Round two of the battle for travel freedom is well underway.
The first round, which garnered national attention in the fall of 2010, focused primarily on the TSA implementing new procedures…pat downs, body scanners….and the public outcry against it….boycotts, protests, calling congress to demand change.
But, as the public response failed to stop the scanners and searches, round two has moved to state legislatures around the country. Most prominently, Texas, where the state house just passed a bill banning TSA searches without probable cause. Click here to read the Tenth Amendment Center’s report on the bill.
This time, the TSA is on the defensive, and published an official statement about the Texas bill on their blog:
What’s our take on the Texas House of Representatives voting to ban the current TSA pat-down? Well, the Supremacy Clause of the U.S. Constitution (Article. VI. Clause 2) prevents states from regulating the federal government.
The problem here? The statement is false. Ignorance from the TSA is unlikely, so I’ll call a spade a spade. They’re lying.
The supremacy clause says nothing of the sort. Here’s the full text:
This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.
So, in simple terms, what does the supremacy clause mean? Just what it says. The constitution is supreme. And any federal laws made in line with the constitution is supreme. Nothing more, nothing less.
Notice there’s not one single word in the actual text that says anything about states regulating the federal government as the TSA claims. They’re just making things up as they go.
SUPREMACY CLAUSE EXAMPLES
In the constitution, The federal government is authorized to establish post offices. So if a state tried to establish their own, which would put it into conflict with the federal post office, the supremacy clause would rule that the state was in the wrong.
On the other hand, the first amendment says, in part, that congress shall not make laws restricting free speech. So, if a state law was established to give extra protection to the free speech rights of people in the state, and the federal government tried to restrict that freedom with an agency action, regulation, or law, the Feds would be in the wrong.
Why? Because the federal law restricting free speech would not be “in pursuance of” the constitution. And, as stated above, it’s the constitution, not all federal laws, which are supreme. The only federal laws which are supreme are constitutional ones.
THE 4TH HASN’T BEEN REPEALED
Federal searches, as the 4th amendment makes clear, have certain requirements. Probable cause is one of them. Here’s the text of the 4th:
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
There is no wiggle room here. No warrants shall issue. None. The 4th amendment doesn’t offer any exceptions. Period.
INTERPOSITION
So, when the federal government doesn’t follow such straightforward rules, what should be done? In the Virginia Resolution of 1798, James Madison explained the role of the states in such a situation. He wrote:
That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them. [emphasis added]
So, when the federal government violates your rights by refusing to abide by the limits put on it in the constitution, it’s your state’s duty to stand up and do it instead.
The verdict? Texas is in the right, and more states should join in now. The TSA…not even close.
*******
What’s the next lie that the TSA will tell us? Not sure, but from this one, it might be something just as absurd, like…”the 1st amendment says that states can’t interfere with TSA restrictions on complaints during wartime.”
The kicker here is that under the founders’ vision for the constitution – where the federal government is authorized to exercise only those powers delegated to it….and nothing more – the TSA wouldn’t even exist. For an unconstitutional agency to lie about Constitutional matters is beyond absurd, and it must be stopped. Other states are considering bills like in Texas – and sources close to the Tenth Amendment Center tell us to expect at least 10 or more to do so in 2012.
For a more detailed explanation of the supremacy clause, along with some historical perspective from the founding era, read Professor Brion McClanahan’s article, Who’s Supreme? The Supremacy Clause Smackdown.
'There is no wiggle room here. No warrants shall issue. None. The 4th amendment doesn’t offer any exceptions. Period."
This is an over-reaching statement. Jurisprudential exceptions have been developed (exigency, consent, etc.) that allow for warrantless searches on less than probable cause.
I think "consent" is the exception that applies here. By choosing to fly, you consent to the TSA search. Don't want to be searched by TSA? Don't fly. There have been many challenges to airport searches under the Fourth Amendment over the years; none have succeeded. I think the Texas law will see a similar fate.
