“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.”
– U.S. Constitution, Amendment IV

A precipitating cause of the American Revolution was the decision of the British to institute random searches using “writs of assistance” or “general warrants.” Rather than specifying “the place to be searched” and the “persons or things to be seized,” these warrants empowered authorities dig for contraband whenever and wherever they suspected it might be present.

The random and intrusive searches engaged in by federal TSA officers comprise, in other words, the sort of behavior the Fourth Amendment was designed to prevent. The gist of the amendment is that searches are unconstitutional unless the officer, or the magistrate issuing the warrant, has “probable cause” to believe a specific person has contraband or has committed or is about to commit a crime.

A determination of “probable cause” can be based on a range of factors – including demographic facts about the suspect. In other words, in some cases the Constitution not only permits “profiling,” but may require it.

The current opinion split over these searches is another illustration of some of the eerie parallels between today’s political divisions and the “Tory” vs. “Patriot” lineup among the colonists that prevailed just before the Revolution.

cross-posted from the Independence Institute’s “Our American Constitution” blog.

Rob Natelson

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