By Seth Richardson
With the advent of intrusive TSA body searches this holiday season, the inevitable claim that Americans have a right to travel freely and without being searched is often heard. Problem is, that’s not what the Constitution says. As much as I dislike TSA’s procedures, I also acknowledge that some level of search is both reasonable and necessary. But where is that line drawn?
Analysis of the constitutionality of the TSA’s procedures requires an understanding of constitutional law. First, the right we enjoy under the 4th Amendment is against “unreasonable” searches, not “any” searches, and second, the right to travel is a right associated with the First Amendment right to freedom of assembly, and like all other rights, it’s not absolute.
Infringement of the right to be secure in one’s person and papers against unreasonable search depends on a number of things, including how reasonable the search is when compared to the particular governmental object to be achieved. The test established by the Supreme Court is one of “strict scrutiny.”
Because there is no inherent, unalienable right to fly on a commercial aircraft, the right to travel is not necessarily violated by conditioning that travel upon a consent to search. So long as you are free to travel by another mode of travel (right down to shank’s mares) your travel may be (and I emphasize “may”) be conditioned upon obedience to the reasonable need for transportation security of others.
The rationale is that while you may desire to travel without constraint, if a legitimate security issue exists that makes that travel unreasonably hazardous to others, your rights may be reasonably regulated in the public interest, as is true of all rights. This is why, for example, your right to drive a car on a public highway can be regulated by requiring you to obtain a driver’s license and vehicle registration, and why your driving can be regulated by traffic laws.
It’s no different for airline travel. If a valid threat exists, the public interest demands that measures be taken to ensure the safety of all persons on an aircraft, which takes precedence over the individual right to unfettered travel.
What makes the current system of searches unconstitutional is not that they are being performed, but that they are being required, and that they are ineffective.
To keep drugs and weapons out of prisons, visitors may be compelled to submit to extremely thorough searches, up to and including body cavity checks for contact visits. This is seen as objectively reasonable based on the legitimate need to keep contraband out of prison, and because visits are voluntary, anyone may decline a search, though they will not be permitted entry if they do.
The situation is analogous with TSA searches. You are not required to fly, thus you consent to search when you seek to board the aircraft.
As TSA head John Pistole alluded, it’s the TSA’s opinion that it’s illegal to decline a search that satisfies the TSA once you have entered the security area. This construction of the notion of irrevocable consent clearly violates the 4th Amendment. One must always be allowed to decline a search if one finds it too intrusive. But the quid pro quo is that by declining the search, one may not be permitted to board an aircraft. That’s a choice that Americans clearly have a right to make.
But there is another part of the legal equation that’s not often considered, and that is the TSA’s compliance with the “strict scrutiny” standard of review by the government in formulating its TSA policies.
The strict scrutiny test requires that the government have a “compelling need” to regulate, AND that the regulation be “narrowly tailored” to achieve the “legitimate governmental purpose” without being so over-broad as to encompass things not contemplated by the law. No one can rationally argue that there is not a compelling need to detect and prevent terrorists from blowing up aircraft.
But in the case of enhanced body searches and the scanners, they are unconstitutional because they violate the “legitimate governmental purpose” prong of the strict scrutiny test.
This is the case because the “legitimate governmental purpose” involved is to prevent suicide bombers from getting onto aircraft and detonating their devices, and the current TSA procedures simply cannot actually achieve this legitimate purpose.
This is because neither the scanners nor the gropes can detect a colon-bomb inserted in the rectum.
Such scans do detect underwear bombs and other contraband items that might escape the metal detector, which means that despite their uselessness as a primary protection against plastic explosives on aircraft, they still have a legitimate purpose, even though they are invasive and offensive.
So the question, insofar as the strict scrutiny test is concerned, is whether or not there is a better way to detect not only crotch-bombs and box-cutters but also to effectively detect colon-bombs that is less intrusive than the present procedures?
And the answer is “yes, there is.” It’s an El Al based model that uses layered security, bomb-sniffing dogs, psychological pressure, profiling and interrogation to identify suspicious individuals for further screening using scanners, pat-downs or, if necessary, orifice checks.
And that is what renders both the scanners and the gropes as used now to be unconstitutional. Because there is a better, more effective, less intrusive method of actually detecting suicide bombers or hijackers, what the government is doing now is not “narrowly tailored” to achieve only the “legitimate” government objective.
Therefore, the policies are unconstitutionally over-broad and should be replaced.
© 2010 Altnews
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[...]Why TSA’s grope-a-dope is unconstitutional – The Broadside : Colorado Springs Gazette, CO[...]…
The problem which I see with the logic here is that flying is no longer an option in modern American society. If you don’t fly, you don’t travel. Period.
Wouldn’t “strict scrutiny” also require that no other viable means exists to accomplish the “public good” goal that would abridge personal rights to a lesser degree?
In a manufacturing environment that is producing non life-critical components, selective sampling works just fine since if one or two defective products slip through no real harm is done. This is not true for airline security where letting only one bomb thjough will prove fatal for hundreds of people. As to your suggestion that only Muslims be checked, it may suprise you to learn that they don’t all wear robes, have beards, or carry copies of the Koran. Are you suggesting that all of us carriy ID identifying our religon? How about requiring Muslims to wear a crescent patch? That was tried with some success in Germany.
