This argument is a distraction from the root problem that government is involved in something they shouldn't - citizens traveling freely in their own country. Only when government gets involved in something do rights and other issues like this start getting murky. If a private company ran airport security and SFO demanded you do a body scan, you would go to OAK or SJC. No chance of doing that when government's involved. Even if state government was in charge, you could decide to fly out of JFK or Newark based on preferences.
The TSA at its core is a blatant violation of the 10th amendment. In case you aren't familiar (most people aren't and for some reason most people don't care): The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. Arguments like this are a distraction from the core point that the federal government should never have been involved in this at all.
Right here in the ninth amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
The ninth probably should have come first, because that worldview is far more important than any list of specific rights. A free man does as he pleases.
If nude scanning is a constitutional infraction, why didn't anyone mention this in response to the 'unreasonable searches and seizures' of my 'effects' (x-ray'ing my personal belongings, rummaging through my bag, etc etc) that has been going on for decades?
If you only focus your outrage on this trivial, narrow issue, you are being played.
I'm not sure about international travel, but searches for domestic flights are unconstitutional.
Now, how do we effectively fight that?
Regular x-rays and metal detectors can be shown to have stopped a very large proportion of items immediately threatening to passenger safety, and are thus to be considered reasonable. Backscatter have no such advantage (in fact, it seems unlikely they could even have stopped 9/11) and are therefore considered unreasonable.
YMMV, but I don't consider myself "played" for subjecting myself to the less intrusive searches. I do feel like an idiot having to pull out my laptop and toothpaste and having to throw out any drinks.
By that logic however, x-rays machines and metal detectors should never have been permitted in the first place because when they were first introduced they had no track record of utility either. You're right that it's the definition of the word "unreasonable" that's the sticky issue, but I don't think that it's as clear cut as you say it is..
And if it is, is flying on a commercial airliner a human right? You can avoid the search by volunteering to pay more to fly on a private jet.
And if flying is a human right why can't I make a homemade airplane and fly whenever and wherever I want, without registering a flight plan with the FAA? Or use a jetpack?
It would be just as egregious if federal employees were stationed for pat downs and full body scans at the World Series or your local Halloween parade. No pat down, no trick or treat for you!
I find all the Republican arguments that begin with "the constitution applies, except when..." a bit disturbing, frankly.
What specifically enumerated power allows the federal government to create the FDA, robbing me of my right to sell food with ground glass in it, or to sell pills that give you cancer?
What specifically enumerated power allows them to rob me of my right to pour radioactive sludge into a river that's on my property?
If you want to take the Super-libertarian Ron Paul approach, and say they shouldn't be doing these things, that's fine. But that strict interpretation of the Ninth Amendment isn't in practice today.
The FDA, as discussed in the Boat Captain thread, is entirely unnecessary. One potential option, as mentioned, was tort liability for all things not disclosed when the pills were sold.
Clearly defined water rights would more than properly solve number two.
Learn something about other political views before making ridiculous statements. There's no need to write it off by citing some Christian quasi-libertarian who for some reason liberals have adopted as the poster child of libertarianism. Probably just to defame it in the minds of mindless liberal voters.
But I am in a statistical minority that cares about laws being enforced as written. Most of the country is fine with the government having whatever powers it finds expedient at the moment.
You don't need a license to write a book, publish a newsletter, to form some sort of organization and assemble, etc...
Your license can be revoke if (for example) you get too many DUIs.
Your rights to freedom of the press, expression, assembly, etc, can't be revoked.
No.
Thought experiment: Where in the constitution does it say that it's a fundamental human right to use laptops? Now, what do you think the supreme court would have to say about congress deciding you have to deposit an unencrypted copy of your hard drive every week with the Laptop Safety Agency?
Just like Congress can regulate laptops in the interest of public safely, they can regulate air travel in the interest of public safety. But in neither of those situation can they subject citizens to unreasonable searches, no matter if the constitution mentions neither laptops or airplanes.
If you lived in a society that:
+ Required you to take a test and get a license to execute your rights.
+ Included arbitrary age restrictions for this license.
+ Required you to carry this license (a.k.a. "your papers") to exercise this right.
