Originally Posted by
SWCPHX
Please cite a court case that stated somebody has the "right to fly". What is constantly cited, 49 CFR part 27, is the right to equal access of air facilities for disabled people, it's not a right to fly. And the other section for a person to move through navigable airspace is not an inherent right to fly either.
The Privileges and Immunities clause (Article 4, Section 2, Clause 1) and upheld repeatedly by the US Supreme Court (U.S. v Guest, 383 U.S. 745 (1966), Shapiro v Thompson, 394 U.S. 618 (1969)), establishes the peoples' right to unobstructed interstate travel.
Originally Posted by
SWCPHX
And the 9th Amendment was pretty much challenged successfully in US Public Workers vs Mitchell and Oklahoma vs Civil Service Commission no? The Federal government has the ability to restrain rights that are not specifically enumerated in the Constitution. Basically flying is a privilege, not a right.
I am not a lawyer or a legal scholar of any kind, but my understanding of that case is that it was based on the idea that those employed by the federal government may have their freedom of speech muzzled in order to prevent the perception - or reality - that government was influencing or coercing the people, since it's the people who are supposed to be in charge, not the government.
Violating peoples' civil rights in order to advance government interest not only doesn't fall under that category, it flies directly in its face; the restrictions on individual rights of a limited number of people in the Mitchell decision was considered to be a restriction on government, not on the people. TSA's violation of the 4th Amendment is a restriction on the people themselves.
By the way - whether you believe there is a right to fly or not makes no difference whatsoever. TSA's scope and grope methodology doesn't violate one's right to fly, it violates a specifically enumerated right set forth in the 4th Amendment, the right to be free of unreasonable search and seizure. That right doesn't say, "except when engaged in voluntary activity" or "only when you're exercising one of your other rights." It's a blanket statement - the government may not execute unreasonable searches or seizures against the people without warrant or probable cause.
Originally Posted by
SWCPHX
And yet it occurs in airports everyday around the country in full view of Federal Courts that could put a stop to it with injunctions. I dislike the TSA as much as most people but around here but some of the folks on here are not doing any favors in getting it shut down with the usual hyperbole, misguided opinions, and relying on silly pithy statements from the UN.
Do federal courts issue injunctions without a specific complaintant? can a judge on the bench simply issue an injunction against something if he, let's say, sees it on the news, or witnesses it himself? I was under the impression that an actual charge or suit had to be heard by a court before the court could take such an action. And TSA has jumped through legal hoops to prevent any such case from being heard in any federal court.
But, as I said, I'm not a lawyer. Perhaps one of the legal eagles could chime in here and clarify.
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One more thing.
We can debate legal technicalities and sound bites all we want, but when it comes down to brass tacks, what the TSA is doing with the scope and grope methodology, the harassment of innocent people, the lack of public accountability for its actions, and the blatant disregard for the rights of the individual in the name of a nebulous form of safety from a poorly-defined, minimal threat, is wrong. It's unethical and immoral in the extreme, whether it's legal in the convoluted mess of the CFR notwithstanding. It's wrong, no matter how you justify it or rationalize it. It's just wrong.
Slavery was legal. The Holocaust was legal. The Crusades were legal. The Inquisition was legal. Stalin's purges were legal. The extermination of native peoples in the Americas was legal. Everyone who perpetrated those things thought they were justified. But all of those things were wrong.
Something that's wrong is always wrong, whether it's legal or not. Ask anyone who has studied history - the wrongs of today will be clucked over, and anyone who accepts those wrongs will be laughed at, pitied, or outright hated, by the people of tomorrow.