Freedom Of Movement Essay ⋆ Political Science Essay Examples ⋆ EssayEmpire

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Neither the 1787 Constitution of the United States nor any ratification since mentions anything specific about a right to move or travel within the country or beyond its borders (Article I, Clause 6 recognizes the right of national legislators to travel to and from Congress). Nevertheless, the U.S. Supreme Court has recognized this right as a part of U.S. law, and it is also an important part of international law.

The Constitutional Right To Travel Within The United States

Article IV of the Articles of Confederation (replaced by the Constitution of 1787) did confer upon “the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted,” the right to “free ingress and regress to and from any other State.” The privileges and immunities clause of Article IV of the 1787 Constitution that displaced the Articles of Confederation omits specific reference, as does the Fourteenth Amendment (1868) ratified after the U.S. Civil War (1861–1865), which says in part, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Yet there are many federal and state laws that have curtailed or burdened an individual’s freedom of movement, and some of them have been invalidated by the U.S. Supreme Court as unconstitutional infringements on the right to travel. Many other laws and regulations raise important constitutional problems.

In Saenz v. Roe (1999), the Court acknowledged that while the Constitution does not mention travel in any context except for regarding members of Congress, such a basic right is nevertheless firmly established in U.S. law and precedent. In Shapiro v. Thompson (1969) the Court struck down a one-year durational residency requirement as a condition for receiving welfare benefits for which a newly arrived state resident was otherwise eligible. Connecticut sought to discourage people from moving there to receive richer benefits than they had been receiving in other states. The 6–3 majority held that this was unconstitutional restraint on the right to travel interstate, although the justices failed to identify the source of this right. Thirty years later in the Saenz case a 7–2 Court majority declared unconstitutional a California law that provided a newly arrived and eligible resident with welfare benefits but, for the first year, only the dollar amount he or she had been receiving in the previous state of residence. Congress, in revising welfare law through its 1996 amendments, had authorized the states to do what California had done here.

Admitting that nothing is specified anywhere in the text of the document, speaking for the majority in Saenz, Justice John Paul Stevens explained, “The ‘right to travel’ discussed in our cases embraces at least three different components. It protects the right of a citizen of one State to enter and to leave another State, the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and, for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State.” The “second component,” he said, is “expressly protected” by the privileges and immunities clause of Article IV of the Constitution: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” California interfered with the third aspect of the right to travel—“the right of the newly arrived citizen to the same privileges and immunities enjoyed by other citizens of the same State,” a right, the Court announced for the first time, “plainly identified” in the Fourteenth Amendment: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Discriminatory penalties imposed on this third component of the right are unconstitutional, even if Congress allows them as Congress did here, because the national legislature cannot authorize a state to violate the Constitution.

Limitations On Freedom Of Movement

This right to travel elaborated on in Saenz raises all sorts of constitutional issues that eventually find their way into the judiciary and occasionally percolate up to the Supreme Court. Congress, for example, can restrict travel to other countries and can impose passport restrictions on certain people. However, these restrictions could raise First Amendment issues if, for instance, the limitations on foreign travel were aimed at someone’s political or religious affiliations. Many of these once cold war questions were resolved by the Court in favor of individual freedom, but these matters could recur in the context of the war on terror. States also have the legitimate power to restrict the movement of parolees or condition child custody on parental residence within the state of the child. Other impediments relate to laws that track sex offenders, most of which require convicts, even those who have completed their sentences, to register their whereabouts and/or document or confine their permanent residence. This can become public knowledge, often posted on official Web sites. The public interest promoted by such regulations is to alert people that a convicted sex offender might become one of their neighbors. The state of Washington had a law compelling convicted rapists who had completed their sentences to live in confined quarters that some argued were a jail in disguise, thus triggering the issue of double jeopardy, forbidden by the Fifth Amendment. A federal judge in Seattle had, in fact, ruled exactly that.

Perhaps the most inevitable collision with the undefined and, given the sweeping language in Saenz, broad right to travel will develop from same-sex married couples who move to states that do not recognize such marriages. Many people move from one state to another because of job offers or transfers or for other reasons. Article IV of the Constitution requires each state to give “full faith and credit” to all “public acts, records, and judicial proceedings” of all other states, including marriage certificates and licenses. Almost forty states have laws refusing to recognize same-sex marriages, civil unions, or domestic partnerships. Congress has authority in the full faith and credit clause in that it “may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.” In 1996 Congress passed and the president signed the Defense of Marriage Act (DOMA), which specifically exempts states from any obligation to recognize such marriages. Gay and lesbian couples in Massachusetts, for example, or any of the other handful of states permitting same-sex marriages, may have their marital status legally abolished simply by resettling in another state. Some may challenge DOMA as beyond the power of Congress under the full faith and credit clause. However, one could also claim that state laws spun from DOMA constitute an undue interference with the right to travel, or in the language of Saenz, the right of the traveling citizen “to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and, for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State.”

The amorphous right to travel has an indefinite reach that potentially collides with many legal restrictions. It will be interesting to see how the judiciary, especially the Supreme Court, develops this line of constitutional law.

Liberty Of Movement Beyond The United States

Freedom of movement in the international arena is ostensibly protected by international law. For example, the International Covenant on Civil and Political Rights, adopted by the United Nations General Assembly in 1966 and in effect since 1976 as a multilateral agreement endorsed by most countries in the world, contains article 12, which guarantees “liberty of movement” within the territory of a state for anyone lawfully within such a state. It also ensures that everyone is free to leave a country (including his or her own) and ensures the right not to be “arbitrarily deprived of the right to enter his own country.” However, article 12 recognizes that restrictions can be imposed on movement “to protect national security, public order, public health or morals, or the rights and freedoms of others.” Limitations obviously can be significant given the ambiguity of this language. Citizens of the European Union have firmer and more secure legal rights to move and reside within any of the member states of the European Union. By treaty and by a parliamentary directive, European Union residents and their families can enter any member state and reside there for up to three months, a stay that can, without too much legal interference, become permanent.

Bibliography:

Castles, Stephen, and Mark J. Miller. The Age of Migration. 4th ed. New York: Palgrave Macmillan, 2009.
Directive 2004/38/EC of the European Parliament and of the Council, April 29, 2004.
Guskin, Jane, and David L.Wilson. The Politics of Immigration: Questions and Answers. New York: Monthly Review, 2007. Saenz v. Roe, 526 U.S. 489 (1999).
Schneider, Hildegard. Migration, Integration and Citizenship: A Challenge for Europe’s Future. Maastricht, the Netherlands: Forum Maastricht, 2005. Shapiro v.Thompson, 394 U.S. 619 (1969).
Zureik, Elia, and Mark B. Salter. Global Surveillance and Policing: Borders, Security, Identity. Cullompton, UK:Willan, 2005.