[quote]thunderbolt23 wrote:
[quote]DoubleDuce wrote:
4th amendment, that is all.[/quote]
The Fourth Amendment says:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.
[/quote]
They are also not forcing you to go to the airport and get on a plane!
[quote]thunderbolt23 wrote:
[quote]DoubleDuce wrote:
4th amendment, that is all.[/quote]
The Fourth Amendment says:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.
Key word: “unreasonable”. Are the searches at issue unreasonable under the circumstances?
Maybe they are, maybe they aren’t - but the inclusion of the word “unreasonable” means that the desperately wanted absolutism doesn’t exist.
Moreover, air traffic is under the purview of federal regulation because it involves transporting people and things in interstate commerce. In fact, it’s almost definitionally interstate - that is largely the point of air travel, to move something from one state to another. Its activities almost exlcusively cross state borders.
Nothing new here - it’s the same kind of jurisdictional coverage maritime ports got before planes were invented.
And to think that air travel - given its national security implications - has to be left to the initiatives of individual states is laughable. Are we going to let New York have a different policy for checking bags and people for security than Iowa, and both of them different from California? Are we going to have 50 different airport protocols? Are we going to have one state where you take off not have something illegal to carry in air transit (say, a Bowie knife) but the state where you land make it a criminal offense to have on you?
What is it with libertarians being so immune to common sense?
And last I checked, Texas was still bound by the Supremacy Clause. Thus, unless they can challenge the law as facially unconstitutional and win, they are bound by it. Nullification is a fantasy.[/quote]
Patting down a 6 year old isn’t unreasonable? Naked pics aren’t unreasonable?
But you left out an important part of the text:
"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.
It says you have to have a warrant and probable cause. Pretty freaking clear if you ask me.
[quote]mertdawg wrote:
[quote]Tex Ag wrote:
from the article:
"Ironically, a TSA nullification bill was filed in the Texas legislature last month, a bill that would ban the full body scanners and make it a crime to preform invasive searches. The legislation would make it a criminal offense to:
““as part of a search performed to grant access to a publicly accessible building or form of transportation, intentionally, knowingly, or recklessly: (A) searches another person without probable cause to believe the person committed an offense; and (B) touches the anus, sexual organ, or breasts of the other person, including touching through clothing, or touches the other person in a manner that would be offensive to a reasonable person.””[/quote]
The state can pass that law making it a crime for an individual to do those things, however an organization should have the right to require anything they want for admittance. They should be able to deny admittance, unless we can argue that flying in a plane is under the right to “liberty”. Plus it is a risk to national security as a plane can be used as a weapon against others.
If they can require a breathalizer or oyu lose your license, they can require that you strip naked in front of a panel of 12. But they can make it a crime to be part of such a panel.[/quote]
The organization isn’t requiring it, the federal government is. And no, the fed can’t make you strip naked for patronizing a private company, The same way they can’t strip search you for going to pizza hut, even though Obama has stated that the general health of Americans is a national security issue.
[quote]DoubleDuce wrote:
[quote]thunderbolt23 wrote:
[quote]DoubleDuce wrote:
4th amendment, that is all.[/quote]
The Fourth Amendment says:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.
Key word: “unreasonable”. Are the searches at issue unreasonable under the circumstances?
Maybe they are, maybe they aren’t - but the inclusion of the word “unreasonable” means that the desperately wanted absolutism doesn’t exist.
Moreover, air traffic is under the purview of federal regulation because it involves transporting people and things in interstate commerce. In fact, it’s almost definitionally interstate - that is largely the point of air travel, to move something from one state to another. Its activities almost exlcusively cross state borders.
Nothing new here - it’s the same kind of jurisdictional coverage maritime ports got before planes were invented.
And to think that air travel - given its national security implications - has to be left to the initiatives of individual states is laughable. Are we going to let New York have a different policy for checking bags and people for security than Iowa, and both of them different from California? Are we going to have 50 different airport protocols? Are we going to have one state where you take off not have something illegal to carry in air transit (say, a Bowie knife) but the state where you land make it a criminal offense to have on you?
What is it with libertarians being so immune to common sense?
And last I checked, Texas was still bound by the Supremacy Clause. Thus, unless they can challenge the law as facially unconstitutional and win, they are bound by it. Nullification is a fantasy.[/quote]
Patting down a 6 year old isn’t unreasonable? Naked pics aren’t unreasonable?[/quote]
Maybe, maybe not - the point is because of the word “unreasonable”, there is no automatic “it’s unconstitutional!” claim against the TSA’s policy. In other words, it ain’t that black and white.
[quote]But you left out an important part of the text:
"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.
