$11,000 fine, arrest possible for some who refuse airport scans and pat downs - South Florida Sun-Sentinel.com
The Terrorist have won!!! I previously raised concern over these body scanners. To have your body scanned to display your birthday suit is a violation of ones privacy. I know people are arguing that flying is not a right and one gives up the right to illegal search and seizure by purchasing a ticket to fly. Last time I flew to Tempe, Arizona for work I do not recall seeing a disclaimer or a waiver of rights on it. Nor did anything pop up when we booked a family vacation flight for April. So if you decide to opt out of the body scanner the answer is a full body pat down. Really? I understand that Homeland Security is concerned with keeping the airways safe but a full body pat down or scanners is a bit much.
I know profiling is not a politically correct option but let's get serious and rational about this. Profiles are used all the time by the FBI, CIA, NSA, etc to help them determine cases that present themselves. So why not allow profiles to be established for those that fly? I mean if Person A flies from Minnesota to Florida every year at Thanksgiving odds are their intent is not to blow up the plane. Now if Person B flies to and from locations that are hot beds for Terrorist activity then yes pull them out of line and ensure they are not bringing on items to blow up the plane. When did we lose our rational thought process to keeping our country safe? By profiling in this manner will mitigate the racial aspect. In all the pictures of Terrorist that entered a plane that I have seen not once have they been wearing a turban or traditional Middle Eastern garb; rather they all attempted to wear clothing that blended in with the rest of the passengers.
Profiles work and are effective. Prior to scanners going in and money being wasted on their purchase many said that the images would never be saved or uploaded to the internet. Well that is simply not the case as several hundred images have already found their way to the internet. Plus, is it necessary to pat down a Nun or a three year old child? I encourage everyone that will be traveling this holiday season, if you can, to use the bus, railway or drive your car instead of flying. Let's protest in the most Capitalistic manner we can; with our pocket books. Once airlines start losing capacity their high priced lobbyist will pressure Congress and the rules of the TSA will be changed.
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Is traveling by air a right or a privilege?
ReplyDeleteClark - Air travel is a choice one makes when going from point A to B. That being said, one still does not give up their dignity or ought to be subjected to unreasonable search and seizure.
ReplyDeleteAre you finally admitting a right to privacy?
ReplyDeleteIf one consents, they freely give that right up.
However, I'd argue it's not a 4th amendment issue at all. There is no seizure as one is free to leave at any time. Like you said, it's a choice.
Do you believe the government has a compelling interest in stopping terrorists from blowing up planes?
" understand that Homeland Security is concerned with keeping the airways safe but a full body pat down or scanners is a bit much.
ReplyDelete" Why is it too much? Haven't we still recently had threats? I don't know, the underwear bomber. It would seem to me if the terrorists are going that far, then a body scan is pretty much right in line with what's necessary.
Profiles aren't politcally correct because they are unconstitutional. Are you willing to give up other people's rights to speed up your travel?
"Now if Person B flies to and from locations that are hot beds for Terrorist activity then yes pull them out of line and ensure they are not bringing on items to blow up the plane."
One, you don't think the terrorists might have a layover or two? Or, tell me where did the 9/11 planes take off from? Why do you decide to see where person B has been taking off or flying into? What causes you to do the extra research to know they aren't making their annual Thanksgiving trip? Looks, perhaps?
"Profiles work and are effective" Actually, there was a New Yorker article that showed FBI profiles are so vague and all inclusive that they don't do any good. At least as far as determining killers, etc.
" Plus, is it necessary to pat down a Nun or a three year old child?" Did you just see the story about the guy who fooled security by disguesing himself as an old man? So, yes, it's necessary. It's best not to have any judgment calls. The idea for the terrorists is to look normal. All is better than some that a random person thinks look suspicious.
"By profiling in this manner will mitigate the racial aspect. In all the pictures of Terrorist that entered a plane that I have seen not once have they been wearing a turban or traditional Middle Eastern garb; rather they all attempted to wear clothing that blended in with the rest of the passengers." You're joking, right. They weren't wearing traditional garb? No kidding. They can't hide being of middle eastern decent. That's what will be the focus.
"that is simply not the case as several hundred images have already found their way to the internet." This isn't an excuse to dump the whole thing. Rather, improve the security.
Anonymous at 8:23 pm – I have previously made a case for and against the right of privacy being established by the Constitution. The simple fact is that by purchasing an airline ticket one does not give up their 4th Amendment right.
ReplyDeleteThe 4th Amendment reads: “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”
The key phrase is “against unreasonable searches”. Everyone will agree that going through a metal detector and having ones bag scanned is not unreasonable. The new full body scanners and pat down requirement is arguably unreasonable. That being said, just because you buy a ticket to fly does not preclude one from being protected by the 4th Amendment. A seizure does not have to take place for ones 4th Amendment right to be violated; rather the simple act of searching unreasonably is the precursor.
