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Old Jun 10, 2005, 8:20 pm
  #91  
 
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Originally Posted by bnarayan1511
Considering that air travel was not even a twinkle in someone's eye when the Consitution was first drafted, it would be surprising to find the right to air travel in there. As to why there is no Amendment that specifies this as a right, here is a theory (Source: http://www.usconstitution.net/constnot.html#travel)

As the Supreme Court notes in Saenz v Roe, the Constitution does not contain the word "travel" in any context, let alone an explicit right to travel. The presumed right to travel, however, is firmly established in U.S. law and precedent. In U.S. v Guest, the Court noted, "It is a right that has been firmly established and repeatedly recognized." In fact, in Shapiro v Thomson, Justice Stewart noted in a concurring opinion that "it is a right broadly assertable against private interference as well as governmental action. Like the right of association, ... it is a virtually unconditional personal right, guaranteed by the Constitution to us all."

It is interesting to note that the Articles of Confederation had an explicit right to travel; it is now thought that the right is so fundamental that the Framers may have thought it unnecessary to include it in the Constitution or the Bill of Rights.

You're absolutely right in that you don't have an explicitly stated constitutional right to travel within the country, but since you are not restricted from interstate travel, the 10th amendment says you have the right anyway.

It could be reasonably argued that Article 4, Section 2, Clause 1, presumes the right to travel between states when it says that a citizen of one state shall have all the rights of a citizen of another state.

For the truly bored (oops, I mean, interested ) read this:
http://caselaw.lp.findlaw.com/data/c...ment14/33.html

I am not advocating a position on this issue under discussion, merely sharing what might be pertinent information.
I don't disagree with any of this. I was merely replying to another posters insistance that the U.S. Constitution guaranteed all citizens the right to travel on commercial airlines. The information provided above only discusses "travel" in a general sense; not "air travel" or even more specific, "commercial air travel". In addition, it focuses upon U.S. law precedence as opposed to rights granted by the U.S. Constitution.
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Old Jun 11, 2005, 7:50 am
  #92  
 
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Originally Posted by Bruce on the Loose
I don't disagree with any of this. I was merely replying to another posters insistance that the U.S. Constitution guaranteed all citizens the right to travel on commercial airlines. The information provided above only discusses "travel" in a general sense; not "air travel" or even more specific, "commercial air travel". In addition, it focuses upon U.S. law precedence as opposed to rights granted by the U.S. Constitution.
Under our system of common law, the U.S. Supreme Court construes what rights it thinks exists. Inititally, however, I must quarrel with your expression "rights granted by the U.S. Constitution". The Founding Fathers were clear that the Constitution does not grant rights to the people, but rather gives government very limited specific powers. Read The Federalist Papers, available online here
http://memory.loc.gov/ammem/help/constRedir.html and here http://www.yale.edu/lawweb/avalon/federal/fed.htm Moreover, the 9th and 10th Amendments serve as further proof that the reach of the national government should be limited.

To return to the main point of this post, pursuant to Marbury v. Madison, the U.S. Supreme Court has the final say on what the existing U.S. Constitution says. Of course, the Constitution may be amended to reverse a Supreme Court decision, but amending the Constitution is a very difficult procedure, and rightly so. In my opinion, the Supreme Court having the final say presents some problems. For one, the principle of stare decisis, respect for prior opinions and results and a consequent reluctance to reverse earlier decisions, means that obviously incorrect rulings are often ingrained into our jurisprudence. At the risk of going Omni, the Court obviously was wrong in the Dred Scott case, in Plessy v. Ferguson (enshrining separate but equal until Brown v. Board of Education), and I believe it also reached incorrect results in Roe v. Wade and its ruling on the McCain-Feingold/Bipartisan Campaign Reform Act, which ruling is directly contrary to the 1st Amendment.

All of this is background on the main issue of travel. The U.S. Supreme Court has already clearly found a right to travel in the U.S. Constitution. The "liberal interpretation" camp would forward the proposition that this right is almost meaningless if a means to travel were not also part of the right. For example, if one has to travel from Manhattan to Los Angeles for business, the only practical way to accomplish this is to fly on an airplane. A "strict" view would be that the Court's prior opinions recognize a right to travel, but are silent on the mode allowed. It is possible to drive, to take a train, or even to ride a horse or walk, two common means of travel in 1789, when the Constitution was ratified. The prior opinions, according to the "strict" view, do not guarantee a right to fly an airplane, especially a commercial flight.

