A Stitch in Haste

The New York Civil Liberties Union is challenging the constitutionality of New York City's new mass transit system policy of random, suspicionless searches as a condition precedent to accessing the subway system:

In addition to violating the constitutional rights of millions of subway riders, the NYPD policy appears to be ineffective as a security measure. The NYPD is not conducting searches at most subway entrances at any given time, is giving advance notice about searches at those entrances where searches are being conducted, is allowing people selected for a search to walk away, and is not basing the searches on any suspicious activity of individuals. As common sense would suggest, the NYPD's program is virtually certain neither to catch any person trying to carry explosives into the subway system nor to deter such an effort. Indeed, given the way the Department has implemented its search program, the only people being searched are innocent users of the subway system.

And although the NYPD claims that they are conducting searches that are purely random, the large number of people entering the transit system and the lack of control over that traffic result in people being selected for search in a discretionary and arbitrary manner, which creates the potential for impermissible racial profiling.

Yup. I think this whole sorry state affairs can be reduced down to one irrefutable premise: Making people feel safe, as opposed to making them be safe, is not a sufficiently compelling government interest to void the Fourth Amendment's requirement of individualized suspicion for searches and seizures.

The Bill of Rights may not be a suicide pact*, but neither is it a mere suggestion.

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*Let the record reflect that this famous (mis)quote actually comes from a dissenting Supreme Court opinion and has never been considered good law or even good wisdom. See Terminiello v. Chicago, 337 U.S. 1 (1949) (Jackson, J., dissenting):

There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.

It should be noted that Terminiello was a First Amendment case about inciting to riot (i.e., creating a a state of imminent dangerous lawlessless), not about the Fourth Amendment or about public safety generally. Context counts.