The above is probably their excuse. Thanks Marshall.

It's going to come down to the feds to either disband or reform the TSA. They are taking baby steps. Very baby steps, of course. Saying that the states could take responsibility is pretty unrealistic. (When I call something unrealistic, it's probably *very* unrealistic...)

Also, the preamble of the Constitution speaks of securing liberty. Terrorist attacks threaten our liberty, in theory, so they use that lame ass excuse to curtail our liberty under the auspices of securing it. Kind of like protecting quality of life by killing unwanted and unborn infants.

"Okay, but does the federal government have the authority to regulate airspace?"

Yes. The authority of the US Government to regulate US airspace is covered by the Federal Aviation Act (1958).

The federal government verified itself? Seems legit. /s

Draug, wasn't it Franklin that said something like "sacrificing liberty in the name of security" (etc.) means that you don't deserve either? I don't know the exact quote but I know I've heard it before.

@ bo_sox: "The federal government verified itself? Seems legit."

What are you blathering about? Your country's democratically-elected congress voted to enact a law covering the regulation of the airspace within their country. What part of that process is not "legitimate" ?

I've spent too much time on the Prairie Band Reservation. It's getting to my head.

"Your country's democratically-elected congress voted to enact a law covering the regulation of the airspace within their country. What part of that process is not "legitimate" ?"

Perhaps the part that Congress has been known to pass laws later found to be unconstitutional and, therefore, not "legitimate".

I'm not saying they don't have the authority, but a law Congress passes doesn't give them authority. Only the Constitution can do that. That's the big difference between us and the UK. We have a written Constitution and a process for changing it that is burdensome for a good reason, to prevent Congress and POTUS from passing laws that take away the States' rights and authority.

Do you think the regulation of airspace is something that should be handled on a state-by-state basis, Draugnar? Wouldn't that be immensely over-complex?

Consider a quick internal flight from New York to Chicago:

- The flight would take off under the jurisdiction of the New York Aviation Authority
- It would then pass into the jurisdiction of the Pennsylvania Aviation Authority
- It would then pass through the jurisdiction of the Ohio Aviation Authority
- Depending on flight path, it would then pass through the jurisdiction of either the Indiana Aviation Authority, or the Michigan Aviation Authority.
- Finally it would set down to land in Chicago, under the jurisdiction of the Illinois Aviation Authority.

The pilot and co-pilot, and the aircraft itself, would need to be licensed by five different aviation authorities for just this short flight.

There's a reason not everything is administered at state level, surely?

Gunfighter, you're making the sad fallacy that so many conservatives make -- anything that's constitutional is a good idea. Constitutional is the only criterion of wise.

Even if the feds have the right and duty to protect airspace (of course they do), that doesn't immediately mean that a federal agency is the best way to do it. They had that right and duty before 2001 too, when contractors were used without much complaint.

^

@Jamie - I don't disagree with the airspace being covered, I was just pointing out the flaw of your general argument that by virtue of the fact that Congress passed some law, that makes it legit. It doesn't.

But in so far as the state authorities, the licensing could be done just as it is with motor freight travel. You are licensed by one state and that license is recognized by the others. So you would have a New York pilot's license and be able to fly in any of the 50 states or Canada. I have an Ohio driver's license, but didn't have to get an Indiana, Illinois, or Wisconsin one to drive to Madison.

In practice, presumably that would put a great responsibility on the states containing the really big hub airports?

It could, but it is just as likely that that burden would be countered by the benefits of having a big hub airport.

"Constitutional is the only criterion of wise."

No, I don't believe that. But what's wise and what's right aren't always the same thing. We can't just pick and choose which parts of the Constitution we want to follow, and we *definitely* can't arbitrarily assign responsibilities to the federal government.

Of course. But again, this one is pretty easily under "provide for the common defense." There are powers exercised by the modern federal government that are hard or impossible for a textualist to justify, but this is not one of them. Continuing to talk about the Constitutionality of it is, in fact, a bore. Let's get back to its wisdom and usefulness as a policy.

"we *definitely* can't arbitrarily assign responsibilities to the federal government"

In what sense does the passing of legislation by a democratically-elected Congress represent "arbitrarily assigning responsibilities" ??

@ Jamiet

"In what sense does the passing of legislation by a democratically-elected Congress represent 'arbitrarily assigning responsibilities'?"

Because our federal government does not have unlimited power, contrary to popular belief. It doesn't matter if the Congress is democratically elected or not; they cannot do anything outside of the bounds of the Constitution, as per the Tenth Amendment. We're a constitutional republic, *not* a democracy. We have inalienable rights and freedoms, and the freedom from federal government molestation is one of the oldest and most ignored of these.

"In what sense does the passing of legislation by a democratically-elected Congress represent "arbitrarily assigning responsibilities" ??"

As GF says, the feds power is restricted. This isn't the UK with its "unwritten constitution". Ours is enumerated and those powers not specifically granted to the federal government or specifically denied the states by our written constitution are granted to the states in accordance with our written constitution.

The trouble with a written constitution is that nobody bothers to read it. Or at least none of the current powers-that-be.

"We're a constitutional republic, *not* a democracy."

No country in a world is a Democracy. Just like the brand of your vehicle is not Car and you don't go to church to practice Monotheism. The USA is a representative democracy in the form of a presidential constitutional republic. And it's not the only country in the world in that category, especially in the constitutional republic department.

"The trouble with a written constitution is that nobody bothers to read it. "

Which is always said when one of you authoritarian constitutionalists disagrees with somebody.

" It doesn't matter if the Congress is democratically elected or not; they cannot do anything outside of the bounds of the Constitution, as per the Tenth Amendment"

They can do whatever they want until a court says otherwise. The constitution is just a piece of paper.

Why do conservatives think they have papal infallibility when it comes to reading 18th century documents?

Mostly because liberals confessedly aren't even trying to interpret them.

Texts are nearly impossible to interpret, and it is odd that conservatives want to enable Iranian-style Guardian Council-esq judicial interference at every turn, having such a great faith in interpretation over legislatures.

Not everybody buys into Marxist interpretive theory; and conservatives are hardly the inventors of judicial interference.

How are texts nearly impossible to interpret? It's pretty damn clear, there is literally a bulleted list of what Congress can do and then it literally says "the things that aren't here aren't for Congress to butt in on."

Someone who doesn't know what literally means isn't exactly making a great case for ease of interpretation.

It's not Marxist theory. It's called parliamentary sovereignty, a principle that is fairly widespread around the world, founded by the British. But thanks for being the usual parochial minded rightist who can't fathom government outside the narrow confines of the American experience.

"It's pretty damn clear"

There is nothing clear about it. That's why we have a constitutional law industry and a Supreme Court that is frequently divided, because of the difficulty of interpretation.