Revisiting "Special Needs" Theory Via Airport Searches

Alexander A. Reinert*

Introduction

Imagine for a moment occupying your spare time by reading random appellate opinions in the Federal Reporter, and coming across the following passages in decisions addressing the Fourth Amendment limitations on airport searches:

When the risk is the jeopardy to hundreds of human lives and millions of dollars of property inherent in the pirating or blowing up of a large airplane, the danger alone meets the test of reasonableness, so long as the search is conducted in good faith for the purpose of preventing hijacking or like damage and with reasonable scope and the passenger has been given advance notice of his liability to such a search so that he can avoid it by choosing not to travel by air.[1] The airport search is a direct reaction to the wave of airplane hijackings . . . , at which time popular feelings of fear and anger, and ultimately rage, called out for some program to safeguard air flights, and understandably so.  Airplane hijacking is a particularly frightening crime.  Many hijackers have been psychotic or political fanatics, for whom death holds no fear and little consequence . . . .  Today, the general methodology of the airport search has become more or less routine.[2] The danger [of airplane hijacking] is so well known, the governmental interest so overwhelming, and the invasion of privacy so minimal, that the warrant requirement is excused by exigent national circumstances.[3]

Surely you would be forgiven for thinking you were reading about the security measures recently put in place by the Transportation Security Administration (TSA): specifically, the TSA's installation of scanners that are capable of creating highly controversial images of random travelers as well as the "enhanced" pat frisks applied to passengers in certain circumstances.  But the language quoted above is from a different era entirely—the period beginning in the late 1960s when federal appellate courts heard a slew of constitutional challenges to new security measures imposed by airlines and the Federal Aviation Administration (FAA) in the wake of a sharp increase in politically-motivated "skyjackings."  My goal in this Essay is to examine the controversy surrounding the TSA's new airport search regime by reference to the Fourth Amendment jurisprudence developed in response to the first instantiation of mass airport searches.

Getting at Recess Appointments

Just weeks ago, President Obama announced that he would use a recess appointment to make Richard Cordray the director of the Bureau of Consumer Financial Protection.  Cordray had been nominated to the post months earlier, but Senate Republicans blocked his confirmation based on opposition to the agency’s structure and power.  President Obama went forward with the recess appointment despite the fact that the Senate was holding pro forma sessions and thus not officially in recess.  The constitutionality of the President’s decision immediately came under scrutiny, culminating in the release of a Department of Justice memo justifying the appointment.

Similar issues were the subject of a prior Colloquy exchange between Professors Tillman and Kalt. Because that exchange is particularly relevant in light of recent events, we have posted it here for interested readers.

Religion and Race: The Ministerial Exception Reexamined

Ian Bartrum*

Editor's Note: This essay is the fifth in a five-part series on Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, a major religion case currently pending in the Supreme Court. For the first time, the Court may squarely address the ministerial exception, a controversial doctrine that grants religious organizations immunity from employment discrimination suits by ministers, even where the discrimination is not religiously required. Our contributors, representing both sides of the scholarly debate, discuss the important doctrinal and policy implications of this landmark case.

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The ministerial exception has, at long last, arrived before the Supreme Court.  In Hosanna-Tabor, the Justices will finally consider the controversial doctrine that shields religious organizations from antidiscrimination suits brought by ministerial employees.[1]  In part because the exception guards a highly contested border between two fundamental constitutional values—equal protection and religious liberty—it has been the subject of significant discord among circuit courts.  Although lower federal courts have recognized and applied some version of the ministerial exception for almost forty years, they have diverged widely on its proper scope and substance.[2]  That is, courts have agreed neither on which jobs count as "ministerial," nor on the kinds of claims from which religious employers are "excepted."[3]  As this colloquy's other contributors make clear, Hosanna-Tabor seems better positioned to settle the former question than the latter.[4]  Nonetheless, I think the case's appearance on the Court's docket gives us occasion to revisit other controverted aspects of the ministerial exception, and that is my intention here.

Religious Freedom, Church–State Separation, and the Ministerial Exception

Thomas C. Berg*; Kimberlee Wood Colby**; Carl H. Esbeck***; Richard W. Garnett****

Editor's Note: This essay is the fourth in a five-part series on Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, a major religion case currently pending in the Supreme Court. For the first time, the Court may squarely address the ministerial exception, a controversial doctrine that grants religious organizations immunity from employment discrimination suits by ministers, even where the discrimination is not religiously required. Our contributors, representing both sides of the scholarly debate, discuss the important doctrinal and policy implications of this landmark case.

