Click twice — a second time on “Watch on You Tube” — to view this. I happened to be in the Nashville airport this fall, and the young woman in front of me and myself both handled the screening process (and resulting pat-down) without drama.
Though I understand the sensitivity, I also would not relish the TSA agent’s job (and I told them as much). “If I have to go through it, he should have to go through it as well,” as one passenger put it. “A police state,” Ron Paul claims. Nope, more like a spoiled brat, riding on daddy’s political coattails:
Filed under: Uncategorized
I had to promise my wife and daughter I wouldn’t make a scene at the Denver Airport last fall. I will not fly again in the US if my fourth amendment rights are going to be violated for the purpose of political circus. Next summer I’m thinking of organizing a protest at SAC airport about this very subject.
Please correct me if I am wrong but isn’t the TSA a federal government agency? I don’t accept the argument that I don’t have to fly and giving up my constitutional rights is my choice to board a plane. Outside probable cause supported by oath, affirmation, or warrant there is no “accept in the case of” in the fourth amendment.
US Constitution
Fourth Amendment
“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.”
Thanks Ben. Good points. I’ve been patted down several times in the past year, sort of wondering if the TSA knows something with those invasive scanners that my physician doesn’t. But I’m glad that the post-9/11 Bush administration and President Obama’s administration has kept us safe from airline-related terrorist plots. Having said that, I respect your view (and Rand Paul’s, though I found the Tweet to constituents a political stunt), and I hope we can refine the system. It’s a good discussion with our families, as you mention, and each other. And it’s an issue that resonates with younger people, reassuring me that we’re in good hands in the future (despite all the negative words).
Ben, the pat downs are indeed an intrusion of our privacy and in no way can the procedure be legitimately deemed part of the framers “original intent”. Not even Ben Franklin, the most scientifically inclined of that special group–including the also very scientifically interested T. Jefferson–I’d bet, foresaw jumbo jets, SSTs and Stealth air craft. However, Franklin probably wouldn’t be surprised by the ongoing 21c suicidal bloodlust between the Moslems of the East and the Christans of the West. Afterall, the decades of slaughter and counter slaughter between these forces, via their navies and leaders; Barbarossa and Andrea Doria, was history in his not so distant past.
While I certainly agree with you–generally speaking–regarding the protections citizens should enjoy under the fourth admendment, many of us have had a sense that these protections have been flattening out, like an air bed deflating from a microscopic sized hole. In his book, The Conservative Assault on the Constitution, Erwin Chemerinsky–founding dean of the U. C. Irvine School of Law; one of many accolades–Prof. Chermerinsky, shares his expertise on our unique founing document and how, starting with Nixon’s appointments through Reagan and the Bushes, this admendment has been eviserated in a seemingly unbroken stream of 5-4 rulings favoring the conservative majority.
Surprisingly, Chermerinsky’s book is an easy, enjoyable read, even though, even though the sights to which he opens ones eyes to are disturbing and as ugly as West Texas.
Cheers,
Ed
Ben,
You are absolutely right: If these folks have their way you have no right once you leave your home and even there, they regulate just about everything you own or do.
Here is the bottom line question for any TSA cheerleaders: Why was this Senator refused the opportunity to go through the scanner a second time!
John
Not a TSA Cheerleader John but what I saw was that the TSA policy is that no passenger, unless under the age of 12, is allowed back through the scanner if they refuse the pat down. The reasoning was it allows a potential threat back into the area and they can either detonate an explosive device, or cause great delays. That was the explanation I saw on TV.
Ben could you be more specific about precisely what you object to in airport security?
I fly on a regular basis on business. I have taken it for granted that a trip to the full body scanner is sometimes required. I have been patted down 3-4 times in the last 2 years. I have never found it obtrusive.
I do think airport security is annoying, but I do not find it un-constitutional. It is the price we pay for the privilege of flying these days.
I wonder how many people remember that pat downs were an alternative to full body screening when people objected to full body screens as unconstitutional? In most airports the choice is screen or pat down if you are pulled aside, you have a choice.
And what do we do if someone gets a ‘hit’ for something out of the ordinary in a screen? or a chemical test? Don’t we want airport security to go the next step and investigate the ‘hit’?
