Sunday, August 14, 2005

Conservatives, Liberals, Libertarians, everyone is wrong about searches of subway passengers

Conservatives, bending over backward to defend the NYPD's random seraches of people boarding New York subways.

This issue has come to forefront in the wake of the ACLU’s lawsuit against the NYPD’s policy of random searches for those attempting to make use of the public transportation in the city. While many so-called civil libertarians have jumped all over this policy as a violation of Constitutional rights, many conservatives and moderate liberals have jumped to the policies defense, using some form of a “wartime” justification.

Of course, saying we should permit such searches because of a war on terror that could go on indefinitely is just as preposterous as saying we shouldn't take precautions to protect our mass transit system. The fact of the matter is we don’t need the London bombings or 9-11 to make such searches Constitutional. It’s a simple matter of a 4th Amendment that protects us against illegal search and seizure. The lonely libertarian finds it hard as a practical matter to find an optional search as an illegal one. If you don't want to be searched, don't take the subway. If you don’t want to make use of such a public accommodation, then you don’t have to.

Just imagine visiting the White House. What makes the White House, a public building, owned by the government any different than a public subway, owned by the government? Everyone agrees that people can't just waltz into the White House without some sort of search, so what makes the subway any different?

The idea that we somehow have a right to public transportation may have been invented in the mind of some ACLU member, but it’s certainly not in the Constitution. When the government provides an optional service, it is well within its power to protect that service accordingly. Keep in mind, the roads and highways, all publicly owned, are a very different matter from public transportation. First, there's the practical matter of how to conduct optional searches along the highway- What do you do with the people who refuse? And beyond those practical concerns, there's the fact that refusal of any sort of an optional search along the highway would effectively restrict the right to travel.

But limiting access to the subway is not impractical, nor does it restrict the exercise of any fundamental rights.


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