Freedom of movement under United States law
Encyclopedia
Freedom of movement
under United States law is governed primarily by the Privileges and Immunities Clause
of the United States
Constitution states, "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." As far back as the circuit court
ruling in Corfield v. Coryell
, 6 Fed. Cas. 546
(1823), the Supreme Court recognized freedom of movement as a fundamental Constitutional right. In Paul v. Virginia
, 75 U.S. 168
(1869), the Court defined freedom of movement as "right of free ingress into other States, and egress from them." However, the Supreme Court did not invest the federal government with the authority to protect freedom of movement. Under the "privileges and immunities" clause, this authority was given to the states, a position the Court held consistently through the years in cases such as Ward v. Maryland, 79 U.S. 418
(1871), the Slaughter-House Cases, 83 U.S. 36
(1873) and United States v. Harris
, 106 U.S. 629
(1883).
the Congress recognized freedom of movement (Article 4), though the right was thought to be so fundamental during the drafting of the Constitution
as not needing explicit enumeration..
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. In 1823, the circuit court in Corfield had provided a list of the rights (some fundamental, some not) which the clause could cover. 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. 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.
But 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.
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 remains in force , but with added safeguards against abuse.
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: the right to enter one state and leave another, 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 (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
Citizenship Clause
).
The Court's establishment of a strong constitutional right to freedom of movement has also had far-reaching and unintended 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 (Shapiro v. Thompson
, 394 U.S. 618
(1969)). The Court has also struck down one-year residency requirements for voting in state elections (Dunn v. Blumstein, 405 U.S. 330
(1972)), one-year waiting periods before receiving state-provided medical care (Memorial Hospital v. Maricopa County, 415 U.S. 250
(1974)), civil service preferences for state veterans (Attorney Gen. of New York v. Soto-Lopez, 476 U.S. 898
(1986)), but upheld higher fishing and hunting license fees for out-of-state residents (Baldwin v. Fish and Game Commission of Montana
, 436 U.S. 371
(1978)).
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 marriage
, and enact anti-crime or consumer protection
laws. It may even undermine current Court-fashioned concepts of federalism
.
For much of American history, the right to travel included the right to travel by the vehicle of one's choice, and courts occasionally struck down regional regulations that required licenses or government permission to travel on public roadways. With the advent of the automobile, however, courts began upholding laws and regulations requiring licenses to operate vehicles on roadways. Constitutional scholar Roger Roots has referred to the forgotten right to travel without license as "the orphaned right."
s 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 strongly due to the 2001-2008 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
. Citizens are restricted from traveling (without being subject to arrest) due to their political communication, although the Constitution
permits free speech anywhere on U.S. territory (see First Amendment
).
In Kent v. Dulles
, 357 U.S. 116
(1958),http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=357&invol=116 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, Justice William O. Douglas
held that the federal government may not restrict the right to travel without due process
:
Six years later, the Court struck down a federal ban restricting travel by communists (Aptheker v. Secretary of State
, 378 U.S. 500
(1964))(personal restrictions, national security, First Amendment). 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) (area restrictions, foreign policy), as a way of reconciling the rights of the individual with the interests of the state.
The issue of freedom of movement has received new attention in the United States
, particularly concerning the methods and practices of the Transportation Security Administration
. On August 5, 1974, the Air Transportation Security and Anti-Hijacking Acts of 1974 (P.L. 93-366) were signed. Among many important provisions, this landmark aviation security law directed that regulations be prescribed requiring weapons-detecting screening of all passengers and carry-on property. The law is located in Title 49, United States Code (U.S.C.), sections 44901 (Screening passengers and property) and 44902 (Refusal to transport passengers and property). For many decades an airline ticket's fine print has contained an agreement by the purchaser to submit to a search for unlawful dangerous weapons, explosives or other destructive substances. The Transportation Security Administration (TSA) is responsible for such screening prior to departures from commercial airports within the United States since the signing of the Aviation and Transportation Security Act (P.L. 107-71) on November 19, 2001. Freedom of movement is not denied unless a passenger refuses to submit to a search required by law. There are, however, a number of other safety and homeland-security-related issues covered in 49 U.S.C. Chapter 449 and Title 49 Code of Federal Regulations in the 1540 series that could impede movement, such as a passenger's name appearing on a "no fly" or "selectee" list.
