The TSA vs. Constitutional Law, Natural Rights, and the Dignity of Texas

In the spring of 2011, freshman representative David Simpson introduced two pieces of legislation to protect the dignity of travelers in Texas.  HB 1937 and 1938 would have criminalized enhanced pat-down body searches absent reasonable suspicion and banned the use of whole-body imaging scanners in Texas airports. Both bills were very popular, particularly HB 1937, which passed out of the House unanimously and had over 100 coauthors.  As HB 1937 was on the verge of passing the Senate with 30 of the 21 required votes to become law, Lt. Gov. David Dewhurst postponed the vote as he circulated a letter from the Department of Justice that mischaracterized the bill and threatened that if the legislation was passed, the TSA would "likely be required to cancel any flight or series of flights" to or from Texas.

In response to this outrageous threat and gross federal usurpation of Texas sovereignty, Senator Patrick told his colleagues that this was a "Come and Take It" moment for Texas.  Familiar with the Battle of Gonzales and the flag flown by Texas revolutionaries, I quickly created this TSA spin-off image by combining the traditional "Come and Take It" flag with a picture of an airplane.  I was proud to see the image take off in popularity as activists began using it as their facebook picture and created t-shirts with the image for our rally at the capital.

The heroic David Simpson lead the charge in shaming Governor Rick Perry into adding the bill to the special session.  However, despite Simpson's best efforts, political maneuvering at its finest allowed the bill to die without a vote such that the politicians could claim to support it to please their constituents without incurring the wrath of the Feds.

Below is the letter that I wrote, e-mailed, and faxed to my representatives several times during this first battle of Texas vs. the TSA.  I've enhanced it with links to support my claims, but otherwise it is the same as the version I first wrote in early April. I hope it helps you understand why I believe that the TSA does not need reform or training, but this unconstitutional assault on American travelers needs to be abolished!

Remember kids: it's never too early to learn to submit to authority.
To the honorable Representative,

I write today in strong support of H.B. No. 1937 and H.B. No. 1938, bills to be entitled an act relating to offensive touching of persons seeking access to public buildings and transportation; providing penalties, and the prohibition of whole-body scanners in airports, respectively.  While not native to the state, I have lived over 10 years of my life in Texas, and I intend to spend the rest of my life in my adopted city of Austin.  For the last four years I have worked as an IT consultant for a major technical consulting company, and for the last two years I have been providing services to a major consumer goods company headquartered in Texas.  The work I perform requires me to be present on location at my client in a suburb of Dallas, TX a few days per week, and this is the work - travel situation mutually agreed upon between myself, my employer, and my client.  Furthermore, it is mutually agreed that I make this commute by flying from the Austin-Bergstrom International Airport to the Dallas Fort Worth International Airport, as opposed to making the drive that is lengthy, plagued with construction, and statistically much more dangerous than my 35 minute flight.

I write today in support of H.B. No. 1937 and 1938 because my experience traveling every week these last two years between two Texas airports has convinced me that the TSA's use of whole-body scanners and enhanced pat-down body searches, absent reasonable suspicion of wrongdoing, are invasive, demeaning, degrading, ineffective of their supposed purpose of enhancing security, potentially dangerous to my health, and more importantly dangerous to the dignity of the free and independent State of Texas.

However, the purpose of my witness affirmation is not to make the argument that the TSA's standardized one-size-fits-all approach to security is ineffective and creates a false sense of security, as that argument is better made by Ph.D economists.  Furthermore, I will not argue that the use of whole image body scanners would expose me to potentially dangerous radiation, as whole-body imaging generated radiation is currently the subject of legitimate scientific testing and debate among reputable medical professionals and medical research facilities, including, but not limited to, the publicly reported opinions of scientists and medical doctors associated with Columbia University, Arizona State University at Tempe, the University of California at San Francisco, and the University of California at Berkeley, which have linked whole-body imaging to, among other things, skin cancer.  I shall allow the work of those distinguished scientists and medical professionals to stand for itself.

Instead, I write this witness affirmation in support of H.B. No.1937 and 1938 because I have read the Constitution of the United States, the Texas Constitution, and in defiance of the Supreme Court's wish to monopolize the interpretation of these documents as if they were written in Sanskrit, I demand that my natural rights, as codified in the Bill of Rights provided in the Constitution of the United States and Article 1 of the Texas Constitution, be respected.  One may argue that my training in electrical engineering leaves me lacking in the legal skills necessary to argue this point, but I declare that having read these documents, as well as The Federalist Papers, and The Anti-Federalist Papers and the Constitutional Convention Debates, and being subject to the social contract that forms our system of government, my interpretation of my natural rights codified in these documents is just as valid and worthy of consideration as that of any supreme court justice.

Article 1. Sec. 1. of the Texas Constitution clearly states that Texas is a free and independent State, subject only to the Constitution of the United States.  Being subject to this document alone, and laws in pursuance thereof, we note that Article IV of the Bill of Rights states:

"The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Furthermore, Article 1. Sec.9 of the Texas Constitution states:

"The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation."

