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The vanishing right to travel
Ezekiel Jones
Online
Journal
Monday Aug 20, 2007
The freedom to travel has
joined habeas corpus and freedom from unwarranted searches
on America's endangered rights list. Over the last 10 years, a
combination of federal legislation, court decisions and new federal
regulations have greatly reduced the rights of U.S. citizens to
travel internationally and domestically.
As old as the
Magna Carta
The right to go
where one wishes is among the most fundamental and ancient of
freedoms in the Anglo-Saxon legal tradition. Article 42 of the
Magna Carta provided:
"It shall be lawful
to any person, for the future, to go out of our kingdom, and to
return, safely and securely, by land or by water, saving his allegiance
to us, unless it be in time of war, for some short space, for
the common good of the kingdom: excepting prisoners and outlaws,
according to the laws of the land, and of the people of the nation
at war against us, and Merchants who shall be treated as it is
said above."
(Article continues below)
Despite its long
tradition, the right to travel has been under attack at other
times in American history. During the Red-baiting '50s, Congress
enacted a law requiring that American citizens possess passports
in order to leave or enter the country and delegated the authority
to the secretary of state to determine the criteria for issuing
passports. Shortly thereafter, Secretary of State John Foster
Dulles denied a passport to Rockwell Kent on grounds that he was
a Communist. Kent challenged the refusal in court, and the case
eventually reached the U. S. Supreme Court. Justice William O.
Douglas wrote the opinion for the majority that ordered the State
Department to issue the passport:
"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. Three
Human Rights in the Constitution of 1787 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. Travel abroad, like travel within
the country, may be necessary for a livelihood. It may be as close
to the heart of the individual as the choice of what he eats,
or wears, or reads. Freedom of movement is basic in our scheme
of values. 'Our nation,' wrote Chafee, 'has thrived on the principle
that, outside areas of plainly harmful conduct, every American
is left to shape his own life as he thinks best, do what he pleases,
go where he pleases.' (citations omitted)
Whatever happened
to love it or leave it?
Unfortunately, William
O. Douglas is no longer on the Supreme Court.
American jurisprudence
has always recognized two, somewhat distinguishable, aspects of
the right to travel. The Kent case dealt with a citizen's
freedom to leave the U. S. and return. Since 9/11, that right
has been severely restricted. Prior to January 1, 2007, the U.S.
had reciprocal agreements with Mexico, Canada and several Caribbean
nations that allowed U.S. citizens to come and go from these countries
with nothing more than a picture ID, like a driver's license,
or a birth certificate, citizenship papers or a permanent residency
card.
This year, however,
Homeland Security issued new
regulations requiring Americans to show a passport in order
to return by air from these countries. The result was a huge rush
for passport applications that swamped the State Department and
forced many to cancel
their vacations when their new passports did
not arrive in the usual six weeks' processing time.
Next year, these
requirements will apply to all travel outside the United States,
whether by plane, boat or land.
A right has become
a privilege
The U. S. government
has also breached the ancient Magna Carta principal that
all citizens are free to travel abroad unless they have been convicted
of a crime. Under "welfare reform" passed by the Republican Congress
and signed by Bill Clinton (newspeak name--Personal Responsibility
and Work Opportunity Reconciliation Act), the State Department's
Passport
Denial Program began to refuse passports to American citizens
based upon a report that they owed back child support.
Have the federal
courts shown up again to slap down the State Department and protect
the right to travel? Hardly. Eudene Eunique, a non-custodial parent
who had been denied a passport because she allegedly owed $20,000
in back child support, challenged the law and the case reached
the Ninth Circuit Court of Appeals. The three-judge panel ruled
in favor of the State Department. Writing for the majority in
the 2-1
decision, Judge Fernandez distinguished the Kent case
by claiming that Eunique might be violating federal law
if she left the U.S. to evade child support payments. There was
no allegation that her purpose was to effect such an evasion nor
any hearing on the issue of her motivation. Suffice it to say
that the court's ruling, Justice Douglas' opinion in Kent
were shown scant respect.
Dissenting Judge
Kleinfeld was frank about it: "In this case, unlike those in which
the Supreme Court has upheld restrictions on travel, the government
has not offered a foreign policy or national security justification
for the restriction, the government has not narrowly tailored
the restriction to its purpose, and the apparent purpose of the
restriction is to penalize past misconduct rather than to restrict
travel as such. Thus the travel ban in this case is unconstitutional
under controlling Supreme Court precedent. That Court can revise
its approach if it so decides, but we can't."
The initial trigger
was set at $5,000, but it was recently reduced to $2,500, and
the State Department recently issued a press
release bragging about how much cash they had collected from
passport applicants.
While it may be
hard to feel much sympathy for deadbeat parents, the Magna Carta
principle that citizens have the right to travel internationally
unless they stand accused or convicted of a crime has been abrogated.
What's next? Passport refusals on the grounds that one's student
loan payments are delinquent? Denials of passports because of
mortgage defaults? It's a bit ironic that a nation which historically
has been a refuge for the destitute seeking a new start could
become one big debtors' prison with the combination of provisions
like the Passport Denial Program, oppressive bankruptcy laws and
a failing economy.
See the USA in
your Toyota (as long as you carry your passport)
Homeland Security
Secretary Michael Chertoff is unhappy. It seems there are several
states that are resisting the federal effort to make them upgrade
their state-issued drivers' licenses to meet the standards for
a new national personal ID card.
His response? Issue
threats that residents of those states that don't go along
with the national ID will be required to show U.S. passports to
enter federal buildings, national parks and monuments, even board
an airplane for a domestic flight.
"This is not a mandate.
A state doesn't have to do this," he said. "But we've been very
clear and the law is very clear, if the state doesn't have at
the end of the day, the end of the deadline, Real ID compliant
licenses, then that state cannot expect that those licenses will
be accepted for federal purposes."
Middle-aged Americans
remember how our leaders, parents and teachers distinguished our
country from the Soviet Union and its Warsaw Pact allies by pointing
to the pictures and films of desperate East Germans and Hungarians
who were forced to risk
their lives just to move to a new country. In those days,
there were people like William O. Douglas who had both the inclination
and the power to defend Americans' right to travel, but today,
with so many fundamental liberties under assault at once, the
more subtle attack on freedom of movement has received little
attention. It would be tragic if some Americans finally come to
the conclusion there is no option but to leave their repressive
homeland only to find that they have already lost the right to
do so without risking a dangerous, illegal run across a border.
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