I would gladly submit to a biometric registration and scan (most common are based on physiological characteristics like iris scan, palm print, face recognition or DNA) in advance of flying in order to avoid the lines of people who fear their constitutional rights are at risk. Many people have resisted biometrics as a means of speeding airport screening on just such a ‘constitutional’ basis. I am wondering if the same people object when they buy a multi-day ticket at DisneyWorld and find their fingerprints and other biometric measures are being used to reduce ticket fraud? Or do they object to the biometrics embedded in US passports these days?
I think the point I am making is that there are technological solutions to these questions, but people are just as consistently resisting them on a constitutional basis. In the mean time, with the system we have, there has not been a single hijacking of an American airliner since 9-11.
I think that is pretty good, and am more than willing to put up with a little immodesty to maintain that record.
Steve,
I will make it simple, I do not have to prove I am innocent to my government and if we fixed our foreign policies the fear of hijacked airplanes would disappear. Personally I fear our federal government much more than the chances of being nailed with a terrorist attack.
I think all of this is nothing more than a symptom of our corporatist state and crony capitalism, which is being promoted through fear.
Here is some insight on what I am talking about
http://www.huffingtonpost.com/2010/11/23/fear_pays_chertoff_n_787711.html
This is all about Fear.
Fear is a very useful tool in a police state, it keeps most of the population’s focus away from what’s really going on.
Along those lines, there’s an interesting Talk of the Town story in the January 23rd issue of the New Yorker magazine. A young Republican from Maine goes to Iraq and works on the drone/satellite program in the mid-2000s, which causes him to become a lefty radical artist in NYC. Cut to 2012, and he is stealthily placing authentic-looking parking signs throughout Manhattan: “ATTENTION: Authorized Drone Strike Zone – 8 am to 8 pm, Including Sunday,” “ATTENTION: Drone Activity In Progress,” “ATTENTION: Local Statutes Enforced by Drone.”
More in the New Yorker on drones:
http://www.newyorker.com/online/blogs/closeread/2011/12/from-gary-powers-to-the-drone-war.html
Well, all I know is that I was allowed to escort my daughter to the gate for her first unaccompanied flight yesterday, and had absolutely no problem with getting my junk pulled by the poor screener, if it helped in any way deter someone from making a ‘statement’ by disrupting a flight.
I’m all for reasonable personal liberties. I believe that DUI checkpoints, the random running of valid tags (even the tags themselves!), and other intrusive inspections are un-Constitutional – but then I also take issue with those that insist the Constitution is the be all, end all. Government’s first priority is the protection of citizens, and as proven, our transportation systems are vulnerable.
And let’s face it, the real reason people are against such inspection is because of our societal righteous self-importance (just try that attitude and pull these stunts anywhere in the Middle East).
Maybe Rand and the tea party are afraid that the fancy machine may look inside (like Bushlet) and see his soul…or other obvious shortcomings…this is the 21st c…flight is a privledge not a God given right. Hitchhike Rand. Or wave your magic rightwing wand.
Kate
Here is an entire article by the best consumer advocate in American history in my opinion. If we connect the dots with the article I linked earlier it all starts shaping the idea this is nothing but crony capitalism brought to us through fear theater giving us the illusion that we are safer.
Former head of Home Land Security Michael Chertoff is heavily invested in the company that received the scanner contract.
http://www.huffingtonpost.com/2010/11/23/fear_pays_chertoff_n_787711.html
TSA Is Delivering Naked Insecurity
By Ralph Nader
11/17/2010 10:56 PM
USA Today
To airline passengers: Get ready for naked insecurity.
To the Department of Homeland Security: If you thought this week was bad, brace yourself for a tsunami of protests in the days ahead.
This month Homeland Security has implemented a new rule calling for extremely invasive pat-downs of commercial airline passengers who decline to use full-body, “backscatter technology” scanners that use low-level X-rays. Pregnant women, parents with young children, adherents of religions, amputees and people with wireless insulin pumps or embedded medical devices are increasingly saying, “No thanks.” They do not believe they should be exposed to technology that could pose risks, may malfunction, and certainly invades their privacy. So Homeland Security has doubled its trouble by turning to the invasive pat-downs. What the department should do is reconsider its use of these scanners, but after reading Homeland Security Secretary Janet Napolitano’s full-throated defense of the technology and procedures on this page this past Monday, I’m not hopeful.
Questions, and lawsuits
The technology has already been challenged by recognized academic specialists on both safety and efficacy grounds. After six months of testing at four major airports, Italy is likely to drop these scanners, finding them ineffective and slow. The European Commission has also raised “several serious fundamental rights and health concerns” and recommends less-intrusive alternatives.