I do believe that the new regulations established by Homeland Security of full body scanners and pat downs is government’s response to ensuring that planes are no longer used as missiles. The trouble is that it violates, I’d argue, our 4th Amendment right.
Anonymous at 10:43 pm – The underwear bomber originated from an area of the world where known terror suspects come from and could have been stopped from getting on the plane if profiles were being used. There is nothing unconstitutional about profiling. In Korematsu v. United States (1944), the Supreme Court condoned the forced internment of Japanese Americans thus setting precedent of ethnic profiling on the basis of national security.
ReplyDeleteThe FBI, CIA, NSA and other organizations use profiling all the time. The typical serial killer is a white male in the late to early 30’s.
Sure terrorist have layovers and some terrorist are home grown but if a database is created that tracked the travel habits then one can differentiate between potential vs. non-potential threats thus eliminating the need to scan and/or pat down every person traveling. By profile the travel patterns of the flier will eliminate some of the politically incorrect profiling factors. The reason we’d want to look into flying patterns of travelers is that, for the most part, the training camps for terrorist are centralized to the Middle East.
I have a friend that gets pulled aside every time because of the travel habits from a previous career. This friend of mine understands the red flags that were established and plans for such delays when flying. They didn’t flag him because of his race or national origin; rather he is flagged because of his travel habits. Doesn’t that make more sense than full body scanners and pat downs?
Is the New Yorker article you refer to Dangerous Minds from 2007?
"In Korematsu v. United States (1944), the Supreme Court condoned the forced internment of Japanese Americans thus setting precedent of ethnic profiling on the basis of national security."
ReplyDeleteOkay. Great. One very isolated instance and one very specific and narrow opinion from the Supreme Court. So what? This was not a carte blanche opinion. There are any number of ways in which the background of that case can be distinguished from what we are dealing with now.
"The FBI, CIA, NSA and other organizations use profiling all the time. The typical serial killer is a white male in the late to early 30’s."
Well, you better watch your step then Viper. You fit that profile perfectly. In fact, maybe you're the guy behind all those cases of college students disappearing over the last few years. I mean think about it, most serial killers are white males in their late 30's. Maybe the FBI, CIA or NSA should bring you in for questioning.
But wait, they don't actively go out and round up, search and/or seize people because they fit a profile. If they did, they'd sure have their hands full with guys like you.
Two points.
ReplyDelete1) There is NO right to privacy in the constitution. Therefore it does not exist.
2) Flying is a privilege, not a right. If you don't want to be subjected to the searches, DO NOT FLY.
End of story.
Here's the humor. The same people that are claiming "intrusion of privacy" are the same people would would claim that Obama isn't doing enough to stop terrorism if a plane blows up.
ReplyDeleteYou can't have it both ways people. Either the government gets intrusive and you willingly submit to it in order to reap the benefits of flying. OR, we don't and planes blow up.
Take your pick because you can't have both.
Truman - A lot of people looks to Israel for their security as they have a strong track record of keeping their planes safe. They don't use full body scanners or excessive pat downs. Instead they rely on intelligence and profiles to determine which passengers are potential suspects and which ones are not.
ReplyDeleteWhy not allow the TSA to use flying patterns of passengers or behavioral profiles to dictate which passengers have to go through the full body scanner and those that get to use the metal detector.
Just because you choose to fly does not mean you give up your right to unreasonable search.
@Viper
ReplyDeleteSo you are against YOUR rights to "privacy" being infringed but you are for THEIR rights to privacy being infringed?
In the venerable words of Benjamin Franklin, "Those who would sacrifice universal liberty for temporary security deserve neither liberty nor security".
He was referencing the sacrifice of ANY liberty, not just those that affect someone else.
So would you care to rethink your position or are you standing firm on what the SCOTUS has ruled to be a VERY unconstitutional position?
And again, Flying is not a right it is a privilege. Once you choose to fly, you consent to any and all investigative procedures that the airlines/government determine are necessary to make those flights safe. In other words, YES YOU DO.
Your only option to avoid the searches is to avoid flying. But that's your choice, no one is forcing the search upon you.
Truman - I am not against reasonable searches like the metal detector, bomb sniffing dogs, the scanning of my luggage. Where I draw the line is invasive searches like the full body scanner and pat downs as the first line of search.
ReplyDeleteHaving a profile established based on travel habits and behaviors observed is not infringing on another's right to avoid unreasonable search. If your travel habits and behavior match a certain criteria then you get either the pat down or the full body scanner instead of the traditional screening methods like metal detector and luggage screening.
