Travel within the United States
Constitutional freedom
As early as the Articles of Confederation the Congress recognized freedom of movement (Article 4), though the right was thought to be so fundamental during the drafting of the Constitution as to not need explicit enumeration. [4]
The U.S. Supreme Court in Crandall v. Nevada , 73 U.S. 35 (1868) declared that freedom of movement is a fundamental right and therefore a state cannot inhibit people from leaving the state by taxing them. In United States v. Wheeler . 254 U.S. 281 (1920), the Supreme Court reiterated its position that the Constitution did not grant the federal government the power to protect freedom of movement. However, Wheeler had a significant impact in other ways. For many years, the roots of the Constitution's "privileges and immunities" clause had only vaguely been determined. [5] In 1823, the circuit court in Corfield had provided a list of the rights (some fundamental, some not) which the clause could cover. [6] [7] The Wheeler court dramatically changed this. It was the first to locate the right to travel in the privileges and immunities clause, providing the right with a specific guarantee of constitutional protection. [8] By reasoning that the clause derived from Article IV of the Articles of Confederation, the decision suggested a narrower set of rights than those enumerated in Corfield, but also more clearly defined those rights as absolutely fundamental. [9] The Supreme Court began rejecting Wheeler's reasoning within a few years. Finally, in United States v. Guest , 383 U.S. 745 (1966), the Supreme Court overruled Chief Justice White's conclusion that the federal government could protect the right to travel only against state infringement. [2] [3] [10]
The Supreme Court has specifically ruled that Crandall does not imply a right to use any particular mode of travel, such as driving an automobile. In Hendrick v. Maryland (1915), the appellant asked the court to void Maryland's motor vehicle statute as a violation of the freedom of movement. The court found "no solid foundation" for the appellant's argument and unanimously held that "in the absence of national legislation covering the subject, a state may rightfully prescribe uniform regulations necessary for public safety and order in respect to the operation upon its highways of all motor vehicles — those moving in interstate commerce as well as others." [11]
The U.S. Supreme Court also dealt with the right to travel in the case of Saenz v. Roe , 526 U.S. 489 (1999). In that case, Justice John Paul Stevens, writing for the majority, held that the United States Constitution protected three separate aspects of the right to travel among the states:
(1) the right to enter one state and leave another (an inherent right with historical support from the Articles of Confederation),
(2) the right to be treated as a welcome visitor rather than a hostile stranger (protected by the "Privileges and Immunities" clause in Article IV, § 2), and
(3) (for those who become permanent residents of a state) the right to be treated equally to native-born citizens (this is protected by the 14th Amendment's Privileges or Immunities Clause; citing the majority opinion in the Slaughter-House Cases, Justice Stevens said, "the Privileges or Immunities Clause of the Fourteenth Amendment ... has always been common ground that this Clause protects the third component of the right to travel.").
Mann Act
The 1910 Mann Act (White-Slave Traffic Act) among other things banned the interstate transport of females for otherwise undefined "immoral purposes", which were taken to include consensual extramarital sex. This act was used, in addition to less controversial cases, to allow federal prosecution of unmarried couples who had for some reason come to the attention of the authorities; interracial couples (e.g. boxer Jack Johnson) and people with left-wing views (e.g. Charlie Chaplin) were prosecuted. The Act has since been amended to be gender-neutral and now applies only to sexual activity which is separately illegal (such as prostitution and sex with a minor).
Implications
The court's establishment of a strong constitutional right to freedom of movement has had far-reaching effects. For example, the Supreme Court overturned state prohibitions on welfare payments to individuals who had not resided within the jurisdiction for at least one year as an impermissible burden on the right to travel in Shapiro v. Thompson , 394 U.S. 618 (1969). The court also struck down one-year residency requirements for voting in state elections in Dunn v. Blumstein , 405 U.S. 330 (1972); one-year waiting periods before receiving state-provided medical care in Memorial Hospital v. Maricopa County , 415 U.S. 250 (1974); and civil service preferences for state veterans in Attorney Gen. of New York v. Soto-Lopez , 476 U.S. 898 (1986). However, it upheld higher fishing and hunting license fees for out-of-state residents in Baldwin v. Fish and Game Commission of Montana , 436 U.S. 371 (1978). [12] [13] [14]
Current US Code addresses air travel specifically. In 49 U.S.C. § 40103, "Sovereignty and use of airspace", the Code specifies that "A citizen of the United States has a public right of transit through the navigable airspace."
