Freedom To Travel Is Also A Constitutional Right
Four gun control bills got votes in the Senate yesterday, as a direct result of Senator Chris Murphy's filibuster last week. All of them failed, largely on party lines. There is talk that Senator Susan Collins of Maine is attempting to move beyond political partisanship by creating a compromise that both sides could possibly agree to. Even if she's successful and such a bill passes the Senate, its prospects still appear dim in the Republican-led House.
What is largely missing in this raging debate, however, is an issue I explored last week -- the constitutionality of government watchlists in the first place. I was convinced to revisit the issue after watching all the Sunday political chatfests on television, and reading a letter to my local paper today. What the letter-writer pointed out (and what all the talking heads almost universally missed) was that "freedom to travel" is also a constitutional right. The discussion so far on the gun control measures centers around the question of whether the government can explicitly deny a right written into the Constitution (in the Second Amendment) to people it has not offered the slightest bit of due process whatsoever. Indeed, this is almost the entirety of the Republican argument on the issue.
But what even the Republicans don't bother to mention is that the federal government is already denying a constitutional right to people. Of course, "the right to fly on a publicly-accessible airplane" was not explicitly laid out in the 1780s, since airplanes themselves wouldn't exist for another century or so. But the right to travel freely is indeed written into the Constitution, in the Fifth Amendment: "No person shall... be deprived of life, liberty, or property, without due process of law." The key word in there is "liberty," and the key phrase is "due process of law."
The Supreme Court has not yet taken up a blacklist case, although several are currently working their way through the federal court system. This means we could get a ruling on the constitutionality of a "No-Fly List" within the next few years. But the court has indeed heard other cases involving international travel, back in the depths of Cold War anti-Communist hysteria. The cases hinged on the denial of passports by the feds to Communist Party members.
The precedent-setting case Kent v. Dulles was decided on June 16, 1958. A little background is necessary. It wasn't actually until 1952 that America required a passport from all travelers entering the United States. Passports were only really critical documents in times of declared war, and it wasn't until 1952 that they were universally required in times of peace.
In the syllabus of the decision's text, the third paragraph quite clearly (and succinctly) explains the high court's reasoning in overturning a decision that a Communist Party member could be denied a passport. Here's the entirety of that paragraph:
The right to travel is a part of the "liberty" of which a citizen cannot be deprived without due process of law under the Fifth Amendment.
That's pretty clear-cut. The only reasons the Secretary of State could legally deny a passport were if the person wasn't a citizen or "was engaging in criminal or unlawful conduct." Since merely belonging to the Communist Party wasn't criminal or unlawful, the government had no right to refuse a passport to a Communist Party member.
Again, please remember: this was during the "Red Scare" era. McCarthyism and Red-baiting was still a potent force in America (even though Joe had actually died the previous year). Being an avowed member of the Communist Party was seen, back then, in about as bad a light as pledging support to Al Qaeda or the Islamic State would be seen today.
The court took a very dim view of such wide-ranging bans, especially since the State Department was acting without direct instructions from Congress. But even Congress, the court warned, had limited ability to do anything about it:
If a citizen's liberty to travel is to be regulated, it must be pursuant to the lawmaking functions of Congress, any delegation of the power must be subject to adequate standards, and such delegated authority will be narrowly construed.
[Previously-passed laws] do not delegate to the Secretary [of State] authority to withhold passports to citizens because of their beliefs or associations, and any Act of Congress purporting to do so would raise grave constitutional questions.
Over and over again, the majority (a slim one, Kent was a 5-4 decision) reaffirms this concept, drawing deeply on history to do so:
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. So much is conceded by the Solicitor General. In Anglo-Saxon law, that right was emerging at least as early as the Magna Carta.
The decision then quotes from the book Three Human Rights in the Constitution of 1787, agreeing that: "[This book] shows how deeply engrained in our history this freedom of movement is. Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage."
The court did stop short of instructing Congress on future legislation, and correctly limited itself to the case before it, while reaffirming (once again) the basic constitutional right in question:
Freedom to travel is, indeed, an important aspect of the citizen's "liberty." We need not decide the extent to which it can be curtailed. We are first concerned with the extent, if any, to which Congress has authorized its curtailment.