I suspect that given both the exisiting climate regarding security and the current composition of the Court, a compromise opinion would allow rather stringent screening procedures before one could board a commercial flight. However, I could also see the Court at least paying lip service to the Privacy Act, and remanding to District Court for the question of whether security concerns allow TSA/DHS a waiver from all of the provisions of the Privacy Act. Just my thoughts on this issue, which is basically what one does with a common law system of jurisprudence based on precedence and stare decisis: review the facts in light of statutes, regulations, and case law, then argue the case and/or predict an outcome.

Last edited by PatrickHenry1775; Jun 11, 2005 at 7:54 am
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Old Jun 11, 2005, 8:22 am
  #93  
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Originally Posted by Bruce on the Loose
Is this the U.S. Constitution you're referring to, or some other personal document that only you have access to? I've read, reviewed, googled and parsed the U.S. Constitution and have yet to identify where, in said document, air travel is a "right" of a U.S. citizen.

. . .

It's very simply PTravel; you're welcome to walk away at any time and keep whatever information you want confidential.
Of course, I've never suggested that air travel is a "right." The fact that it is not does not matter. The government can not condition air travel on waiving violations of the 4th and 5th Amendment anymore than it can on waiving violations of the 1st by, for example, requiring religious conversion as a condition for flying.
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Old Jun 11, 2005, 8:23 am
  #94  
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Originally Posted by Bruce on the Loose
Oops, guess my previous question has been answered. Please disregard my previous post.
A complaint has been forwarded to the moderator.
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Old Jun 11, 2005, 8:25 am
  #95  
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Originally Posted by Bruce on the Loose
So your rates would be the same without that pro bono work? Face it, your paying clients simply subsidize your fees for those clients that can't afford it. You like the arrangement because then you can make yourself feel better by announcing all of these awards you win.
The ABA has "recommended" minimums for law firm pro bono hours and, to the best of my knowledge, all major law firms routinely exceed them. What is the standard for pro bono for your profession?
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Old Jun 11, 2005, 8:28 am
  #96  
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Originally Posted by PatrickHenry1775
Under our system of common law, the U.S. Supreme Court construes what rights it thinks exists. Inititally, however, I must quarrel with your expression "rights granted by the U.S. Constitution". The Founding Fathers were clear that the Constitution does not grant rights to the people, but rather gives government very limited specific powers. Read The Federalist Papers, available online here
http://memory.loc.gov/ammem/help/constRedir.html and here http://www.yale.edu/lawweb/avalon/federal/fed.htm Moreover, the 9th and 10th Amendments serve as further proof that the reach of the national government should be limited.

To return to the main point of this post, pursuant to Marbury v. Madison , the U.S. Supreme Court has the final say on what the existing U.S. Constitution says. Of course, the Constitution may be amended to reverse a Supreme Court decision, but amending the Constitution is a very difficult procedure, and rightly so. In my opinion, the Supreme Court having the final say presents some problems. For one, the principle of stare decisis, respect for prior opinions and results and a consequent hesitance to willy-nilly reverse, means that obviously incorrect rulings are often ingrained into our jurisprudence. At the risk of going Omni, the Court obviously was wrong in the Dred Scott case, in Plessy v. Ferguson (enshrining separate but equal until Brown v. Board of Education), and I believe in Roe v. Wade and its ruling on the McCain-Feingold/Bipartisan Campaign Reform Act, which is directly contrary to the 1st Amendment.

All of this is background on the main issue of travel. The U.S. Supreme Court has already clearly found a right to travel in the U.S. Constitution. The "liberal interpretation" camp would forward the proposition that this right is almost meaningless if a means to travel were not also part of the right. For example, if one has to travel from Manhattan to Los Angeles for business, the only practical way to accomplish this is to fly on an airplane. A "strict" view would be that the Court's prior opinions recognize a right to travel, but are silent on the mode allowed. It is possible to drive, to take a train, or even to ride a horse or walk, two common means of travel in 1789, when the Constitution was ratified. The prior opinions, according to the "strict" view, do not guarantee a right to fly an airplane, especially a commercial flight.

I suspect that given both the exisiting climate regarding security and the current composition of the Court, a compromise opinion would allow rather stringent screening procedures before one could board a commercial flight. However, I could also see the Court at least paying lip service to the Privacy Act, and remanding to District Court for the question of whether security concerns allow TSA/DHS a waiver from all of the provisions of the Privacy Act. Just my thoughts on this issue, which is basically what one does with a common law system of jurisprudence based on precedence and stare decisis: review the facts in light of statutes, regulations, and case law, then argue the case and/or predict an outcome.
I, for one, do not believe the Constitution grants us any rights. Those rights already exist. Instead, I believe the Constitution defines government authority with respect to our already existing rights. In other words, it limits the special circumstances when government may infringe upon our rights but does not necessarily mean that those rights are taken away from us. When you are arrested for a crime, even though your right for freedom of movement has been restricted, it is only temporary based on certain conditions specifically addressed by the Constitution. In other words, government cannot simply detain your arbitrarily.