Back in the USA, the legal volleys have begun. Two weeks ago, the Electronic Privacy Information Center, a public interest research center, filed a lawsuit in federal court against the Department of Homeland Security. The suit alleges violations of the Fourth Amendment, the Privacy Act, the Religious Freedom Restoration Act, the Video Voyeurism Prevention Act and the Administrative Procedure Act (which calls for public hearings).
Immersed in its own bureaucratic bubble of secrecy and inaccessibility, Homeland Security cites “national security” as justifying its unresponsiveness to critics. Napolitano wrote in USA TODAY that our security depends on being “more creative” in adapting to evolving threats. Indiscriminate pat-downs are anything but creative. Yet the department listens to commercial lobbyists pushing scanner sales, including former Homeland Security secretary Michael Chertoff.
Earlier corporate pitchmen sold the department on the notorious puffer machines. This $36 million boondoggle forced Homeland Security to remove these failed screeners from airports last year at considerable embarrassment and expense.
The department says full-body imaging is aimed at prevention. If so, why do passengers on the 15,000 U.S. registered business aircraft escape screening? Why, nine years after 9/11, is the department still way behind in the screening of air freight on passenger and cargo planes, where far more dangerous packages can bring down a plane?
For more than 40 years, public interest groups have been advocating for airline safety. After the numerous hijackings to Cuba in the late 1960s, we and air security experts pressed the Federal Aviation Administration to require airlines to strengthen cockpit doors and latches — to no avail. It took the 9/11 attacks before the FAA required the airlines to retrofit. Stonewalling, long a bureaucratic obsession in these areas, must end. A good start would be addressing these uncertainties:
•Radiation: Homeland Security should respond when physics professor Peter Rez of Arizona State University calculates the radiation dose to be 10 times higher than the department is asserting. Or when David J. Brenner of Columbia University’s Center for Radiological Research says that using these scanners — with up to 1 billion whole-body X-ray scans per year in the U.S. — “may profoundly change the potential public health consequences to the population.”
•Malfunctions. John Sedat, one of four scientists at the University of California-San Francisco who is questioning the department’s technical assertions, said these machines could stall, giving passengers “severe burns if not worse.” He points out that “software fails often.”
And then there are the emerging first-person experiences of travelers. The rough pat-downs experienced by New York Times business travel columnist Joe Sharkey and Atlantic author-writer Jeffrey Goldberg are generating more such passenger complaints. So much for the friendly skies.
Better paths to security
Changing this policy, or even backtracking, doesn’t mean we’d suddenly be flying on a wing and a prayer. In fact, better use of available intelligence alone would have stopped last year’s Christmas underwear bomber from flying to the USA. Indiscriminate and inefficient dragnet-type security checks of whole populations, if anything, make us less safe by focusing on the wrong things.
One area in which I agree with Secretary Napolitano: Cooperation of the public is key to averting attacks. So it seems counterintuitive to antagonize the very people you’re counting on to help you get the bad guys. Meantime, Homeland Security is turning TSA agents, who are at some radiation risk themselves, into government gropers without either suspicion or probable cause. People want security, but they do not like irrational, ineffective, invasive and hazardous over-reach.
DHS continually refuses to hold thorough public hearings or to answer reasoned technical, economic and other policy challenges to its practices. Congress must assert its authority to end what one TSA risk analyst has called its “culture of stupidity.”
If it insures that some wacko doesn’t get on a flight to harm me, my family or other innocent travelers,The Government can inspect my “junk” all they want.
Pete,
That is the overall point, the government isn’t producing more security. What they are producing is the illusion of more security at a huge price to our civil liberties and our national treasury via DHS. How about trains, buses, BART, or even a athletic event in a stadium with 50,000 plus fans?
Here is where I might lose John support but there are fifteen 9/11′s every year in the United States, it’s called a private for profit health care system. The number has gone up I am sure since the beginning of the depression we are in.
http://news.harvard.edu/gazette/story/2009/09/new-study-finds-45000-deaths-annually-linked-to-lack-of-health-coverage/
“Nearly 45,000 annual deaths are
associated with lack of health insurance, according to a new study published
online today by the American Journal
of Public Health. That figure is about two and a half times higher than an estimate from the Institute of Medicine (IOM) in 2002.