It says you have to have a warrant and probable cause. Pretty freaking clear if you ask me. [/quote]
Yeah, it is - for warrants and the process for warrants. We aren’t dealing with the process of issuing a warrant.
If you want to make the case that in order to do any kind of a search of your person at an airport, the TSA must obtain a warrant from a court upon a demonstration of probable cause, be my guest.
You prepared to do that? You think the Warrants Clause applies here?
[quote]thunderbolt23 wrote:
[quote]DoubleDuce wrote:
[quote]thunderbolt23 wrote:
[quote]DoubleDuce wrote:
4th amendment, that is all.[/quote]
The Fourth Amendment says:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.
Key word: “unreasonable”. Are the searches at issue unreasonable under the circumstances?
Maybe they are, maybe they aren’t - but the inclusion of the word “unreasonable” means that the desperately wanted absolutism doesn’t exist.
Moreover, air traffic is under the purview of federal regulation because it involves transporting people and things in interstate commerce. In fact, it’s almost definitionally interstate - that is largely the point of air travel, to move something from one state to another. Its activities almost exlcusively cross state borders.
Nothing new here - it’s the same kind of jurisdictional coverage maritime ports got before planes were invented.
And to think that air travel - given its national security implications - has to be left to the initiatives of individual states is laughable. Are we going to let New York have a different policy for checking bags and people for security than Iowa, and both of them different from California? Are we going to have 50 different airport protocols? Are we going to have one state where you take off not have something illegal to carry in air transit (say, a Bowie knife) but the state where you land make it a criminal offense to have on you?
What is it with libertarians being so immune to common sense?
And last I checked, Texas was still bound by the Supremacy Clause. Thus, unless they can challenge the law as facially unconstitutional and win, they are bound by it. Nullification is a fantasy.[/quote]
Patting down a 6 year old isn’t unreasonable? Naked pics aren’t unreasonable?[/quote]
Maybe, maybe not - the point is because of the word “unreasonable”, there is no automatic “it’s unconstitutional!” claim against the TSA’s policy. In other words, it ain’t that black and white.
[quote]But you left out an important part of the text:
"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.
It says you have to have a warrant and probable cause. Pretty freaking clear if you ask me. [/quote]
Yeah, it is - for warrants and the process for warrants. We aren’t dealing with the process of issuing a warrant.
If you want to make the case that in order to do any kind of a search of your person at an airport, the TSA must obtain a warrant from a court upon a demonstration of probable cause, be my guest.
You prepared to do that? You think the Warrants Clause applies here?
[/quote]
Funny.
I thought it was about principles, not sophistry.
Oh well, sophistry pays better I guess.
In the short run.
[quote]orion wrote:
Funny.
I thought it was about principles, not sophistry.
Oh well, sophistry pays better I guess.
In the short run.[/quote]
Translation: “I have no idea what the law means regarding this issue or how the law applies, but I need to feel relevant, so I am going to post something anyway.”
Thanks.
[quote]thunderbolt23 wrote:
[quote]DoubleDuce wrote:
[quote]thunderbolt23 wrote:
[quote]DoubleDuce wrote:
4th amendment, that is all.[/quote]
The Fourth Amendment says:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.
Key word: “unreasonable”. Are the searches at issue unreasonable under the circumstances?
Maybe they are, maybe they aren’t - but the inclusion of the word “unreasonable” means that the desperately wanted absolutism doesn’t exist.
Moreover, air traffic is under the purview of federal regulation because it involves transporting people and things in interstate commerce. In fact, it’s almost definitionally interstate - that is largely the point of air travel, to move something from one state to another. Its activities almost exlcusively cross state borders.
Nothing new here - it’s the same kind of jurisdictional coverage maritime ports got before planes were invented.
And to think that air travel - given its national security implications - has to be left to the initiatives of individual states is laughable. Are we going to let New York have a different policy for checking bags and people for security than Iowa, and both of them different from California? Are we going to have 50 different airport protocols? Are we going to have one state where you take off not have something illegal to carry in air transit (say, a Bowie knife) but the state where you land make it a criminal offense to have on you?
What is it with libertarians being so immune to common sense?
And last I checked, Texas was still bound by the Supremacy Clause. Thus, unless they can challenge the law as facially unconstitutional and win, they are bound by it. Nullification is a fantasy.[/quote]
Patting down a 6 year old isn’t unreasonable? Naked pics aren’t unreasonable?[/quote]
Maybe, maybe not - the point is because of the word “unreasonable”, there is no automatic “it’s unconstitutional!” claim against the TSA’s policy. In other words, it ain’t that black and white.
