This sort of thing makes me want to not fly with my daughters ever again.
And this TSA response doesn’t make me feel any better. Quite the contrary.
Ugh.
This is the part of the blog post where I make a flippant remark in an attempt to be funny, but as a father of three girls (a 3-year-old, a 21-month-old, and one in utero), there’s nothing remotely amusing about this. It just makes me feel sick — and powerless, because for all the online bravado, you know there’s really nothing you can do if you’re the one who gets stuck with a TSA agent on a power trip and a belief that American national security requires the groping of a young child. You can either acquiesce, or you can get yourself arrested, either of which is incredibly traumatizing to the kid. You have no other options.
Welcome to the United States of America in 2011, formerly a free country.
(Headline stolen from Volokh.)
P.S. Yes, “formerly a free country” is hyperbolic. But, unlike many instances where the Ben Franklin quote is mangled and misused, this truly is a case of giving up essential liberty — i.e., the liberty to not be publicly groped, or to not have your children publicly groped, or even just to not live in fear of having your children publicly groped — for a little temporary safety, or rather, the false appearance of fake temporary safety.
Blogger Bob? Did Baghdad Bob get a job at the TSA?!?!
This whole situation is ridiculous. I’m driving to Orlando from MD over Memorial Day weekend, and this is one of the factors that helped me decide to go that route. It makes me sadly shake my head. I hate to say the cliche, but dude, if we’re scanning six year olds in FEAR of terrorists? I’d say they’ve won.
Agreed, its sickening and doesn’t provide any meaningful safety worth the cost. I think a candidate could garner a lot of votes in the next election by pledging to reform (or in Obama’s case, just doing it) the TSA.
The obvious and easy solution is to throw out all the PC bullshit and start profiling who we search and leave grandma and the kids alone.
1.) This is why I drive.
2.) This is also why I don’t have children. Because yeah, I’d be going to jail. Period. This turns my stomach in a very, very bad way.
Flying in China is much less traumatic. Well, it’s different, at the least.
You don’t have to take your shoes and belt off, but they’re very serious about confiscating lighters. It seems that whether someone sets off the metal detector or not, everybody gets scanned with the hand wand. Then you take your shoes off to be scanned – or rather, I get to, because my boots set off the wand.
Chinese airport security doesn’t offend my sensibilities nearly as much as the TSA.
Airport security is kind of like the locks on your house… They aren’t going to keep someone that is determined from doing wrong. And does anyone realize how vulnerable the security lines are? It’s lubricous, all this stuff we’ve done that’s created longer and longer lines outside of security (both at check in and at the checkpoints. No curbside means everyone is in a big clump to check bags) it doesn’t make the people flying safer.
I’ve been saying a lot lately, I won’t be voting for Obama again unless the TSA and other authoritarian practices of the US government see serious reform. I don’t want to live in 1984, and that’s why I voted for him but apparently that’s not the kind of change I should believe in, but it sure seems like more of the same.
The latest in this crap is, apparently, he is trying to lobby congress to get a law to allow warrantless snooping on email. News flash Mr. President (and you really should know this given you were a Constitutional law professor) either warrantless email snooping is already allowed by the constitution in which case just do it and deal with the legal and political consequences or it is unconstitutional in which case a law isn’t going to change that. Personally I think it is morally and ethically abhorrent and will not support the candidacy of anyone that supports such transgressions of civil liberties.
It’s time we take a stand and stop letting the douche canoes in both parties trample on our cicli liberties. It’s time to stop giving up necessary freedoms without a fight.
I think I’m going to go for the cognitive dissidence write in of: Ron Paul, Bernie Sanders (not necessarily in that order) in 2012. I’d also like to see Michael Pollan put in charge of USDA, but now I’m really into pipe dream territory.
DCL–I wholeheartedly agree with 99% of your post. The 1%? I think write ins are a bit difficult to pull off here in the Midwest. 😉 Seriously, the fact that we have now had two Presidents who think Congress can abrogate the Constitution scares the bejeebus out of me. No, no matter what the 535 good folks at the other end of Pennsylvania Avenue say, those annoying “amendments” are still the law of the land.
What really scares me? I’m not sure that most Americans truly know what’s in the Bill of Rights.
If we hadn’t of screwed with the Constitution by writing a Bill of Rights in the first place, none of this would be possible.
As orginally written the Constitution said the government can only do the things this document says it can.
By adding the Bill of Rights, people now believe (including apparently Supreme Court justices) the government can do anything except what the document says they can’t.
Seriously, gahrie? You are coming out AGAINST THE BILL OF RIGHTS?!?!
I mean, I view that as the most important part of the Constitution. Freedom of speech, religion, freedom to assemble: these things are what make America the great country it is. They should have been added. It would be a TRAVESTY if they had not been. Heck, without the Bill of Rights, we wouldn’t have the freedom to bear arms.
