Justices should be used to rein in customs agents

November 05, 1997|By GREGORY KANE

Jackbooting, anyone?

There is one quasi-police agency that has the Supreme Court's full blessing to engage in jackboot, fascist tactics that might chill former KGB agents to the bone. They live right here in the United States. They can stop you, strip you and conduct cavity searches of any part of your body any time they damn well feel like it.

They're called customs agents. In my Oct. 26 column, I wrote that "The U.S. Constitution clearly forbids unreasonable searches. Customs agents - whether they're body probing [a woman] 20 years ago or Peter Jackson a month ago - aren't exempt from the proscriptions of the Fourth Amendment."

Joel Grossman, a professor of constitutional law at the Johns Hopkins University, says customs agents are exempt from the proscriptions of the Fourth Amendment.

"The Fourth Amendment doesn't apply to customs searches," Grossman said. "They are governed by the law of sovereignty which says a nation can control its borders. There is a right to control borders over and above the Constitution."

Such a pathetic state of affairs gives far too much power to customs agents. Grossman agreed.

"Does it lead to abuses?" he asked. "Sure it does. Many people have made that argument, and they've all lost. The courts have ruled the Bill of Rights does not exist at the border."

The good professor will forgive me if I'm less than impressed by the Supreme Court's rulings. It's not as if the high court hasn't been wrong before. In fact, there have been times when no one's liberty has been safe when the Supreme Court was in session. And that doesn't just pertain to the borders, either.

Take the case of Dred Scott vs. Sanford. That 1857 case ruled that blacks were not citizens, had no rights whites were bound to respect and weren't meant to be included in the Declaration of Independence and the U.S. Constitution. Some say Chief Justice Roger B. Taney and his cohorts on the bench helped plummet the country into civil war.

Fast forward to 1896. Homer Plessy went before the Supreme Court, where his lawyer argued the state of Louisiana was wrong to relegate Plessy to a railroad car for blacks only. Plessy lost his case.

"If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane," justices ruled. The decision entrenched a system of segregation that eventually became a caste system, creating racial divisions and hatreds from which we have not yet recovered.

In the 1920s, a Virginia woman named Carrie Buck was proclaimed by the state to be "feeble-minded" after her IQ test showed she had a "mental age" of only 9. She was placed in a home for the "feeble-minded" and sterilized without her consent. Her case went to the Supreme Court, where Justice Oliver Wendell Holmes piously intoned that "three generations of imbeciles is enough." Buck's sterilization was ruled fitting and proper.

Holmes has been hailed as one of our greatest justices. In the Carrie Buck case, he was nothing more than a fool with a law degree.

So the high court itself has shown a streak of fascism when the social climate permitted. No wonder then that it has repeatedly seen fit to rule that the "Bill of Rights ends at the border." It might explain, though, why presidential administrations both Democratic and Republican could trumpet democracy and human rights here at home while aiding and abetting foreign despots who ran roughshod over their own people.

But there's that nettlesome matter of exactly how we rein in customs agents who run buck wild at our airports, strip-searching and orifice-probing citizens and noncitizens alike. According to Grossman, Congress can make rules restricting customs agents' conduct. But the Congress is likely to wimp out on this one.

A constitutional amendment? Nah, let's not tamper with the Constitution too much. Let's get creative and analytical about this. Successive Supreme Courts have ruled "the Bill of Rights ends at the border" because no Supreme Court justice has ever been subjected to a strip search, complete with a thorough reaming of the body cavities. Therein lies the answer.

Congress should pass a law stipulating that whenever Supreme Court justices leave the country, customs agents are required to strip-search them upon their return. Justices will then be given probes of every body cavity.

Deep and hard.

Pub Date: 11/05/97

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