[/quote]
I think it is pretty black and white to most that patting down a 6 year old without any probably cause is unreasonable. Maybe I’m wrong and I’m in the minority though.
The warrants part isn’t even a separate sentence, much less a separate clause. Do you have any reason to separate search and seizure from warrants?
[quote]DoubleDuce wrote:
The warrants part isn’t even a separate sentence, much less a separate clause. Do you have any reason to separate search and seizure from warrants?[/quote]
Well, I’m asking you - do you think the Warrants Clause applies to inspections in airports - yes or no? Do you think the 4th Amendment requires a federal instrumentality to seek a warrant from a court with probable cause in hand prior to conducting a search before that person gets on an airplane? Each person?
Yes or no?
[quote]thunderbolt23 wrote:
[quote]DoubleDuce wrote:
The warrants part isn’t even a separate sentence, much less a separate clause. Do you have any reason to separate search and seizure from warrants?[/quote]
Well, I’m asking you - do you think the Warrants Clause applies to inspections in airports - yes or no? Do you think the 4th Amendment requires a federal instrumentality to seek a warrant from a court with probable cause in hand prior to conducting a search before that person gets on an airplane? Each person?
Yes or no?
[/quote]
The warrants clause in the constitution is written to apply to all federal searches. I don’t know that it would have to be a court. But either way all federal searches require probable cause at least.
I don’t know how it being an airport changes anything.
Can you explain why warrants don’t apply?
[quote]DoubleDuce wrote:
The warrants clause in the constitution is written to apply to all federal searches. I don’t know that it would have to be a court. But either way all federal searches require probable cause at least.[/quote]
Well, where would get a warrant if not a federal court? I mean, the point of a warrant is that a separate authority determines if you have enough probable cause (or not) to do the search in the first - prior to the search.
So, if not a court, then who makes this determination of probable cause to then issue a warrant?
It doesn’t, huh? Tell me - how many flyers pass through security gates in the US each day? Any idea?
And you are telling me that a member of TSA must have probable cause - i.e., some plausible reason, a look, a smell, a visual, some suspicious detail - before he/she can search any one of these persons boarding an airplane?
We’re getting there. I’m trying to make sense of your position first.
For starters, there is a difference between administrative searches in the name of public safety (where searches are uniform in nature and you are engaging in an affirmative act of getting on a plane) and search-and-seizure in law enforcement.
[quote]thunderbolt23 wrote:
[quote]DoubleDuce wrote:
The warrants clause in the constitution is written to apply to all federal searches. I don’t know that it would have to be a court. But either way all federal searches require probable cause at least.[/quote]
Well, where would get a warrant if not a federal court? I mean, the point of a warrant is that a separate authority determines if you have enough probable cause (or not) to do the search in the first - prior to the search.
So, if not a court, then who makes this determination of probable cause to then issue a warrant?
[/quote]
Doesn’t really matter, because they don’t have any probable cause to begin with.
No, that’s what the constitution says. And it rights aren’t dictated by what is practicle or expedient for government.
[quote]
We’re getting there. I’m trying to make sense of your position first.
For starters, there is a difference between administrative searches in the name of public safety (where searches are uniform in nature and you are engaging in an affirmative act of getting on a plane) and search-and-seizure in law enforcement.[/quote]
I see no distinction in the constitution. None of that is mentioned anywhere.
[quote]DoubleDuce wrote:
Doesn’t really matter, because they don’t have any probable cause to begin with…
No, that’s what the constitution says. And it rights aren’t dictated by what is practicle or expedient for government…
I see no distinction in the constitution. None of that is mentioned anywhere…[/quote]
Wait, wait, wait - back to square one: yes or no, before a TSA employee can search you, do you think the Constitution requires that TSA employee first get a warrant on a showing of probable cause?
Yes or no? Don’t hedge.
[quote]thunderbolt23 wrote:
[quote]DoubleDuce wrote:
Doesn’t really matter, because they don’t have any probable cause to begin with…
No, that’s what the constitution says. And it rights aren’t dictated by what is practicle or expedient for government…
I see no distinction in the constitution. None of that is mentioned anywhere…[/quote]
Wait, wait, wait - back to square one: yes or no, before a TSA employee can search you, do you think the Constitution requires that TSA employee first get a warrant on a showing of probable cause?
Yes or no? Don’t hedge.
[/quote]
warrant: authorization, sanction, or justification
Yes.
I think you now owe me some answers.
[quote]DoubleDuce wrote:
warrant: authorization, sanction, or justification
Yes.
I think you now owe me some answers.[/quote]
Do I think the Warrant Clause applies to TSA searches? No, not directly. A TSA search is an administrative search done in the name of public safety. It’s the same kind of search you get (roughly) when you enter a courthouse or other sensitive place.
