[StillBored]

Frankly, the entire agency is unconstitutional. From the fact that they basically exist under a general warrant issued by the supreme court (although they invented a new catagory, "administrative search", which doesn't fundamentally change what it is) to the restrictions on the right to assembly requires free travel as well, although the current legal underpinnings are "creative", the 10th admendment which grants all non enumerated powers to the states, to the restrictions on bearing arms on the plane and a half dozen other parts. About the only part they might be able to stand on is commerce again, but then so much travel in the larger states remains in the state (ex dallas/houston, san fran/LA) requiring seperate security zones.

Bush should have _NEVER_ nationalized them, at least as a private entity they existed in a sorta gray area. Now they are clearly violating the 1st, 2nd, 4th, and 10th amendments.

And the solution isn't another bullshit supreme court amendment of the absolutist language in the bill of rights/etc but to actually have a national discussion about how much safety the are providing vs their cost, intrusiveness, etc and actually find enough common ground to amend the constitution. Until then they are unconstitutional and the court makes a mockery of itself and delgitimizes then entire apparatus in any ruling that doesn't tear it down as such.

And before anyone says "oh thats hard", i'm going to argue no its not, pretty much 100% of the country could agree to amend the 2nd to ban the private ownership of nuclear weapons, there isn't any reason that it shouldn't be possible to get 70% support behind some simple restrictions "aka no guns, detected via a metal detector on public airplanes" passed. But then the agency wouldn't be given free run to do whatever the political appointee of the week feels like. But there are "powers" that are more interested in tracking you, selling worthless scanners, and creating jobs programs for people who enjoy feeling people up and picking through their dirty underwear.

[jfengel]

Inventing categories is what the court does. The Constitution is incredibly brief, and gives zero guidance on how to clarify conflicts. It has always been full of "common sense" exceptions, like criminalizing threats (despite the unqualified "freedom of speech" language) or probable cause (police can invade your house if they know you are committing a crime right now).

The sum total of these "common sense" exceptions, and the "legal reasoning" that extends them to the modern world, means that the document itself doesn't actually mean anything. Your rights, such as they are, consist of literally millions of pages of decisions, plus the oral tradition passed down in law schools.

[StillBored]

The constitution doesn't provide a "common sense" loophole. Much of it is written in absolutist language because that was the actual intention. The amendment process is provided to open "common sense" loopholes if everyone agrees they are common sense, not for the courts to gradually erode the language until the federal goverment is doing things the founders explicitly fought the revolutionary war over.

Put another way, Writs of Assistance, were perfectly legal common sense way for the British government to assure their customs laws were being enforced, and it was one of the more significant drivers of the revolution.