Travel, Right To

Travel, Right To The right freely to leave the political and geographic entity in which one resides as well as to move about within its internal borders has deep historical roots. When Moses entreated Pharaoh to “let my people go,” he was invoking the right to travel. Article 42 of the Magna Carta (1215) recognized a right to foreign travel. The concept was implicitly considered a right during the founding and settling of the American colonies and later during the west‐ward expansion. Although the Constitution does not explicitly acknowledge a right to travel, it is assumed to reside in Article IV, section 2, which guarantees that “the Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” Furthermore, Article IV, section 2 contains explicit restrictions on the right to travel by providing that a criminal suspect who flees to another state shall be returned to the state having jurisdiction of the crime and also that persons “held to Service or Labour” (the Constitution's euphemism for slavery) who escape to another state shall be returned by that state's authorities to the persons “to whom such Service or Labour may be due,” that is, the slaveowners (see Fugitive Slaves).

For much of American history, issues surrounding the right to travel were linked with oppression of African‐Americans. Before the Civil War, slaveowners claimed the right to travel with their slaves to states and territories where slavery was prohibited and yet retain full title to their slaves. This was upheld in the infamous Dred Scott decision in 1857. White citizens could obtain passports for foreign travel, but African‐Americans ordinarily could not. In 1875, Congress enacted legislation prohibiting racial discrimination in public accommodations, including modes of transportation. This was declared unconstitutional by the Supreme Court in the Civil Rights Cases (1883). Subsequently, southern and border states enacted laws requiring the separation of the races in all aspects of life, including public transportation. The Supreme Court in Plessy v. Ferguson (1896) upheld racial segregation in a case concerning railroad travel (see Separate but Equal Doctrine). As the Court was to recognize some sixty‐eight years later, in a decision upholding the public accommodations provision of the Civil Rights Act of 1964 (Heart of Atlanta Motel v. United States, 1964), segregated public accommodations and transportation greatly impeded the right of black Americans to travel.

The right to travel abroad is dependent upon obtaining a passport. The State Department in 1948 began refusing to issue passports to communists and others for their political beliefs and associations (see Communism and Cold War). This was challenged in the courts, and in 1955 a lower federal court recognized the right to travel as “a natural right” protected by the Due Process Clause of the Fifth Amendment. The Supreme Court, in Kent v. Dulles (1958), came to the same conclusion and invalidated the State Department restrictions. Legislation forbidding members of a communist organization who were ordered to register with the Subversive Activities Control Board from applying for or using passports was invalidated in Aptheker v. Secretary of State (1964). The right to travel abroad, however, is subject to some restrictions. Passports can be (and are) required. In Regan v. Wald (1984), the Court upheld the president's restriction on tourist travel to Cuba as a reasonable exercise of presidential power under statutory law.

The right to travel within the United States was first acknowledged in the 1868 decision of Crandall v. Nevada, which struck down a Nevada tax on every person leaving the state by public transportation. The Court ruled that the right to travel from state to state was a right of national citizenship. This right was strengthened by the privileges and immunities guarantee of the Fourteenth Amendment and reaffirmed in the Slaughterhouse Cases (1873). In the twentieth century, the right to domestic travel was furthered by the invalidation (albeit under the Commerce Clause) of a California law aimed at keeping nonresident poor people from entering the state (Edwards v. California, 1941). In later years the Court has struck down as impediments to the right to travel durational residency requirements for governmental services (e.g., Shapiro v. Thompson, 1969) and voting (e.g., Dunn v. Blumstein, 1972), and residency as a requirement for the practice of law (e.g., Supreme Court of New Hampshire v. Piper, 1985; and Barnard v. Thorstenn, 1989). However, some durational residency requirements have been allowed (as in Vlandis v. Kline, 1973; and Sosna v. Iowa, 1975).

The concept of a constitutional right to travel is recognized as a fundamental right deeply embedded in American constitutional law.

Sheldon Goldman