Another issue of contention deals with freedom of movement across U.S. national borders. The United States has long permitted persons to cross from Canada into the United States with few controls. Concerns about drug trafficking and illegal immigrants seeking employment have led to much stricter controls on those crossing the border from Mexico.
An attempt to ban travel to Cuba
was deemed unconstitutional, but travel has been much hindered by the Trading with the Enemy Act which bans spending money in Cuba without a license issued by the Office of Foreign Assets Control
(OFAC) of the US Treasury Department.
. 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."
Another area of current controversy stems from the denial of U.S. passports, and thus the right to travel abroad, to anyone claimed to be in arrears on child support
. A number of constitutional scholars and advocates for family law
reform strongly oppose restricting the human right to travel to 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 their vehicular driver's license
revoked, 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.
Freedom of movement
Freedom of movement, mobility rights or the right to travel is a human right concept that the constitutions of numerous states respect...
under United States law is governed primarily by the Privileges and Immunities Clause
Privileges and Immunities Clause
The Privileges and Immunities Clause prevents a state from treating citizens of other states in a discriminatory manner...
of the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
Constitution states, "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." As far back as the circuit court
United States circuit court
The United States circuit courts were the original intermediate level courts of the United States federal court system. They were established by the Judiciary Act of 1789. They had trial court jurisdiction over civil suits of diversity jurisdiction and major federal crimes. They also had appellate...
ruling in Corfield v. Coryell
Corfield v. Coryell
Corfield v. Coryell was an 1823 federal circuit court case decided by Justice Bushrod Washington while riding circuit...
, 6 Fed. Cas. 546
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(1823), the Supreme Court recognized freedom of movement as a fundamental Constitutional right. In Paul v. Virginia
Paul v. Virginia
Paul v. Virginia, 75 U.S. 168 , was a historic case in corporate law in which the United States Supreme Court held that a corporation is not a citizen within the meaning of the Privileges and Immunities Clause...
, 75 U.S. 168
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(1869), the Court defined freedom of movement as "right of free ingress into other States, and egress from them." However, the Supreme Court did not invest the federal government with the authority to protect freedom of movement. Under the "privileges and immunities" clause, this authority was given to the states, a position the Court held consistently through the years in cases such as Ward v. Maryland, 79 U.S. 418
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(1871), the Slaughter-House Cases, 83 U.S. 36
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(1873) and United States v. Harris
United States v. Harris
United States v. Harris, , sometimes referred to as the Ku Klux Case, was a case in which the Supreme Court of the United States held that it was unconstitutional for the federal government to penalize crimes such as assault and murder. It declared that the local governments have the power to...
, 106 U.S. 629
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(1883).
Travel within the United States
As early as the Articles of ConfederationArticles of Confederation
The Articles of Confederation, formally the Articles of Confederation and Perpetual Union, was an agreement among the 13 founding states that legally established the United States of America as a confederation of sovereign states and served as its first constitution...
the Congress recognized freedom of movement (Article 4), though the right was thought to be so fundamental during the drafting of the Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
as not needing explicit enumeration..
In United States v. Wheeler
United States v. Wheeler
United States v. Wheeler, 254 U.S. 281 , is an 8-to-1 ruling by the Supreme Court of the United States which held that the Constitution alone did not grant the federal government the power to prosecute kidnappers, and that only the states had the authority to punish a private citizen's unlawful...
, 254 U.S. 281
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(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. In 1823, the circuit court in Corfield had provided a list of the rights (some fundamental, some not) which the clause could cover. 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. 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.
But the Supreme Court began rejecting Wheeler's reasoning within a few years. Finally, in United States v. Guest
United States v. Guest
United States v. Guest 383 U.S. 745 is a United States Supreme Court opinion, authored by Justice Potter Stewart, in which the court extended the protection of the 14th Amendment to citizens who suffer rights deprivations at the hands of private conspiracies, where there is minimal state...
, 383 U.S. 745
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(1966), the Supreme Court overruled Chief Justice White's conclusion that the federal government could protect the right to travel only against state infringement.