A strong right to freedom of movement may yet have even farther-reaching implications. The Supreme Court has acknowledged that freedom of movement is closely related to freedom of association and to freedom of expression. Strong constitutional protection for the right to travel may have significant implications for state attempts to limit abortion rights, ban or refuse to recognize same-sex marriages, and enact anti-crime or consumer protection laws. It may even undermine current court-fashioned concepts of federalism. [15] [16] [17] [18] [19]
Free speech zones
A related issue deals with free speech zones designated during political protests. Although such zones were in use by the 1960s and 1970 due to the Vietnam-era protests, they were not widely reported in the media. However, the controversy over their use resurfaced during the 2001-2009 Bush presidency. In essence, Free Speech Zones prevent a person from having complete mobility as a consequence of their exercising their right to speak freely. Courts have accepted time, place, and manner restrictions on free speech in the United States, but such restrictions must be narrowly tailored, and free speech zones have been the subject of lawsuits.
International travel
History
From 1776 to 1783, no state government had a passport requirement. The Articles of Confederation government (1783–1789) did not have a passport requirement. From 1789 through late 1941, the government established under the Constitution required United States passports of citizens only during the American Civil War (1861–1865) and during and shortly after World War I (1914–1918). The passport requirement of the Civil War era lacked statutory authority. After the outbreak of World War I, passports were required by executive order, [20] though there was no statutory authority for the requirement. The Travel Control Act of May 22, 1918, permitted the president, when the United States was at war, to proclaim a passport requirement, and a proclamation was issued on August 18, 1918. [21] Though World War I ended on November 11, 1918, the passport requirement lingered until March 3, 1921. [22] There was an absence of a passport requirement under United States law between 1921 and 1941. World War II (1939–1945) again led to passport requirements under the Travel Control Act of 1918. A 1978 amendment to the Immigration and Nationality Act of 1952 made it illegal to enter or depart the United States without an issued passport even in peacetime. [23] Note that the amendment does permit the President to make exceptions; historically, these exceptions have been used to permit travel to certain countries (particularly Canada) without a passport. As of 2016-08-10, tourism sites still discuss which alternative documents are acceptable, and which ceased to be sufficient in 2007 or 2008. [24]
Restrictions
As per § 215 of the Immigration and Nationality Act of 1952 (currently codified at 8 U.S.C. § 1185), a United States citizen must enter or exit the United States on a valid United States passport. [25]
As per Haig v. Agee and the Passport Act of 1926 (currently codified at 22 U.S.C. § 211a et seq.), the presidential administration may deny or revoke passports for foreign policy or national security reasons at any time. The Secretary of State has historically in times of peace refused passports for one of three reasons: citizenship or loyalty, criminal conduct, or when the applicant was seeking to "escape the toils of law". Laws and regulations on restricting passports have generally been categorized as personal restrictions or area restrictions and have generally been justified for national security or foreign policy reasons. Perhaps the most notable example of enforcement of this ability was the 1948 denial of a passport to U.S. Representative Leo Isacson, who sought to go to Paris to attend a conference as an observer for the American Council for a Democratic Greece, a communist front organization, because of the group's role in opposing the Greek government in the Greek Civil War. [26] [27]
In Kent v. Dulles , 357 U.S. 116 (1958), the United States Secretary of State had refused to issue a passport to an American citizen based on the suspicion that the plaintiff was going abroad to promote communism (personal restrictions/national security). Although the court did not reach the question of constitutionality in this case, the court, in an opinion by Justice William O. Douglas, held that the federal government may not restrict the right to travel without due process:
- The right to travel is a part of the 'liberty' of which the citizen cannot be deprived without due process of law under the Fifth Amendment. If that "liberty" is to be regulated, it must be pursuant to the law-making functions of the Congress. ... Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage. Travel abroad, like travel within the country, ... may be as close to the heart of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in our scheme of values.
