How Long Will Travelers Put Up with TSA Intrusions?

Michael Schwarz

December 1, 2010

Recent incidents involving pat-downs and full-body scanners at airports have generated considerable controversy. Some believe, in the name of security, that travelers should view these measures as minor and necessary inconveniences. Others insist that they have been asked to surrender too many of their rights in exchange for the false promise of safety.

The Fourth Amendment to the U.S. Constitution prohibits government officials from conducting ” unreasonable searches and seizures.” Opinions may differ over what constitutes a reasonable search or seizure, and American air travelers, conditioned to accept security-line annoyances as permanent features of the post-9/11 flying experience, have demonstrated remarkable patience in the face of increasing intrusions. Still, if we think it unreasonable to impose pat-downs and full-body scans on children, elderly women and other random travelers who present no threat to public safety, then we must conclude that the Transportation Security Administration, and through it the federal government, has violated the Fourth Amendment.

Is this a big deal? Should we be outraged?

Well, on one hand, this is not the first time the federal government has trampled the Bill of Rights. In fact, the same men who helped adopt that celebrated document also committed the first serious violation of it. Facing a war with France, and fearing treachery from French sympathizers in America, the Federalist-controlled Congress in 1798 passed the Sedition Act, which threatened prosecution for, among other things, “false, scandalous and malicious writing or writings against the government of the United States” and its officers. Despite obvious conflict with the First Amendment, Congress adopted the Sedition Act, and President John Adams signed it, as a temporary measure intended to meet a specific emergency. In the end, the war crisis passed, the Sedition Act expired and the republic survived.

On the other hand, some who regard TSA violations of the Fourth Amendment as “no big deal” betray alarming ignorance of what the Bill of Rights actually is. The United States of America began with a declaration that individual rights come from nature. Yet too many Americans now believe that their rights come from government. As a result, they mistakenly interpret the Bill of Rights as a grant of rights from the government to the people, which, if true, indeed might justify curtailing those rights as circumstances warranted. However, the Bill of Rights is not a gift from government but rather an acknowledgment of rights that people already possess.

Another way of thinking about the Bill of Rights is to view it as a redundant check on government power. While people’s rights do not come from government, the government’s power comes directly from the people and from no other source. Under the Constitution, for instance, the people have not granted the federal government the power to establish an official religion. Ideally, then, it should not be necessary to declare that Congress shall make no law respecting the establishment of religion. But the Founders knew that elected rulers would look for ways to expand their authority, so they constantly worked to frustrate that ambition, through constitutional arrangements that we like to call “checks and balances,” and by listing certain rights, such as freedom of conscience, whose protection they deemed too important to leave to chance.

Thus, the federal government is twice denied the power of unreasonable search and seizure. Nowhere in the Constitution do the people grant that power to the government; in one place they expressly and redundantly deny it.

Of course, reasonable-minded Americans will continue to accept modest impositions that enable government officials to carry out legitimate security-related tasks. No doubt many will continue to accept and even endorse the TSA’s policies. In the end, the republic will survive.

Nonetheless, it’s worth remembering that after 1798 Americans never again entrusted the Federalists with power. Thomas Jefferson and James Madison condemned the Sedition Act as a violation of the First Amendment, and voters rewarded them with successive two-term presidencies. This suggests that at one time there were limits to Americans’ patience. Perhaps there are still.

Michael Schwarz is an assistant professor of history at Ashland University and a fellow of the Ashbrook Center.