The Right to Travel

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 Carta:

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.

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 Articles 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 citizenry.

However, 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 Wilbanks. This week Wilbanks' face has been splashed across media outlets, as she "pays off her debt to the community" for "lying to the police."

Wilbanks 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).

Wilbanks, 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 did.

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.

August 12, 2005

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