After Sept. 11, our nation has begun a tragically overdue reassessment of airport security. Some argue that our security needs will require us to abandon some of our most fundamental rights and liberties. But we need not choose between constitutional rights and airport security.
Undoubtedly, the balance between security and freedom will be altered by the steps we must take. But the requirements of security can be - as they always have been in our country - reconciled with constitutional demands of liberty and equality that are at the core of the American way of life.
On airport security, the constitutional touchstone must be the command of the Equal Protection Clause that each person be treated as an individual. Calls for ethnic profiling of Arabs and Arab Americans at airports - while perhaps an understandable response - echo those of an earlier time of war when, to our shame, we abandoned this constitutional principle. During World War II, more than 100,000 people were placed in internment camps because of Japanese ancestry. In 1988, Congress apologized for this "fundamental injustice." The 1944 Supreme Court case approving the action, Korematsu v. United States, is one of the most shameful in the Court's history.
The Constitution permits the government ample means to protect security at airports. Airplanes can be fitted with inside-locking steel cockpit doors. Air marshals can be used where their benefit is thought to outweigh the risk of having firearms on board. Airplane crews can be trained not to comply with hijackers, once presumed to be seeking only hostages. At airports, access to secure areas, runways, and parked aircraft can be severely restricted. None of these changes raise constitutional concerns.
Passenger screening - the search of passengers and luggage - does implicate the Fourth Amendment's prohibition on "unreasonable searches and seizures." But passenger scrutiny can be strengthened substantially without violating that provision.
While suspicionless searches are ordinarily forbidden, under the constitutional rule of reasonableness applicable at airports, passengers may be evenhandedly searched as intrusively as is necessary to prevent the risk of hijacking.
The extension of the search for weapons on persons and in carry- on luggage to include sharp objects is thus clearly constitutional. Such searches might have prevented these hijackings. …