We have seen the manipulation of money at increasingly alarming rate, ever swelling entitlement programs, unbalanced taxation, government intrusion in industry (in some cases, even take over) and fanatical environmental legislation based on unprovable theories. All of these things are a threat to liberty and freedom in a collective sense. Now this authoritarianism has moved even farther into the realm of personal liberty and freedom. Yea, that's right, I'm talking about the use of body image scanners and "enhanced security searches". The TSA has "adopted" these new procedures and even the U.S. Marshal's office is considering using them in federal courts.
The Fourth Amendment of the U. S. Constitution states: "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."
These new searches exceed all of the precedents the Supreme Court has determined as reasonable. In Terry vs. Ohio (1968), the Supreme Court ruled that a police officer could "stop and frisk" a suspect based on the reasonable articulation of suspicion that (a) a crime had occurring or was about to occur and (b) that suspect was in possession of a weapon. The search was allowed for officer safety reasons and was limited to a pat down of outer garments for weapons only.
This ruling excludes random sampling and hunches. It also limits the search to outer garments. Can the TSA reasonably articulate suspicion that every passenger is transporting a weapon? It also is surpassing the limitations of the search by going beneath the under garments and handling your nether regions.
This erosion of the Fourth Amendment did not begin with these new procedures, but with an over reaching decision by the Ninth Circuit (circus) in U.S. vs. Davis (1973). In that case the court ruled"...that airport screenings are considered to be administrative searches because they are conducted as part of a general regulatory scheme, where the essential administrative purpose is to prevent the carrying of weapons or explosives aboard aircraft." The ruling continues by saying “(the search is to be) no more intrusive or intensive than necessary, in light of current technology, to detect weapons or explosives, confined in good faith to that purpose, and passengers may avoid the search by electing not to fly.”
For those that believe we should trust that the government is acting righteously and in good faith, where is the limit? In Beck vs. Ohio (1964), Justice Potter Stewart wrote, "If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be secure in their persons, houses, papers, and effects, only in the discretion of the police."
The absurdity of the Ninth Circuit's (the most activist and overturned court in the U.S.) decision is their rational. Think about it. Their decision in other words says (a) the government is in control of the airways, (b) it is for your safety and (c) flying is a privilege, not a right. Allow me to lay that framework over a different traveling medium: (a) the highways and interstates are built and controlled by the government, (b) it is for your safety and (c) driving is a privilege, not a right. Where does the intrusion end? The only reasonable point made in this excerpt of the Ninth Circuit case is that “(the search is to be) no more intrusive or intensive than necessary". Searching me down to the birthday suit would certainly seem unnecessary not to mention unreasonable.
My hope is that this issue is carried to the U.S. Supreme Court and that the government is forced to come back with a more reasonable, less intrusive method that brings dignity to how regular citizens are treated by their government.
It all boils down to wether we will allow our fears (some justified and some absurd) to erode our freedom.
Just my opinion,
Bob