The Blog

TSA Regulations: Anger, Apathy and the Law

Whatever the media believes or suggests or simply does not understand, there is a Constitutional predicate for the right of an America citizen to travel at home and abroad unmolested.
This post was published on the now-closed HuffPost Contributor platform. Contributors control their own work and posted freely to our site. If you need to flag this entry as abusive, send us an email.

I suspect that the current debate regarding the Transportation Security Agency's (TSA) current body-scanning machines and full-body pat downs will be resolved by a contest of public anger versus public apathy. However, there is also a third possibility: litigation. For instance, the mainstream media sometimes implicitly and sometimes explicitly informs the American public that travel is a privilege, not a right. This is simply incorrect. The Fifth Amendment of the U.S. Constitution guarantees the right to travel.

In Kent v. Dulles, 357 U.S. 116 (1958) at 125-126, Justice William Douglas, writing for the majority opinion (5-4), stated:

"The right to travel is a part of the 'liberty' of which the citizen cannot be deprived without due process of law under the Fifth Amendment. So much is conceded by the Solicitor General. In Anglo-Saxon law, that right was emerging at least as early as the Magna Carta. Chafee, Three Human Rights in the Constitution of 1787 (1956), 171-181, 187 et seq., shows how deeply engrained in our history this freedom of movement is. Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage. Travel abroad, like travel within the country, may be necessary for a livelihood. It may be as close to the heart of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in our scheme of values. See Crandall v. Nevada, 6 Wall. 35, 44; Williams v. Fears, 179 U.S. 270, 274; Edwards v. California, 314 U.S. 160. . . .
Freedom of movement also has large social values . . . reasons close to the core of personal life -- marriage, reuniting families, spending hours with old friends."

So, whatever the media believes or suggests or simply does not understand, there is a Constitutional predicate for the right of an America citizen to travel at home and abroad. Soon, perhaps sooner rather than later, an individual American may very well protest in court why he or she has been given a very complicated, but not subtle Hobson's choice regarding freedom of travel at airports. The Merriam Webster Dictionary defines a Hobson's choice as:

1: an apparently free choice when there is no real alternative
2: the necessity of accepting one of two or more equally objectionable alternatives.

The traveler, in other words, may silently choose to acquiesce to the TSA's various security measures -- which now include a full-body X-ray scan and/or a full-body police-style pat down. In this event, the traveler has accepted his Hobson's choice fate without objection. However, the man or woman behind him or her in line may choose to totally oppose the chilling effect of the newest TSA policies and procedures and refuse to cooperate. Accordingly, he or she will be denied the arguably Constitutional right to participate in his or her freedom to travel.

There are, of course, subsets to the dilemma created by the TSA's recent decisions. A father and mother traveling with their son and daughter may quickly find themselves deep inside a Hobson's choice. The mother and father are willing to undergo either the full-body scan or the pat down without objection. Their five-year-old son, because of his youth, is hypothetically exempt, based on the Congressional testimony of John Pistole of the TSA. However, the mother and father are both alarmed and distraught by the idea of subjecting their 16-year-old daughter to body-scanning machines, because she suffers from childhood leukemia and is terrified of being exposed to any unwanted radiation delivered by the body-scanning machines. She is particularly terrified of the possibility that a scanning machine will malfunction and deliver an even higher dose of radiation. Further, the daughter is extremely self-conscious, easily embarrassed and has great anxiety about the prospect of a total stranger touching her most private areas.

If the 16-year-old girl does not cooperate in one form or another, the family trip to the grandparents' house 3,000 miles away for Thanksgiving will have to be canceled. This type of situation might easily be the grounds for a very reasonable and successful legal complaint.

There is another particularly disturbing subset of the Hobson's choice being given to Americans at airports. In all 50 states of the Union, and the District of Columbia, there are criminal laws, codified statutes, that explicitly and in very, very specific detail list and explain a vast array of prohibitions regarding almost every imaginable possible form of unwanted, unrequested, nonconsensual touching of another human being's sexual organs. Even the briefest, most cursory reading of these statutes would suggest that the TSA has wildly overstepped the limits of the law, both civilly and criminally. In other words, no adult or minor can consent to criminal, sexual touching, and furthermore, no parent can give consent to have a minor criminally and sexually touched.

Remember, law enforcement agencies, state and federal, operate under a Fourth Amendment prohibition against searches undertaken without probable cause. In other words, the TSA now has the super-Constitutional authority to search and seize and question any altogether innocent American who attempts to travel at an airport, without any probable cause whatsoever. This is an astounding civil liberties and criminal liability regression.

So, to return to the beginning. The yelling back and forth over the fence may very well reach a pitch that requires the TSA to remove the scanning machines and stop the pat downs. Personally, I would rather these matters were decided in a court of law than by fluctuating opinion polls. That 16-year-old girl is my daughter and your daughter and everybody's daughter, and she deserves her day in court.

Postscript. Let us never get bogged down in the specious argument that any American citizen can use alternate means of transportation if he or she objects to any restraints on a particular form of travel. The gist of the true argument is simple. Travel is travel is travel. We are allowed to travel by plane, by train, by car, by bus, and any infringement on any of these means of travel should be submitted to judicial review.