While popular interpretation of my natural rights as codified in these documents describe a "subjective expectation of privacy that society recognizes reasonable", I flatly deny this gross mischaracterization of the requirements necessary to deprive me of my right to privacy and to be free from search and seizure.  In both Article IV of the Bill of Rights and Article 1. Sec. 9 of the Texas Constitution, the definition of unreasonable is not left waiting for subjective interpretation, but its definition is contained within each passage.  A search and seizure is unreasonable if it is not accompanied by a warrant, issued upon probable cause, supported by oath or affirmation, particularly describing the place to be searched, and the persons or things to be seized.  So without the oath or affirmation of someone who would be found guilty of perjury if the accusation of wrongdoing were to be found untrue, I am to remain secure in my person, houses, papers and possessions, in other words, I am innocent until proven guilty.

It should go beyond the need for clarification that given this interpretation of my natural rights that the federal government and the government of the State of Texas is duty-bound to protect, a mandatory, random demand to be subject to a whole-body scanner or an enhanced full-body pat-down is a gross, unconstitutional, and illegal violation of my natural rights.

However, even granting the popular interpretation of Article IV of the Bill of Rights and Article 1. Sec. 9 of the Texas Constitution for the sake of argument, the legality of random, mandatory whole-body imaging or an enhanced full-body pat-down still falls short.  Using the popular interpretation, when a government search violates a subjective expectation of privacy that society recognizes reasonable, the subject of the search is entitled to the protections afforded by the Fourth Amendment to the United States Constitution.  Thus, to satisfy the Fourth Amendment's guarantee of freedom from unreasonable searches and seizures, airport security searches must be minimally intrusive, well-tailored to protect personal privacy, and neither more extensive nor more intensive than necessary under the circumstances to rule out the presence of weapons or explosives.

The TSA's stated policy and practice of potentially requiring me to undergo either an offensive, intrusive, humiliating, degrading and potentially dangerous whole-body image, or an offensive, intrusive, humiliating and degrading pat-down body search in the absence of any reasonable suspicion of wrongdoing and in lieu of less intrusive search methods, violates my Fourth Amendment right to be free from unreasonable searches and seizures.  Absent reasonable suspicion of wrongdoing, mandatory, frequent, and repeated whole-body image searches are not minimally intrusive, are not well-tailored to protect personal privacy, and are more extensive and intensive then necessary under the circumstances because they may expose me to potentially dangerous radiation, and because they violate my reasonable expectation of privacy and subject me to humiliation and degradation through unwanted exposure of my unclothed body to others.  Furthermore, enhanced pat-down body searches fail this litmus test as well, because they violate my reasonable expectation of privacy and expose me to humiliation and degradation through unwanted touching, gripping and rubbing of the intimate areas of my body.

While the TSA is clearly operating in defiance of the Constitution of the United States and the Constitution of Texas, I am not content to wait for a federal Supreme Court to rule the federal government's acts unconstitutional, and thus null, void, and having no force of law, nor should the honorable members of the legislature of the free and independent State of Texas be content to wait for such a miracle.

Instead, I write in support of H.B. No.1937 and 1938 to urge my representatives to put into practice Thomas Jefferson's "rightful remedy".  President Jefferson believed that if a law is unconstitutional and therefore void and of no effect, it is up to the states, the parties to the federal compact, to declare it so and thus refuse to enforce it.  The word termed in Jefferson's draft of the Kentucky resolutions of 1798, nullification, provides a shield between the people of a state and an unconstitutional law from the federal government.  The Kentucky resolution of 1798 states:

"That the several states composing the United States of America are not united on the principle of unlimited submission to their general government; but that, by compact, under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes, delegated to that government certain definite powers, reserving, each state to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force; that to this compact each state acceded as a state, and is an integral party; that this government, created by this compact, was not made the exclusive or final judge of the extent of the powers delegated to itself, since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress."

So this is my request, or if I may be so bold, my demand to my duty-bound representatives who take their oath of office seriously.  I write to implore my representatives to protect this Texan from usurped, assumed, and undelegated powers illegally seized by agents of the federal government.  I write to ask you to shield me from these laws of no legal force, and I wish my representatives to interpose the free and independent State of Texas between myself and the agents of the federal government who would wish to deny my natural right of privacy, my right to be free from unreasonable search and seizure, and my right to travel and to earn an honest living.

For if my state representatives fail in protecting me from the federal government in this matter, what choices do I have left?  My dignity and self-worth as a human being, endowed with natural rights from my creator, forever prevent me from voluntarily participating in twice-weekly whole-body imaging or enhanced full-body pat-downs for the sake of a job.  So what must I do?  Quit my job?  Move to Dallas?  Make the lengthy and dangerous drive each week?  None of these options are in the best interest of myself, my employer, or my client.  To force me into such a situation would be a gross miscarriage of justice, and a dishonor to the dignity of the free and independent State of Texas.

Yours Frankly, Nathan Kleffman.  April 5th, 2011.

Related Resources:
Stop Austin Scanners
TSA Tyranny
The Tenth Amendment Center
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