Freedom of Movement: Travel within the United States
Freedom of movement is governed by the Privileges and Immunities Clause in the United States Constitution which states, “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” This freedom has even been recognized by the judicial branch as a fundamental Constitutional right in some cases, dating back to 1823 in Corfield v. Coryell.
There are several court cases which deal with the subject, including Paul v. Virginia, where the court determined that freedom of movement was defined as the “right of free ingress into other States, and egress from them.” This freedom has largely been left to the states to decide, as the Supreme Court has not used federal authority to protect it.
Traveling within the United States
Congress recognized freedom of movement in the Articles of Confederation. The Supreme Court later determined in 1868 that a state cannot inhibit a person’s basic right to leave a state by imposing a tax on them. In 1920, the high court determined once again that the Constitution awarded the power to protect this freedom to the states and not the federal government.
Later, in 1823, this right was determined to cover traveling from state to state (interstate travel). However, the Supreme Court overruled a judge’s determination that the federal government had the power to protect the right to travel from state infringement.
The Mann Act
In 1910, the Mann Act, also known as the White-Slave Traffic Act, was passed. This statute banned interstate transport of females for “immoral purposes,” or extramarital sex. Later, this act was utilized in court to federally prosecute unmarried couples, interracial couples, and individuals with liberal views. In 2010, additional safeguards were added to the act to protect from its overuse.
Traveling to Restricted Areas
In the 1960s and 70s, there were many Vietnam War protests that utilized Free Speech Zones. These were not commonly reported by the media, but the issue of those political protest zones was revitalized during the Bush Administration in 2001-2009. These Free Speech Zones inhibit a person from having full mobility because they are exercising their right to free speech. The Constitution allows for free speech anywhere in the U.S., but their travel is restricted due to political communication, meaning they may be subject to arrest.
The Transportation Security Administration and International Travel
In 1952, the Immigration and Nationality Act was passed and says that it is illegal to enter or exit the United States without a passport. In addition, the Passport Act of 1926 states that the President may deny or revoke passports at any time for national security or foreign policy reasons. There has also been an occasion that the Secretary of State will refuse passports if it’s suspected the traveler will be engaging in criminal conduct. However, in Kent v. Dulles, the Supreme Court determined that the federal government may not restrict a person’s right to travel without due process. This case originated after the Secretary of State denied a passport to a citizen because it was suspected the traveler was going to promote communism in his travels.
Later, in 1964, the high court halted a federal ban that restricted travel by communists, but in 1965 created a rational basis test for constitutionality to consider both the rights of the traveler as well as the security interests of the state.
The Air Transportation Security and Anti-Hijacking Acts were signed into law in 1974 and included regulations regarding aviation security and screening of passengers and luggage. The TSA has been charged with carrying out this screening in commercial airports across the U.S. A passenger’s freedom of movement may only be denied if they refuse to submit to a lawfully required search. Their movement may also be denied if their name is on a “no fly” list.
This law poses a problem with the constitutional right of freedom of movement, as multiple Supreme Court decisions have determined that officials “may not constitutionally condition the grant of any benefit to a particular individual on a requirement that would be unconstitutional if imposed promiscuously on the general public.”
Conversely, TSA officials have argued that utilizing the privilege of flying requires passengers to surrender their freedom of movement rights. They go on to explain that passengers who enter a terminal have agreed to the conditions of security management and searches placed on travelers.
Restrictions as Punishment
Restrictions to freedom of movement began when the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 was passed. This law impedes freedom of movement as a form of punishment used against child support debtors. Though these restrictions have been argued in court, none have prevailed thus far. Federal Appeals Courts have held that ensuring child support is collected is a government duty, and the right to travel internationally is not a fundamental right.
Advocates for reforming this Act oppose inhibiting a person’s right to travel when they have not committed a crime. In addition, child support debtors may have their driver’s license suspended or revoked, furthering the restriction of their movement. Critics make the point that taking away a driver’s license only magnifies a debtor’s inability to pay support, as they often can’t work when this happens.