Things are moving fast these days. Our government, especially at the federal level, is fleeing from Quadrant I, George Washington-style governance on virtually every front.
We have all seen little children being physically searched by the TSA, ostensibly to prevent Muslim Fundamentalists (sorry about the profiling) from hijacking. Texas is moving to pass a bill criminalizing the most intrusive pat-downs of the TSA. There is an interesting response on the TSA blog. As authority for the pat-downs and the federal right to control, the TSA blogger cites the supremacy clause, Art. VI., Clause 6. The Supremacy Clause, to save you time, states that "[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land...." His position is that the states can't regulate the federal government. This follows the standard practice of the current administration to miscast issues and then dismiss them.
It is important to dissect the issue more deeply than this. You see, no one questions that the Constitution is the supreme Law of the Land. It is a question of whether the Federal government or its agencies can lawfully and pursuant to the Constitution make laws granting unrestricted pat-downs. In short, to what extent can federal agents be granted the power to commit acts which would be unlawful, and who has the power to regulate that behavior. The Constitution provides that Congress can "regulate Commerce... among the several states...." Art.I, Sec. 8, Clause 2. But does groping (real or perceived) count as regulating commerce.?
This basically brings up the same issue as Obamacare: what does the commerce clause mean? Does it provide a means for control of all actions which might affect interstate commerce? If you are a believer in traditional American values, you should understand that the people gave the Constitution to provide a foundation for limited government. Where a power is not enumerated, the government does not have that power. In that case, you will hold to the minimalist view that the Federal power only grants the ability to resolve disputes over commerce actively occurring among the states.
If you have fallen into the lower Quadrants where thrives "progressive thought", aka socialism, you hold to a different view altogether. In this view, government is supreme and holds all power. "Rights" are granted to the people as exceptions carved out of government's absolute power at the pleasure of the government, and can be withdrawn at any time should the need arise. The right to regulate commerce, in this view, extends to all activity. No matter how minor the activity, the government may regulate it. In the event you would choose to buy something from an instate source or even choose not to act, you are causing something not to pass in interstate commerce, and that choice can be regulated because it affects the amount of interstate commerce.
The courts which will decide this issue are peopled by graduates of law schools designed by the ardent atheist humanist John Dewey, who could not be called anything but progressive. You can see the philosophical leanings of the different judges by looking at their decisions. While you watch the Obamacare decisions, you will observe that some judges (those appointed by the left) are simply puzzled by the idea that there is anything government cannot regulate, while others (those appointed by the right) hold that there are obvious boundaries to government power.
The legal issue will have to be decided by the U.S. Supreme Court, but it will ultimately be our decision. The people on the Courts reflect the views of those who appoint them. The liberal Democrats have been masters at getting adherents to their views appointed. If we the people want a different view, its up to us to hold our representatives accountable to appoint those with the right view.
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