Constitution Daily

Smart conversation from the National Constitution Center

Benjamin Franklin, underwear and TSA scans

November 29, 2010 by Donald Applestein Esq.


“They that can give up essential liberty to obtain a little safety deserve neither liberty nor safety.”

Benjamin Franklin, 1775

Some years ago a terrorist on a plane tried to ignite his shoes, and the government responded by requiring air travelers to remove their shoes to be put through an x-ray machine.

Later, there was an alert that someone was carrying small containers of chemicals that could be made into a bomb, and in response air travelers were required to separate their toiletries for inspection and also to have them in small containers.

More recently, a suspected terrorist was found to have explosives hidden in his underwear, and now air passengers are required to go through an x-ray machine that essentially sees through a person’s clothing.  Or if they decline to go through the x-ray machine, they are required to submit to an “enhanced pat-down.”

The latest measure, particularly the enhanced pat-downs, has sparked a vigorous national debate.  Some citizens feel that the government has gone too far in terms of invading their privacy rights.   Others say that while the enhanced pat-downs may be a personal invasion, the resulting protection, is worth giving up some personal rights.

This national debate involves our basic rights and it must remain both civil and respectful of the other party’s view.  These issues are too important for a simple “right or wrong” solution.  And, there is no “one size fits all” solution.

An appropriate starting point would be the relevant words of the Fourth Amendment:

“The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated………”

The critical word is “unreasonable.” The issue is what is reasonable and conversely what is unreasonable.  It is suggested the resulting solutions must to be flexible and effectively meet the particular danger.  Thus, the clash between our privacy rights and the right to our lives free of terror.  Let’s be clear, there can be no dispute or debate concerning the horrific result from a successful “event.”

What did the members of the first Congress understand “unreasonable searches” to mean?  James Madison, the primary architect of the Bill of Rights (and the Constitution) recognized this tradeoff more than 200 years ago.

“Perhaps it is a universal truth that the loss of liberty at home is to be charged against provisions against danger, real or pretended, from abroad.”

As citizens, we need to participate in the debate:

• Where do we draw the line as to what is a reasonable search and when is a search unreasonable?

• What factors must be considered in developing a response?

• Do the enhanced pat-downs violate the Fourth Amendment?  If so, what would be an effective alternative?

• If a terrorist was found to have explosives hidden in a body cavity, and the government started cavity searches at airports, in your opinion would those searches violate the Fourth Amendment?  If your answer differs from the preceding question, why did you change your position?

• Are we seeing the death of our liberty (is) by a “thousand small cuts?” If so, what should be done to reserve that direction?

These are serious issues and require serious reflection.

Let us hear from you.  This is important!


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