Searches on the NY Subway:

Baldilocks is on the track of the NYCLU's suit over the NYPD's random searches on the NY Subway.

I have to admit, I've been a bit concerned about this too. I've been asking a lot of lawyers, and bloggers, about the question. I'm not clear on exactly why it's legally OK for the police to deny access to a public subway to anyone who won't waive their 4th Amendment rights. So far, I've found several people willing to take a stab at it, but no one who can actually defend their position in the face of attack. This seems questionably Constitutional to me.

I understand why it is necessary, of course. Unlike the NYCLU, I don't think the police are doing anything immoral. What I want to know is, how is it Constitutional?

I would be happy to accept as an answer, if it were clearly stated, "It is not Constitutional: but the Constitution is not, as famously held, a suicide-pact." That would be good enough for me: I can understand that a pressing, war-brought necessity can cause us to have to set aside certain usual rights for a time. The same thing happens in the case of other serious emergencies, like hurricanes; in the aftermath, it may be necessary to go so far as to institute Martial Law or shoot-on-sight orders for looters.

The advantage of this answer is that it allows the searches, which really seem to be necessary, without diluting the power of the 4th. We understand that the 4th should apply in all but emergency situations. But we also recognize that we have an emergency situation.

Feddie at Southern Appeal promised to put up a post requesting legal insight into this, when I talked to him about it the other day by email. I'll gently prod him to remember to do it; I think it's a very important point.

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