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One Strike Against No Fly List; More Scrutiny To Come
New submitter MickyTheIdiot writes "The Jurist reports: 'A judge for the U.S. District Court for the District of Oregon ruled Wednesday (PDF) that those placed on the U.S. government's no-fly list have 'a constitutionally-protected liberty interest in traveling internationally by air, which is affected by being placed on the No Fly List.' The plaintiffs in the case are 13 U.S. citizens who were denied boarding on flights over U.S. airspace after January 2009.' Judge Anna Brown hasn't ruled on the constitutionality of the No Fly List yet, and has instructed the attorneys involved to present a roadmap for deciding the remaining issues. However, she has acknowledged that the No Fly List is a major burden to those on the list and they have the right to get that status reviewed."
There are a lot of people coming in here, saying "about time" or something similar. What this attitude fails to incorporate is that the judicial system isn't concerned with unjust policies until they actually create injustice. And even then, an actual judge has to be less terrible than those that created the policies in the first place.
It takes a long time, and is a natural component of how checks and balances work in the US. It's not perfect, and sometimes the bad comes from congress faster than it can be addressed, but this is how things are supposed to work.
Yes, but when you're using statistics to pre-judge people, you aren't confident enough to spend a fortune on addressing the risk they represent, but you're more than comfortable blindly squashing their rights.
If the government decides that someone is a threat such that they shouldn't be allowed to fly, then they should be arrested and tried for whatever crimes they're accused of.
If they haven't committed a crime and are simply guilty by association, then they are being punished without a trial. Not being able to fly is a very strong punishment.
You seem to forget that the Constitution grants powers from the people to the government, not the other way around. Too frequently people wrongly assume that the only rights people have are those expressly reserved for the people by the Constitution.
If a power is not mentioned in the Constitution the government does not have that power. It remains with the people.
//TODO: Think of witty sig statement
IIRC back in '72 an El Al flight was hijacked. Since that time
no El Al flight has been hijacked. Now what was it they did to pevent
such thing? Hmmmm - OK I remember - armed guards. If you
steal an EL Al flight - they shoot you!
Next what did/does this cure cost in time and money?
Next problem please.
There is no Right to Drive in the US, where driving is a rather a privilege.
In the Articles of Confederation, the following right is explicitly granted:
"the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce"
-- Articles of Confederation and Perpetual Union, Article IV, Paragraph 1
This document is still technically a part of the United States Code, although I haven't seen it cited as rationale in a legal argument for preventing the "no fly list". This is also one of the few individual freedoms explicitly mentioned in founding documents that is not a part of the Constitution of 1787. As to if this document still holds legal weight could also be questioned, I suppose, but technically all the Constitution of 1787 did was update this document. It certainly puts such notions of "it is a privilege not a right" legal theories into serious question.
In other words, the right to travel is an explicitly granted constitutional right and not something that can be extrapolated more loosely from things like the 9th Amendment (which I think this quote amply shows something previously thought of as an individual right not to be eliminated by its absence in other legal documents).
You might be able to argue that the internal combustion engine itself is regulated and requires an operator's permit, although that is a real stretch. States simply can't prohibit either entry or exit of other otherwise legal citizens of other states and it can be assumed that includes travel internal to that state too.
There is no Right to Drive in the US, where driving is a rather a privilege.
The privilege of operating a motor vehicle on public roads, and the right to be a passenger in one are VERY VERY different things.
Similiarly I don't think anyone is especially outraged that the government restricts who can fly a plane. (That would be anyone without a pilots license in good standing, which is most people, including me.) The contentious issue is restricting who can be a passenger in one.
You have a Right to keep and bear arms, but not any arms you want.
You have a Right to travel, but not by any mode you want. For example, there is no Right to drive a motor vehicle in the US, nor is there a Right to fly on an airplane.
Says who? A lot of gun owners have t-shirts and stickers which say things like "what part of 'shall not be infringed' do you not understand?" Maybe you don't like guns. Doesn't really matter because what the Constitution says is what it says. I would ask the same thing of just about everything else. It's true that the government says it has the right to restrict arms, and it's true that the government says it has the right to restrict driving a car or flying on a plane, and I would ask just exactly what besides complacency gives them the right to do any of that?
The Constitution, and this is very important so read slowly, does not grant any rights at all. Barack Obama caught hell from people who don't understand the law or the English language during his first campaign when he very correclty used the phrase "negative rights" in describing the Constitution. The Constitution states that rights are inherent in being a person, period. It points out some rights, mostly by way of those specific things having been the cause for much abuse during colonial days, but it also says specifically the following: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people" (Ninth Amendment).
In other words, just because the Constitution doesn't specifically say you have a right to fly doesn't mean you don't. Same with driving. Government doesn't get to grant you those rights because government under this constitution can't grant any rights at all. It can only restrict some, subject to what the Constitution says it can (hence the 'negative rights' stuff). I get that regulators, cops, and other such busybodies have conned everybody into believing the opposite, but what we've really got going on here is a fundamental forgetting of who we are as a people and what our founding documents actually mean.
Never, ever for one minute believe otherwise. Try to convince others of the same. What we've got here is authoritarianism run amok and it's way past time that we un-run it.