The question had to be revisited eight years later, when a specific law passed by Congress (with the same intent -- denying Communist Party members passports) was challenged. From the decision in Aptheker v. Secretary of State, the court again reaffirmed the right to travel as a constitutional right (while throwing out part of the law as unconstitutional):
In our view, the foregoing considerations compel the conclusion that Section 6 of the Control Act is unconstitutional on its face. The section, judged by its plain import and by the substantive evil which Congress sought to control, sweeps too widely and too indiscriminately across the liberty guaranteed in the Fifth Amendment. The prohibition against travel is supported only by a tenuous relationship between the bare fact of organizational membership and the activity Congress sought to proscribe. The broad and enveloping prohibition indiscriminately excludes plainly relevant considerations such as the individual's knowledge, activity, commitment, and purposes in and places for travel. The section therefore is patently not a regulation 'narrowly drawn to prevent the supposed evil'....
What all this means is that there are indeed precedents and case history which have staked out "freedom to travel" is an important part of the word "liberty" in the Fifth Amendment. Such freedoms cannot be taken away without due process of law. It's just as important a constitutional question as the Second Amendment right to "bear arms."
Why nobody is pointing this out is still mystifying to me. Democrats -- to their shame -- seem content to take away constitutional rights without any due process whatsoever. At the very most, they put the legal cart before the horse by supporting some due process to get your name removed from government blacklists. None of them (to my knowledge) are properly arguing for due process before the government removes people's constitutional right to travel (or to buy guns). That's what due process is all about -- something the government must do before taking away any of your liberty.
At least the Democrats are consistent in their disregard for the Constitution. Republicans, on the other hand, are picking and choosing which constitutional rights they'll go to the mat to defend. They're up in arms (OK, bad pun, sorry...) over anything which might dent their precious Second Amendment rights, but they are completely silent on everyone's Fifth Amendment right to travel freely, both within and outside of the United States, on public conveyances.
I asked in last week's article a question that bears repeating: where are all the Libertarians? They're the ones that usually see the Constitution in a much different manner than most politicians. They're the ones I would expect would go out on a limb (politically) to defend basic constitutional rights, even when their position is unpopular.
My basic position remains unchanged, and is the same as the Supreme Court's decision 58 years ago. It is not the denying of gun purchases or the denying of free travel that is the root of the unconstitutional problem here. It is the blacklists themselves which are an affront to our founding document. There is only one way to make this entire concept right with the United States Constitution, in fact, and that is to pass a constitutional amendment which spells out exactly what the government can and cannot do with a "No-Fly List" or a "Suspected Terrorist List." Because the mere existence of these lists -- without any sort of due process or conviction in a court of law required as an ironclad precursor to being listed -- simply cannot be squared with the Constitution. The only way this could happen is to include the concept in the document itself, because blacklists run so contrary to what the Constitution already guarantees to all citizens.
-- Chris Weigant
Follow Chris on Twitter: @ChrisWeigant
Some people say that you just don't get it (or maybe you don't want to get it). Lots of people are telling me. I'm beginning to think that you're in on what ever in the hell is going on that we haven't figured out yet. Sad!
Hey CW:
I completely agree that the "blacklist" concept is bad.
I also think that the background check loophole is the bigger thing to close. That should have been the real debate. Honest, hard working gun dealers across the US are harmed by this loophole, but nothing is being done about it.
However, from a constitutional perspective, the phrase "compelling government interest" does override anything when the SC decides it does.
In fact, that was used to conclude that the gov't can ban religious ceremonies that use drugs (peyote) and that our taxes can be used for wars (Quakers). Both, overcoming the first amendment's religious freedom clause. For what it's worth, conservatives applauded both decisions.
The Patriot Act gave our government far too much ability to violate our rights as citizens, all in the name of "public safety". The "Suspected Terrorist List" is a secret list, preventing anyone who might be deemed important enough to make the list from being able to defend their credibility and reputation prior to having their lives upended when they are blindsided by finding out that they are not able to use the mode of transportation that they have paid good money to use as planned. It only comes when they NEED to fly somewhere. I do not understand how this matter hasn't been argued before SCOTUS by now.