+ Only allowed you to use equipment that was registered with the government and met various government standards.
+ Required periodic inspections of said equipment.
+ Required you to buy insurance.
+ Could revoke said right if you broke particular laws.
+ Could setup random checkpoints to insure you weren't under the influence of drugs.
Any number of human rights and civil liberties organizations would be going crazy. And although some of these organizations may be against some of these restrictions, like random checkpoints, I don't see any legitimate organizations decrying the idea of licensing drivers.
Your right to drive is in an entirely different class than 'fundamental' rights.
If I'm on a public sidewalk, the default assumption is that I can pass out whatever pamphlets I want. That I can spew out whatever tirades I want to. Even if I'm in the KKK. Because I have a fundamental right to free expression and freedom of the press.
I can do this anywhere in the US. The only time I can get into trouble is if I'm conflicting with someone else' fundamental rights. If I do this at a Walmart, they can kick me out because of their own property rights. But even then, they're not saying I can't express myself, I just can't do it on their property. I can go to the public sidewalk in front of the store and they can't do jack.
I can be one of those assholes that stands on the sidewalk outside of a funeral home and say that this marine is dead because God hates gay people. And when the dad sues me, he'll lose, because I have a fundamental right to free speech.
On a public road, the default assumption is that I'm forbidden from driving unless I've met several criteria first. You start with the assumption that by default I'm not allowed to drive on a public road. And I'm only granted that right (or privilege) once I've established that I'm qualified and safe and using an approved vehicle. Not a fundamental right.
Except that isn't really true. Try doing that on a public sidewalk in a residential neighborhood at 1AM. Your going to run into trouble. The Supreme Court has long held that certain restrictions of speech are acceptable. We're all familiar with shouting "fire" in a crowded theater, but the court has heard countless variations. Much of the courts rulings on the first amendment have clearly been in trying to establish a line between the reasonable restriction while preserving the intent of the amendment.
For instance, the supreme court has dealt with exotic dancing on a few occasions. They've held that the exotic dancing is a form of speech (expression) and therefore subject to first amendment protection. However, at the same time they've consistently allowed for limits on that expression. Including cases like Erie vs. Paps (http://www.law.cornell.edu/supct/html/98-1161.ZO.html) in which the court held that the city of Erie could enact certain controls over nude dancing (reversing a Pennsylvania Supreme Court decision).
The point being that in the United States there is no such thing as a 'universal right'. The bill of rights lays out fundamental principles, and the courts are responsible for figuring out how best to satisfy those principles in the real world.
In fact, you can drive between any two places
in the US and never be searched or questioned
or anything.
I've often wondered what they would do if they saw clear evidence of criminal activity in a vehicle at one of those checkpoints.
Second, while air travel isn't mentioned, the constitution, as I understand it, applies to everything the federal government might do, and since TSA is a federal agency, what it can and can't do is very much governed by the constitution. Random searches of people driving cars are unconstitutional, even if the constitution doesn't grant you the right to drive. After all, you could walk to (almost) anywhere in the US, right?
If Wal-Mart decided to put up these scanners, it could very well be illegal, but it would never be unconstitutional.
Unless you are within 100 miles of the coast or border. http://www.aclu.org/national-security_technology-and-liberty...
I've been stopped at border-patrol checkpoints 100 miles by driving (so shorter as the crow flies) from the border before. It's certainly "unreasonable" in the 4th amendment context.
Using data provided by the U.S. Census Bureau, the ACLU has determined that nearly 2/3 of the entire US population (197.4 million people) live within 100 miles of the US land and coastal borders.
Where in the US Constitution is the Federal government empowered to compel you to be subjected to dangerous radiation in order to board a common carrier?
And why is this outrage limited to aircraft? I can step in a boat and travel down the local river past all sorts of critical facilities without screening. Every drug dealer in my town gets product from a wholesaler in NYC whose couriers use inter-city busses. You can drive around with legal explosive materials with the exception of some tunnels and bridges.
Really? I live in Hawaii. Its 2200 miles to the next state. Across water.
The interesting thing is that air travel is far more of a natural right than travel by road. At least the government built the roads you travel on.