The TSA and people of privilege

It’s become a cliché among those who support the TSA’s unprecedented intrusions into and under the clothing of innocent travelers: “Flying is a privilege, not a right.”

This cliché is contradicted by numerous court rulings. In Kent v. Dulles (357 US 116), the Supreme Court wrote these words, which appear three times in the decision:

The right to travel is a part of the ‘liberty’ of which a citizen cannot be deprived without the due process of law of the Fifth Amendment.

The cliché is also contradicted in the Universal Declaration of Human Rights. The Declaration, written in the hope of preventing the Holocaust’s horrors from ever happening again, states in Article 13 that “(1) Everyone has the right to freedom of movement and residence within the borders of each state. (2) Everyone has the right to leave any country, including his own, and to return to his country.”

Current U.S. Code addresses air travel specifically. In 49 U.S.C. § 40103, “Sovereignty and use of airspace,” the Code specifies that “A citizen of the United States has a public right of transit through the navigable airspace.”

Anyone who trots out the tired catchphrase suggesting that flying is a privilege should remember the history of the distinction between privileges and rights. While reading “When Benjamin Franklin Met the Reverend Whitefield,” I came across a passage describing the genesis of the American Revolution:

It was a question of privileges versus rights. The language of rights was new, and it was important that the Parliament understand it. The first colonists had believed that liberty lay in the privileges that royal grants, charters, and other documents conferred . . . A settler could claim certain so-called liberties – the right to follow a trade or vote in an election – as a privilege granted by law or custom . . . But every privilege could be rescinded by the same power that granted it. Even ownership of land in the colonies could be revoked, for the privilege of private property in the king’s American domains was not absolute. Thus, petitions to the Crown invariably referred to the colonists’ ‘privileges.’

In quite contrary fashion, the American protestors had come to think of liberty as a natural quality of life, a right, that government could not constrain or deny. For the protestors, guarantees of fair trial before local juries, barriers to illegal searches and seizes, and private property ownership were all rights that government could not diminish, and that included taking property by taxation without the consent of the owners. In the continuing constitutional convention that would be the revolutionary era, American political theorists even began to assume that one of the foundational purposes of government was to protect rights rather than to grant and define privileges.

Our country exists because people demanded their rights, and were no longer groveling before a king begging for privileges.

People who say flying is a privilege are invoking the days of kings and unlimited government power, approving of such arbitrary authority. I don’t need the government’s permission to travel, and to do so by any means I choose.

To the TSA’s employees and apologists, I declare: I will not beg a petty tyrant like John Pistole for the “privilege” of flying. I demand the right to fly, and without strangers putting their hands down my pants or fondling my genitals. I demand that the TSA stop trampling our human rights.

(Photo: Daquella manera/Flickr Creative Commons)

  • Guest

    i agree also what Sommer said ,,, really well spoken

  • I’m bewildered by what the author is trying to assert. All the references to court rulings, history, and various bills and declarations of human rights are not in question, as far as I know, by anyone at the TSA. As Americans in America, we are, of course, free to travel anywhere we like, and by any means, as long as relevant laws and regulations are observed. I do not have the right to drive down any public highway at 100 mph. I do not have the right to board a commercial flight while seriously intoxicated, or while carrying certain weapons. We, the people, employ various government agencies, including police, to attempt to keep public travel safe. Whether the TSA is acting inappropriately when it performs full body scans, or aggressive pat downs, is another discussion entirely. But what does any of this have to do with whether flying is a privilege or a right? Is Ms. Sommer suggesting that we have a right to fly commercially with no regulations or restrictions whatsoever?

    • It’s how the TSA justifies their actions, justifies the invasive search procedures, and justifies keeping people off planes after they have already purchased tickets.

    • To be clear, many apologists assert that “flying is a privilege” and use that to justify any rules or illegal acts the TSA performs.

      The TSA officially believes this as well as they created the “No Fly” list, which includes about 400 Americans or so (best guess, as this is another ‘secret order’ in our supposed democracy). Of course, if flying was a right, the government wouldn’t be able to prevent you from traveling without a legally valid ruling, such as a result of a judicial process which culminated with a court order to not fly.

      Instead, the TSA is asserting Americans are restricted from flying without said Americans being guilty enough to indict.

      It is truly a sad day when the TSA tramples the Constitution in so many ways.

    • Mr. Fei, if you click the first link, you’ll see that John Pistole asserts that flying is a privilege, not a right. And that he and his minions alone have the power to determine who gets to fly and who doesn’t. There’s no invocation of the rule of law, there’s no reference to regulations. There’s just an assertion that what he says goes.

    • Bob

      No. Ms. Sommer is asserting what has been upheld by the courts and our own Constitution. That we all have a RIGHT to travel within our own country. That right to travel includes by airplane. The TSA asserts that we have no right to travel by airplane and therefore by extension no right to travel within our own country.

    • Mark, do you believe that flying is a privelege or a right? John Pistole is the TSA Administrator and he believes flying is a privelege, not a right. He has said so on numerous occasions (and I have linked to at least one instance). John Pistole explicitly denies that I have a right to fly. However, more authoritative institutions have repeatedly declared that travel is a right, so I am calling Pistole out on his B.S. lie.

      I think, though, that you are asking what practical effect the distinction between priveleges and rights should have on our travel experiences. I think you should re-read the passage from When Benjamin Franklin Met the Reverend Whitefield. The distinction concerns the proper role of government. Does the government grant you the privelege of flying? Or do you have a right to fly that the government may not abridge without due process of law? There is an analagous construction as burden of proof: does the government (A) have to demonstrate conclusively that it would be dangerous for you to board an airplane in order to bar you from flying? Or do you as a citizen (B) have to actively demonstrate your trustworthiness in various ways before you can fly? If flying is a right, then A. If flying is a privelege, then B.

      I assert that the government may not bar me from flying without proving I am a danger, because travel is my natural human right. However, TSA has clearly and repeatedly barred many people from flying without allowing them to examine any evidence against them, without due process, without a jury, without specifying charges (this is called the no-fly list). The TSA has also barred many people from flying by refusing to accomodate their disabilities, most especially the refusal to accomodate sexual assault victims and others for whom forced sexual contact is disabling and traumatizing. I have a right to fly without being forced to endure sexual touching from a stranger.

      The difference between flying being a right and flying being a privelege is where the burden of proof lies. We must recognize that every person is by default permitted to fly and that the government should be required to meet a very high standard of proof to prevent someone from flying. At present this balance has shifted far too much to the presumption of guilt, that an airline’s customers are all dangerous terrorists unless they allow unprecedented invasions into their personal lives, private belongings, and sexual organs, to prove their innocence.

    • Chip Kerr

      “…Is Ms. Sommer suggesting that we have a right to fly commercially with no regulations or restrictions whatsoever?”

      In direct answer to your question… No.

      Ms Sommer is *not* suggesting the idea of removing all regulations or restrictions.

  • Fisher1949

    Excellent and concise synopsis of the erosion of our liberties by corrupt bureaucrats and politicians.

    Many modern Americans have betrayed the values that nearly a million our ancestors gave up their lives to protect. It will be to their everlasting disgrace that they will come to be known and the cowardly generation.

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  • That is what he have today – kings and elitists who make rules and laws for the rest of us but that they themselves and don’t necessarily have to adhere to.

  • Very well put! We all need to stand our ground and stand up for our constitutional rights!!

  • 1amWendy

    Extremely well spoken, Sommer.

  • Inspired, important post, Sommer. Thank you.

    Our country will not continue to exist as it as if people, in large numbers, continue to remain docile in the face of having their rights taken from them.

  • Daisiemae

    Hear! Hear!