The 1910 Mann Act
Mann Act
The White-Slave Traffic Act, better known as the Mann Act, is a United States law, passed June 25, 1910 . It is named after Congressman James Robert Mann, and in its original form prohibited white slavery and the interstate transport of females for “immoral purposes”...
(White-Slave
Sexual slavery
Sexual slavery is when unwilling people are coerced into slavery for sexual exploitation. The incidence of sexual slavery by country has been studied and tabulated by UNESCO, with the cooperation of various international agencies...
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
Jack Johnson (boxer)
John Arthur Johnson , nicknamed the “Galveston Giant,” was an American boxer. At the height of the Jim Crow era, Johnson became the first African American world heavyweight boxing champion...
) and people with left-wing views (e.g. Charlie Chaplin
Charlie Chaplin
Sir Charles Spencer "Charlie" Chaplin, KBE was an English comic actor, film director and composer best known for his work during the silent film era. He became the most famous film star in the world before the end of World War I...
) were prosecuted. The Act remains in force , but with added safeguards against abuse.
The U.S. Supreme Court also dealt with the right to travel in the case of Saenz v. Roe
Saenz v. Roe
Sáenz v. Roe, 526 U.S. 489 , was a case in which the Supreme Court of the United States discussed whether there is a constitutional right to travel from one state to another.-Background:...
, 526 U.S. 489
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(1999). In that case, Justice John Paul Stevens
John Paul Stevens
John Paul Stevens served as an Associate Justice of the Supreme Court of the United States from December 19, 1975 until his retirement on June 29, 2010. At the time of his retirement, he was the oldest member of the Court and the third-longest serving justice in the Court's history...
, writing for the majority, held that the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
protected three separate aspects of the right to travel among the states: the right to enter one state and leave another, the right to be treated as a welcome visitor rather than a hostile stranger (protected by the "privileges and immunities" clause in Article IV
Article Four of the United States Constitution
Article Four of the United States Constitution relates to the states. The article outlines the duties states have to each other, as well as those the federal government has to the states...
, § 2), and (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
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
Citizenship Clause
Citizenship Clause
The Citizenship Clause refers to the first sentence of Section 1 in the Fourteenth Amendment to the United States Constitution. This clause represented Congress's reversal of that portion of the Dred Scott v...
).
The Court's establishment of a strong constitutional right to freedom of movement has also had far-reaching and unintended 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 (Shapiro v. Thompson
Shapiro v. Thompson
Shapiro v. Thompson, 394 U.S. 618 , was a Supreme Court decision that helped to establish a fundamental "right to travel" in U.S. law. Although the Constitution does not mention the right to travel, it is implied by the other rights given in the Constitution...
, 394 U.S. 618
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(1969)). The Court has also struck down one-year residency requirements for voting in state elections (Dunn v. Blumstein, 405 U.S. 330
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(1972)), one-year waiting periods before receiving state-provided medical care (Memorial Hospital v. Maricopa County, 415 U.S. 250
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(1974)), civil service preferences for state veterans (Attorney Gen. of New York v. Soto-Lopez, 476 U.S. 898
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(1986)), but upheld higher fishing and hunting license fees for out-of-state residents (Baldwin v. Fish and Game Commission of Montana
Baldwin v. Fish and Game Commission of Montana
Baldwin v. Fish and Game Commission of Montana, 436 U.S. 371 , is a United States Supreme Court case that affirmed the right of the state of Montana to charge higher fees for out of state elk hunters...
, 436 U.S. 371
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(1978)).
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
Freedom of association
Freedom of association is the individual right to come together with other individuals and collectively express, promote, pursue and defend common interests....
and to freedom of expression
Freedom of speech
Freedom of speech is the freedom to speak freely without censorship. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used...
. Strong constitutional protection for the right to travel may have significant implications for state attempts to limit abortion rights
Pro-choice
Support for the legalization of abortion is centered around the pro-choice movement, a sociopolitical movement supporting the ethical view that a woman should have the legal right to elective abortion, meaning the right to terminate her pregnancy....
