Sigh. Sometimes I despair.
Those who the last 50 years have been teaching high school "social studies" and "history" have a lot to answer for. And so do those who have been teaching the teachers.
"pack93z" wrote:
Please correct us where we error.
"Wade" wrote:
Where you err, you mean? 🙂
Okay, sorry, that was a smartass response, and infringing on Rourke's territory, too.
On to your question...
1. Major error #1A: Rights in one's body are not "civil" rights. They are not created by the state. They exist by the "nature" of being human. (Or if you want to add a bit of optional theology to it, they are given to us by God.)
2. Major error #1B: These rights are "unalienable." That means they stay with us. They can't be transferred. They can't be given up. And they certainly can't be "taken away" by the state acting in any public interest.
(If something is unalienable, the state can take it away only one way: by killing you.)
3. Major error #2: Rights are held by individuals. Interference with them demands individual justification. That's why, historically, warrants that specify name, specific risk, etc, are required before searches, and it's why, historically, the state gets an exception only if there is a clear and present danger, and if there is demonstrable evidence that the search will prevent such danger.
And on all three grounds, the Patriot fails badly.
It allows search without that individual specificity. And it can't show it. Because it searches with zero investigation of the travelers. It instead assumes that every traveler is a potential terrorist to be stopped. And that is *exactly* the sort of attitude that the 4th amendment was designed to say "NOT ENOUGH!"
And it allows search without first demonstrating "clear and present danger": sorry, but while terrorism is a threat, there is no clear and present danger from air travel without search in the TSA manner. This is probably the hardest point to get across to people, but put it this way: how many plane flights are there in a given year, before, after, or during 2001? In the worst year, how many of those plane flights are attacked by terrorists? It's a tiny fraction of the whole
The "clear and present danger" is not supposed to be invokable whenever something horrible happens. It's not supposed to be invokable when another attack might happen someday. It's not even supposed to be invokable even when it is known that another attack will happen someday. It's only supposed to be invoked when the specific action has a high probability of leading to really, really bad things.
And "millions of flights" does not constitute a specific action, singular, I don't give a damn what the idiots among the Supremes say to the contrary). Frankly, the British in the 1760s and 1770s had at least as much evidence of specific dangers from the colonies as as the Feds have shown with respect to air travel since 9/11. 9/11 and "Amber Alerts" notwithstanding.
Try this historical comparison: Compare the restrictions placed by the Stamp Act of 1765 with the restrictions (only some of which djcubez has mentioned) of the Patriot Act and the TSA. Compare the costs of the restrictions. Frankly, IMO, its not even close. American since 9/11 have shown a willingness to give up the freedoms of each other that even the Toriies in the colonies would have trouble stomaching.
They didn't wear the same kind of headwear, but Tom Paine, Sam Adams, and their associates scared the bejesus out of the maintainers of public order. Ask an 18th century tax collector about the "clear and present danger" of being tarred and feathered. It was a helluva lot more likely than Flight XYZ being blown up.
Back to the protection against unreasonable search. Even if the government could establish the clear and present danger argument, you still aren't home free. Because you also have to make a substantial demonstration that the otherwise-unconstitutional techniques will significantly reduce the risk of that danger being realized.
And virtually no demonstrable evidence that the techniques used will in any significant way reduce the risk.
If people seriously think 3-1-1 bags are going to slow a terrorist down, if people seriously think body patting random 80-year-old travellers (even if they are 80 years old) is going to slow terrorists down, I'm sorry. They're naive in the extreme.
Just because they have an idiotic ideology doesn't make terrorists stupid. Were I a terrorist, I'd be chortling at how DHS and TSA are wasting all their resources and how all the Americans are willing to give up their freedom to set up a Maginot Line approach to stop them. And then I'd blitz around them at all the real weaknesses in the transportation system. Weaknesses that can instill even more terroristic fear.
You want to worry about real risks of terror acts in America? Look at dockyards where a single crane can unload a semi-sized container every 90 seconds or so, where a single container ship unloads thousands of such containers, where it is impossible for all the government employees from FBI to Secret Service to Customs to BATF to whatever to check anything more than a tiny fraction of containers coming in.
4. Major error #4: The power to do something does not establish the consitutional authority, much less the moral authority, for doing it.
I have no doubt that the FAA can and has done lots of things regarding the regulation of air travel. And that it will continue to do so.
But the FAA has no Constitutional authority to do much of it.
The FAA only has the authority that the Congress can delegate to it. Congress only has the authority to delegate what the Constitution enables it to do itself. And if the Supremes had not spend most of the twentieth century ignoring the basics of the Madison constitution, and in particular the restrictions and ideas of the 9th and 10th amendments, of the idea of enumerated powers excluding those not enumerated, of the non-delegabilty of Congress's own law-making power to the executive and its agencies.