The study, conducted at Harvard Medical School and Cambridge Health Alliance, found that uninsured, working-age Americans have a 40 percent higher risk of death than their privately insured counterparts, up from a 25 percent excess death rate found in 1993.”
Ben,
you pulled a “stoos” and changed the subject to health care. If jeff starts another thread on health care I will comment on that “issue” with you on there.
Pete
Pete,
Lets keep to our fourth amendment rights then. I don’t think the Patriot Act is legal under the Bush administration and now the Obama administration. I could go through a pretty long list of things that haven’t been changed but you get the point.
These policies have not created more security but actually less trust, more hardships, and at a huge cost to the country.
Ben,
Pre-911 if airport security confiscated a box cutter I had in my carry on, I would have thought of it an “unreasonable seizure”. If they had patted down my children and grandparents I would have thought it ludicrous. September 11th saw three planes taken down with help of box cutters and terrorist have used children, women and the elderly to tie bombs to overseas. Now, we all know we can’t “profile” anyone thus risk more civil rights violations so we have to inspect everyone or hold everyone at equal value. Is this still “unreasonable” as defined in the 4th Amendment? Is this not where “exigent circumstances” come into play.I agree that the TSA has made some fopah’s in some screening procedures but it also has to constantly change and adapt to terroristic tactics. What are your thoughts about shifting some of our military budget over to the TSA and Border Patrol?
Pete
Pete,
I certainly agree that we need to adapt to their tactics: So when we obtained intelligence in the 1990′s telling us that they intended to use our planes as weapons, why did the government you want us to trust not change the rules?
If this had been shared with the airlines, I can assure you that those box cutters could not have done much more than hurt a few people in the cabin.
John
John,
I agree (I think) This sort of terrorism has been happening overseas since the late sixties and the U.S. Government has taken a “It will never happen here approach” And the Airlines have also bucked at creating more secure features (such as secure cabin doors) due to cost constraints on their bottom line. Shamefull on both parties. And the fact that our intelligence community(i.e. FBI and CIA) have a ego problem with sharing information is deplorable. The fact that Ron Paul has gone on record to say that he would disband the TSA is (IMHO) reckless.Like I was telling Ben, the playbook at the TSA is always changing. Proceedure has to change to meet the need. Frustrating for the traveler for sure but hopefully even more frustrating for terrorist.
On a side note John, thank you for not (so far) putting a religious bent on this topic I know it must be tempting being a pastor and all..lol
Pete
Ben,
I feel like I should be helping you out here, but you are doing such a great job I am not sure I can add much.
And Pete, here is something to ponder: I think it was Ben Franklin who said “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”
John
John,
I ponder to think what Ben Franklin would have thought upon bording a carrage if Thomas Jefferson had been killed in a carrage loaded with explosives the week before by the British.
Pete
Pete,
When you remember the last line of the Declaration you realize these men had that sort of thing to fear all the time.
John
John,
This is where I get myself in trouble with many on the left side of the spectrum. I don’t like big government but I do advocate for a strong government. The best government we can hope for is one that is closest to the people and this is why I am so adamant about public financing of campaigns. Those who control the purse strings of public office control those in public office, it needs to be the people who can pull those strings.
Ben –
With all due respect, just gibberish.
Who on the ‘Left’ are you referring to? and to what are you even referring? Big Government? Strong Government? Campaign finance?
I think you are just too prolific on all these forums, and are mixing idea & metaphors.
Nader never gained traction for similar reason. Principled, but not able to effect principal change due to an air of enlightenment that reads like a sense of superiority, and in his case, laced with arrogance and condescension.
And identifying with The Stoos on this issue is laughable, as we all know the Churchies just don’t want competition from the Government when in comes to control of the masses personal freedoms.
J,
I just preached a three-part sermon that basically dealt with the real basis of freedom, so feel free to give a listen if you really care. They were leading up to January 22nd where we remember the Dred Scott decision of our day, so be forewarned.
John
J,
No problem, we just disagree. I don’t think anybody should be going through radiation or being groped by our government without probable cause. If I remember correctly 14 of the 9/11 hijackers were on no fly zone list (the list had less than 100) and if the FBI and CIA would have communicated the horrific events of September 11, 2001 could have been totally prevented. So it wasn’t not having enough security/ laws but rather not having competent execution of the laws already in place.
Mr. Stoos wrote: “where we remember the Dred Scott decision of our day”
Bush v. Gore?
Michael,
Only your partisanship would allow you to miss my point
John
Nah, I didn’t miss your point.