Does that freedom to travel come with an allowance and is it absolute?
Unbelievable.
At least the Democrats are consistent in their disregard for the Constitution.
Yes, they are.. Indeed...
As I mentioned before when this subject came up, no one is denying anyone's right to travel...
What is being denied is the right to travel by the most convenient conveyance...
While your SCOTUS cites are numerous and impressive, one cite is ignored..
"The US CONSTITUTION is not a suicide pact"
To give unfettered air travel to anyone who wants it would invite disaster...
Michale
Listen,
The Patriot Act gave our government far too much ability to violate our rights as citizens, all in the name of "public safety". The "Suspected Terrorist List" is a secret list
There is a reason for that...
A VERY good reason for that...
To divulge who is on the list would give people who ARE guilty a heads up...
It would also divulge critical intelligence ways and means that would allow terrorists to alter their way of doing things which would make it harder to detect them..
Secrets are a fact of life...
A nation that has no secrets, a nation that allows everyone to know everything is a nation that endures, at best, just a single day..
Michale
Speak,
I also think that the background check loophole is the bigger thing to close.
There is no background check loophole.. It's a myth..
However, from a constitutional perspective, the phrase "compelling government interest" does override anything when the SC decides it does.
Good point.. Kudos..
Michale
While your SCOTUS cites are numerous and impressive, one cite is ignored..
"The US CONSTITUTION is not a suicide pact"
To give unfettered air travel to anyone who wants it would invite disaster...
Apologies (BLUE MOON!!!)...
I forgot to attribute that quote..
"The US CONSTITUTION is not a suicide pact"
-Abraham Lincoln
Michale
"The US CONSTITUTION is not a suicide pact"
-Abraham Lincoln
Those are not documented words of Lincoln.
Maybe they are uttered by the robot Lincoln at Disney theme parks (it's been I while since I visited one) but not THE President Lincoln.
Lincoln did write:
"Are all the laws but one to go unexecuted and the government itself go to pieces lest that one be violated."
In 1861, in response to a Writ of Habeus Corpus issued by Chief Justice Roger B.Taney on behalf of militiaman John Merryman, in prison for burning bridges on the order of his commander, the Governor of Maryland.
https://www.nps.gov/fomc/learn/historyculture/the-writ-of-habeus-corpus.htm
Lincoln is basically asking a rhetorical legal question. How far can I go in putting sown an insurrection.
Judge Richard A. Posner’s wrote a book
"Not a Suicide Pact: The Constitution in a Time of National Emergency." It defended the Dubya's bending of the Constitution following 911.
Posner does not exactly have the historical clout of Abe Lincoln.
Bending the Constitution, bending of history.
On second thought, "sanding the rough edges off history" is a better metaphor with respect to history.
I'll leave bending the Constitution in place.
An online copy of the US Constitution with search engine:
http://context.montpelier.org/document/175?gclid=CMmylJrgu80CFQkNaQodjIUFhw
The word "travel" does not show up in a word search.
Liberty appears
Michael
A VERY good reason for that...
To divulge who is on the list would give people who ARE guilty a heads up...
It would also divulge critical intelligence ways and means that would allow terrorists to alter their way of doing things which would make it harder to detect them..
Yeah, that sounds really good up until you look and see that it makes no sense!
What good is that secret when the person will learn that they are on the list the first time they attempt to travel by plane? If you are wanting to catch them doing something they shouldn't be doing, you don't warn them about it EVER! And just the knowledge that such a list exists would cause any terrorist with half a brain to know that they will have to travel under an assumed identity. You divulge everything you claim keeping the identity of persons on that list secretive somehow protects the moment the person learns that they are on the list! So what? The list is just an exercise in futility then?
TS,
Those are not documented words of Lincoln.
Siighhhhh Thank you for proving my EXACT point I just made here:
http://www.chrisweigant.com/2016/06/20/guest-author-donald-trump-the-apprentice-demagogue/#comment-77580
Michale
sorry, accidental post, cat related.
Liberty appears 3 times, twice in the context of due process.
