FlyerTalk Forums - View Single Post - Does the 4th amendment apply with TSA and airports.
Old Nov 14, 2010 | 5:06 pm
  #47  
MajorJim
 
Join Date: Nov 2010
Posts: 33
There are significant differences between "rights" and "privileges".

Rights are those things that you possess by virtue of being born. They are inalienable, meaning the government cannot take them away or subject them to regulations which would effectively take away the right.

Life, liberty and the pursuit of happiness are the broad definition of the rights we have in the US. Those were clarified under the Constitution by way of the amendments. The right to freedom from unreasonable search and seizure is one.

A privilege is similar to a right but is is granted by a license from the state. The state can set the terms and conditions for the exercise of a privilege. Driving is a good example. The state builds the roads, and has the power to regulate who gets to drive on them.

What I see here is a clash between right and privilege. So what happens to your rights when exercising a privilege? The privilege must recornize the right and give way. While you have to follow the state's rules when driving a car, you do not give up your Fourth Amendment Rights. Law enforcement cannot search an area of your vehicle outside of your immediate reach without getting your consent or doing a search incident to an arrest.

The examples of having police search the trunk is a good one. The police can't search your trunk without a warrant or without your permission.

And you do not automatically consent to a search based on obtaining a license. The government cannot say you needed to read the fine print. There is no such thing as "administrative consent" when it comes to the Fourth Amendment.

Just because the government believes a search would be useful, that darn Fourth Amendment keeps popping up.

It is pretty amazing that this whole TSA thing has gone this far. Before a new rule is put into place, it is supposed to undergo legal review to insure it does not violate the Constitution or other laws. I have a hard time beleiving that was done here, but if it was, I would love to read the legal opinion.
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