How am I promoting the sacrifice of universal liberty by suggesting that full body scanners and pat downs be used has enhanced methods when reasonable suspicion is raised based on the travelers behavior and flying patterns?
@Viper,
ReplyDelete"Truman - I am not against reasonable searches like the metal detector, bomb sniffing dogs, the scanning of my luggage. "
Again, if you choose to fly, you choose to submit yourself to whatever searches the gov/airlines choose to give you. There is no "right to flight".
And an invasive search would be a body cavity. Do you complain when you go to the doctor and he asks you to cough? If not, why not? Is it because you expect it there? Well, now you've been informed you can expect it at the airport.
And profiling of any type is illegal, per the SCOTUS, that's how you are advocating infringing liberties. I know it's not your intent and I get the argument, but be that as it may, you are advocating the infringement of someones liberties for your own security.
That is precisely what Franklin was talking about.
Viper, how many flight and passengers go through Israeli airports on a daily basis? Now compare that to the number of flights and passengers going through U.S. airports each day. I think you have a bit of a scope issue.
ReplyDelete"Just because you choose to fly does not mean you give up your right to [be protected from an] unreasonable search."
It kind of does Viper. You give your consent to these searches by choosing to fly. If you get pulled over by a cop, the cop will more than likely ask if they can search your car. If you say yes, you've consented to the search and effectively waived your 4th Amendment right. It still exists, you just waived it by commenting to the search.
Does Israel have the same constitution and rights we do?
ReplyDeleteOf course Israel doesn't have the same constitution as the United States. As for their rights, that I don't know as I am not a citizen of that country. All this doesn't matter though when we are talking about proven methods of keeping the airways safe.
ReplyDeleteOur airport screening has worked in the past and needed only a few tweeks not an overhaul like we have now with full body scanners and pat downs. I agree with Viper that these two procedures ought to be for those people that raise suspicion and not for the 3 or 6 year old or the Nun that has spent over 20 years in the Convent.
I do not see how or where within the Constitution that profiling is a violation. We all profile when we walk down the street, meet people at the bar or drive by someone in the car. Right or wrong, creating a profile of habits and behaviors of those looking to blow up a plane is an intelligent decision to make. It's the fear mongering that turn's it into a race issue.
Not sure who said it's a race issue. It's about what is most effective and what is reasonably achievable / manageable. I'm not saying you cut corners, but I think these methods are the best approach. At least that's how I view it.
ReplyDeleteI wonder how any one person's view on profiling would be changed if they fit the profile to a "T" other than actually being a threat. It's easy to say "Fine, go ahead and profile." when you are perhaps the furthest thing from the defined profile of a terrorist.
I agree with Truman...in so many words, if you don't like the rules then don't fly.
ReplyDeleteHowever, Viper is right. Not from the standpoint of civil liberties or right of privacy, but from this ridiculous notion that the response to the terrorism threat might be to add more high-cost technology-placed in the hands of poorly paid and minimally trained TSA employees-or to apply another time-consuming, one-size-fits-all policy that makes no relevant distinctions between passengers.
Viper, you mentioned Ben Gurion Airport in Tel Aviv Israel. You are correct, they do not employ these techniques that the TSA currently does. However, they do not profile either. The conclusion of what most security personnel would tell you is that profiling, like you have mentioned, is very ineffective. The last attack at that airport happened to be Japanese seperatists in 1972 which is clearly not what you would expect.
Read this article and tell me what you think.
http://www.realclearpolitics.com/articles/2010/01/06/psychology_not_just_technology_for_airport_security_99795.html
@Anon,
ReplyDelete"I do not see how or where within the Constitution that profiling is a violation."
Thankfully, you don't have any say in this decision, that's the perview of the SCOTUS. They have deemed that ANY use of race, religion, creed, ethnic origin, age, sex, etc is a violation of that persons rights to be free of discrimination. It's called the 14th amendment which, in addition to the immigration rules that so many conservatives want to revoke, also grants the right to equal protections under the law. That means that you cannot be treated differently than me.
And if I'm a white male, and you are a black male and only one of us is flagged for screening by the TSA, that's not equal protections under the law.
Thus, it's a breach of the 14th amendment and therefore unconstitutional.
"We all profile when we walk down the street, meet people at the bar or drive by someone in the car."
Your personal racial habits are not the same as having them codified by governmental behavior. If you don't understand this, perhaps you need to read or re-read the constitution again to understand that.
"Right or wrong, creating a profile of habits and behaviors of those looking to blow up a plane is an intelligent decision to make."
I respond to your quote again with a quote.