Rights appears once:
The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people
Assemble appears in five contexts
Listen,
What good is that secret when the person will learn that they are on the list the first time they attempt to travel by plane?
Because once the terrorist attempts to board an aircraft, the dynamic changes..
THEN the safety of the airline passengers trumps intelligence gathering and ways and means...
Usually...
Michale
The word "travel" does not show up in a word search.
Because "travel" is not a constitutional right in the context it is being used...
The constitutional right that is being espoused is freedom of movement.. The freedom to go where one pleases without physical restraint unless by due process..
That "travel" is what is a constitutional right..
When "travel" is equated with air travel, all of the sudden it appears that people have a constitutional right to fly to Tahiti....
No...
Being allowed to fly in an airplane is NOT a constitutional right..
Being allowed to ride an Amtrak is NOT a constitutional right..
Being allowed to drive in a car is NOT a constitutional right..
Being able to own a gun *IS* a constitutional right.. If that right is denied, it must follow due process or common sense..
Unfortunately, the Left Wingery has very little interest in the former and NO APPARENT access to the latter...
Michale
Sorry about the previous hash-ups. Weird accidental posts show up when the cat treads the keyboard and also when there are multiple applications running hypertext. These just happen when I try and paste. I have never fully figured this second problem out, but it seems real.
Anyway, I was interested in determining if the US Constitution specifically creates a right of travel. So, I found a site that searches the full text of the Constitution.
The word "travel" does not show up in a word search, but maybe travel is implied as a particular sort of liberty.
The word Liberty appears 3 times, somewhat vaguely as: “secure the blessings of liberty” but twice in the context of due process, “nore be deprived of life, liberty or property without due process” and “nore shall any State deprive any person of life liberty or property without due process.”
Maybe travel is a “right” rather than a liberty
The plural “Rights” appears once:
“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” That’s important….the Constitution specifically says it does not enumerate all rights. But,nor does it say who does.
But wait, the singular form Right appears multiple times - most critically with respect to travel as “right of the people to peaceably assemble and petition the Government for redress of grievances.” Assembly implies movement, so people have the right to move, which implies travel, no limits specified as to where or what distance. However, it does tie a specific function to the right to travel, namely to petition the Government. No mention of work, vacation etc, but bear in mind that not all rights are specifically enumerated. This getting rather Wonderlandish, but keep moving or we'll be late...(as in the late Dent Arthur Dent). (See Hitch Hikers Guide to the Galaxy series).
Assemble appears in five contexts:
Four times in reference to congress, but most people aren’t members of congress. Assemble also appear as “right of the people to peaceably assemble and petition Government for redress of grievance” as already mentioned above.
My literal reading the Constitution says you have an explicit right to assemble to redress grievances by the Government. It does not explicitly say you have the right to assemble for any other purpose, but leaves the possibility open. As long as one method of assembly is open, say walking, is that sufficient? The Constitution is silent on this, but then again, it explicitly says that it does not bother to enumerate all rights you have.
It seems that some rights may be quite flexible, to be determined by legislation subject to review by the courts, up the chain to the Supreme Court. Which is where we are at present, in a legal muddle heading towards the Supreme Court.
I think the Founders had a love for 1) wiggle room and 2) vigorous debate.
CW - Uhh.. can clean up the mess I made of your nice site?
Having said all of the afore, I have to admit that I am torn on the issue of denying gun ownership to those on the TWL....
As CW points out, denying someone their constitutional rights without due process is as bad as it gets... I whole-heartedly concur with that sentiment..
On the OTHER hand, due to my experience in the field, I know that people are put on the TWL, more often than not, for very good and sound reason...
As I mentioned to Listen above, when it comes to the safety and security of Americans, I would have to err on the side of caution and vote to DENY gun ownership to those on the Terrorist Watch List...
Public safety trumps everything else, in this case...
I am not happy about my choice, but the logic is clear...
"The needs of the many outweigh the needs of the few... Or the one."