, ban or refuse to recognize same-sex marriage
Same-sex marriage
Same-sex marriage is marriage between two persons of the same biological sex or social gender. Supporters of legal recognition for same-sex marriage typically refer to such recognition as marriage equality....
, and enact anti-crime or consumer protection
Consumer protection
Consumer protection laws designed to ensure fair trade competition and the free flow of truthful information in the marketplace. The laws are designed to prevent businesses that engage in fraud or specified unfair practices from gaining an advantage over competitors and may provide additional...
laws. It may even undermine current Court-fashioned concepts of federalism
Federalism
Federalism is a political concept in which a group of members are bound together by covenant with a governing representative head. The term "federalism" is also used to describe a system of the government in which sovereignty is constitutionally divided between a central governing authority and...
.
For much of American history, the right to travel included the right to travel by the vehicle of one's choice, and courts occasionally struck down regional regulations that required licenses or government permission to travel on public roadways. With the advent of the automobile, however, courts began upholding laws and regulations requiring licenses to operate vehicles on roadways. Constitutional scholar Roger Roots has referred to the forgotten right to travel without license as "the orphaned right."
Travel to restricted areas within the United States
A related issue deals with Free Speech ZoneFree speech zone
Free speech zones are areas set aside in public places for political activists to exercise their right of free speech in the United States. The First Amendment to the United States Constitution states that "Congress shall make no law... abridging.....
s designated during political protests. Although such zones were in use by the 1960s and 1970 due to the Vietnam-era protests
Opposition to the Vietnam War
The movement against US involvment in the in Vietnam War began in the United States with demonstrations in 1964 and grew in strength in later years. The US became polarized between those who advocated continued involvement in Vietnam, and those who wanted peace. Peace movements consisted largely of...
, they were not widely reported in the media. However, the controversy over their use resurfaced strongly due to the 2001-2008 Bush
George W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....
presidency. In essence, Free Speech Zones prevent a person from having complete mobility as a consequence of their exercising their right to speak freely
Freedom of speech
Freedom of speech is the freedom to speak freely without censorship. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used...
. Citizens are restricted from traveling (without being subject to arrest) due to their political communication, although the Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
permits free speech anywhere on U.S. territory (see First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
).
International travel
The right to international travel has only recently become an issue because passports were not required to travel in and out of the United States before 1978. The Secretary of State has historically in times of peace refused passports for one of two reasons, a) citizenship or loyalty, and b) 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.In Kent v. Dulles
Kent v. Dulles
Kent v. Dulles 357 U.S. 116 is a landmark case on the right to travel and passport restrictions as they relate to First Amendment free speech rights...
, 357 U.S. 116
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(1958),http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=357&invol=116 the United States Secretary of State
United States Secretary of State
The United States Secretary of State is the head of the United States Department of State, concerned with foreign affairs. The Secretary is a member of the Cabinet and the highest-ranking cabinet secretary both in line of succession and order of precedence...
had refused to issue a passport
Passport
A passport is a document, issued by a national government, which certifies, for the purpose of international travel, the identity and nationality of its holder. The elements of identity are name, date of birth, sex, and place of birth....
to an American citizen based on the suspicion that the plaintiff
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
was going abroad to promote communism (personal restrictions/national security). Although the Court did not reach the question of constitutionality in this case, Justice William O. Douglas
William O. Douglas
William Orville Douglas was an Associate Justice of the United States Supreme Court. With a term lasting 36 years and 209 days, he is the longest-serving justice in the history of the Supreme Court...
held that the federal government may not restrict the right to travel without due process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
:
- 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 (Aptheker v. Secretary of State
Aptheker v. Secretary of State
Aptheker v. Secretary of State 378 U.S. 500 is a landmark case 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...
, 378 U.S. 500
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(1964))(personal restrictions, national security, First Amendment). 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
Zemel v. Rusk
Zemel v. Rusk, , 381 U.S. 1 is a case on the right to travel and area restrictions on passports , holding that the Secretary of State is statutorily authorized to refuse to validate the passports of United States citizens for travel to Cuba and that the exercise of that authority is...
, 381 U.S. 1
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(1965) (area restrictions, foreign policy), as a way of reconciling the rights of the individual with the interests of the state.