[download pdf]

Hosanna-Tabor[1] concerns the separation of church and state, which is an often-misunderstood arrangement that is nevertheless a critical dimension of the freedom of religion protected by the First Amendment to our Constitution.  For nearly a thousand years, the tradition of Western constitutionalism—the project of protecting political freedom by marking boundaries to the power of government—has been strengthened by the principled commitment to religious liberty and church–state separation.  A community that respects both the importance of, and the distinction between, independent spheres of political and religious authority is one in which the fundamental rights of all are more secure.  A government that acknowledges this distinction acknowledges limits to its own reach.  Such a government, history shows, will more consistently protect and vindicate the liberties of both individuals and institutions.

The Irony of Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC

Caroline Mala Corbin

Editor's Note: This essay is the first in a five-part series on Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, a major religion case currently pending in the Supreme Court. For the first time, the Court may squarely address the ministerial exception, a controversial doctrine that grants religious organizations immunity from employment discrimination suits by ministers, even where the discrimination is not religiously required. Our contributors, representing both sides of the scholarly debate, discuss the important doctrinal and policy implications of this landmark case.

[download pdf]

The question presented in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC is whether or not a schoolteacher should be considered a minister.  Although the school teacher in this case, Cheryl Perich, began her employment as a lay teacher, she soon became a called teacher with the title "commissioned minister."  She taught a religion class four times a week and led her class in daily prayers. During the bulk of her workday, however, Perich taught math, reading, English, social studies, science, gym, art, and music to third and fourth graders.

The Legacy of Justice Stevens

On May 12th, Northwestern University and the Northwestern University Law Review held a symposium celebrating the legacy of Justice John Paul Stevens (JD '47).  A number of leading scholars and court watchers gathered to participate in the event, as did the Justice himself.  The participants covered many different aspects of the Justice's life and legacy throughout the day.

The Constitutional Politics of the Tea Party Movement

We would like to conclude our series on the constitutional politics of the Tea Party movement by offering a recording of the panel discussion that gave rise to the four essays published in the Northwestern University Law Review Colloquy. The panel convened for the Annual Meeting of the Association of American Law Schools held in San Francisco on January 6, 2011. In this discussion, Colloquy contributors Sanford Levinson, Randy Barnett, Jared Goldstein, and Ilya Somin, along with Nathaniel Persily, explore the emergence of the Tea Party movement and offer perspectives on its history, membership, rhetoric, and ambitions. 

You can listen to the recording below or here.

 

 

The Tea Party Movement and Popular Constitutionalism

Ilya Somin[*]

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Introduction

The rise of the Tea Party movement followed a period during which many academic students of constitutional law focused on “popular constitutionalism”: the involvement of public opinion and popular movements in influencing constitutional interpretation.[1]  Many of these scholars argue that popular constitutional movements have a beneficial impact on constitutional law,[2] and some even contend that popular constitutionalism should supplant judicial review entirely.[3]  At the very least, the last generation of constitutional scholarship has established that public opinion influences and significantly constrains judicial interpretation of the Constitution.[4]

Can Popular Constitutionalism Survive the Tea Party Movement?

Jared Goldstein[*]

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The sudden emergence and prominence of the Tea Party movement raises important questions about the role of the Constitution in popular politics.  More than any political movement in recent memory, the Tea Party movement is centrally focused on the meaning of the Constitution.[1]  Tea Party supporters believe that the nation is facing a crisis because it has abandoned the Constitution, and they seek to restore the government to what they believe are its foundational principles.[2]

The Tea Party, the Constitution, and the Repeal Amendment

Randy Barnett[*]

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On February 19, 2009, CNBC financial correspondent Rick Santelli stood on the bustling floor of the Chicago Mercantile Exchange and pronounced what will be historic words: “We’re thinking of having a Chicago Tea Party in July.  All you capitalists that want to show up at Lake Michigan, I’m going to start organizing it.”[1]  Rallies were held around the nation on April fifteenth of that year.  Over the summer, Tea Party members showed up en masse at Congressional town halls.  A September twelfth march on Washington drew thousands of people to the National Mall.  This, in a nutshell, was how the social movement called the Tea Party was born.