-Captain Spock
Michale
Yes, abridging freedom of movement without due process is a violation of our due-process rights. I'm not entirely sure why it doesn't bother me as much as various other issues. Partly it's that I'm not sure what process is required. I don't think the right to confront your accusers can be absolute, for example: parts of the process, such as arrest, deprive one of one's liberty and have to happen before the confront-your-accuser step can be reached. A warrant can be issued without the suspect being aware of it. It's also not clear to me when the Constitution requires that process be judicial rather than administrative, other than the issuing of warrants for search and seizure. Restricting travel is a violation of liberty, but not a search or seizure.
All fine and good until someone makes a movie about a father (let's say, Chris Pine, since he's in everything these days) who has to get across the country to be with his dying wife (Jennifer Lawrence), but is pulled out of line (by Wanda Sykes) and detained at the airport. He is questioned (by Tatum O'Neal), and told that he's on a No-Fly list. "That's impossible" he says, but it is confirmed by the FBI (James Franco). Desperately, he calls his congressman (Jeremy Renner) and senator (Kelsey Grammmer) but gets only a staffer (Kristen Whig) who tells him that everybody's out of the office, due to a gun control filibuster. Cut to a supreme court justice (Betty White) standing over the now-limp body of the wife, and saying to the Secretary of State (Jack Black) that this could have all been avoided if the bureaucrat who put the husband (Chris Pine) on the list in the first place (Nathan Lane) had not confused him with another man with the same name (Peter Dinklage). As the music swells and a nurse (Rihanna) pulls a sheet over the wife's (JL) head, we see a montage of the husband (CP) buy an AR-15 legally from a dealer at a gun show (John Goodman), travel by AmTrack to Washington DC (including cameos by Ralph Nader and Charlie Sheen). He then sneaks into the capitol building by hiding in a gardener's (Pitbull) truck, and makes his way past tourists (Melissa McCarthy, Jimmy Fallon and Steve Martin), and finally bursts into the senate chamber. Unfortunately for him, the fact that there is a filibuster on gun control means that there are only about three people - four if you count pages (Ellen Page)- in the whole room. The Senator who is speaking (Julianne Moore) stops mid-sentence, staring in horror while the husband (CP) monologues for way longer than he should about bureaucracy, the 2nd amendment, travel rights, liberty, and Brexit until a single shot rings out, killing him (being a modern movie, we actually see the bullet hole appear in his forehead before he falls backward). The camera swings over to see a senior Senator (Jon Voight) with a still smoking pistol in his hand. He looks sternly around the chamber and says flatly, "The constitution is not a suicide pact."
The camera slowly pans up and fades to black.......
Balthasar,
Regardless of the point you were trying to make... (remember, just a knuckle-dragging ground pounder here).... I have to say...
THAT was frakin' awesome!!!! :D
Well done, sir... Well done.... :D
Michale
See??? ^^^^ That is what I am talking about..
I disagree with Balthasar on just about EVERYTHING..
Yet, I can rise above that and compliment him when he makes a good post....
That's the way things USED to be around here..
I miss that...
Once we get past this current POTUS election, I am hoping we can get back to that...
Per chance, to dream....
Michale
And I thank you for the compliment, Michale.
I'd like to also thank everyone who had nothing to do with this extraordinary movie that isn't a movie, especially all of those who haven't reached out to me, and to all of the friends and relatives who have no idea at all how much they mean to me. To the studio, producers, director, cast and crew, you are all truly imaginary. Thank you. Thank you so much.
Very nice. :)
Standing O!
Balthasar,
And I thank you for the compliment, Michale.
And I thank you for the acknowledgement..
:D
Michale
Civility at it's finest..
I can't stand most of what Balthasar stands for and believes in and he probably hates the ground I walk on..
But we both can rise above that, be civil to each other and give credit and acknowledgement when it is due..
THAT, my friends, is what makes a community...
Many have seem to forgotten that in the last few months... Myself included...
I'm just sayin'....
Michale
{20] Balthasar: Applause!
I can't stand most of what Balthasar stands for and believes in and he probably hates the ground I walk on..
That's a bit strong. Let's just say we disagree on a number of issues, and take it from there, shall we?
That's a bit strong. Let's just say we disagree on a number of issues, and take it from there, shall we?
Like I said... Civility...
I salute you... :D
Michale
PS: Elizabeth [24], ListenWhenYouHear [25], and Paula [28], Thank you too, for the kind words.