Which is Superior: Invasive Fingers or our Constitution?

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No matter how you slice it, mandatory TSA screenings and pat-downs are both problematic and unconstitutional. 

I’ve blogged about the TSA screenings before herehere, here, and here.  Now, a recent battle over TSA screenings in Texas has shed more light on the precarious position in which our Constitution and freedom lie.

The Fourth Amendment

Read the 4th Amendment of the Constitution and determine for yourself if the government has legitimate, probable cause to randomly invade our persons with these unreasonable searches: 

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Brave lawmakers across the country understand this part of the Constitution and are beginning to take action.

States are Pushing Back

New Hampshire, Texas, and now Utah legislators have taken up measures to push back against TSA screenings by attempting to make invasive screenings and/or pat-downs illegal.  Most recently, Texas was the state nearest to successfully passing such legislation.  

When the bill passed the Texas House and landed safely in the Senate  with all necessary votes ready to pass, that’s when things got interesting.   TSA  officials descended upon the Texas Senate and successfully bullied away the law that would have ultimately unplugged their power locally, and that would have begun the dismantling of their power nationally.  Read this 5/24/11 Texas Tribune article, “Fed Threat Shuts Down TSA ‘Groping Bill’ in Texas:”   

“House Bill 1937, which was passed by the [Texas] House earlier this month, would make it a misdemeanor offense for a federal security agent to ‘intentionally, knowingly, or recklessly [touch] the anus, sexual organ, buttocks, or breast of the other person, including touching through clothing, or touching the other person in a manner that would be offensive to a reasonable person.’ ”

“Two TSA officials visited Patrick at the Capitol earlier today to discuss the legislation. They warned him that the legislation ‘could close down all the airports in Texas,’ he said. After their departure, U.S. Attorney John E. Murphy sent a letter to Speaker of the House Joe Straus and Lt. Gov. David Dewhurst saying the bill would ‘conflict directly with federal law’ and that if it became law, ‘TSA would likely be required to cancel any flight or series of flights for which it could not ensure the safety of passengers and crew’ until the agency could seek a court order stopping the measure from being carried out.

This was enough to kill support needed to pass the bill, so its sponsor, Texas Senator Dan Patrick(R), withdrew it. 

And the writer of this blog lets out yet another sigh of frustration watching courage gives way to fear. 

The TSA Retorts

As is typical of an unaccountable bureaucratic entity that suffers little risk of elimination, and in predictable self-serving, power-wielding fashion, the TSA Blog post dated 5/27/11 “Texas House of Representatives Seeking to Ban Current Pat-Down” proudly says this about the Texas situation:

“What’s our take on the Texas House of Representatives voting to ban the current TSA pat-down?  Well, the Supremacy Clause of the U.S. Constitution (Article VI Clause 2) prevents states from regulating the federal government.” 

So here we witness the brazen self-supremacy the TSA exerts as it falsely tells us that the Constitution prevents states from regulating itself.  

To their claim, I ask, “Really???”    

The TSA Boasts a Gross Misinterpretation of the Constitution

By my reading, Article VI declares the Constitution as the supreme law of the land:

Article VI Clause 2: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

And certainly, there are definite, yet limited, areas where the federal government, particularly Congress, is given supreme power.  Article 1 Section 8 lists all of these enumerated powers.  

But it is clear that outside these enumerated powers, state powers are intended to be “numerous and indefinite,” while federal powers are to remain “few and defined.”  Read my 8/9/10 post  “Original Intent:  Few and Defined” for a clear understanding of our founders’ original intents on federal and state powers. 



Challenge the Premise and Ask the Real Questions

With Constitutional principles in mind, and when it is falsely asserted that “states are prevented from regulating the federal government,” let’s challenge the premise that either states or the federal government are superior to each other.  Instead, ask and answer these questions:

  • Is the TSA itself constitutional?
  • Are its regulations constitutional?
  • Is the Constitution superior to all levels of governments?

And Always Ask:  At What Cost?

One might argue that TSA’s new version of “national security” has prevented terrorist attacks since 9/11;  however, anytime freedom is compromised in the name of safety, our Constitution is delegitimized and weakened, which puts our national freedoms and founding principles that protect those freedoms in very clear and present danger.

We live in the greatest nation in the world,where freedom has truly rung like no other time before in history. We have the brightest minds right here.  As I’ve mentioned before, there are smarter solutions to airline security than ones that compromise our freedoms, such as the TSA is being allowed to enforce.

I’m not suggesting the answer is an easy one, but… at what cost will we pursue “safety?”  If the Constitution is no longer revered as the legitimate and final law of our land, will we really end up “safe” in the end? 

We must know and defend this Constitution before it is completely irrelevant, and before our freedoms are but a memory being shared with grandchildren. 

Michelle Morin is Mom4Freedom, a conservative blogger, speaker, and patriot for freedom and America’s founding principles. Join her for valuable freedom updates here.

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