With respect to airline travel, I think you're forgetting something. Yes, you and I have a right to purchase a ticket for a commercial flight. In other words, the airlines cannot deny us a ticket because of the color of our skin, gender, lifestyle preference, religion, ethnicity, physical handicap, etc. However, it can certain contract certain conditions for travel that we either agree to or risk not flying. For example, we agree to be clothed appropriately (I've seen it where a woman was denied boarding because the airline gate agent interpreted her clothing as too revealing); we agree not to carry on our persons any dangerous items (flammables, explosives, corrosives, irritants, etc) or weapons (firearms, knives, martial arts weapons) or prohibited items (scissors, penknives, tools, lighters, etc); we agree to follow flight crew's instructions, which implies that if we are intoxicated, belligerent or generally uncooperative, we may not be allowed on board; and there are other conditions we either agree to specifically or accept as part of a contractual agreement with the airlines. If we don't hold up our end of the agreement, then the airlines are not obligated to hold up their end. Oversimplified explanation perhaps, but I think you know what I mean.

In terms of the Privacy Act of 1974, I agree. To put it in blunt paratrooper vernacular: TSA supervisors are f*cking up royally if they don't take time to explain the Privacy Act to passengers from whom they obtain personal information. Is this a gross violation of the Constitution? Well, that can certainly be argued, but it's more of a violation of TSA policy because TSA policy obligates supervisors to explain the Privacy Act. Again, as I mentioned previously, I am just surprised that the hammer hasn't fallen on TSA over this issue yet. The policy is clearly there but compliance is not. I would think that certain advocacy groups as well as government oversight groups would have had a field day by now. Not so sure about Flies assertion that these notices have to be issued in writing. I mean, we always provided a written copy along with our verbal explanation when I was an Army counterintelligence investigator, but then, EVERYTHING the Army does is in writing. So I'm not sure how it applies to the rest of government. At any rate, my point is that TSA is signficantly weak in this one regard.

Is airport security screening an unreasonable intrusion into our privacy? Not at all, because you can choose not to undergo the screening. You are not forced to comply. When you enter the WTMD or submit an item for x-ray inspection, you have just initiated the screening process voluntarily and implied your consent to a security search. Now there are limits to that search. We cannot search on behalf of the police, for instance, to look for drugs. Everything we do must be in relationship to airport security screening.

Is airport security screening, although within the limits of the law, unreasonable in general? Yes. I think the lighter policy is nonsense. I think the obsession over manicure scissors and penknives is ridiculous. I think the selectee policy is good intentions gone awry. I think the shoe policy is too ambitious. This doesn't mean that these procedures violate your constitutional rights or intrude upon your privacy. It only means, in my mind, that it's policy that can be improved with a realistic risk-management oriented approach rather than as is currently practiced with a risk-avoidance, almost Chicken Little paranoiod approach.

But here I go again talking about the Constitution. I forgot my place in society since I'm not a lawyer and have no right to express my thoughts about the Law of the Land. I'm just a dumb ol' retired paratrooper who happened to pull a couple of tours in countries where people don't enjoy the freedoms we tend to take for granted in this great land of ours even if we disagree on the validity of issues such as airport security screening. At least we can bicker, argue and b*tch about it without fear of reprisal or recrimination. I've been in places where people were dragged out of their homes in the dark of night and their bullet ridden bodies found the next morning. It's from this perspective that I highly criticize the comments made on this board about abusive government in terms of security screening. We're just not there.

Well, enough preaching. I'll get off my soapbox.
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Old Jun 11, 2005, 9:14 am
  #97  
 
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Originally Posted by Bart
Not so sure about Flies assertion that these notices have to be issued in writing. I mean, we always provided a written copy along with our verbal explanation when I was an Army counterintelligence investigator, but then, EVERYTHING the Army does is in writing. So I'm not sure how it applies to the rest of government. At any rate, my point is that TSA is signficantly weak in this one regard.
PA of 1974 As Amended:
552a
(e) Agency requirements

Each agency that maintains a system of records shall--

(3) inform each individual whom it asks to supply information, on the form which it uses to collect the information or on a separate form that can be retained by the individual--

Sounds like the Army is right oin this one.
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Old Jun 11, 2005, 9:50 am
  #98  
 
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Bart, nice post. Wish you had stayed clear of that last paragraph although I certainly appreciate the emotion underlying it. Again, thanks for the nice post.