I agree. I’ve never seen cited any law which prohibits “profiling” of suspects in criminal investigations. No person has a right to be free of police interest or scrutiny. The police are not required to turn their heads and ignore factors which they reasonably believe might be indicative of criminality.
What’s IS prohibited is racial DISCRIMINATION, but the definition of racial discrimination is rather significantly different than merely using one’s ethnicity or race as ONE of many indicators that might be useful in evaluating the threat an individual might pose.
Nor do I see any inherent violation of equal protection or due process merely because one individual of a particular ethnicity is more carefully scrutinized than another. So long as there is a rational basis for that additional scrutiny, it’s not inherently unconstitutional.
Clearly there is a rational basis to believe that the greatest terrorist threat we face right now comes from those of Arab extraction, particularly men between 18 and 50 or so. So, it’s hardly irrational to focus more scrutiny on such people, so long as their civil rights are not substantially harmed as a result of additional scrutiny.
The common canard presented in objection to ethnic profiling, which is only the first step in the REAL process of psychological profiling, is that if we target only Islamic Arab men between 18 and 50, the terrorists will simply recruit people outside of that ethnic description for their attacks, and therefore ethnic “pre-profiling” is both useless and actually adds to the danger because we would be ignoring other potential terrorists.
The logical failure of this silly argument is that nobody said that we would “pre-profile” Arab males TO THE EXCLUSION of all others, and give Caucasians a pass. The idea of placing extra scrutiny on an ethnic/religious segment of the population which has PROVEN to be the source of nearly all attempts at terrorism is merely common sense. That does not mean we don’t have to scrutinize other potential suspects.
But until we have evidence that Al Quaida has recruited a cadre of neo-Nazi Aryan skinheads to carry butt-bombs for Allah, our resources SHOULD be directed more at those who are known risks.
The problem, of course, is that our national sense of “fairness,” and our history of racial discrimination, has made us, as a nation, extremely sensitive (way too sensitive IMHO) to the notion of ethnic or racial profiling, so we overreact to any intimation that a person’s character might be connected to their ethnicity.
And this is one of the “faults” that Al Quaida trades upon in their jihad. We see it from CAIR all the time, complaints that Muslims are not all bad people, and therefore it is unjust to subject them to greater scrutiny than anyone else (not to mention CAIR’s insistence that Muslims be given special privileges), while ignoring the fact that it happens to be Arab Muslims who are responsible for most of the terrorism we face, and that it is therefore rational to be suspicious of Arab Muslims to some greater degree than it is to be suspicious of beach-bunnies from Malibu.
And it also disturbs me deeply that the Muslim community worldwide is not declaring Jihad on the apostate Muslim terrorists that CAIR and other pro-Muslim pundits occasionally decry. I’m suspicious of CAIR’s motives because it does not only not denounce Islamic terrorists with any regularity, but they do not themselves call for other Muslims to find and destroy those who “peaceful” Muslims characterize as apostates and sinners.
I would think that the outcry from the Muslim world would be much, much stronger, and would be combined with physical action to suppress and destroy Muslim terrorists who are debasing Islam and the Word of God and the commandments of the Prophet Mohammed.
I mean really. They will issue a fatwa against a writer for “insulting” Islam, and they will sentence a Christian woman to death for “heresy”, but I see no universal fatwa against Osama or any other Islamic terrorist who are supposedly NOT practicing “true Islam.”
The obvious conclusion one can rationally draw from the deafening silence on the part of the Islamic world when it comes to Islamic violence against America is that these so-called “peaceable” Muslims are either lying through their teeth (which the Quran explicitly permits Muslims to do to infidels) or they actually support the Islamic terrorists and agree with the campaign to destroy America and create the Caliphate.
Or, they are just moral cowards who choose to ignore Islamic terrorism because, well, at least it’s ISLAMIC, and that’s not really so bad when compared to the non-Islamic infidels who get killed in the process.
I see no other rational conclusion, I’m afraid.
I am getting tired over the continuous controversy over the TSA’s ineffective and expensive traveler disruption nonsense when a much more economical and effective solution is readily at hand using proven technology on only travelers who belong to a risk group posing a thereat.
TSA Problem – Solve by Letting Common Sense Prevail Over Political Correctness
Being a Manufacturing Engineer, I can see exactly what the problem is as I have experienced the same problem from a 24 cavity molding machine, many reject in finished products. Many in management wanted 100% inspection, but I did research and found all bad finished items were only from cavity 14. I instituted 100% of only final products from cavity 14 – no more defective products being shipped at about 1/25 the cost of 100% product inspection.
The problem with respect terror risk to airplanes in my research is due strictly due to members of only one religion who make up less than 2% of air travelers so the common sense solution is to due a detailed inspection of only members of this religion. It is ridicules that this common sense is not applied to a nonsense political correctness, and even Al Qaeda of the Arabian Peninsular has pointed this out by their advertisement of expenses caused by their actions and our stupid expensive political correctness attack on the problem instead of a common sense inspection of only the segment of population that has been shown to be of the risk group; to wit members of Islam. Let’s save money and be more effective in meeting the threat by use of a common sense approach, not a political correctness approach.
James Sullivan, PhD and Manufacturing Engineer