This morning, while travelling to Washington to attend the Cato Institute’s Constitution Day panels, I once again came face to face with the absurdly Kafka-esque leaps in reasoning employed by the state to subvert the constitution. In this case, the entire idea of consent and coercion has been turned on its head in order to extract vocal compliance from unwilling travelers.
At Penn Station, immediately before boarding, I was approached by two Amtrak police officers. They asked me to move into a small queue to the right of the track entrance, filled with frustrated looking people standing before a portable explosives detector. I walked over to the line, and inquired as to the probable cause that had led to my selection. I was informed that there was no probable cause, and that I had simply been selected at random. I then told the officers that I did not consent to a search of my bag. The officers responded by telling me that I was not, in fact, going to undergo a search, but that my bag would be swabbed. I asked if swabbing a bag constituted a search. I was told that, in legal terms, it was a search. One failed linguistic trick, and we were back to square one.
I reiterated that I did not consent to “search in the form of a swab”, and was immediately told that, if I did not consent to the search, I would be taken to the ticket counter, and made to select another train, and would be liable for any added costs the ticket change might incur. I would also be prevented from traveling on any Amtrak trains for the next 24 hours. Even after the 24 hours waiting period, there was a chance that, if I was again selected for a search, I would have to start the process over again.
I asked the officer if, in order to ride on my chosen train, I would essentially be forced consent to a search. He recoiled. “We are not forcing you to do anything. This is your choice, but at this point, you cannot board this train without having your bag searched. Did you read the sign? By entering this station, you agreed to consent to any and all requests to search your property”. I protested, saying something along the lines of "This isn’t a choice, you will impose grave and artificial penalties on me if I refuse to consent”. The officer responded by again telling me that I wasn’t being forced to do anything, and that I needed to decide now if I would be boarding the train. Muttering something about John Stuart Mills’ gangplank example under my breath, I suffered a cotton swap to be wiped across my bag.
In the strictest of terms, the search was not forced. But, if I were to refuse to “freely” give my consent to the search, I would be briefly detained, made to purchase a new ticket, and prevented from travelling for a period of 24 hours. This is the very definition of a false choice. I cannot help but feel like a ship passenger, upset with the tyranny of the captain, who is told that he may freely exit the captain domain by diving off the boat. It is also important to note that there are no train services free from the ridiculous specter of security theater. Were our trains run privately, there might be a lower security option I could choose. Instead, Amtrak, as a grotesque, pseudo-government entity, gains the ability to push out all competition with government funding and subsidies, while simultaneously refusing to recognize my constitutional rights. The fact of the matter is that many Americans have no way of moving freely about their country while keeping their 4th amendment rights intact. Happy Constitution Day.