The don't fly "solution" is pointless rhetoric, and your logic is flawed. Choosing to fly does not ipso facto mean surrendering your rights, nor does it convey the privilege, implicit or otherwise, for another person to grope your body without probable cause.
For some reason I can't get my comments posted. They are deleted right away. I guess the 2nd amendment is out at this site.
Oh well.
Mods, any reasons why I was not allowed my voice? I did not do any thing bad. Put up the posts you deleted & every one can see that for themselves.
thanks.
SamFox
It is disingenuous to rely on Madison's concept of interposition without noting that the Supreme Court has rejected it at least twice, in Cooper v. Aaron (1958) and in Bush v. Orleans Parish School Board (1960). Furthermore, Madison himself had more to say on the subject during the Nullification Crisis of the 1830's: "But it follows, from no view of the subject, that a nullification of a law of the U. S. can as is now contended, belong rightfully to a single State, as one of the parties to the Constitution; the State not ceasing to avow its adherence to the Constitution. A plainer contradiction in terms, or a more fatal inlet to anarchy, cannot be imagined." [7] Rather, the interposition contemplated by Madison would be "a concurring and cooperating interposition of the States, not that of a single State." Madison argued that interposition would involve some sort of joint action among the states, such as amending the Constitution.
I mean, did they also give their consent because their parents bought them a ticket?
So hurray for some practical resistance as offered in Texas! However, this ain't gonna fix very much.
The 4th amendment only places limits on state power (aka 'government agents'). Assuming we get some serious action via nullification in many locales then what? Well… yes, the federal government might just get the TSA out of the business of screening and violating our rights while boarding airplanes (a change I would truly welcome). However, we'd just return to the system we had prior to 9/11… private screening with individuals agreeing to being searched in exchange for transit by private corporations.
Again, the 4th amendment is NOT applicable between individual parties. It only limits action of the government.
Please weigh in if I've missed something…
Thanks. Fred.
And yes… I too recognize that our government(s) have continuously diminished the freedoms outlined by the 4th amendment for the last many decades. Local, state and federal lawmakers (and enforcing agencies) have put 'ends justify means' thinking ahead of the wise and reasoned frameworks (codified in the constitution) of 'limited state power' and guarantees of 'individual liberty' and 'rule of law'.
My only hope is that we do not turn into another Rome….
Already well on our way. But first we're gonna flirt with recreating the Soviet Union on our soil.
We live in trying times. Make that dangerous times. Our beloved country is certainly undergoing change. From the Land of the Free and the Home of the Brave we are now the Land of the Governmental Restricted, and the Home of the Sheep. The concept of our freedom, the Constitution of the United States, is under constant assault by our elected officials and their minions, yet we continue with our mundane lives while evil does its work. This trend did not begin with the current Administration, but it has surely accelerated under Obama and the current Congress and Senate.
Finally, a voice of sense! It is our duty as Americans to take it all back from these big corporation fed, back alley dealing COMMUNISTS! Osama was their puppet, JUST LIKE OBAMA!!!
Wow!
If you want to know where all the knuckleheaded, right wing, white people are…all you have to do is join this inane group!
Pathetic.
Standing up for civil liberties is right wing? Hmmmmm….interesting. Guess you will be supporting the patriot act renewal too.
The Supreme Court is not empowered to rewrite the Constitution. It’s very difficult to amend the Constitution, and the framers clearly did not intend to give a handful of political appointees the power to do an end run around that process. Please read George Orwell’s novella “Animal Farm” for another example of how clear, fair, commonsense rules are turned on their head by those in power.
Hurrah for Texas and Arzona. When are the rest of you going to get your stuff together?
Hurrah for Texas and Arzona (the illegal alien thing). When are the rest of you going to get your stuff together?
