Common Defence

And the men who spurred us on sit in judgment of all wrong
They decide and the shotgun sings the song
--The Who

It has been argued that mandatory airport searches of all citizens and similar intrusive acts by Federal government agencies formed under auspices of 'homeland security' are valid because of power granted to Congress for providing for 'the common defense.' The common defense language appears in the first clause of Article 1, Section 8 (1.8.1) of the Constitution states:

1.8.1: The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

Does 1.8.1 grant power to the Federal government to expand activities related to security at its discretion--in this case to intrude on individual freedoms in the name of keeping people safe? No. We know this for a number of reasons.

Review of 1.8.1 suggests that its primary intent is to enumerate Congressional power to collect economic resources via taxation and other means. Subsequently, 1.8.1 specifies the various ways those economic resources, once collected, can be spent: for paying debt, for common defense, and for general welfare.

In the context of federalism upon which the republic was founded, resources applied toward 'common defense' should address needs that all states have in common and/or needs that require coordination by a central authority. In modern times, these might include conducting air or sea patrols, maintaining military reserves, or establishing communication networks that permit interstate action in the event of an attack.

The latter part of Section 8 enumerates Congressional powers related to the military in more specific detail (again suggesting that the emphasis of 1.8.1 is on Congressional authority to collect economic resources). Congress has authority to declar war (1.8.11), to raise temporary (!) armies (1.8.12), to provide and maintain a Navy (1.8.13), and to make rules that regulate land and naval forces (1.8.14).

Then come two clauses related to Congressional authority over 'the militia.' Militia is never defined in the Constitution, but it is presumed to be decentralized military forces located in the various states. The militia concept has deeps roots in founding thought of the United States (nice review here), primarily as a means to check central government power.

1.8.13: [The Congress shall have power] To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

1.8.14: [The Congress shall have power] To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers and the Authority of training the Militia according to the discipline prescribed by Congress.

Over time, the various state militias became what today we know as the National Guard. It is clear in the Constitution that decentralized state militias were to intended to provide a substantial defensive resource--particularly in the context of domestic disturbances as specified in 1.8.13. Constitutionally, the Federal government is to fund militia resources and to enable their mobilization in support of the common defense of the states.

It seems clear that when it comes to issues of common defense on domestic soil (such as defending against terrorist 'invasions'), the Constitution empowers the Federal government to enact a decentralized approach where the states retain considerable authority over defense activities. The Constitution does not favor the creation of a centralized agency (such as the Department of Homeland Security) in this regard.

Finally, and perhaps most importantly, we know that intrusive acts such as airport searches done by Federal government agents are unconstitutional because of the Bill of Rights. The Bill of Rights was added to the Constitution to more clearly enumerate those rights retained by individuals and the states. Items appearing in the Bill of Rights are consistent with the concept of natural rights--the idea that all individuals are born with certain rights that are inalienable by the government.

As such, the rights enumerated in the Bill of Rights are rights that the federal government cannot supercede. These rights include, as enumerated in the Fourth Amendment, the right of people to be secure in their person and property against 'unreasonable search and seizures' without 'probable cause.'

Because the intent of the Constitution was to impose limits on government so as to preserve individual liberty, and because the Bill of Rights provides 'further restrictive clauses' on government authority to 'prevent misconstruction or abuse of its powers,' it is reasonable to conclude from the evidence that clause 1.8.1 does not authorize the Federal government to conduct forceful acts of search upon its citizens in the name of 'common defense.'