"THOSE WHO WOULD SACRIFICE UNIVERSAL LIBERTY FOR TEMPORARY SECURITY DESERVE NEITHER LIBERTY NOR SECURITY"
What about that don't you understand? If it's wrong, and we do it anyway, then we are all sacrificing universal liberty, which are liberties held by all mankind, for the sake of temporary security. Are you that scared of the boogeyman that you are willing to sacrifice your god given rights so that feel a little more safe?
I mean seriously, come on man, what are you going to give up next in the name of security?
Freedom of Speech?
Freedom of Religion?
Right to bear arms?
Where does your sacrifice in the name of security end? And who gave you the right to sacrifice MY rights because YOU are scared?
Truman
ReplyDeleteSo a profile based on travel habits and behavior since it is not based on race, religion, sex or any of the things listed above. Don't we give up universal liberty by submitting to a full body screening or excessive pat downs? Are we not saying that we are guilty passengers until proven innocent?
Liberals are all set to give up the right to bear arms. Look at any gun control law. And we do have restriction of freedom of religion already because no one can marry more than one spouse nor a member of their own family. I do not say this because I wish to do this or condone it; rather to make the point that it already exists thus muting your Franklin quote.
Plus, the men and women that don the robes of the SCOTUS are not all knowing and have reversed decisions in the past. Again, with full body scanners and pat downs we all are seeing our universal liberties up.
"And we do have restriction of freedom of religion already because no one can marry more than one spouse nor a member of their own family. I do not say this because I wish to do this or condone it; rather to make the point that it already exists thus muting your Franklin quote."
ReplyDeleteThen you need to fight against that restriction if you see it as one, not give up more rights.
"I have previously made a case for and against the right of privacy being established by the Constitution." So which is, though? That's the question you haven't ever answered. Is there a right or not? I don't care what you've argued. What do you believe? Yes or no? I don't care about arguing the otherside. I'm asking what you believe.
ReplyDelete@anon,
ReplyDelete"So a profile based on travel habits and behavior since it is not based on race, religion, sex or any of the things listed above."
That already occurs and is reasonable, per the courts. What most people are advocating is to only search arabs who fit a specific stereotype of what a terrorist is. Would Timothy McVeigh fit that profile? How about Eric Rudolph? They also do random, which is what is going on now. What's your point?
"Don't we give up universal liberty by submitting to a full body screening or excessive pat downs?"
Please cite where in the constitution you are granted the right to fly, free of government search? Hint, the 4th amendment is a red herring as it deals with unlawful intrusions of your personal property (vehicle/home) without your consent. You consent to this search the moment you get your airline ticket because flying IS NOT A RIGHT, it's a privilege. Again for clarity sake, you do not have any right to fly, as is evidenced by the fact that you can be blacklisted at any time without recourse.
"Liberals are all set to give up the right to bear arms. Look at any gun control law."
So because legislation abridging our liberties like the "patriot act" exists today, we should just roll over and let them have more liberties?
I think I'll have to disagree with you as to what is best in defense of my liberties.
@Viper
ReplyDelete"I don't care about arguing the otherside. I'm asking what you believe."
I think his concern is that you tend to make an argument and then point to it as you playing devil's advocate when it gets challenged. I'm not saying that this isn't the case. I've noted numerous times where I suspect (or hope) you are playing the other side for arguments sake.
I think what Anon is asking for is for you to say what YOU believe, not what you have argued for. That way there is no misinterpretation.
Anonymous - There is nothing within the Constitution that spells out an actual right to privacy. Personally, I see the the right to privacy to exist for two reasons - 4th and 10th
ReplyDeleteAmendment.
The 4th reads - 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.
I feel their is in implicit right to privacy here for if there was not then the Government could search you, your home, your luggage, your car, etc without probably cause. I don't see the 4th as a red herring in the full body scanner issue or pat downs.
The 10th Amendment reads: 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.
Since the enumerated powers established to limit the government and the last part of this amendment "or to the people" implies that all other rights are reserved; one such right is privacy.
Truman
ReplyDeleteNo one is saying to racially profile terrorist. Instead the profile would include travel habits and behavioral aspects. If someone has been born and raised in the United States and never traveled to a destination that is known for Terror camps odds are we don't need to worry.
As for your example of McVeigh and Rudolf, neither person used an airplane as a missile. We are talking about profiling people that fly.
@Viper,
ReplyDelete"I feel their is in implicit right to privacy here for if there was not then the Government could search you, your home, your luggage, your car, etc without probably cause. I don't see the 4th as a red herring in the full body scanner issue or pat downs."
Two interesting pieces in here.
First, I find it curious that you consider the "progressive" interpretation of privacy legitimate in this instance but you discount other progressive interpretations. How do you reconcile that difference?
