The government’s unconstitutional restrictions on our freedom to travel
Steve Bierfeldt, director of development for Ron Paul’s Campaign
for Liberty, thought he was having a good day. At a regional
Campaign for Liberty event in Missouri, Bierfeldt had sold
thousands of dollars worth of conference tickets, bumper stickers,
T-shirts, and books, and was now in the security line at
Lambert-St. Louis International Airport, waiting to catch a flight
back to Washington, D.C. But the federal government had other
ideas.
After discovering a metal box with more than $4,700 in cash and checks inside Bierfeldt’s luggage, officials from the Transportation Security Administration (TSA) detained him for further screening. The TSA, you will recall, is the agency within the Department of Homeland Security that (according to its website) is tasked with protecting “the Nation’s transportation systems to ensure freedom of movement for people and commerce.” Bierfeldt had an altogether different experience.
TSA agents interrogated him for more than a half hour with a series of intrusive questions: “Where do you work?” “What are you planning to do with the money?” “Where did you acquire the money?” Although he had nothing to hide, Bierfeldt valued his privacy enough to refuse to answer the questions. The officers told him he wouldn’t be able to move on if he continued to clam up. But Bierfeldt stuck to his guns, and was eventually, if grudgingly, allowed to catch his flight.
Consider the potential consequences of the TSA’s open-ended license to hassle travelers. If Bierfeldt had stayed huddled inside his home rather than risk the whims of armed interrogators, he would no longer be able to pursue his lawful employment. He would be less free to express his political views by advocating Campaign for Liberty’s values. The government in this way can eviscerate constitutional rights simply by burdening the travel of those whose ideas it disfavors.
The right to travel enables the free exercise of the other rights we most cherish. We should not have to check our constitutional freedoms at the curb simply because we decide to leave the house. Sadly, freedom of movement has been one of the most disparaged rights throughout human history, and our country is no exception. If we are ever to be truly free, then we must possess an absolute, uninhibited right to travel throughout America and the world free from interference by government.
The Freedom to Travel in American Law
Of all the inalienable rights we possess as
individuals, none is as basic, fundamental, and natural as the
freedom of movement and travel. As human beings, we enter this
world bestowed with two legs and feet and the muscles needed to
power them. Furthermore, we are given a brain and the undying
yearning to discover, to know the unknown, to see what lies hidden
beyond the horizon. Thus, a fundamental right of movement is
inherent in our very humanity. It is altogether fitting that one of
the universal symbols of freedom is a broken chain.
The freedom to travel is also central to the American national psyche. Our European ancestors settled here because they had the right to move freely from their homelands. The very history and trajectory of the United States are testament to man’s inherent right to movement and travel, from Lewis and Clark to Armstrong and Aldrin.
State restrictions on the right to travel connote that the government is the individual’s master, and not his servant. The right to own property includes being able to decide which individuals may enter upon our property, and under what circumstances. If the government usurps this ultimate right from property owners, or grants itself a monopoly over certain modes of travel, then clearly the rights of individuals extend only so far as the government, and no one else, wills them. Thus, circumvention of the right to travel is particularly antithetical to the Natural Law, and to the principle that the temporal is always subject to the immutable. Freedom subject to the government’s whim is no freedom at all. Liberty, at its core, is encompassed in the right of exit. As constitutional scholar Randy Barnett has noted, if one wishes to discover which nations offer the best protection of natural rights, one only need observe the directional flow of its refugees.
American courts have, at least in theory, declared the freedom to travel to be near absolute. The right to travel is so basic to our nature that the Founding Fathers did not believe it needed to be documented in the text of the Constitution. In Saenz v. Roe (1999), the Supreme Court stated, “We need not identify the source of [the right to travel] in the text of the Constitution. The right of free ingress and egress [to enter and leave] to and from neighboring states which was expressly mentioned in the text of the Articles of Confederation, may simply have been conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created.” In other words, the right to travel is simply implicit in the concept of freedom, and indeed in the Constitution itself.
To further illustrate the point, consider the original meaning of Congress’s authorization to regulate interstate commerce: to keep commerce between the states regular. Indeed, the principal reason for the Constitutional Convention itself was to establish a central government that would prevent ruinous state-imposed tariffs that favored in-state businesses and impeded the natural flow of goods and services across state borders. Thus, the central purpose of the Commerce Clause was to secure, not inhibit, the free travel of goods. If this was the Founders’ attitude toward commerce (the trade of goods owned by individuals), then they most certainly would have held a similar view on the freedom of individuals themselves to travel.
In more recent times, the United Nations, of which the United States is a member, adopted the Universal Declaration of Human Rights, which provides for a similar right on an international scale: “Everyone has the right to freedom of movement and residence within the borders of each State. Everyone has the right to leave any country, including his own, and return to his country.” This is significant for a number of reasons. First, it is further evidence of the absolute and universal nature of the right to travel. Second, it imposes upon the United States an international legal obligation to not inhibit travel within its borders, nor prevent individuals from leaving or coming back.
The U.S. Supreme Court formally recognized the freedom to travel as a fundamental right in Shapiro v. Thompson (1969), which examined statutes that denied welfare assistance to people who had not resided within their jurisdictions for at least one year. The Court held these laws to be unconstitutional because they inhibited migration and restricted movement. The majority wrote, “The constitutional right to travel from one State to another…occupies a position fundamental to the concept of our Federal Union. It is a right that has been firmly established and repeatedly recognized.”
Doctrinally, the right to travel can be separated into three constituent parts. First, taken from Article IV, Section 2, Clause 1 of the Constitution, a person from State A who is temporarily visiting State B has the same “Privileges and Immunities” as a state resident. Second, an individual may move freely between states. Third, when an individual establishes residency in a new state, he or she enjoys the same rights and benefits as other individuals who have been there for years. Together, these components ensure that the individual can fully enjoy an uninhibited, natural right to travel. How faithful the government has been in following these principles is another story.