But comparing Roe v. Wade to Dred Scott is disgusting. So rather than pin you to the mat on that reprehensible behavior I decided rather, in the name of civility, to give you a dish of non sequitur.
Would you like fries along with your heaping plateful of opprobrium?
Ben,
And believe it or not, I too believe in having a strong government! I just want to make sure that they only exercise that strength in the appropriate areas. Our founders understood this very well.
“The jaws of power are always open to devour, and her arm is always stretched out, if possible, to destroy the freedom of thinking, speaking, and writing.”
John Adams
John
Full body scanning will not stop anyone from smuggling contraband on board as long as people have body cavities. This is security theater, plain and simple. It doesn’t stop a determined criminal any more than taking off our shoes, or having tiny toiletries in baggies, does. All it does is make the honest people either feel safer or more put out as the case may be.
That said, when I want to fly, I cooperate. I work to change things with my vote and my pen. I agree with Rand Paul’s sentiments, but not with his tactics. Give us our 4th Amendment back!
Gail,
You are exactly correct. I think Rand Paul needs to go through everything the rest of us have to go through. I don’t think any of us should be going through these radiation closets and being groped.
“No problem, we just disagree.” </i)
I don't even know that we do disagree Ben.
To disagree, I'd need to know your solution.
That goes to a real problem I have with 'movements' like the Teas and OWS'ers specifically – just what are the solutions?
I will say this for the collective members of the two political parties we have in power, at least they made the call at some point on all these issues. Often disagreeable, overly complicated, compromised in oh so many ways, and increasingly rare, but at least they chose a target and a path. The TPP, etc. wouldn't dare form a Political Party, because they can't even form a cohesive platform; and if they did, even the manipulators of those lemmings know they'd be shredded in a real broad based examination. The Libertarians simply cannot address the social issues. The Greens the fiscal. And on and on…
I'd love to hear how, at this very moment in time, you'd handle airline security in a manner that would make me feel safe about shipping my daughter.
Typically, what I hear in response to that type of question is alot of backslide into the frustration and disappointment the person feels with the handling of past events, and the implication that we would not have to worry about such issues had their way been the path – but little toward true resolution given the current complexities. We are here now.
hear, hear
I am going to try to do this respectfully, I swear; but I have to do it.
I can agree with Ben that I wish we were not motivated by and captured by fear. I agree that fear is a tool being used by certain forces to influence peoples thoughts and actions for political purposes. I agree that we may be focusing on the wrong approach to ‘homeland security; a term I have always despised because it smacks of fascism. I agree that other ways to increase security may be more effective. I agree that if the United States were not so hegemonic in the middle east much of the risk we face with air travel today would not be present. I even agree that in principle I prefer smaller government; the very premise of the work I do is that the private sector, empowered individuals, coalitions of citizens, and a government closer to the people, more localized, and with more democratic participation, is a preferable alternative.
But I cannot agree with ‘magical thinking’.
IF we had a different foreign policy? Well we have the foreign policy we have, it is reality. I don’t agree with it, but it exists.
If we did not have a corporatist state that used fear as a motivation? Well we have one. It is reality. The vehicle of fear today may be the corporatists state but in previous era’s it was a king, or a church, our neighbor, or a shadow. Fear is a fact of life because we are mortal, not solely because of a corporatist state. Once again, I don’t support it, but it is reality.
If we did not need to fear flying because hijacking and the media coverage it garners when it occurs would not occur? Well, we had hijacking (more than 300) before 9-11; the toothpaste is out of the tube. If it were not Al Queda using hijacking as a tool to gain attention it would be separatists, attention seekers, or terrorists of one stripe or another; and not solely because of American foreign policy, but because now they know a big tube flying through the air loaded with fuel is a convenient self contained weapon and they can advance their cause by using one as such.
We do not exist in the world as we wish it to be, we exist in the world as its is (on this Dick Cheney was right–his solutions were wrong).
The first step to changing the world is recognizing it for what it is and making wise choices about how and where we change it.
We can choose to change it in the airport security line; but I would posit that is the wrong place to change the problems you recognize. Perhaps a better way to change it is to change American foreign policy, the corporatists state, the use of fear, our ‘homeland security’ policies or by diminishing the conflict that leads to desperate and at times evil people using planes as weapons.
I suspect that a movement to object in the security line will lead to people like me, who have made their compromise between real security and fantasy liberty, opposing your causes due to the temporal inconvenience of having to see you pulled out of line and have your junk searched.