Second, the 4th amendment is a red herring because it deals specifically with the lack of consent to the search. By attempting to fly, you implicitly give consent. You knowingly consent by your very intent to fly because flying isn't a right.
Unless you feel you are guaranteed some constitutional right to air travel, you acknowledge that you are not covered by the constitution in this regard.
You have to choose one side or the other, you can't walk down the middle and claim to be right.
"Since the enumerated powers established to limit the government and the last part of this amendment "or to the people" implies that all other rights are reserved; one such right is privacy."
WOW! You went from being a strong constitutionalist to being a strong progressive in your interpretation of that document with this one statement. You did so by stating that all rights not codified in the document are therefore "implied" protection.
Justices Clarence Thomas, Roberts and most prominently Scalia would all disagree with you on this point. From a conservative interpretation, if it is not codified it doesn't exist. So you can see why I might find this an interesting position for you to take given your past stances.
@Anon,
"No one is saying to racially profile terrorist."
Are you kidding? Have you watched the news (especially Fox) lately?
"As for your example of McVeigh and Rudolf, neither person used an airplane as a missile."
Neither had the terrorists until 9/11, so this is a false argument because by your logic, we shouldn't have been watching airports prior to then since they hadn't used the airplanes as bombs prior.
That's a tough argument to sell to say the least.
Viper,
ReplyDeleteTo add to the clarity around the "right to privacy".
Scalia said the following.
""Every time the Supreme Court defines another right in the Constitution it reduces the scope of democratic debate."
He went on to say,"judges shouldn't read rights into the Constitution that aren't spelled out in the document itself."
That leaves the implied 'privacy' right out according to Scalia.
Scalia finishes by saying, "if you want a right to privacy, pass a law."
That leaves little confusion about the conservative and literalist interpretation of the constitution, a position to which Scalia is arguably the leader of.
So I'm curious again, how do you reconcile your progressive interpretations of privacy with your ultra-conservative interpretations of articles such as the commerce clause, for example?
Do you see any conflict within your position?
http://www.jbs.org/us-constitution-blog/5618-constitutional-interpretation-scalia-vs-breyer
ReplyDeletehttp://www.buzzflash.com/contributors/04/10/con04430.html
Sorry, I forgot to cite my sources.
Truman – I am not being a “progressive” in my interpretation. The 4th Amendment states explicitly that I am free of “unreasonable search and seizure”. Now this is a two part situation. There if first the search and the possible seizure. Buying a ticket does not equate to having your person or luggage searched.
ReplyDeleteAnd with the 10th Amendment, it explicitly states “power s not delegated to the US by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Since the Right of Privacy is not delegated to the US nor prohibited to the States it thus is reserved to either the State or the people. Since States have not addressed the Right of Privacy it is on the shoulders of the people. So, if one did not want to submit to intrusive examination of their person that pushes the envelope of reasonableness; they have that right per the 10th Amendment.
Do we need tweaks to security measures? Yes. But we need to be intelligent about our tweaks and not go over the top by invading ones pursuit of happiness.
Truman
ReplyDeleteI am curious: How is establishing a profile based on habit travels and behaviors is racial profiling?
Also, the profile of the Unabomber included that he'd be a white male. I guess that isn't racial profiling?
Viper, it's painfully obvious here that you're in above your head. Your reasoning regarding the 4th Amendment and 10th Amendment is laughable. Take my advice as an attorney here and just stop. Stop and read up on this topic. Gain a modicum of understanding on Constitutional Law. If you're unwilling to actually crack open a book, take a look at the Legal Information Institute from Cornell University Law School (http://www.law.cornell.edu/); it's a great resource for all things related to the law.
ReplyDeleteLike I said above, to an extent, you can give away your Constitutional rights by consent. The form which that consent takes will vary from one instance to the next. Using the example I gave above, when a cop pulls you over, they invariably ask if they can search your car. You should always say no. Why? Because without your consent (or probable cause), they have no right to search your car. But as soon as you say "Sure officer, I have nothing to hide.", there goes your 4th Amendment protection (not completely, but for the most part it's gone).
So when you buy an airline ticket, you are buying it with the knowledge of what comes along with that. No, I'm not just talking about the cattle car like accommodations that most airlines provide these days. I'm talking about the security measures at U.S. airports. And for those of you that have been living in a cave or living in the deep dark woods of Hamburg, you are going to be subject to what would be viewed by some as intrusive screening measures. But, nonetheless, you know or soon will know about them. It's the price of passage. You don't have to get on the plane. You can just turn around and say "Forget it. It's not worth it." But, if you so choose to get on a plane, then there is your consent.
