TSA T-Shirt

How about a t-shirt, to be worn under a jumper or sweater, with metallic lettering that’ll show up on the backscatter scanner, reading:

if you can read this, you are violating the 4th Amendment

? Anyone want to make this? :-)

13 thoughts on “TSA T-Shirt

  1. Gaurav: the visible lettering is the trick. We’d need someone with experience of these machines to confirm that a particular manufacturing method would work. Because of course you don’t see your own images at the checkpoint, so you would never know if it didn’t.

  2. How about printing it on the inside of the t-shirt so it wasn’t at all visible except to TSA. I’d also love some “stick-on” letters that I could write my own varied messages with each time I travel.

  3. Unfortunately, when going through security in the US (which your proposed shirt would be targeted for), you can’t wear a sweater or jumper or hoodie or jacket. You have to take everything off but your one layer of clothing (for men), two layers for women (including the bra, obviously). (And below the belt, two layers for everyone, including underwear.)

  4. Sam: then we’d have to print the t-shirt lettering on the inside. :-) And have a reasonably thick shirt so it didn’t show through.

  5. The thing is, we have a common-law / case-law system in the US, where the precedent of what has been done in the past is *significantly* more important than what the letter of the law actually says. (Don’t laugh too hard, Brits: we got this system from you guys.)

    Under a case-law system, if the traditional interpretation until now has been that the fourth amendment doesn’t apply to airline passengers for whatever reason, then it doesn’t now magically apply all of a sudden just because people are upset about what is happening.

    The amendment treats searches of the person exactly the same as searches of the house, papers, or effects, and the effects would definitely include carry-on luggage. We’ve been running carry-on bags through scanners of one kind or another since time out of mind (*long* before the TSA existed); ergo, quite obviously, the traditional interpretation is that the fourth amendment doesn’t apply.

    In a case-law system, that means the *law*, de facto, is that the fourth amendment doesn’t apply, because the law is based on case precedent. No US court is going to rule based on the actual text of the constitution without taking into consideration how it has traditionally been applied (or not applied) in similar situations. When they do, they’re going to see that it doesn’t apply, and that’s how they’re going to rule.

    IANAL and I don’t know the specific case law that got us to that point, but that’s where we are: the fourth amendment does not apply to airline passengers.

  6. the precedent of what has been done in the past is *significantly* more important than what the letter of the law actually says

    Well, yes and no.

    If there is a statute with language directly on point, precedent doesn’t much matter. “When the words of a statute are unambiguous, then this first canon is also the last: ‘judicial inquiry is complete.’” Connecticut National Bank v. Germain, 503 U.S. 249, 254. If it’s not so clear, then it gets more complicated as you figure out what the words mean and attempt to resolve the issue at hand. It’s not necessarily the case at this point that you need the common law to do so. It’s quite possible the issue is merely one of statutory construction where the common law is not needed.

    But a statute, of course, must comport with the Constitution, and there, since the Constitution’s words are so spare (which is both laudable and regrettable: accommodating, yet malignly malleable), precedent and the common law matter (if to varying degrees under different jurisprudential theories) as a tool for interpreting the Constitution’s text.

    For the issue here, what would you suggest in preference to a common law system such that judges could “rule based on the actual text of the constitution” to determine whether a search “unreasonable” or not? Sometimes you can take language on its face, and if that’s possible you should do it. But here, where reasonableness depends very much on the actor in the situation (police officer? airport screener? person being searched? relative of the person being searched? bystanders? and so on), the common law system seems like one decent way to achieve consistency of interpretation. There probably others, perhaps even ones which are better in at least some ways (and likely worse in others). But it wouldn’t be the first time a system had its form primarily due to long tradition. And remember that switching to another system would not be without considerable costs.

    As to it being “quite obvious[]” that the Fourth Amendment doesn’t apply: remember that every controversy is distinguishable from all others preceding it. Sometimes the difference is negligible; sometimes it makes all the difference in the world. I would be extremely hesitant to say that there is no distinguishing difference between past airport security searches and those of today, for purposes of the Fourth Amendment, which would prevail in a court of law (or in multiple such courts). I don’t know what those differences are, as I’m hardly an expert on any of this. But I have almost no doubt that they exist, waiting for a sufficiently clever plaintiff to make at the right time to change the state of Fourth Amendment jurisprudence.