Way back when, in 2002, a science fiction series called Firefly premiered on Fox. It was the brainchild of writer/producer/director Joss Whedon, who has made a number of TV and movie hits. The show, which takes place about 500 years in the future, can be characterized as a science fiction western, and follows the crew of a small space ship called “Serenity” through a future equivalent of the Wild West. It was a cult hit, but unfortunately didn’t draw big ratings and was cancelled after one season. It has a hardcore following to this day, with fans as fervent as those of any other science fiction show. I encourage anyone who likes science fiction to give it a try.
The theme song, The Ballad of Serenity, starts out with the lyrics:
Take my love, take my land
Take me where I cannot stand
I don't care, I'm still free
You can't take the sky from me
A recent news story reminded me of one the more insidious bits of government over-reach that’s been floating around since 9/11 – the no-fly list. The report, details how a judge recently found the redress process for those who have been placed on the no-fly list unconstitutional. The no-fly list, a list of names created and maintained by the government, is secret, as are the methodologies for creating it and as is the process of challenging one’s inclusion on it. In short, the government says “we have to keep everything secret for security purposes,” “we won’t tell you why we put you on the list,” and “if you want off the list you’ll simply have to trust our diligence and good intent.” (The story of Rahinah Ibraham, who spent 9 years on a no-fly list because some bureaucrat checked the wrong box on a form, puts the lie to that bit). It flies in the face of fundamental rights, including due process and the right to face one’s accuser. It stands in stark contrast to fundamentals about the legal system, including the checks and balances of an independent judiciary and the openness of the court system (the light of day is a powerful exposer of incompetence, corruption, error, and maleficence).
It also attacks a fundamental but unenumerated right, the right to travel. Some of our basic human rights were considered so inherent and unassailable by the drafters of the Constitution that they didn’t even bother writing specific protections for them. Instead, they wrote the 9th and 10th Amendments as an omnibus protection. Among these is the right to move about as one wishes aka travel. Unfortunately, this right has become almost quaint in modern society. The use of public roads has long been established as a privilege rather than a right, with licensing, registration and other mandates required to operate a vehicle on them. Yet even with those strictures, people could still contract with those who’ve satisfied all those strictures to travel on them. In other words, you don’t need papers to take a taxi or bus.
Not so with commercial air travel. It’s no longer an option to simply exchange value with a company in order to travel via air. One must have permission from the government to exercise this right (a “right” that requires permission is no longer a right), and securing that permission requires one forego several other rights, including our Fourth Amendment right against search without probable cause.
One might argue that control over air travel is a justifiable exception in an otherwise-free society. Consider, though, what the government does with the broadcast spectrum over which television, radio and other forms of electromagnetic communication travel. The spectrum is under the absolute control of the Federal Communications Commission (FCC), which not only licenses the use of particular frequencies but regulates content. Consider, also, the “air rights” over a parcel of property one might own. Zoning laws in most municipalities restrict the heights to which one can build (and also restrict what sorts of structures one might reach to the sky with). Model rockets, airplanes and helicopters (the latter two include the increasingly common “drones”) are permissible without permit up to certain sizes and criteria, but even here the permission establishes jurisdiction over the sky, even sky above your own property. Emissions into the sky are heavily regulated, down to the burning of firewood in some jurisdictions. By any assessment, “the sky” has been declared the domain of the government, and its use is at the government’s whim.
The singer of The Ballad of Serenity declares “you can’t take the sky from me.” The government’s retort? In the words of our current President, Yes we can. And they already have.
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