A Stitch in Haste

To review: Federal courts, including the Supreme Court, have crafted a plenary “border exception” to the Fourth Amendment. Bootstrapping long-obsolete doctrines about shipping, tariffs and contraband, the courts deferred as the government exploited one of the greatest loopholes in the Bill of Rights: the idea that only “unreasonable” searches and seizures are proscribed, and that all the government therefore need do to search without a warrant or probable cause is to insist that the search is “reasonable.” All border searches are “reasonable,” the rationalization goes, so all border searches are permitted. QED — somehow.

Now come yet more tales of abuse of the border exception and yet more pledges to do something about it:

One measure, sponsored by Sen. Russell Feingold, D-Wis., chairman of the Constitution subcommittee, would require reasonable suspicion of illegal activity to search the contents of electronic devices carried by U.S. citizens and legal residents. It would also require probable cause and a warrant or court order to detain a device for more than 24 hours. And it would prohibit profiling of travelers based on race, ethnicity, religion or national origin.

Rep. Eliot Engel, D-N.Y., is sponsoring a bill in the House that would also require suspicion to inspect electronic devices. Engel says he is not trying to impede legitimate searches to protect national security. But, he says, it is just as important to protect civil liberties.

It’s all well and good that Congress might — might — rein in Homeland Security and other federal bureaucracies and overlay a new “reasonable suspicion” requirement for some border searches (which would still be less demanding that the constitutional standard of “probable cause”).

But that’s not the point at all, and certainly nothing to cheer about. We should not have to rely on the magnanimity of Congress to extend, by revocable statute, a fraction of either our inherent natural right to be free from oppressive searches or the constitutional embodiment of that natural right — the Fourth Amendment. It should be the courts that are defending our individual liberties from the rudderless passions of majoritarian legislatures — not the other way around.

The federal judiciary’s border search jurisprudence is simply wrong. The federal judiciary should be the ones to fix it, based on enduring constitutional principles. Leave Russ Feingold (no champion of the Bill of Rights, incidentally) out of it.

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Those of you who don’t follow me on Twitter, meanwhile, likely did not see this item, in which a federal judge ruled that flying from the United States Virgin Islands (i.e., the United States) to New York City (i.e., the United States) is, somehow, “crossing the border” and therefore subjects one to a warrantless, suspicionless search of one’s luggage. Go figure.

Previously:
–On Laptop Searches and Seizures at the Border