The issue of freedom of movement has received new attention in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, particularly concerning the methods and practices of the Transportation Security Administration
Transportation Security Administration
The Transportation Security Administration is an agency of the U.S. Department of Homeland Security that exercises authority over the safety and security of the traveling public in the United States....
. On August 5, 1974, the Air Transportation Security and Anti-Hijacking Acts of 1974 (P.L. 93-366) were signed. Among many important provisions, this landmark aviation security law directed that regulations be prescribed requiring weapons-detecting screening of all passengers and carry-on property. The law is located in Title 49, United States Code (U.S.C.), sections 44901 (Screening passengers and property) and 44902 (Refusal to transport passengers and property). For many decades an airline ticket's fine print has contained an agreement by the purchaser to submit to a search for unlawful dangerous weapons, explosives or other destructive substances. The Transportation Security Administration (TSA) is responsible for such screening prior to departures from commercial airports within the United States since the signing of the Aviation and Transportation Security Act (P.L. 107-71) on November 19, 2001. Freedom of movement is not denied unless a passenger refuses to submit to a search required by law. There are, however, a number of other safety and homeland-security-related issues covered in 49 U.S.C. Chapter 449 and Title 49 Code of Federal Regulations in the 1540 series that could impede movement, such as a passenger's name appearing on a "no fly" or "selectee" list.
Another issue of contention deals with freedom of movement across U.S. national borders. The United States has long permitted persons to cross from Canada into the United States with few controls. Concerns about drug trafficking and illegal immigrants seeking employment have led to much stricter controls on those crossing the border from Mexico.
An attempt to ban travel to Cuba
Cuba
The Republic of Cuba is an island nation in the Caribbean. The nation of Cuba consists of the main island of Cuba, the Isla de la Juventud, and several archipelagos. Havana is the largest city in Cuba and the country's capital. Santiago de Cuba is the second largest city...
was deemed unconstitutional, but travel has been much hindered by the Trading with the Enemy Act which bans spending money in Cuba without a license issued by the Office of Foreign Assets Control
Office of Foreign Assets Control
The Office of Foreign Assets Control is an agency of the United States Department of the Treasury under the auspices of the Under Secretary of the Treasury for Terrorism and Financial Intelligence. OFAC administers and enforces economic and trade sanctions based on U.S...
(OFAC) of the US Treasury Department.
Revocation of international travel rights as punishment
The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), saw the beginning of restrictions on freedom of movement as a punishment for child support debtors in 42 USC 652(k). Constitutional challenges to these restrictions have thus far failed in Weinstein v. Albright and Eunique v. PowellEunique v. Powell
Eunique v. Powell 281 F3d 940 ,challenging passport denial for child support arrearage under 42 USC 652 and enacted as part of the Personal Responsibility and Work Opportunity Act in 1996, is the second cornerstone of the Court's thinking on passport denial/revocation under this law.-Case:Eudene...
. Federal Appeals Courts in the Second and Ninth Circuits, although expressing due process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
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
Strict scrutiny
Strict scrutiny is the most stringent standard of judicial review used by United States courts. It is part of the hierarchy of standards that courts use to weigh the government's interest against a constitutional right or principle. The lesser standards are rational basis review and exacting or...
. 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
Magna Carta
Magna Carta is an English charter, originally issued in the year 1215 and reissued later in the 13th century in modified versions, which included the most direct challenges to the monarch's authority to date. The charter first passed into law in 1225...
, and of civilized thought since Plato."
Another area of current controversy stems from the denial of U.S. passports, and thus the right to travel abroad, to anyone claimed to be in arrears on child support
Child support
In family law and public policy, child support is an ongoing, periodic payment made by a parent for the financial benefit of a child following the end of a marriage or other relationship...
. A number of constitutional scholars and advocates for family law
Family law
Family law is an area of the law that deals with family-related issues and domestic relations including:*the nature of marriage, civil unions, and domestic partnerships;...
reform strongly oppose restricting the human right to travel to 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 their vehicular driver's license
Driver's license
A driver's license/licence , or driving licence is an official document which states that a person may operate a motorized vehicle, such as a motorcycle, car, truck or a bus, on a public roadway. Most U.S...
revoked, 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.