5. Korematsu v. United States (1944). This is the case that took the scales off my eyes with respect to the Supremes. The Supreme Court decided that it was okay to systematically intern Japanese-Americans by Executive Order with no evidence beyond the fact that they happened to have Japanese ancestors.
In the end there are only two constraints on excessive government interference with our rights. One of these is government agents that will forbear to exercise the power that they have to enforce their will. The Patriot Act and its near unanimous vote, the overwhelming evidence that all it takes is an executive with charisma and speaking skills for Congress to abandon its restraint in favor of its fears and its prejudices and become about as resistant to Constitutional restriction as a wet noodle, tells me that reliance on that constraint is silly in the extreme.
And as Korematsu makes clear, the Supremes are almost as spineless.
No, really, I mispoke. There is only one constraint on excessive government interference. Citizens willing to resist. To say, as that engineer did, that the burden of proof is NEVER on us. It's on them.
You want to create a humongous exception to our fundamental rights. You want to define our rights narrower and narrower. Fine. That's your burden of proof. That's not my point. That's Madison's point. That's Jefferson's point.
And that point NEVER gets taught anymore. Instead its all this weighing of costs and benefits shit. If the government does more for us than it costs us, we favor it.
Well, the Constitution did not give government that kind of power. In fact, the Founders explicitly REFUSED to give government that kind of power. The Founders said: these are your powers, Congress; these are your powers, executive branch; these are your powers, judicial branch. And no more.
The only way that such kinds of powers might be gained would be by constitutional amendment. If you need to give government -- any part of it -- more power, you have to amend. Period.
And neither have "we the people" given it to them. The founders didn't recognize our authority to give it. Except by amendment. We, too, had to play by the rules of Article 5.
The Constitution, not the Statutes of the United States, and certainly not the regulations of the FAA and the rest of the agencies represented in the Federal Register, is the Supreme law of the land; and the only way to change the Constitution is through amendment.
And if we're in the area of unalienable rights, even constitutional amendment isn't going to be enough. That's another part of the "unalienable" bit: a majority has no more authority -- or ability -- to alienate the unalienable than does a king or an emperor.
My right to travel is one of those unalienable rights. In fact, it is arguably the right that, without full ability to exercise, determines the ability to pursue "life, liberty and the pursuit of happiness." What made slavery especially heinous: the government supported the restriction on slaves to travel. What made serfdom obscene: the state said that serfs were attached to their lord's land, and if they left, they would be forced by the king's men, to return.
The right to travel is more than simply a right to move between place A and place B. It is a right to move between those places as I (and those who I would contract with) see fit, whether it be by foot, car, boat, dirigible, or airplane.
I don't have a right to use American Airlines' plane, of course, unless they agree to let me use it. And so, if "the government" owns an airport or an airplane, yes, they can impose any conditions to association with them on their property. The government can keep me off Wright-Patterson AFB or the White House except on their terms, because they own the property. Just like American Airlines or Best Buy can. The government can keep me flying their F-18 on my next trip to California. It's their property. They can do with it as they wish.
Of course this raises the question as to just why the government is allowed to own airports. Just what constitutional power does that one come under?
And it completely ignores the question of how owning an airport gives the government power to control access to planes and air routes it does not own. If the government wants to make everyone seeking to enter their airport strip naked to enter, fine.
(Well, actually not fine. The government, unlike BestBuy, is constrained by the "unreasonable search and seizure" clause in how it uses its property. But that's not the 'right to travel' argument.)
But being able to make people go naked to get in is a far different thing from saying they need to go naked to exit. Or even requiring a ticket to exit.
Because that right to exit...on one's own terms, not on the state's terms...is the essence of the right to travel.
If I'm someone who wants to leave for another place, *I* get to choose.
Or I and the person who might help me travel there get to choose. It's not the government's call to make.
UNLESS they can demonstrate a specific reason for that specific restriction.
There's a difference between grounding all flights on Sept 11, 2001 for a day or two, which clearly was within the emergency powers of the government. And grounding all flights for months, which wouldn't have been. And TSA search procedures are, IMO, much more like the latter than they are like the former.
George Bush claimed that terrorism was going to be a threat for 50 years. Well, maybe so. But even if so, that does NOT justify 50 years of TSA bullshit. Not constitutionally. And not morally.
You want to take my ability to move about the country by plane, I have no doubt you can do it. Heck, an armadillo with a slingshot could probably stop me, I'm such a wuss.
But you have no authority to do it unless, maybe, you own the property I want to use to do it. And even then, you still have to play by the rules.
And the rules say "not unless you do some other things first."
[edited to correct "Sam Paine" to "Sam Adams." As far as I know, none of the original American rabble-rousers were named Sam Paine.]
And do not be conformed to this world, but be transformed by the renewing of your mind, that you may prove what is that good and acceptable and perfect will of God.
Romans 12:2 (NKJV)