Regarding your sudden belief in a right to privacy, you have opened Pandora's box. According to your logic above, the right to privacy exists, not because the Constitution says it does, but because the Constitution does not say it does. And if the Constitution doesn't say it exists and that right to privacy which doesn't exist is not delegated to the U.S., then the it's either in the States or the People. And since the States haven't specifically addressed the right to privacy, which doesn't exist, then the People must have it. You've flipped the Supremacy Clause on it's head. It's not the Constitution that's the Supreme Law of the Land, it's the Ardent Viper's law that rules. He declares a right to privacy (only when it suits him) and it exists. So very odd.
Oh, one last thing. You seem to be hung up on this question of reasonableness. Well, let me tell you that the U.S. Supreme Court doesn't generally apply a "reasonableness" standard to all the cases that come before them. They go beyond the question of "is that reasonable or unreasonable?". There's a little standard called "strict scrutiny". What does that mean? You tell me.
Clark - I admit I did not know of "strict scrutiny" so I did go out to get the legal definition of it and here is what I found:
ReplyDeleteThe strict scrutiny standard of judicial review is based on the equal protection clause of the Fourteenth Amendment. Federal courts use strict scrutiny to determine whether certain types of government policies are constitutional. The U.S. Supreme Court has applied this standard to laws or policies that impinge on a right explicitly protected by the U.S. Constitution, such as the right to vote. The Court has also identified certain rights that it deems to be fundamental rights, even though they are not enumerated in the Constitution.
I intrigued that it wasn't established until the passage of 14th Amendment. Also, I found this passage on the same website....The Supreme Court has identified the right to vote, the right to travel, and the right to privacy as fundamental rights worthy of protection by strict scrutiny
The right to travel. So SCOTUS has determined we have the right to travel as a similar right to freedom of speech. Doesn't that bring the 4th Amendment and contradict the waiver of searching done at the airport?
The site I got this definition from is: http://legal-dictionary.thefreedictionary.com
The site also pointed that SCOTUS established the right to privacy in Roe v. Wade...
ReplyDelete"How is establishing a profile based on habit travels and behaviors is racial profiling?"
ReplyDeleteUmm, I guess you missed my post above, or didn't read it, so I'll repost it.
"That already occurs and is reasonable, per the courts."
We're not talking about that kind of profiling though, because it's already occuring and you and others are arguing for MORE profiling.
"Also, the profile of the Unabomber included that he'd be a white male. I guess that isn't racial profiling?"
It's funny how words work, they can mean so many different things. Such as the word profile. The use of a "profile" to stop random people without any more validation for the stop than the color of their skin, religion, etc is called "PROFILING" and is illegal. Why? Because you are not stopping them for something they are known to have done, you are stopping them for the color of their skin, their religion, etc. While developing a profile for a known person who has already committed a crime is also called profiling but is used to identify specific traits of the person based upon historical tendencies but again, it's being used to target a KNOWN criminal who has already committed crimes. That's the difference, targetting a known criminal vs targetting random people for stereotypical reasons.
The former is banned under the constitution, per the SCOTUS while the latter is not.
If you don't like it, pass a law amending the constitution abridging the right to equal protections under the law. Just understand that this sword can cut both ways, and you won't be in the majority forever. Sooner or later it will cut you.
@Viper,
"The right to travel."
Please note that this does not say "THE RIGHT TO AIR TRAVEL". You are more than entitled to travel in your car, by train, bus, walk, etc. It's all up to you. But if you CHOOSE to fly, you CHOOSE to go under the added security scrutiny that the federal government, via the interstate commerce clause as well their being empowered for purposes of national defense, chooses to subject you to.
And by attempting to fly, you implicitly consent to the search. You don't have to like it, but if you want to fly, you have to consent.
"The site also pointed that SCOTUS established the right to privacy in Roe v. Wade..."
That is a HIGHLY progressive interpretation of that ruling. Are you saying that you side with the progressives in their interpretation of the constitution?
If so, you just authorized the Obama'care law, and numerous others that utilize the progressive interpretation of the Interstate commerce clause to justify the power that the federal government usurps from states.
Is that what you're saying? Because if so, you've been arguing devil's advocate quite a bit on this blog.
Truman - I do not agree with Roe v. Wade as a "right to privacy" issue nor it's establishment of the "right of privacy". I just found it interesting and thought I'd bring it up.
ReplyDeleteI do see the 10th Amendment as giving "the people" the right to define privacy as they see fit and not something that the Federal Government can infringe upon.
You are correct that the right to travel does not call out any particularly mode of travel but neither does freedom of speech, religion, etc...the trouble with Obamacare and the application of the interstate commerce clause is that the establishment of these government exchanges are going to be done at the state level. I as a Minnesotan cannot purchase insurance on the Wisconsin or Florida exchange. Even if I could I do not see anything within the Constitution that allows the Federal Government to establish a mandate like health insurance.