Six years later, the court struck down a federal ban restricting travel by communists in Aptheker v. Secretary of State , 378 U.S. 500 (1964). But the court struggled to find a way to protect national interests (such as national security) in light of these decisions. Just a year after Aptheker, the Supreme Court fashioned the rational basis test for constitutionality in Zemel v. Rusk , 381 U.S. 1 (1965) as a way of reconciling the rights of the individual with the interests of the state. [12]
Restrictions as punishment
The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), codified at 42 USC 652(k), saw the beginning of restrictions on freedom of movement as a punishment for child support debtors. Constitutional challenges to these restrictions have thus far failed in Weinstein v. Albright and Eunique v. Powell . Federal appeals courts in the Second and Ninth circuits, although expressing due process concerns, have held that collection of child support is an important government interest, that the right to travel internationally was not a fundamental right and that laws restricting this right need not pass strict scrutiny. In a dissenting opinion in Eunique, Judge Andrew Kleinfeld categorized the measure as a punishment for unpaid debts. "This passport ban is more reasonably seen, in light of the penalties the states are required to impose for nonpayment of child support ... not as a means of facilitating collection, but as a penalty for past nonpayment." "All debtors should pay their debts. Debts for child support have special moral force. But that does not justify tossing away a constitutional liberty so important that it has been a constant of Anglo-American law since Magna Carta, and of civilized thought since Plato."
A number of constitutional scholars and advocates for reform strongly oppose restricting the human right to travel for a person who has committed no crime, and assert that the practice violates basic constitutional rights. Similarly, anyone claimed to be in arrears on child support can have certain types of vehicular driver's license revoked or suspended, severely restricting their freedom to travel. Critics point to cases where the lapse in support payments was caused by loss of employment yet the response of revoking the right to freely travel by car further impedes the ability to resume payments by limiting the ability to find employment and travel to a workplace.
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments. Usually considered one of the most consequential amendments, it addresses citizenship rights and equal protection under the law and was proposed in response to issues related to formerly enslaved Americans following the American Civil War. The amendment was bitterly contested, particularly by the states of the defeated Confederacy, which were forced to ratify it in order to regain representation in Congress. The amendment, particularly its first section, is one of the most litigated parts of the Constitution, forming the basis for landmark Supreme Court decisions such as Brown v. Board of Education (1954) regarding racial segregation, Roe v. Wade (1973) regarding abortion, Bush v. Gore (2000) regarding the 2000 presidential election, and Obergefell v. Hodges (2015) regarding same-sex marriage. The amendment limits the actions of all state and local officials, and also those acting on behalf of such officials.
The Civil Rights Cases, 109 U.S. 3 (1883), were a group of five landmark cases in which the Supreme Court of the United States held that the Thirteenth and Fourteenth Amendments did not empower Congress to outlaw racial discrimination by private individuals. The holding that the Thirteenth Amendment did not empower the federal government to punish racist acts done by private citizens would be overturned by the Supreme Court in the 1968 case Jones v. Alfred H. Mayer Co. The Fourteenth Amendment not applying to private entities, however, is still valid precedent to this day. Although the Fourteenth Amendment-related decision has never been overturned, in the 1964 case of Heart of Atlanta Motel, Inc. v. United States, the Supreme Court held that Congress could prohibit racial discrimination by private actors under the Commerce Clause, though that and other loose interpretations of the Clause to expand federal power have been subject to criticism.
The Slaughter-House Cases, 83 U.S. 36 (1873), was a landmark U.S. Supreme Court decision consolidating several cases that held that the Privileges or Immunities Clause of the Fourteenth Amendment to the U.S. Constitution only protects the legal rights that are associated with federal U.S. citizenship, not those that pertain to state citizenship. Though the decision in the Slaughter-House Cases minimized the impact of the Privileges or Immunities Clause on state law, the Supreme Court would later incorporate the Bill of Rights to strike down state laws on the basis of other clauses. In 2010, the Court rejected arguments in McDonald v. Chicago to overrule the established precedent of Slaughterhouse and decided instead to incorporate the Second Amendment via the Due Process Clause of the Fourteenth Amendment.
Substantive due process is a principle in United States constitutional law that allows courts to establish and protect certain fundamental rights from government interference, even if they are unenumerated elsewhere in the U.S. Constitution. Courts have asserted that such protections come from the due process clauses of the Fifth and Fourteenth amendments to the U.S. Constitution, which prohibit the federal and state governments, respectively, from depriving any person of "life, liberty, or property, without due process of law". Substantive due process demarks the line between those acts that courts hold to be subject to government regulation or legislation and those that courts place beyond the reach of governmental interference. Whether the Fifth or Fourteenth Amendments were intended to serve that function continues to be a matter of scholarly as well as judicial discussion and dissent. In recent opinions, Justice Clarence Thomas has called on the Supreme Court to reconsider all of its rulings that were based on substantive due process.