And with a screen name like Bart, how could you forget Bart Simpson's famous travel quote...

Originally Posted by Bart
It's from this perspective that I highly criticize the comments made on this board about abusive government in terms of security screening. We're just not there
yet.

(Bolding and other emphasis in the quoted post is mine)
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Old Jun 11, 2005, 4:53 pm
  #99  
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Originally Posted by bnarayan1511
Bart, nice post. Wish you had stayed clear of that last paragraph although I certainly appreciate the emotion underlying it. Again, thanks for the nice post.

And with a screen name like Bart, how could you forget Bart Simpson's famous travel quote...

yet.

(Bolding and other emphasis in the quoted post is mine)
I don't think we're headed there. The one great thing about this country is its diversity and determination to remain free. While many may disagree on the definition of that freedom, I think we have a healthy dose of suspicion about government motives, methods and intentions. For example, I support many provisions of the Patriot Act. I think many of them are common sense measures that have finally prevailed to aid law enforcement catch criminals, namely terrorists. However, I don't blindly support it, and I think it's absolutely great that it's under debate. I think that's a healthy sign that this nation, while willing to use its government to combat terrorism, is still not so willing to let government justify its actions under the blanket of fighting terrorism.

Even under LBJ's Great Society, which some may define as a dangerous step towards socialism, we still welcomed debate and dissent. We did not fall over the edge into socialism as some feared. And contrary to what many believe, we were nowhere close to it during the Clinton years. Bill Clinton, if anything, was a shrewd politician who managed to get where he wanted by playing both ends against the middle...figuratively in the political sense. Yet there were those who believed that we were headed towards martial law under Clinton or were going to surrender our sovereignty to the UN.

No, my friend, this country is still in great shape.
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Old Jun 11, 2005, 5:12 pm
  #100  
 
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Originally Posted by Bart
I don't think we're headed there. The one great thing about this country is its diversity and determination to remain free. While many may disagree on the definition of that freedom, I think we have a healthy dose of suspicion about government motives, methods and intentions. For example, I support many provisions of the Patriot Act. I think many of them are common sense measures that have finally prevailed to aid law enforcement catch criminals, namely terrorists. However, I don't blindly support it, and I think it's absolutely great that it's under debate. I think that's a healthy sign that this nation, while willing to use its government to combat terrorism, is still not so willing to let government justify its actions under the blanket of fighting terrorism.

Even under LBJ's Great Society, which some may define as a dangerous step towards socialism, we still welcomed debate and dissent. We did not fall over the edge into socialism as some feared. And contrary to what many believe, we were nowhere close to it during the Clinton years. Bill Clinton, if anything, was a shrewd politician who managed to get where he wanted by playing both ends against the middle...figuratively in the political sense. Yet there were those who believed that we were headed towards martial law under Clinton or were going to surrender our sovereignty to the UN.

No, my friend, this country is still in great shape.
^ ^ ^

How true! This willingness to debate and dissent, and toleration of debate and dissent, is one of the factors that makes our country great. Many nations would not countenance sites such as this one.
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Old Jun 11, 2005, 6:20 pm
  #101  
 
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Originally Posted by PatrickHenry1775
Under our system of common law, the U.S. Supreme Court construes what rights it thinks exists. Inititally, however, I must quarrel with your expression "rights granted by the U.S. Constitution". The Founding Fathers were clear that the Constitution does not grant rights to the people, but rather gives government very limited specific powers. Read The Federalist Papers, available online here
http://memory.loc.gov/ammem/help/constRedir.html and here http://www.yale.edu/lawweb/avalon/federal/fed.htm Moreover, the 9th and 10th Amendments serve as further proof that the reach of the national government should be limited.

To return to the main point of this post, pursuant to Marbury v. Madison, the U.S. Supreme Court has the final say on what the existing U.S. Constitution says. Of course, the Constitution may be amended to reverse a Supreme Court decision, but amending the Constitution is a very difficult procedure, and rightly so. In my opinion, the Supreme Court having the final say presents some problems. For one, the principle of stare decisis, respect for prior opinions and results and a consequent reluctance to reverse earlier decisions, means that obviously incorrect rulings are often ingrained into our jurisprudence. At the risk of going Omni, the Court obviously was wrong in the Dred Scott case, in Plessy v. Ferguson (enshrining separate but equal until Brown v. Board of Education), and I believe it also reached incorrect results in Roe v. Wade and its ruling on the McCain-Feingold/Bipartisan Campaign Reform Act, which ruling is directly contrary to the 1st Amendment.