In fact, one of the reasons I feel the TSA is wrong is that this violates the Fourth Amendment. I truly believe that what they do is unlawful search.
Also, note: the Commerce Clause would still have been in the Constitution, and it is the abuse of THAT, I feel, that has allowed people to believe the government can do anything. That’s the justification more often then not. So yeah, the Bill of Rights has nothing to do with the problems you say it does.
B. Minich, you are simply carrying out a debate that goes back to the Federalist Papers. Ultimately the argument that gahrie supports lost the historical battle, but there were some really smart Founding Fathers making gahrie’s point and warning exactly about the slippery slope that the Bill of Rights would lead us down. Personally, I think the debate boils down to a giant historical game of “what if” and is therefore it is not worth picking a side today. I’m only writing to acknowledge that gahrie’s point is not crazy whatsoever, just completely OBE.
1) If those who felt as I do had prevailed, there would be no need of a Second Amendment, because no where in the Constitution is the government given the right to ban the ownership of guns. The Constitution was written to give the government limited, expressed powers.
2) There would have been no expanded Commerce Clause, because the whole mentality would have been different. The idea was government can only do what the Constitution says it can, not the current idea that the government can do anything except what the Constitution says it can’t.
gahrie, as I said, there is logic on each side, but the debate is long since OBE. Trying to debate this topic in essence descends into an alternate history discussion, and while there are a select few who really enjoy that sort of exercise, I find them maddeningly meaningless.
G. I don’t think the logic would have been different in the end, and the Congress and President would ultimately have gone much further afield than they are now. And the amendments would have been necessitated and much harder to obtain than they were with the bill of rights. Once a government or an office possess a power, it is quite loathe to give it up and will not often do so without a fight.
I agree that most often we read the Constitution backwards, and ignore the 9th Amendment when we consider what is and is not allowed.
If those who felt as I do had prevailed, there would be no need of a Second Amendment, because no where in the Constitution is the government given the right to ban the ownership of guns.
Gahrie, you’re ignoring a critical fact. Much of the Bill of Rights, although originally intended to limit only the federal government’s right, has been applied (via the Fourteenth Amendment) to the states as well. This is tremendously important — the fact that no state government can infringe on my freedom of speech, religion, etc., is something I greatly value. To use the previously cited example of Second Amendment rights… is there any doubt that guns would today be illegal in many blue states — New York, California, etc. — if not for the Bill of Rights and the 14th Amendment incorporation doctrine? Any doubt at all?
This is something far more tangible than the hypothetical notion that perhaps constitutional jurisprudence surrounding the Commerce Clause and other clauses would have perhaps evolved differently if there were no Bill of Rights. Personally, I would argue that the Jeffersonian view of a strictly limited federal government was never going to survive our transition to a modern industrial & technological society. You’re free to disagree, of course, but it’s at least more open to debate than the fact that, with no Bill of Rights, we’d have no nationwide guarantee of individual liberties from infringement by the states. Many states have similar guarantees in their constitutions, I realize that, but state constitutions can generally be more easily amended, and in any case there wouldn’t be a nationwide guarantee of those basic fundamental rights. So it’s not as simple as you stated in the part of your comment I quoted above.
P.S. On the question of whether a Jeffersonian view of government was ever going to survive the vast changes of the last 220 years… let me just say this. As much as conservatives criticize the expansive view of the Commerce Clause (and mind you, I am sympathetic to some of the criticism), it’s really quite unclear what is the proper “conservative” place to draw the line between permissible and impermissible federal regulation of interstate commerce. The reality is that interstate commerce is just vastly more prevalent and complex now than it was in the late 1700s, or than anyone could ever have envisioned in the late 1700s. We’re far more interconnected than the Founding Fathers, or anyone else at that time, could have imagined. So it stands to reason that, barring a constitutional amendment, increased “interstate commerce” would increase the power of the federal government, quite naturally, without any “judicial activism.” Now, I’m not saying you have to accept the current interpretation of the clause as correct, or that there hasn’t been “activism” enhancing the natural increase. Not saying that at all. BUT, an arbitrary line between “interstate commerce” (that can properly be regulated) and “not interstate commerce” (which thus cannot properly be regulated) still has to be drawn somewhere — and the question of “where?” doesn’t answer itself, nor would it be the same answer in 2011 as in 1792, not because the constitution has “evolved” but because society (and commerce) has.
Not saying that at all. BUT, an arbitrary line between “interstate commerce” (that can properly be regulated) and “not interstate commerce” (which thus cannot properly be regulated) still has to be drawn somewhere —
Really? Where is that line now? If the government can force you to buy Health insurance..what can’t they force you to do?
Can the government force you to buy a car from GM? If not, why not?
