What are we to think about the X-Ray Vision and groping of air passengers? In our constitutional jurisprudence, we have a variety of approaches. Some searches require a warrant, which requires probable cause (everyone knows this much). Some searches (where there is some imminent danger) require only reasonable suspicion. Administrative searches (e.g., restaurant health inspections) are another matter. However, I think the category we’re dealing with here are what the Supreme Court has called a “special needs” search, in which case suspicionless searching is acceptable. One example of a suspicionless search found acceptable was drug testing railroad workers because of the high potential for harm to the public from intoxicated operation of locomotives.
But the ultimate standard is just “reasonableness” and that is something that reasonable people can differ on. It seems clear to me that reasonableness places limits on what kinds of suspicionless searches or administrative searches you can have (here’s a thought experiment: we have a tape recording of a fugitive having an orgasm, so we set up roadblocks and require everyone passing through to be manipulated to orgasm so they can be tape-recorded, in the hopes of finding a match: probably impermissible!), but I don’t think there’s any way to get at that by application of some more general rule. You just have to weigh the costs and benefits. In a challenge, the government will argue that the reasonableness calculus weighs a little groping against a possible 9/11; the opponents, that the remoteness of a possible 9/11, and the presence of less restrictive alternatives, has to be weighed against a long tradition of regarding the human body as sacrosanct, etc. etc. (this is a long shot for relevance, but the involuntary retrieval of evidence through surgery was considered a violation of the Fifth Amendment (due process)—though merely seeing or touching is obviously less invasive, though more invasive than not seeing or touching).
It’s not at all obvious to me how God would decide if God were a constitutional lawyer.
The Founders’ view is rather different than we think on probable cause. The idea was that cops could do what they like, and if they caused harm, you could sue them in tort. Warrants were not so much conceived as permissions to search as immunizers from tort liability; they allowed you to search with impunity. So the threshold for when a warrant can issue enters in here–you don’t want this shield given too easily, so you require probable cause. I suspect that it was understood by the Founders that there would be lots of warrantless searches, and that the threat of tort suit was thought to keep the cops exercising care to not cause harm. I also suspect that they had a rather less prissy view of touching (seriously!) than we do, not that that is relevant: this is exactly what is meant when people talk properly about an “evolving” constitution. But the real standard on all Fourth Amendment issues is “reasonableness”. And as far as I can tell, reasonableness is a matter of trade-offs between private and public interest.
As for the moral issue apart from constitutional questions, it seems to me that if the probability of risks to third parties is low, then this should be decided by consent between passenger and carrier. But with airplanes, there is a meaningful risk to third parties: if as a result of consenting parties undertaking a risk to themselves, they cause a plane crash, that at least opens the door, in my mind, to regulation. As a rule, it is better to “regulate” after the fact and allow people to assess their own risks, but if the risk to third parties is great enough, I think the state can step in and structure things in defense of the rights of third parties to non-interference. See Nozick on risk and prohibition. And that takes us right back where we started: how much is the risk? Is any kind of prohibition reasonable in light of it? How much is too much?
I think one of the things that we’re tempted to think here is that airways should be regulated on analogy with roadways. There’s an empirical question here. Our sense of roadways comes from thousands of years of experience, and part of that experience was that an cart being pulled at a fast clip couldn’t destroy a village by making a wrong turn. It is precisely when we start having automobiles that things start to change in terms of how travel regulation is conceptualized; e.g., the requirement to carry accident insurance instead of relying on tort mechanisms is based on a recognition of the fact that ordinary care is not much of a guarantee of anything, and that cars can be pretty powerful tools of destruction. The potential destructiveness of planes is that much greater, so it’s not surprising that the state would look to something more than, say, requiring airlines to carry insurance adequate to pay for the possible destruction of mid-town Manhattan. It doesn’t seem unreasonable to expect more. In terms of the assessment of risk, it has to be the potential damage times the likelihood, not just one or the other.
I have no doubt that what is going on now is bad and excessive. I suspect that this is a matter for the legislature and not the courts, that this level of intrusiveness is bad policy, rather than a violation of constitutional rights. But honestly, neither side of that sort of debate seems obviously right. It’s a classic conflict: apparently high risk to the public, versus a very high level of intrusiveness in old and sacred territory, the body. It’s not insignificant at all that the actions the TSA is requiring of passengers are, if required by private citizens of private citizens, sex crimes. If our bottom line reaction, apart from the issues of risk, is “oh for Pete’s sake, get over it!” then I can think of a whole lot of other laws we should be rethinking too.