It Is Dangerous to Be Right When the Government Is Wrong - Andrew P. Napolitano [49]
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The Freedom to Travel in American Law
American courts have, at least in theory, declared the freedom to travel to be near absolute (how they actually apply the right is a separate issue to which we will turn our attention later). 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.2
In other words, the right to travel is simply implicit in the concept of freedom, and indeed in the Constitution itself.
To further illustrate this 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 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 (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 to travel 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 not to inhibit travel within its borders, or to prevent individuals from leaving or coming back.
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The Supreme Court of the United States formally recognized the freedom to travel as a fundamental right in Shapiro v. Thompson (1969).3 This particular case examined statutes that denied welfare assistance to residents 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.”4 The government simply cannot “chill” travel, as the federal police officers so egregiously did to Steve Bierfeldt.
Doctrinally, the right itself 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” of 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 a separate issue to which we now turn our attention.
Physical Restrictions on Travel
On September 12th 1986,