Gahrie, you’re not addressing my point. You’re just re-making your own point. I already know what you think about present jurisprudence. I’m suggesting that conservatives haven’t articulated a workable alternative to that objectionable present jurisprudence.
The Interstate Commerce Clause exists, so it must mean something. And if it doesn’t mean EVERYTHING, then there must be some things it does mean, and some things it doesn’t mean. But in a modern society, if you want to keep the distinction meaningful (as you clearly do), it’s kinda hard to figure out which is which, isn’t it? Hence my point about an “arbitrary line.”
I understand that you want to replace present interstate commerce jurisprudence; I get that. But, replace it with WHAT? What is the PROPER line, in modern society, between interstate commerce and non-interstate commerce? That’s my question.
So… I will concede, for the sake of argument, that you are correct: under present jurisprudence, everything is interstate commerce. Presently, there IS no “arbitrary line between ‘interstate commerce’ (that can properly be regulated) and ‘not interstate commerce’ (which thus cannot properly be regulated).” There is no line at all. Again, for the sake of argument, I will concede this point.
All of my questions nevertheless remain unanswered. Care to take a crack at them?
P.S. Also… do you deny that the amount of “interstate commerce” has, as a matter of fact, increased since 1792? I fully understand that you don’t think that increase is the primary cause of the expansion of ICC jurisprudence, and I’m not asking you to concede that point. I’m just asking you whether you agree that, to at least some extent, the amount of “interstate commerce” that the government can legitimately regulate, even according to you, has in fact increased since 1792. In other words, even if Gahrie controlled the Supreme Court, the federal government would still have more authority under the ICC than it did in 1792, without any judicial activism whatsoever. Isn’t that true?
And if so, then, again, I’m just wondering where the line is drawn, properly, according to you, in a world where (unlike in 1792) so much commerce is interstate. I would submit that one of the main reasons for the ICC’s jurisprudential expansion is precisely that nobody can figure out where to draw that line, except at “everything.” Which isn’t a defense of drawing it at “everything”; it’s just an explanation. In any event, I think this is a very important question for conservatives to be able to answer, because if there’s no workable alternative to liberal/activist ICC jurisprudence, there’s no hope of you guys winning this argument.
I would begin by returning to the understanding that existed prior to FDR’s threat to pack the court in 1937 and the Wickard V Filburn ruling.
Brendan, I’ll take up your challenge. IMO, CJ Rehnquist set a soft but workable conservative jurisprudence in United States . Lopez when he identified the three broad categories of activity that Congress could regulate under the Commerce Clause:
* the channels of interstate commerce,
* the instrumentalities of interstate commerce, or persons or things in interstate commerce, and
* activities that substantially affect or substantially relate to interstate commerce.
Now, one could make a case that Rehnquist hasn’t defined a philosophical distinction between interstate and intrastate commerce, he simply developed a framework of approaching the legal problem that bases resolution of the issue on some rational weighting of whether something “substantially affects” or “substantially relates” to interstate commerce. Rehnquist himself recognized this still does not resolve the national / local issue by saying,
If you want to truly resolve the issue according to conservative jurisprudential principles though, you would need to overturn Wickard v. Filburn which set the precedent that anything that substantially affects commerce can be regulated. I would argue the principle that the interpretation that should replace Wickard is that Congress can regulate commercial “channels” and commercial “instrumentalities”, but generally cannot regulate commercial “activities” unless they are truly interstate. Thus Gonzales v. Raich would be overturned as well, and Obama’s healthcare legislation would be constitutionally DOA.
Fair enough. If I was in more of a frame of mind to attack this issue, I suspect I could come up with (or plagiarize) all sorts of counterexamples to tie that framework in knots, but I’m busy and not in a ConLaw place, so I’ll accept your response to my challenge as adequate. 🙂
PS – Rewriting my second to last sentence:
Here is an article that discusses my views about the necessity and/or wisdom in adding the Bill of Rights to the Constitution.
But in a government consisting of enumerated powers, such as is proposed for the United States, a bill of rights would not only be unnecessary, but, in my humble judgment, highly imprudent. In all societies, there are many powers and rights which cannot be particularly enumerated. A bill of rights annexed to a constitution is an enumeration of the powers reserved. If we attempt an enumeration, every thing that is not enumerated is presumed to be given. The consequence is, that an imperfect enumeration would throw all implied power into the scale of the government, and the rights of the people would be rendered incomplete. On the other hand, an imperfect enumeration of the powers of government reserves all implied power to the people; and by that means the constitution becomes incomplete. But of the two, it is much safer to run the risk on the side of the constitution; for an omission in the enumeration of the powers of government is neither so dangerous nor important as an omission in the enumeration of the rights of the people.
http://volokh.com/2011/06/07/liberty-and-enumerated-powers/