You want to protest ‘homeland security’ more power to you. You want to not fly, more power to you. I respect that. If you object to full body scans or pat downs you can choose another method of travel, or don’t travel, or use a video conference, or take a train; or stand on your principles.
However, much as you may not want to recognize it, you have already made your compromise between security and liberty. You made that compromise when you did not object to ‘homeland security’ at the airport in Denver because the approval of your wife and daughter were more important than standing on your principle.
We all make these compromises and we all have slightly different limits.
I make that compromise when I decide that the convenience of being able to get from Reno to Denver in 90 minutes instead of 16 hours, is more important than the risk of looking fat in the full body scanner or some strange man I will never see again putting his rubber covered hand on my cotton covered junk. I have a right to make that compromise as well.
Finally Ben, I ask again, what constitutional principle and case law support your contention that full body scans and pat downs are a violation of the 4th amendment? How is this an unreasonable search and seizure?
There are on-going cases right now on both body scans and pat downs . I would posit the place to decide their legality is the courts, and in the mean time, purchasing an airline ticket is a de factor agreement that one is going to searched.
http://epic.org/privacy/litigation/EPIC_Body_Scanner_OB_Final.pdf
Sorry about the misspellings. Way Too Early.
Steve,
Well said and me thinks you are very close to begin a supporter of Congressman Paul!
He is the only one on those stages who is actually wrestling with the actual problems that you have outlined.
John
Steve, I’ll copy a few paragraphs re. the erosion of the 4th Amendment from Chemerinsky’s book, editing where I can w/o altering his intent.
“In many ways, the conservative justices on the Court ae carried out the Nixon and Reagan philosophy and lessened the safeguards of the Fourth Amendment.
At 7 A.M. on Feb. 3, 1998, a SWAT team and other officers burst into the home in L.A. where Iris Mena was asleep in her bed. The SWAT team, clad in helmetsnand black vests adorned wiith badges and the word POLICE, entered her bedroom and placed her in ha d cuffs at gunpoint. Mena was not suspected of anything and was not the target of the search. The polie weere looking for Raymond Romero, a suspected participant in a driveby shooting, and had warrants to search two places where he was known to stay. One of them was where Mena lived.
The police took Mena, a young woman in her early twenties, into a converted garage. She was dressed only in a thin nightgown and was not allowed to put on any additional clothes despite the cold temperature. . . .
Mena spent almost two hours in handcuffs, even though she had done nothing wrong. The police found Romero, the target of the search, at his mother’s house. . . Ironically, Romero was briefly questioned and released while Mena remained in handcuffs.
Mena sued claiming that the police violated her Fourth Amendment rights to be protected from unreasonable searches and seizures. A jury found in her favor and the federal court of appeals rejected the defendants’ appeal.
(Chemerinsky, the author, worked on the brief and sat at the cousel table before the Supreme Court. He was confident about the results.)
But, in Muehler v. Mena, the Court ruled against Mena, reversing the lower court decision and the jury verdict. The five conservative justices said that when the police search a home, they may restrain all of the ocupants of the home even when there is no basis for believing that they did anything wwrong or that they pose any threat to the police. For the Court, detaining Mena in handcuffs, in her nightgown, for just being in the house posed no problem. As soon as Chief Justice Rehnquist completed announcing that we had lost, I immediately had to approach the podium to argue my case, which involved a First Amendment issue. . .The loss in Mena continues to bother me. The Supreme Court long has said that the Fourth Amendment has its greatesst force in protecting eople in their homes. Yet the Court ruled that people can be detained in handcuffs for hours in their homes even when the police have no reason to believe that they have done anything wrong.
(Also, “The Supreme Court has held, that Fourth Amendment claims of illegal searchs and seizures cannot be raised on habeas corpus . . .Even though a federal statue expressly provides that all constitutional violations may be presented in federal court on habeas corpus by a person convicted in state court, the Supreme Court held that this does not apply to those who claim that the evidence against them was obtained or that they were arrested in violation of the Constitution. Thus a person convicted in state court who claims that his/her Fourth Amendment rights have been violated may seek Supreme Court review, which is highly ulikely, but never may go to federal court with a habeas corpus petition raising the issue.