A Due Process Clause is found in both the Fifth and Fourteenth Amendments to the United States Constitution, which prohibit the deprivation of "life, liberty, or property" by the federal and state governments, respectively, without due process of law.
The Civil Rights Act of 1866 was the first United States federal law to define citizenship and affirm that all citizens are equally protected by the law. It was mainly intended, in the wake of the American Civil War, to protect the civil rights of persons of African descent born in or brought to the United States.
Minor v. Happersett, 88 U.S. 162 (1875), is a United States Supreme Court case in which the Court held that, while women are no less citizens than men are, citizenship does not confer a right to vote, and therefore state laws barring women from voting are constitutionally valid. The Supreme Court upheld state court decisions in Missouri, which had refused to register a woman as a lawful voter because that state's laws allowed only men to vote.
Freedom of movement, mobility rights, or the right to travel is a human rights concept encompassing the right of individuals to travel from place to place within the territory of a country, and to leave the country and return to it. The right includes not only visiting places, but changing the place where the individual resides or works.
In United States constitutional law, incorporation is the doctrine by which portions of the Bill of Rights have been made applicable to the states. When the Bill of Rights was ratified, the courts held that its protections extended only to the actions of the federal government and that the Bill of Rights did not place limitations on the authority of the state and local governments. However, the post–Civil War era, beginning in 1865 with the Thirteenth Amendment, which declared the abolition of slavery, gave rise to the incorporation of other amendments, applying more rights to the states and people over time. Gradually, various portions of the Bill of Rights have been held to be applicable to state and local governments by incorporation into the Due Process Clause of the Fourteenth Amendment of 1868.
Fundamental rights are a group of rights that have been recognized by a high degree of protection from encroachment. These rights are specifically identified in a constitution, or have been found under due process of law. The United Nations' Sustainable Development Goal 16, established in 2015, underscores the link between promoting human rights and sustaining peace.
The Privileges or Immunities Clause is Amendment XIV, Section 1, Clause 2 of the United States Constitution. Along with the rest of the Fourteenth Amendment, this clause became part of the Constitution on July 9, 1868.
The Privileges and Immunities Clause prevents a state from treating citizens of other states in a discriminatory manner. Additionally, a right of interstate travel is associated with the clause.
Sáenz v. Roe, 526 U.S. 489 (1999), was a landmark case in which the Supreme Court of the United States discussed whether there is a constitutional right to travel from one state to another. The case was a reaffirmation of the principle that citizens select states and not the other way round.
The Reconstruction Amendments, or the Civil War Amendments, are the Thirteenth, Fourteenth, and Fifteenth amendments to the United States Constitution, adopted between 1865 and 1870. The amendments were a part of the implementation of the Reconstruction of the American South which occurred after the war.
Shapiro v. Thompson, 394 U.S. 618 (1969), was a landmark decision of the Supreme Court of the United States that invalidated state durational residency requirements for public assistance and helped establish a fundamental "right to travel" in U.S. law. Although the Constitution does not explicitly mention the right to travel, it is implied by the other rights given in the Constitution.
United States v. Wheeler, 254 U.S. 281 (1920), was an 8-to-1 landmark decision of the US Supreme Court that held that the Constitution alone does not grant the federal government the power to prosecute kidnappers, even if moving abductees across state lines on federally-regulated railroads at the behest of local law enforcement officials, and only the states have the authority to punish a private citizen's unlawful violation of another's freedom of movement. The case was a landmark interpretation of the Privileges and Immunities Clause of the Constitution, and contains a classic legal statement of the right to travel which continues to undergird American jurisprudence.
Kent v. Dulles, 357 U.S. 116 (1958), was a landmark decision of the U.S. Supreme Court on the right to travel and passport restrictions as they relate to First Amendment free speech rights. It was the first case in which the U.S. Supreme Court made a distinction between the constitutionally protected substantive due process freedom of movement and the right to travel abroad.
Aptheker v. Secretary of State, 378 U.S. 500 (1964), was a landmark decision of the US Supreme Court on the right to travel and passport restrictions as they relate to Fifth Amendment due process rights and First Amendment free speech, freedom of assembly and freedom of association rights. It is the first case in which the US Supreme Court considered the constitutionality of personal restrictions on the right to travel abroad.
McBurney v. Young, 569 U.S. 221 (2013), was a United States Supreme Court case in which the Court upheld Virginia and all states' right to restrict citizen requests for state government documents to citizens of that state.