The profiling of travel habits is not based on race. Granted the majority of radical Muslims are of Arab background is a side note. There have been white Americans who have gone over to the Middle East and joined the Jihad fight against America. Plus, if groups like the Neo-Nazi's started coming over to the United States and blowing up Jewish areas I'd hope that we'd establish a profile to thwart that as well.
Truman, first, I tend to agree that there is consent to the search and new policy. I'm just curious how far this can be taken.
ReplyDeleteTerrorists have been known to use cars to blow things up. There is no right to travel by car. Like you argued on air travel, take a bus or a horse or walk. Couldn't this be extended to say that anyone driving a car in a heavily populated area has to go through a similar scanner at some point? Sort of like a tollbooth. But there is no doubt that the SCUTS requires probable cause to search a car.
Don't you have to argue that the mere act of driving is granting consent to be searched in the above?
I could extend to the use of phones, too, I suppose. If the government tells you that they will listen in on all your calls, you consent when you make a call.
I think the better argument here is to say even if there is a constitutional issue, the government has a right to infringe that right. The right isn't absolute. There is a compelling state interest: keeping the air safe. The law is narrowly tailored because since we don't know who a terrorist is, everyone could be, and the law is targetting all those that are potentially terrorists. It's the proper scope, because other actions have failed to stop terrorists.
I think what we are seeing though is that people would trade the thought of being 100% safe, or closer to that, for not having such invasive searches done.
Just curious on your thoughts.
Viper="The 4th Amendment states explicitly that I am free of “unreasonable search and seizure”. Now this is a two part situation. There if first the search and the possible seizure. "
ReplyDeleteThe key word is "and." It's not unreasonable search or seizure. You need to have both. If you voluntarily fly and know going through the scan is necessary you consent to that and there is no seizure. You are free to leave whenever you want.
Where do you believe there is a government seizure?
Viper, good work, but you're not quite there on strict scrutiny. You missed the most important part: the actual standards.
ReplyDeleteIt's plural because you have the standards which must be met for it to apply (which you generally described above), but then you have the actual standard or test. Check out the following:
www.topics.law.cornell.edu/wex/strict_scrutiny
@Viper,
ReplyDelete"I do see the 10th Amendment as giving "the people" the right to define privacy as they see fit and not something that the Federal Government can infringe upon."
Then you interpret the constitution from a progressive stance, whether you know it or not. Because as I noted above, originalists, or literalists as they are sometimes called, would disagree greatly with you. And since you take a very literalist interpretation of the commerce clause it seems odd that you'd take such a progressive interpretation of the 10th amendment in this regard when no court ruling has ever supported that interpretation.
"You are correct that the right to travel does not call out any particularly mode of travel but neither does freedom of speech, religion, etc.."
But the right to speech, religion etc, are clearly enumerated in the constitution. There is verbiage regarding them. There is NOTHING in the constitution regarding the right to travel or privacy. So don't expect it to get the same regard from courts unless you take a progressive stance.
"Even if I could I do not see anything within the Constitution that allows the Federal Government to establish a mandate like health insurance."
The federal government has no more right to mandate that based upon the constitution than you have to privacy. Because neither are codified therein. That's the point. If you take a progressive interpretation of one part of the constitution, don't complain that others do so elsewhere.
IMO, it is either a "living breathing document" or it is merely a piece of parchment with words on it. I veer to the latter, not the former, because it is not living nor breathing. And it is just as flexible today as it was 223 years ago because the same methods existed then to modify it that exist now.
If you want privacy, pass a law. If you want states to have the right to control their borders, pass an amendment granting them that authority.
But don't presume to make a progressive argument for something you support and then say that progressive interpretations are wrong for one you don't support.
That's more than a little illogical.
@Anon,
"Couldn't this be extended to say that anyone driving a car in a heavily populated area has to go through a similar scanner at some point?"
True, but cars are private property not public domain. You own your car, you don't own the airplane. Therefore, the right to privacy ended when you entered the public domain and consented to that form of travel. We are all aware of the searches, and while some may be unpleasant, that's what we consented to for the privilege of flying.
If you owned the plane and took off from a private airport you don't have to go through these searches. That is how this is different.
"The right isn't absolute."
No, all rights are absolute. What changes is that you consent to abridge your rights to partake in the privilege of flying. Your rights are still your own and absolute, but you consented to a temporary infringement thereof in order to benefit in some way.
That is totally constitutional because flight is not a right. If it was, these searches would be unconstitutional.