This article completely misses the point. In reference to the 4th amendment point–without the incorporation of the 4th Amendment through the 14th Amendment, there is no guarantee to ANY citizens of ANY state of the rights guaranteed under the 4th Amendment (see Map v. Ohio, 1961, Aguilar v. Texas, 1964); so yes, there is quite a bit of wiggle room. There is wiggle room in every amendment subject to judicial review and the "penumbras and emanations" of the meanings of such words as 'liberty' and so forth.
This type of black and white analysis may read well to the average citizen, but it also ignores the truth behind constitutional interpretation and judicial review. The argument behind deference to the legislature and judicial activism would be a more pertinent topic.
Their comment is typical of the arrogance of a government that has twisted the original Federal form of govt. into the typical Nationalism one. The paradigmare opposites,where the latter believes the Central govt has all power and delegates at their whim and mercy to the lower govts. anything extra is deems convenient.
However, the federal govt's powers and the states powers are separate, with the federal one solely designed to PROTECT not undermine or control the individuals states under its umbrella. That said, it is not an argument about a state legislating the fed. but precisely the other way around. The FED cannot legislate a state! (See Printz v. U.S.)
Interesting that police powers of the states come from the tenth amendment, which nullifies federal police powers. The 4th amendment says the feds have no business in such affairs.
Dear Editor,
I admire the great state of Texas for considering limits on the foundling
of your citizens at your airports. After watching Youtubes of TSA workers
feeling up young children with apparent glee, I have wonder what kind of
background checks they run on these people. In fact, I would like to know
the sexual preference of those groping my private parts. As I want the
experience to be as mentally and emotionally uncomfortable for them as it
is for me. With our prisons full of gropers, I imagine that some TSA
staff would work for free! In fact, based upon The Code of Hammurabi, a
Babylonian law code, we should be able to grope the gropers! After all,
an eye for an eye and a tooth for a tooth!
It is amazing that the same people who protested the groping of POW's in Cuba and Iraq don't say a damn thing when the TSA is groping us!!
Sorry, pal. The TSA monstrosity was created and nurtured by the Rove/Cheney Administration. Obama just inherited the monster. But thanks for playing.
true statement. Same with the Patriot act and the wars in Iraq and Afghanistan. But another thing that is true is this – Obama was elected to reject the Bush doctrine. Instead, he has continued – and in many cases – expanded it.
The neocons are winning in DC. That is why we look closer to home to nullify them all.
Try reading what it actually says before you comment.
That is true. Both Bush presidents started huge federal unconstitutional monstrosities that violate our rights. Bush the Senior started the "War on Drugs" and Bush the Younger started the Patriot Act and the TSA. The Bushes are not conservative. With Republicans like the Bushes, who needs Democrats?
I thought it was just mythical neo-cons that conflated Osama and Obama?
Our current VP, Joe Biden wrote the patriot act in 1995, it wasnt passed until Bush’s era, but its both sides
The labels "conservative" or "liberal", "Democrat" or "Republican" have lost all meaning. It's all down to soulless Opportunists now.
Wake up already! They are both on the same team now. Republicans and Democrats are using a very old tactic, divide and conquer. The longer they can keep people labeling themselves and fighting the “other” side, the longer they can keep doing this stuff. Same goes for race, religion and all. Why else would they keep highlighting these things instead of trying to actually fix them?
The laws have gone beyond ridiculous! They now sound more like something out of the movie “Hitchhikers Guide to the Galaxy” than anything to be taken seriously. But I suppose we only have ourselves to blame, because were the idiots who keep putting them back in!
This country is doomed.
Try keeping your mouth shut. The OP was blaming Obama for the TSA. That’s obvious to anyone who made it past the 3rd grade. Obviously, you didn’t.
BSDetector, you CAN tell the difference between “Osama” and “Obama” can’t you? One of them caused (seemingly) irreparable damage to the U.S. by terrorist acts that resulted in US slashing our OWN throats, and the other one inherited the bloody mess that the Bush/Cheney put in place as an over-reaction to those terrorist acts. The “OP” you are griping at knows which is which, and apparently you don’t.