Moreover, “Warrants” as referred to in the clause is referencing a particular type of judicial instrument, and the clause does not necessitate the issuance of a Warrant in every circumstance of a search by a governmental entity. Administrative searches fall outside of the traditional Warrants-scheme (for what should be obvious reasons).
Further, the Constitution only mandates that these administrative searches be reasonable under the circumstances. A general regulatory scheme designed to further public safety - and even more importantly, national security - are presumptively reasonable. How could it not be?
Of course, this is largely a matter of common sense as well - how in the world could we operate air travel with any modicum of safety if a TSA employee had to (1) first spot probable cause, (2) take the probable cause to a court, (3) have the court decide in favor of the TSA employee, and (4) issue a writ to search before that TSA employee could search a person prior to getting on a plane?
Seriously - explain that to me. Have you ever flown anywhere?
You see, requiring the scheme you apparently suggest would be incredibly unreasonable under the circusmtances - it would effectively stop air travel.
[quote]thunderbolt23 wrote:
[quote]DoubleDuce wrote:
warrant: authorization, sanction, or justification
Yes.
I think you now owe me some answers.[/quote]
Do I think the Warrant Clause applies to TSA searches? No, not directly. A TSA search is an administrative search done in the name of public safety. It’s the same kind of search you get (roughly) when you enter a courthouse or other sensitive place.
Moreover, “Warrants” as referred to in the clause is referencing a particular type of judicial instrument, and the clause does not necessitate the issuance of a Warrant in every circumstance of a search by a governmental entity. Administrative searches fall outside of the traditional Warrants-scheme (for what should be obvious reasons).
Further, the Constitution only mandates that these administrative searches be reasonable under the circumstances. A general regulatory scheme designed to further public safety - and even more importantly, national security - are presumptively reasonable. How could it not be?
Of course, this is largely a matter of common sense as well - how in the world could we operate air travel with any modicum of safety if a TSA employee had to (1) first spot probable cause, (2) take the probable cause to a court, (3) have the court decide in favor of the TSA employee, and (4) issue a writ to search before that TSA employee could search a person prior to getting on a plane?
Seriously - explain that to me. Have you ever flown anywhere?
You see, requiring the scheme you apparently suggest would be incredibly unreasonable under the circusmtances - it would effectively stop air travel.
[/quote]
Was it not done for years without body scanners and cavity searches?
Did you know that the body scanners are effectively useless in identifying threats to air travel?
How does patting down a 6 year old make anyone safer? You are honestly defending that as reasonable?
How and/or whom gets to decide what a sensitive, “national security” area is? Any search can be done in the name of public safety, that is the worst of probably all abused justifications.
[quote]DoubleDuce wrote:
Was it not done for years without body scanners and cavity searches?
Did you know that the body scanners are effectively useless in identifying threats to air travel?
How does patting down a 6 year old make anyone safer? You are honestly defending that as reasonable?
How and/or whom gets to decide what a sensitive, “national security” area is? Any search can be done in the name of public safety, that is the worst of probably all abused justifications. [/quote]
You’ve missed the point - you are discussing policy reasons as to what TSA should and shouldn’t do…not the legaility of what they can or cannot do.
You don’t like the procedure - that’s fine. You think the procedures don’t even work that great to the purpose they are implemented for. That’s fine, too. But both miss the question under the 4th Amendment - which is, “can the federal government do what it is doing under the 4th Amendment?”
Not should. Can.
Just because something is bad policy doesn’t mean it’s unconstituitional.
And just to tidy up the point, you say Was it not done for years without body scanners and cavity searches? Well, sure, but haven’t we learned that scheme has its weaknesses that have been exploited by modern terrorists?
Are we forced to keep the same policy even when that policy no longer adequately serves its purpose because someone has found a way to get around it?
Frankly, that is an absurd point of view. As has been said many times, many ways by many very important statesman, “The Constitution is not a suicide pact.”
EDIT: fixed typo.
[quote]thunderbolt23 wrote:
[quote]DoubleDuce wrote:
Was it not done for years without body scanners and cavity searches?
Did you know that the body scanners are effectively useless in identifying threats to air travel?
How does patting down a 6 year old make anyone safer? You are honestly defending that as reasonable?
How and/or whom gets to decide what a sensitive, “national security” area is? Any search can be done in the name of public safety, that is the worst of probably all abused justifications. [/quote]
You’ve missed the point - you are discussing policy reasons as to what TSA should and shouldn’t do…not the legaility of what they can or cannot do.