In one case, the Court found, 5-4 with the Conservatives in the majority, that an individual seeing police officers and then turning to walk in the opposite direction wa enough to provide reasonable suspicion for a stop. In another case, again 5-4 and split along ideologica lines, the Court held that refusal to disclose one’s identity to the police was enough to justify arresting a person.
And briefly, the Nixon-Reagan-Bush Supreme Court majorities have fundamentally de-clawed the exclusionary rule–that which keeps illegally obtained evidence from being used in a trial. One can check the 2006 case, Hudson v. Michigan, when Scalia led the way to allowing police to known that busting down doors w/o knocking first was OK; 2009. 5-4 decision, Herrubg v. United States, where the Court, led by Roberts, ruled that the exclusionary rule does not apply if the Fourth Amendment is violated by good-faith or even negligent police actions.
So, there is more, but those are a few examples.
Personallly, I fly only when it can’t be avoided. Anyone wishing to go to the east coast, I’d recommend taking the train, if you have the time. It is fun, see lots of things of interest and you never know who you’ll meet.
Cheers
I am trying to wade through the stories to focus down on the specific question: how are electronic body scans and physical pat downs a violation of the 4th amendment?
I am sure we can all come up with examples of excess in many areas of search and seizure enforcement. I am probably going to read Chemerinsky’s book, because I am interested in the subject.
I think that people have become so used to throwing around the charge of “unconstitutionality” that they have kind of ceased really analyzing each individual case. Law is made by individual cases.
What Ben said was, “I don’t accept the argument that I don’t have to fly and giving up my constitutional rights is my choice to board a plane.” That statement means that Ben should be able to board a plane without undergoing a body scan or pat down if one is requested.
So I ask the question, what case law supports this right? and how do our fellow posters feel about going back to a system where individuals do not need to undergo such searches if requested?
Well I was sinply tyring to illustrate that the Court doesn’t need precedent in establishing law. Somewhere else in the book, at least I believe it’s in this book, the author explains how one of the justices denies that the Constitution even guarantees privacy to individuals.
My personal attitude, and what I’ve been saying for years–it simplifies the argument about interpreting the Constitution–is that the Constitution only means whatever five people (more precisely, five justices) says it means at any particular point in time. Pretty cynical, but Dred Scott and Citizens United don’t do anything to undermine what I’ve said.
Hell,, the framers didn’t even know what the role of the Judiciary, specifically the Supreme Court, was to be, until Marshall took the bull by the horns and established the principal of judicial review in Marbury v, Madison. And he wasn’t particularly keen on adopting practices of common law precedents so well established in England. Everything from over there was so heavily weighted in favor of those with wealth and property, even in the House of Commons.
Cheers,
Good points Ed. I wish everyone who calls themselves a “constitutionalist” would read Marbury v. Madison and consider the consequences of devolving the judiciary back to what many speak of as being “original intent”. The court does not require precedent, but it usually prefers to work on precedent, and privacy rights in particular are a set of precedents with only a questionable link to a specific constitutional clause.
Steve,
Until this is brought before the courts there will be no cases to cite. The ACLU is asking people to give their stories and is gathering evidence to bring a case forward. My biggest argument is that this doesn’t have anything to do with security but more to do with the illusion of the government doing something and giving out huge contracts to private industry.
I will put the language of the Constitution once again and you tell me how this doesn’t violate being secure in my person and having to prove I am innocent without due process. Forcing me to a pat down and scanner is assuming that I am guilty and have to prove that I am not.
As for Marbury vs Madison, it is this case where the Supreme Court took the powers of judicial review.
4th Amendments
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.
Hi Ben. This is a much abbreviated reply, as my first post disappeared. I was simply saying that it doesn’t matter what the Constitution says: Specifically, what the words are. It is an interpretative document, and Presidents will continue to nominate candidates whom they believe will interpret the Constitution in a way consistant with their (the President’s) political leanings/agenda. The brusing confirmation process is a visible demonstration of this. Thus my postings of those rulings of the conservative Court, all 5-4, that continued the erosion of the 4th amendment protections. And how else, stretching anyone’s verbal skills–even Wm. Buckley’s were he still here instead of Limbaugh, can one find a defence for the Citizens United verdict? I’d say, only by slick, oily reading and interpreting of the Constitution, with a determination to arrive at a predetermined conclusion.
Since Sclesinger pointed out how the powers of the Executive branch had grown and overwhelmed the other branches in his book, The Imperial Presidency, it doesn’t seem that anything of substance has been erected to impede this progression.
Just my thoughts.
Cheers.