I find all of this very funny given the fact that the "right to fly" argument is based upon a sense of entitlement. The same sense of entitlement that tea partiers rail against constantly in other forums.
"True, but cars are private property not public domain. You own your car, you don't own the airplane. Therefore, the right to privacy ended when you entered the public domain and consented to that form of travel."
ReplyDeleteBut you drive it on a public highway. I'd agree if you were merely parked in your own driveway. Why does your right to privacy not end when you enter the public domain of the roads?
I guess you could also argue that the government doesn't own the plane anyway. The airline does so it's just as much private property. There is government regulation of operation but that doesn't equate to ownership or a government run airline.
I'm not saying I disagree with you, just trying to flesh out the possible extension.
@Anon,
ReplyDelete"But you drive it on a public highway."
I'm going to try to answer all your points from the current laws, not from my own perspective, so bear with me. (ie. I'll be using "privacy" in the explanation)
The difference between an airline and your car is that you own the car, and therefore have an expectation of privacy. The interior of your car is not public domain. The vehicle itself may operate in public domain but you already consent to certain limitations to your liberties in return for using that domain such as taxes, licensing, etc. Inside your vehicle is protected by the 4th amendment. Only through consent or just cause can it be searched.
No, the government doesn't own the airplane, the airline does so yes it is private property. But that privacy doesn't apply to you, it applies to the airline. You have no more claim to privacy through their ownership than you would if the government did. By asking (consenting) to enter the public domain (aircraft) you consent to the search and therefore no 4th amendment breach exists.
Nor does any "right to privacy" exist in this case, because you don't have an expectation of privacy in a public domain like an aircraft.
So no constitutional breach exists.
It's really a simple argument when you look at it. In most simple terms, your privacy ends where mine begins. and if neither of us have an "expectation of privacy" then we are in the public domain. That doesn't mean we have no rights, it simply means that we may have willingly abridged our rights in order to engage in something like flying.
Here's the crux though from my perspective, all of this discussion of privacy requires that right to exist.
Given that I am an originalist in my constitutional interpretation, I don't believe it does. If you take a progressive interpretation (which is fine mind you) you would disagree. And you'd have very valid and reasonable arguments to justify it. But you must take a progressive position in order to do so.
The question here isn't whether the searches are truly constitutional or not, IMO. The question here is how do we interpret the constitution? Because how we interpret it determines how we look at this issue.
And both sides have merit, I just choose to not agree with the progressive approach. If you do, you might find the arguments around the 4th and 10th amendments along with the "right to privacy" compelling.
Truman
ReplyDeleteI agree that the Constitution does not call out for the right of privacy but the 10th Amendment does allow for the people or the State to define it. That notion is not nor should it be considered a progressive view; rather it should be a conservative view. Any powers not enumerated to the Federal Government are left to the State and/or the People.
Do we require a Constitutional Amendment for "the People" to assert their right to privacy?
"I agree that the Constitution does not call out for the right of privacy but the 10th Amendment does allow for the people or the State to define it."
ReplyDeleteYes, in laws, not in legal interpretations. if you want privacy, pass a law. Its a simple concept. To argue that things not codified are somehow protected is like saying "well, we didn't have a law defining murder, so it must be legal". That's an illogical premise to argue from and a highly progressive one when referencing the constitution.
" Any powers not enumerated to the Federal Government are left to the State and/or the People."
Yes, they're left to you to define. If they are not defined, as privacy is not by any law of the land, then they are not defined and do not exist.
"Do we require a Constitutional Amendment for "the People" to assert their right to privacy?"
Amendment, not necessarily. Law, yes.
Currently the only legal precedent for privacy is Roe v. Wade. If that decision were ever overturned, privacy would be abolished with it. That's a rather unpleasant thought given the tenuous nature of RvW in the legal system isn't it?
Different Anon here. Actually, Griswold v. Conn in 1965 established a right to privacy.
ReplyDeleteTruman
ReplyDeleteYou listed Roe v.Wade as the only privacy precedent and then another Anon cited Griswold v. Conn. The question I have is why would the Supreme Court even entertain either court case since the right of "privacy" is not a right enumerated by the US Constitution? Shouldn't the Supreme Court kicked these cases and any right of privacy cases back to the States since, based on the US Constitution, it's not a Federal power?
For those of you that are interested, the majority opinion of Griswold v. Connecticut is actually pretty short. There are a number of concurrences and two dissents, but reading the opinion is pretty manageable. The case came to the Supreme Court as a Due Process and 14th Amendment issue.
ReplyDeletehttp://www.law.cornell.edu/supct/search/display.html?terms=griswold&url=/supct/html/historics/USSC_CR_0381_0479_ZO.html