You don’t like the procedure - that’s fine. You think the procedures don’t even work that great to the purpose they are implemented for. That’s fine, too. But both miss the question under the 4th Amendment - which is, “can the federal government do what it is doing under the 4th Amendment?”
Not should. Can.
Just because something is bad policy doesn’t mean it’s unconstituitional.
And just to tidy up the point, you say Was it not done for years without body scanners and cavity searches? Well, sure, but haven’t we learned that scheme has its weaknesses that have been exploited by modern terrorists?
Are we forced to keep the same policy even when that policy no longer adequately serves its purpose because someone has found a way to get around it?
Frankly, that is an absurd point of view. As has been said many times, many ways by many very important statesman, “The Constitution is not a suicide pact.”
EDIT: fixed typo.[/quote]
Woah. You are the one that brought up the notion that they could do it if it was in the name of public safety. I only brought up the fact that it doesn’t actually make us safer to refute that point.
However, body scanners become even more unreasonable when they do not benefit public safety.
Really, they’ve exploited it huh? So those terrorists were making air travel more dangerous?
While the events of 9/11 were tragic, one event isn’t sufficient evidence of a problem. Air travel was and remains a remarkably safe way to travel. And it would still be without all the new TSA intervention. But either way the burden is on you to prove it is actually making the public safer. (I’d also like to mention that you using the term public here is highly hypocritical given that you justified the searches in part on the people making a proactive choice. The same would apply in reverse. Either they are public and their choice doesn’t burden them with some responsibility and should be protected from these searches, or they made a choice and are burdened with some measure of responsibility include flying under the risk of terrorism.)
If there were one large round of suicide car bombs, we would then add in agents to search people who proactively chose to drive on public roads?
What if they start suicide bombing people on sidewalks, does the TSA get to bypass the 4th amendment rights on all sidewalks and search whomever they want without probable cause?
What terrorist do or don’t do doesn’t change what our rights are. Nor does the name of “public safety”.
[quote]DoubleDuce wrote:
But either way the burden is on you to prove it is actually making the public safer. [/quote]
From a policy standpoint, sure, that makes sense. From a legal standpoint - no, what you said is not true. Courts don’t second guess policy determinations of legsilatures (or administrative agencies) - the police the boundaries of “reasonableness”. The burden would be on you - as the challenger to the policy - to explain why the policy is unreasonable under the circumstances.
And merely saying “well, the policy isn’t very effective” isn’t sufficient. That’s the point.
No, public is fine to use here - it affects the public interest by and through public safety.
What if they start suicide bombing people on sidewalks, does the TSA get to bypass the 4th amendment rights on all sidewalks and search whomever they want without probable cause?[/quote]
Don’t know, that doesn’t sound reasonable - maybe checkpoints would be more reasonable. The problem is you want to be an absolutists at the expense of both the plain language of the law and common sense.
Yes, they do, whether you want them to or not - because of the word “reasonable”.
It’s a dicey area and fileld with hard choices, but this idea that “muh rights” are the same no matter what the circumstances are is incorrect. Your 4th Amendment rights changed with cars were invented. And they change in the era of air travel and terrorism.
That doesn’t mean you have no rights - it just means it isn’t as black and white as you want.
[quote]thunderbolt23 wrote:
It’s a dicey area and fileld with hard choices, but this idea that “muh rights” are the same no matter what the circumstances are is incorrect. Your 4th Amendment rights changed with cars were invented. And they change in the era of air travel and terrorism.
[/quote]
We seem to be working from different definitions of the word “right”.
If certain things are sometimes permissible and other times not, it cannot be defined as a right, it would be a privilege the government allows. You seem to simply not believe in fundamental rights which is an entirely different argument.
Just for shits and giggles, can the government legally sacrifice an individual to save something like a city? Like a terrorist has a nuke and is going to set it off unless we kill one specific person? It is literally 1 person or millions of people die. Is it not reasonable to kill that one person?
[quote]DoubleDuce wrote:
We seem to be working from different definitions of the word “right”.[/quote]
Well, yes, that’s obvious.
An absurd statement that I don’t believe in fundamental rights - at any rate, the issue here is one of context and real life workability.
Even your precious constitutional absolutism on the Warrants Clause isn’t as absolute as you prefer. The government can’t get a warrant without probable cause, says the constitution - well, what the hell does “probable cause” mean? Can you define it with any mathematical precision?
Of course not. Every situation is different, every set of facts suggesting “probable cause” is different. Everything related to “probable cause” is measured by degree and context, even though, your right is fundamental.
If you are unable to recognize this, I don’t know what is left to say. The absolutism you want doesn’t exist, never has, and was never intended to.
Irrelevant issue, because this is a different kind of right governed by a different set of rules.