"A Pursuit of Happiness Thing": Security Chicken, the Daddy State, and the Case of the Wizard v. TSA

"This is an American free country, we got a pursuit of happiness thing, you're consenting, you're adult…."  (Peter Boyle as The Wizard, from Martin Scorsese's Taxi Driver, 1976.)

A lot of words have been written and spoken about the new airport security measures. I might as well add my simple two cents' legal dino tender.  (Read more after the jump....)



Aside from the people who may indeed have been treated badly due to an unfortunate collision between some medical condition or device and an insensitive TSA employee, those who are up in arms about the supposed humiliation of it all -- being felt up, full-body-scanned, etc. -- protest perhaps too much for their own rhetorical good. On average, I suspect, not much dignity is really being lost via the scans. (Okay, maybe I'm just overconfident that I'll turn out to be quite the scanner hottie.) The full patdowns to which some travelers are needlessly subjected seem to me more offensive. Even so, if calling "shame-shame" on either measure is our only line of defense, we are unlikely to convince "ourselves the sheeple" to see the patdowns and scans for the ineffective foolishness they really are.

Those who crow their approval of the procedures, however, should be at least as ashamed of themselves as the people who are too easily ashamed of themselves. I have heard a number of variations, but they invariably call to mind the Ben Franklin quip that those who give up their liberties for a vague promise of security deserve neither liberty nor security. And of course the cave-baggers who say things like, "Duuuuuuh, if ya duzzent wanna git groped, ya duzzent has ta fly, ya kin take a bus" are cretins. Many people (business travelers, for instance), as was pointed out by our own Capt. Fogg in his recent post, don't have a choice, and if lots of frequent fliers become infrequent fliers, that's terrible for the economy. I mean, sure, what the heck, let's all walk from California to Michigan for that mandatory professional conference, or take the bus from New Orleans to Coeur d'Alene to visit our ailing Aunt Eileen, or use a pogo stick to get from Palo Alto to that important business meeting in Poughkeepsie.

Okay, here's what I consider the bottom-line objection to the new procedures: the farther we go down the road indicated by the government's "we must keep the public safe at all costs" logic (which they only disguise with talk about "achieving a delicate balance"), the more we alter the fundamental relationship between ourselves and our government. An airport is a public place, and when we travel, we aren't in our own castle, so we must give up some slice of our otherwise strong insistence on personal dignity. (Why I'm invoking "dignity" to refer to a nation of individuals frequently filmed traipsing through Walmart at odd hours of the night in a pair of hot-pink Crocs and tiger-striped leotards, I'm not sure. But still….) That's why it's acceptable for the security people to scan our bags and have us go through metal detectors. But every time a would-be bomber does something outrageous, we find our unimaginative, purely reactive security officials deciding to subject us to ever more ludicrous and invasive measures -- measures that are easily predictable and unlikely to slow down a determined adversary for above two minutes.

In theory, and as we can see to some extent in practice, there's no end to the game of security chicken. I wish this were only a slippery-slope argument, but I don't think it is. When it becomes lethally obvious that even full-body x-ray scanners and pornographic patdowns don't stop our enemies, what next? Exploratory laproscopic surgery to inspect the intestines of randomly selected passengers? The basic measures at least make it difficult for terrorists. Changes on board such as closing off the captain's cabin make it impossible to hijack a big plane (whether with a .38 or a pair of nail clippers is almost beside the point), and there's no way that even the most burdensome additional measures will eliminate the slight risk we knowingly take every time we board an aircraft. Absolute security is a dangerous myth. It's important to let our representatives know that many of us think they've gone too far and that as rational adults, we don't expect the government to play the role of Super Daddy. One of the most effective deterrents against airplane-based terrorist incidents is a vigilant public. It may be difficult to accept that judgment, but I believe it's accurate.

Someone on one of our beloved commie-pinko-fascist MSNBC shows said it best the other day: this is a big country and millions of us travel every day, so the current approach, which is to treat every bespectacled, cane-bearing granny and every teddy-bear-clutching infant as a potential agent of Osama makes no sense. It's not only expensive but unsustainable. What's been called "behavioral profiling" (not racial profiling) is the best bet: leave the infants and the grannies alone except for the basic go-through, and put your safety-money on people who act like they have something to hide.

Ultimately, I'm suggesting that the best argument against excessive security lies in the need to reject the encroaches of state paternalism, a tendency I've characterized as a drift towards "the Daddy State." If that makes me sound like Ron Paul, so be it. On this one, I'm with the libertarians, not with the Obama Administration or the TSA. I DO NOT BELIEVE IT IS THE GOVERNMENT'S PRIMARY JOB TO KEEP MY MORTAL HIDE SAFE, and I certainly don't think it's their job if it entails stripping citizens of whatever limited autonomy they possess. I am aware of the close connection in classical liberal thought between property rights and the purpose of civil societies, but we should not allow that connection to lead us into thinking of the government as a colossal protection racket. That kind of reductive definition, despite its bearing some historical truth, is to be resisted or it becomes a self-fulfilling prophecy.

Finally, conservatives keep confounding the Declaration of Independence, with its language about our inalienable right to "life, liberty, and the pursuit of happiness," with the Constitution itself. That confusion facilitates their call to jack up the Security State unbearably. After all, goes the idea in paraphrase, "your most important right is to be kept alive, and you don't have any rights if you're dead." That notion has an instant appeal to the misguided people who constitute the GOP base these days. Well, I've got news for ya: the oath of office presidents take every four years (with one hand firmly on the Holy Qu'ran, of course. Thanks for that, Teafolk!) is, in fact, drawn from the Constitution. From Article 2, Section 1, to be precise: "Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: -- "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States." That's a promise to safeguard a piece of paper detailing our rights, not your or my skin. Presidents don't protect the Constitution by sheepifying the citizens they should feel privileged to serve, or by going along with every scatterbrained notion that flits through the mind of derriere-covering officials in the Department of Homeland Security.  So there's my two dino-cents on the matter.