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Why Are Americans Searched at the Border?

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Whenever American citizens travel to another country, they are subjected to intrusive searches at the hands of U.S. officials upon returning to the United States.

Why? What’s the justification?

Since Americans living today have all been born and raised under this type of system, hardly anyone questions it. It’s just accepted, passively and submissively, as part of living in a “free” society.

Yet, when the government wields the authority to conduct a complete search of people without any suspicion of a crime having been committed, that is far from any free society.

When the Constitution was proposed, American citizens were extremely leery. They had been told that the Constitutional Convention was being held simply to propose changes to the Articles of Confederation, which provided for a federal government with extremely weak powers. In fact, I’ll bet that most Americans today don’t even realize that the federal government during the 13 years under the Articles of Confederation didn’t even have the power to tax.

So, imagine the surprise among the American people when the Constitutional Convention proposed a brand new federal governmental system rather than simply proposing modifications to the Articles of Confederation.

Why were our American ancestors leery? Because they knew that throughout history, governments had proven to be the greatest threat to the freedom and well-being of their citizenry. That’s why the federal government under the Articles had such weak powers. So, not surprisingly, most Americans were not wildly enthusiastic about replacing the federal government under the Articles with the federal government called for in the Constitution.

The promoters of the Constitution argued that this time things would be different because the powers of the federal government would be expressly enumerated in the document. If a power wasn’t enumerated, it could not be exercised. If the Congress or the president attempted to exercise a power that wasn’t enumerated, an independent judiciary would declare their actions unconstitutional, null, and void.

Accepting the deal, Americans were still not convinced. As a condition for approving the Constitution, they demanded the enactment of a Bill of Rights that would protect their rights and freedoms from the federal government, which, again, they considered to be the big threat to their rights and freedoms.

That’s how we got the First Amendment. Our ancestors knew that federal officials would inevitably try to take away their fundamental rights of free speech, religious liberty, intellectual liberty, and political liberty. The First Amendment expressly prohibited them from doing so.

That’s how we also got the Second Amendment. Our ancestors understood that federal officials would be the biggest threat to their fundamental right to own guns. The Second Amendment prohibited them from confiscating their guns.

Our ancestors also knew that federal officials would inevitably do other bad things to them, such as murder them, incarcerate them without trial, torture them, force them to confess to crimes, and subject them to intrusive searches of their persons, belongings, homes, and businesses.

That’s why our ancestors demanded the enactment of the Fourth, Fifth, Sixth, and Eighth Amendments.

The Fourth Amendment was designed as a way to prevent federal officials from arbitrarily searching whoever they wanted. It requires a search warrant issued by an independent magistrate, one who must determine, based on evidence presented to him, that there is “probable cause” that a person has committed a crime.

No probable cause? Then no search warrant. No search warrant? No search, no matter how convinced some federal official might be that a particular person has incriminating evidence on him or in his premises.

So, we return to our original question: Why are Americans subjected to searches upon returning from travel from some foreign country?

Someone is likely to respond: Because we have immigration controls, Jacob.

But immigration controls relate to a person’s citizenship. If a nation has immigration controls, then it stands to reason that officials are going to ask for a person’s papers, in order to establish that he is, in fact, a citizen and, therefore, free to return to his country.

What does a search of a person’s body and belongings have to do with establishing citizenship?

Someone might respond: But, Jacob, we have a drug war going on. A person returning from another country might be carrying drugs.

That’s true but, then again, he might not be carrying drugs. Indeed, federal officials are not permitted to search people for drugs who travel from San Francisco to New York? Why should they be permitted to search Americans who travel from Paris to New York?

Freedom of travel has always been considered a fundamental, natural, God-given right, one that even U.S. officials acknowledge the existence of. That’s, in fact, why they have never made it a crime for Americans to travel to Cuba. They didn’t want to leave the impression that they were destroying this fundamental right. So, to inhibit American travel to Cuba, they simply made it a felony offense for Americans to spend money in Cuba (as if that didn’t infringe on another fundamental right—that of economic liberty).

Given that freedom of travel is a fundamental, natural, God-given right, then why are U.S. officials permitted to assault it with intrusive searches just because an American travels outside the country? If they believe that an American is committing a crime when returning to the United States, then they can go get a warrant. But where is the justification for doing what our ancestors were clearly attempting to prohibit federal officials were doing with the enactment of the Fourth Amendment?

In an era in which federal officials are now requiring Americans who are returning from foreign travel to turn over their cell phones for searches and forcing them to disclose their passwords, it’s time for Americans to start asking some fundamental questions regarding the nature of liberty, the purpose of the Constitution and the Bill of Rights, and the proper role of government in a free society and to abandon the passivity, submissiveness, and deference to authority that have come to characterize their lives. A good place to start would be by pondering the following question: Under what legal and moral authority do government officials subject American citizens to searches simply because they have exercised their fundamental, natural, God-given right to travel to other countries?

 

This post was written by:

Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.