Well, small-D democrat anyway. American Kaiser Justin Weitz responds to my post on the random drug test ruling:

Whitlock feels that the Court ruled correctly, but the rule itself is simply stupid. Then again, the Supreme Court is supposed to rectify legal inaccuracies as well as logical problems. This law is illogical, and I think it's the Court's duty to overturn it. The law also stands on shaky legal ground because of the invasion of privacy required in its execution.

The important part is that because the law is illogical, Justin things the Court is obligated to overturn it. He actually makes it the subject of another post:

THE RIGHTFULLY UNDEMOCRATIC NATURE OF AMERICA: First, I'd like to say that the ruling on the Pledge of Allegiance was ludicrous, insensible, and nauseating. Bryan Preston attacks the idiotic decision on the basis of democracy, which I find to be an inappropriate point. Preston says that "republics such as ours are majority-rule entities--if the majority wants an innocuous phrase included in things like the Pledge, the majority should get its say." Democracy and freedom are two entirely separate items. While this Pledge ruling is both illegitimate and unnecessary, and is an example of judicial stupidity, the separation of church and state is not. According to this poll, 54% of Americans believe that the government should not avoid promoting religion. Courts generally need to ignore items of "national consensus" (something which the Supreme Court used as justification for the correct ruling about mentally retarded inmates on death row) and focus on issues pertaining to the law. If 99% of Americans were to decide that freedom of speech is an inherently bad idea, it would not change the constitutional and legal necessity, and it would not give the courts a mandate to overturn landmark free speech decisions. The beauty of our national republican system is that the judiciary operates outside the "real world" and is immune to democratic whims (or at least should be).

I think this is the nature of our disagreement right here. Justin views the powers and responsibilities of the Supreme Court in a much broader context than I do. I believe that our nation is, primarily, a democratic republic. He views it more strictly as a republic that should be immune to democratic whims. While I believe that our system ought to be resistent to them, I don't believe it should be immune to them. That creates a lot more problems than it solves.

The sort of government he describes is not that uncommon in Europe. There is a sense of the elitism among its government officials that they know better than the people that elect them. The death penalty (which I oppose) was illegalized over there despite the relative support of it among their people. Immigration is tolerated and encouraged despite the apprehensions of its people. By and large, though, their people put up with it. Over here, however, the quickest way for a representative to get to the unemployment line is for him to tell us how we're supposed to think. When our government tells us we should do something, our first question is "why?" For instance, while Europe and Canada adopted the metric system years ago, Americans were never convinced that it was necessary and we never did. No one went out on too far of a limb to ram it down out throats (which might, quite honestly, have been a good idea) because they knew the other party would be able to jump on that issue and tell the public that their opponents think they know better than the people do.

So, since our representatives are placing themselves more in the "delegate" role rather than the "trustee" role, who is left to determine whether the will of the people is correct. Weitz apparently believes that role should be left to the courts. I wholeheartedly disagree. I believe that it is the function of the courts only to decide whether a law is appropriate or inappropriate through the lens of the Constitution. The further off of that reservation they get, the more harm I believe is done. Weitz denounces the 9th District's Pledge ruling while lauding judicial activisim in the name of the republic. The same judicial activism that Weitz apparently would have lauded if the Court had struck down the random testing on the grounds that the law was "illogical" (in Justin's words) or "stupid" (in mine). We are in stark agreement as to whether or not random testing is a good or bad idea, but who are we to make that judgment? Who are we to say that the will of the people ought to be blithely invalidated? Once you say that courts ought to strike down laws for being illogical, you place your own perfectly constitutional laws at their discretion.

The Supreme Court has two basic limitations: they are installed by the executive and legislative bodies and their job is not to write or enforce laws, but only to interpret their meaning and how well they square with the constitution. To give the court the power to decide whether laws are a good idea or even whether or not they are just is to invalidate the will of the people in a way that they do not have any immediate recourse. At least in Europe, if the people are seriously discontented enough, they can vote a fringe candidate and get the politicians' attention a la Le Pen and Fortuyn. The best we can do is elect the party that says they'll install judges more to our liking, but the damage done in the meantime could be devestating and would, in the end, be irreversable since once appointed, the judges can still do whatever they like. They are immune. The same way that they are "outside the real world" in a way that Weitz likes, they are also immune to any consequences to their rulings. While this is good when it comes to standing up for the constitution (someone has to) it is a very bad idea when it comes to determing the basic virtues of laws.

Anyway, to get closer to the topic at hand, Weitz believes that there are right-to-privacy (ie illegal-search-and-seizure, ie Constitutional) issues with the random testing laws in question.I would argue that this is constitutionally permissable on the same grounds that employee drug testing is. If you don't want to be tested, then you can avoid getting a job with an employer that implements random (or regular) testing. Since I would consider a job for an adult to be more important than the chess club for a student, I would argue that if you're not protected from work-related tests, neither are you protected from ones involving extra-curricular activities. Since extra-curricular activities are not a right or obligation, then the argument can be made that they are entering an unwritten contract when they participate in extra-curricular activities: In return for the opportunity to be on the chess/baseball/football/cheerleading/band squad, you agree to testing. If you don't agree to testing, you can forego these activities and protect your own privacy. Since that remains an option, the search-and-seizure becomes a decision and not an infringement on your rights.