “As an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.”

Sen. Cruz has a background as a prosecutor and is aware of how evidence can be abused. He is also aware of the ways individual rights can be infringed, and the temptations law enforcement faces to do so. He observes, “The excessive concentration of power in government is always inimical to liberty, and a national database of our DNA cannot be reconciled with the Fourth Amendment. Accumulating DNA from arrestees — without warrant or probable cause to seize the DNA — is not designed to solve the crime for which the person has (rightly or wrongly) been arrested. Rather, it’s to test the DNA against a national database to potentially implicate them in other unsolved crimes.”


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The Fourth Amendment was designed specifically to protect citizens from warrantless searches and the “round up the usual suspects” type investigations which were common under British law. If there is reason to believe that DNA evidence would help with a case, then law enforcement ought to have sufficient cause to get a search warrant.

Other groups have also expressed concern with this ruling. The Republican Liberty Caucus of Texas issued a resolution which asserts that “each individual’s body is their exclusive, personal property” and that “law enforcement agencies have unjustly assumed the authority to force citizens to surrender samples of blood and tissue for investigative purposes without a warrant or immediate due cause.” It concludes with the demand that “lawmakers at the state and federal level to pass legislation with all possible urgency to reaffirm the Constitutional protections for each citizen’s person and property and their right to due process of law, specifically as regards the seizure of samples of blood and tissue for investigative purposes without a warrant,” adding that “no DNA or other medical data be entered into any state or national database from any person who has not been convicted of a felony crime.”

The ACLU filed an amicus brief in the case and observed, “Today’s decision creates a gaping new exception to the Fourth Amendment. As Justice Scalia’s dissent convincingly demonstrates, DNA testing of arrestees has little to do with identification and everything to do with solving unresolved crimes. While no one disputes the importance of that interest, the Fourth Amendment has long been understood to mean that the police cannot search for evidence of a crime — and all nine justices agreed that DNA testing is a search — without individualized suspicion. Today’s decision eliminates that crucial safeguard.”

When the left-leaning ACLU and conservatives like Scalia and Cruz are in agreement, that’s a sign that something is very wrong with this ruling.


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Citing Scalia’s dissent, Cruz also writes, “If we really want a DNA database to solve more crimes, then why not require DNA samples to fly on airplanes, get driver’s licenses, or attend public schools?” His concern with the scope of government invasiveness expresses an increasingly widespread public dissatisfaction with the overreach of the security state in the post-9/11 era, a concern shared across party lines.

The Supreme Court is the nation’s court of last resort, and when it makes a troubling ruling like this, the only real remedy lies with the legislative process. The next step would be for someone like Senator Cruz to introduce legislation to address concerns with law enforcement overreach which would reassert the supremacy of the Fourth Amendment and prohibit state and federal law enforcement from engaging in warrantless searches through the acquisition of DNA samples from innocent people without proper cause and due process of law.


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Dave Nalle

Dave Nalle has been writing political analysis since the 1980s for newspapers, magazines and now online journals. He is currently Execitive Director of the Center for Foreign Policy Priorities, is on the board of the Coalition to Reduce Spending, and served four years as National Chairman of the Republican Liberty Caucus.

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