The Right to Travel

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August is
the traditional month for vacations. Most of us take for granted
the ability to load up the family station wagon and travel wherever
the steering wheel leads us. The right to travel has been held
sacrosanct. But this right, which we consider quintessentially
American, is beginning to show cracks in the foundation.

Travel is
essential for the development of the human person. In its most
banal, materialistic and uninspired comprehension, a trip is merely
the transportation of the self from one spot to another. However,
from the literature of the ancients up to our present day, there
is a realization that travel has a higher function. In most all
of the fables of the world, someone somewhere decides that he
must go to another place and, by making this decision, the world
ultimately becomes a different place or is viewed so by the sojourner.
Without freedom of movement, how could the literature of the quest
take form? (Today, Hercules' true labor would be obtaining documentation
to get to the spots of his various chores.)

The spiritual
component of travel is integral to Western culture. Abraham was
commanded by God to travel out of the land of his fathers, while
Moses, through divine intervention, won the right of egress out
of Egypt for the Israelites. Christ was constantly on the move,
from mountaintop to valley, in and out of different districts
and lands, while St. Paul is the finest exemplar of the soul-changing
events that can happen "on the road."

Freedom to
move means freedom to conduct trade and to learn first-hand about
other cultures — a component of education once deemed essential.
The broadening of external horizons seems to lead naturally to
the broadening of internal horizons.

The antipode,
restrictions on the individual's right to move about, can logically
be assumed to retard the virtues nourished by travel. One shackled,
either figuratively or literally, to the land is one whose knowledge
is limited, whose spirit is reigned in, and whose ability to conduct
business is stifled. In the eyes of the well-traveled, a serf
is stunted almost to the level of the beast; he lacks not only
raw exposure to the outside world but, more importantly, a frame
of reference.

So important
was the right to travel to the men of medieval England that it
is found in the Magna

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.

The only
time that the Crown was allowed to restrict travel was during
war for "some short space." This seems to imply that
a travel restriction placed upon an enemy combatant nation for
the entire duration of the conflict was deemed as unreasonably
long and unnecessary.

These "rights
of Englishmen" rooted in the Magna Carta were intimately
understood by the Founders. Yet, over the course of this century,
the American judiciary has been steadily whittling away at the
right of travel.

There is
no express right to travel found in the Constitution, unlike the
of Confederation
which provided for "free ingress and
regress to and from any other State." Taking advantage of
this omission, the Supreme Court declared, in Zemel
v. Rusk
, that Congress has the power to enable the President
to restrict travel to certain countries. At issue was whether
a U.S. citizen could travel to Cuba in 1965, a country with whom
we were not at war, in order “to satisfy [his] curiosity . . .
and to make [him] a better informed citizen.” Despite the rights
granted in the Magna Carta, to which Americans are heirs via the
Common Law, the Court ruled against curiosity and a well-informed

in 1999, the Supreme Court found it necessary to dress up a welfare
case in a "right to travel" bonnet. They did so to assure
that states' rights did include the ability to restrain the handouts
of the welfare state (see Saenz
v. Roe
). Rather than look to the Articles as a founding
document of the United States (a precedent which would have been
subversive to centralized power), they plunked the right to travel
in the Privileges and Immunities clause of the 14th
Amendment — a legal "dead letter" for more than 120
years. They then proudly proclaimed, “The Court today breathes
new life into the previously dormant Privileges or Immunities
Clause of the Fourteenth Amendment…”.

The test
case against the right to free movement is now being tried, not
in the legal system, but in the court of public opinion through
the saga of the "runaway bride" Jennifer
. This week Wilbanks' face has been splashed across
media outlets, as she "pays off her debt to the community"
for "lying to the police."

ran away four days before her pending marriage. This was not a
criminal act. Her hometown of Duluth, Georgia began a search for
her, expending more than $40,000, even though her escape plan
began with a call to a local cab service requesting a pick-up
at the local library and drop-off at the bus station (a fact that
would seem likely to emerge from preliminary police work).

on the day scheduled for her wedding, telephoned her fiancé
to give him a bogus story about how she had been abducted and
was in New Mexico. At this time, she repeated the story to the
Duluth chief of police who was with her fiancé. This was
a lie on the part of Wilbanks, but a lie that sent New Mexican
police into action, not Duluth police. Through this lie, she caused
the misappropriation of Albuquerque law enforcement resources
to search for her fictional abductors. Duluth police had been
searching prior to her lie and her story gave them no reason for
additional expenditures of manpower or resources as all the alleged,
albeit fictional, criminal parties were in New Mexico. Authorities
in Albuquerque officials decided not to prosecute; Duluth officials

Her lie cost
Duluth nothing, yet she is now mowing the lawn of city hall to
"repay her debt." In a wonderful Orwellian touch, this
indentured servant to the state wears a "life is good"
ball cap as she struggles away with a lawn mower to give restitution
to a city that suffered no damage from her acts. She and, by media
extension, all of us, have now been properly reeducated that the
real crime isn't lying but not letting the government know where
you are. (This exact
same scenario
is now being played out again in Salt Lake City,
where a man who legally and voluntarily decided to disappear to
Australia is now being asked to pay for a search that he did not
ask for or induce.)

There is
a word for those who are not only restricted from traveling where
they desire, but also must "check in" with an authority
before absenting themselves. That word is slave.

12, 2005

Rossi [send him mail]
recent law school graduate who lives in Washington, D.C.

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