Physical Restrictions
After discovering a metal box with more than $4,700 in cash and checks inside Bierfeldt’s luggage, officials from the Transportation Security Administration (TSA) detained him for further screening. The TSA, you will recall, is the agency within the Department of Homeland Security that (according to its website) is tasked with protecting “the Nation’s transportation systems to ensure freedom of movement for people and commerce.” Bierfeldt had an altogether different experience.
TSA agents interrogated him for more than a half hour with a series of intrusive questions: “Where do you work?” “What are you planning to do with the money?” “Where did you acquire the money?” Although he had nothing to hide, Bierfeldt valued his privacy enough to refuse to answer the questions. The officers told him he wouldn’t be able to move on if he continued to clam up. But Bierfeldt stuck to his guns, and was eventually, if grudgingly, allowed to catch his flight.
Consider the potential consequences of the TSA’s open-ended license to hassle travelers. If Bierfeldt had stayed huddled inside his home rather than risk the whims of armed interrogators, he would no longer be able to pursue his lawful employment. He would be less free to express his political views by advocating Campaign for Liberty’s values. The government in this way can eviscerate constitutional rights simply by burdening the travel of those whose ideas it disfavors.
The right to travel enables the free exercise of the other rights we most cherish. We should not have to check our constitutional freedoms at the curb simply because we decide to leave the house. Sadly, freedom of movement has been one of the most disparaged rights throughout human history, and our country is no exception. If we are ever to be truly free, then we must possess an absolute, uninhibited right to travel throughout America and the world free from interference by government.
The Freedom to Travel in American Law
Of all the inalienable rights we possess as
individuals, none is as basic, fundamental, and natural as the
freedom of movement and travel. As human beings, we enter this
world bestowed with two legs and feet and the muscles needed to
power them. Furthermore, we are given a brain and the undying
yearning to discover, to know the unknown, to see what lies hidden
beyond the horizon. Thus, a fundamental right of movement is
inherent in our very humanity. It is altogether fitting that one of
the universal symbols of freedom is a broken chain.The freedom to travel is also central to the American national psyche. Our European ancestors settled here because they had the right to move freely from their homelands. The very history and trajectory of the United States are testament to man’s inherent right to movement and travel, from Lewis and Clark to Armstrong and Aldrin.
State restrictions on the right to travel connote that the government is the individual’s master, and not his servant. The right to own property includes being able to decide which individuals may enter upon our property, and under what circumstances. If the government usurps this ultimate right from property owners, or grants itself a monopoly over certain modes of travel, then clearly the rights of individuals extend only so far as the government, and no one else, wills them. Thus, circumvention of the right to travel is particularly antithetical to the Natural Law, and to the principle that the temporal is always subject to the immutable. Freedom subject to the government’s whim is no freedom at all. Liberty, at its core, is encompassed in the right of exit. As constitutional scholar Randy Barnett has noted, if one wishes to discover which nations offer the best protection of natural rights, one only need observe the directional flow of its refugees.
American courts have, at least in theory, declared the freedom to travel to be near absolute. The right to travel is so basic to our nature that the Founding Fathers did not believe it needed to be documented in the text of the Constitution. In Saenz v. Roe (1999), the Supreme Court stated, “We need not identify the source of [the right to travel] in the text of the Constitution. The right of free ingress and egress [to enter and leave] to and from neighboring states which was expressly mentioned in the text of the Articles of Confederation, may simply have been conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created.” In other words, the right to travel is simply implicit in the concept of freedom, and indeed in the Constitution itself.
To further illustrate the point, consider the original meaning of Congress’s authorization to regulate interstate commerce: to keep commerce between the states regular. Indeed, the principal reason for the Constitutional Convention itself was to establish a central government that would prevent ruinous state-imposed tariffs that favored in-state businesses and impeded the natural flow of goods and services across state borders. Thus, the central purpose of the Commerce Clause was to secure, not inhibit, the free travel of goods. If this was the Founders’ attitude toward commerce (the trade of goods owned by individuals), then they most certainly would have held a similar view on the freedom of individuals themselves to travel.
In more recent times, the United Nations, of which the United States is a member, adopted the Universal Declaration of Human Rights, which provides for a similar right on an international scale: “Everyone has the right to freedom of movement and residence within the borders of each State. Everyone has the right to leave any country, including his own, and return to his country.” This is significant for a number of reasons. First, it is further evidence of the absolute and universal nature of the right to travel. Second, it imposes upon the United States an international legal obligation to not inhibit travel within its borders, nor prevent individuals from leaving or coming back.
The U.S. Supreme Court formally recognized the freedom to travel as a fundamental right in Shapiro v. Thompson (1969), which examined statutes that denied welfare assistance to people who had not resided within their jurisdictions for at least one year. The Court held these laws to be unconstitutional because they inhibited migration and restricted movement. The majority wrote, “The constitutional right to travel from one State to another…occupies a position fundamental to the concept of our Federal Union. It is a right that has been firmly established and repeatedly recognized.”
Doctrinally, the right to travel can be separated into three constituent parts. First, taken from Article IV, Section 2, Clause 1 of the Constitution, a person from State A who is temporarily visiting State B has the same “Privileges and Immunities” as a state resident. Second, an individual may move freely between states. Third, when an individual establishes residency in a new state, he or she enjoys the same rights and benefits as other individuals who have been there for years. Together, these components ensure that the individual can fully enjoy an uninhibited, natural right to travel. How faithful the government has been in following these principles is another story.
Physical Restrictions
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