All of this is background on the main issue of travel. The U.S. Supreme Court has already clearly found a right to travel in the U.S. Constitution. The "liberal interpretation" camp would forward the proposition that this right is almost meaningless if a means to travel were not also part of the right. For example, if one has to travel from Manhattan to Los Angeles for business, the only practical way to accomplish this is to fly on an airplane. A "strict" view would be that the Court's prior opinions recognize a right to travel, but are silent on the mode allowed. It is possible to drive, to take a train, or even to ride a horse or walk, two common means of travel in 1789, when the Constitution was ratified. The prior opinions, according to the "strict" view, do not guarantee a right to fly an airplane, especially a commercial flight.

I suspect that given both the exisiting climate regarding security and the current composition of the Court, a compromise opinion would allow rather stringent screening procedures before one could board a commercial flight. However, I could also see the Court at least paying lip service to the Privacy Act, and remanding to District Court for the question of whether security concerns allow TSA/DHS a waiver from all of the provisions of the Privacy Act. Just my thoughts on this issue, which is basically what one does with a common law system of jurisprudence based on precedence and stare decisis: review the facts in light of statutes, regulations, and case law, then argue the case and/or predict an outcome.
D*mn, PH, are you the real thing back from the dead? Most reasonable and well-explained position I've read on this whole 100-post compendium.
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Old Jun 11, 2005, 6:22 pm
  #102  
 
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Originally Posted by PTravel
Of course, I've never suggested that air travel is a "right." The fact that it is not does not matter. The government can not condition air travel on waiving violations of the 4th and 5th Amendment anymore than it can on waiving violations of the 1st by, for example, requiring religious conversion as a condition for flying.
Why not? They can condition being in the proximity of a President, entering a courtroom or Federal building, etc. on waiving such violations.
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Old Jun 11, 2005, 6:33 pm
  #103  
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Originally Posted by thegingerman
Why not? They can condition being in the proximity of a President, entering a courtroom or Federal building, etc. on waiving such violations.
I'm sorry . . . waiving what violations?

As Patrick Henry explained in another post, the Bill of Rights doesn't confer rights, it enumerates powers that were never ceded to the government. Our government is one of limited powers. No citizen can "waive" the government usurping powers it never had in the first place.
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Old Jun 11, 2005, 7:27 pm
  #104  
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Originally Posted by Bart
For example, I support many provisions of the Patriot Act. I think many of them are common sense measures that have finally prevailed to aid law enforcement catch criminals, namely terrorists. However, I don't blindly support it, and I think it's absolutely great that it's under debate. I think that's a healthy sign that this nation, while willing to use its government to combat terrorism, is still not so willing to let government justify its actions under the blanket of fighting terrorism.
Apparently the so-called USA PATRIOT ACT and its "results" are not up for full and open debate in Congress.

Here's one now rabid Congressmen from the Ruling Party who shut down debate:

Congressman F. James Sensenbrenner, Jr. of Wisconsin
Chairman of the House Judiciary Committee
Lead-pusher of the "REAL ID" farce
Defender of the [Anti-]USA PATRIOT Act.

And here's a bit about the tactics used.

http://www.boston.com/news/nation/wa...t_act_hearing/

Thankfully the tactics are not working completely; however, the Ruling Party march goes on and the objectives of shutting down debate in general are working at the House and Senate level. And when many of our senior political leaders can be marginalized and dismissed from excercising their political rights -- on behalf of their consitutents and in their judgment -- as historically demonstrated in the highest chambers of government, the looking does not look good.

Last edited by GUWonder; Jun 11, 2005 at 7:43 pm
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Old Jun 11, 2005, 7:38 pm
  #105  
 
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FWIW, I agree to some extent with Bart about the Patriot Act. The provisions regarding government agents at religious services sounds eminently reasonable. Most religions welcome new members. With respect to the library records, if one does not want government to know what books or items one borrows from a public library, then don't borrow from a public library. These two issues fall under the rubric of open and obvious, with no reasonable expectation of privacy.

I would argue that these situations are very different than baggage that tests positive by EDS machine at a checkpoint, but does not in fact contain explosives. In the latter case, the government should not collect personal information, at least without a full explanation of Privacy Act provisions, because there was actually no even quasi-criminal activity.
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