Jonah Patel
The right to travel is a part of the 'liberty' of which a citizen cannot be deprived without due process of law under the Fifth Amendment. The Supreme Court has acknowledged that freedom of movement is closely related to freedom of association and expression. The Trump administration's travel ban, which targets citizens of dozens of countries, has been deemed unconstitutional as it defies the First Amendment by pursuing a religiously discriminatory policy against Muslims.
| Characteristics | Values |
|---|---|
| Right to travel | 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. |
| Right to free movement | The right to free movement is closely related to freedom of association and freedom of expression. |
| Right to enter and leave a state | The right of a citizen of one state to enter and leave another state. |
| Right to equal treatment | The right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second state. |
| Right to equal privileges and immunities | The right to be treated like other citizens of that state, including the right to equal privileges and immunities of citizens in several states. |
| Right to free ingress and egress | The right of free ingress and egress into other states. |
| Right to equal protection | The right to equal protection under the law, including the right to challenge durational residency requirements. |
| Right to due process | The right to due process, including the right to not be deprived of liberty or property without due process of law. |
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What You'll Learn
Freedom of movement
- The right to enter one state and leave another, which is supported by the Articles of Confederation.
- The right to be treated as a welcome visitor, rather than a hostile stranger, in any state. This is protected by the "Privileges and Immunities" clause in Article IV, § 2.
- For permanent residents of a state, the right to be treated equally to native-born citizens, which is protected by the 14th Amendment's Privileges or Immunities Clause.
The Supreme Court has acknowledged that freedom of movement is closely related to freedom of association and freedom of expression. Strong constitutional protection for the right to travel may have significant implications for state attempts to limit abortion rights, ban or refuse to recognize same-sex marriages, and enact anti-crime or consumer protection laws.
Despite this, there have been several attempts to restrict freedom of movement. The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) imposed restrictions on freedom of movement as a punishment for child support debtors. The Trump administration also attempted to enforce travel bans on multiple occasions, targeting citizens of predominantly Muslim countries. These bans were deemed unconstitutional and discriminatory, with the inclusion of non-Muslim countries seen as a red herring.
In conclusion, while the right to freedom of movement is protected by the Constitution, it continues to be challenged and threatened by various legislative and executive actions.
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Right to enter and leave states
The right to enter and leave states is a fundamental right in the United States, though it is an unenumerated right, meaning it is not explicitly stated in the Constitution. Instead, the Supreme Court established the right to travel based on its interpretation of several constitutional provisions.
The right to enter and leave states has been challenged and upheld by the Supreme Court on several occasions. In Crandall v. Nevada, 73 U.S. 35 (1868), the Supreme Court declared that freedom of movement is a fundamental right, and therefore a state cannot inhibit people from leaving the state by taxing them. In Aptheker v. Secretary of State, 378 U.S. 500 (1964), the court struck down a federal ban restricting travel by communists. In Saenz v. Roe, 526 U.S. 489 (1999), Justice John Paul Stevens, writing for the majority, held that the United States Constitution protected three separate aspects of the right to travel among the states, including the right to enter one state and leave another.
Despite the strong constitutional protection for the right to travel, there have been some restrictions imposed. For example, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) restricted the freedom of movement as a punishment for child support debtors. Constitutional challenges to these restrictions have thus far failed in Weinstein v. Albright and Eunique v. Powell. Federal appeals courts, while expressing due process concerns, have upheld these restrictions on the basis of the government's interest in collecting child support.
In addition, there have been attempts to restrict travel to the United States from certain countries. During the Trump administration, there were proposals to target citizens of 43 countries as part of a new travel ban, with a "red" list of 11 countries whose citizens would be barred from entering the United States. These restrictions were based on national security concerns and other policy considerations.
The right to enter and leave states has significant implications for various issues, including state attempts to limit abortion rights, ban or refuse to recognize same-sex marriages, and enact anti-crime or consumer protection laws. It is closely related to freedom of association and freedom of expression, and it may even undermine current court-fashioned concepts of federalism.
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Right to equal treatment
The right to travel across state lines in the United States is protected by the Constitution under the Privileges and Immunities Clause. This clause guarantees the right of a citizen of one state to enter and leave another state, and to be treated as a welcome visitor when in another state.
The Fourteenth Amendment, which includes the Equal Protection Clause, is often regarded as the constitutional basis for the right to equal treatment. The Fourteenth Amendment applies to all people and mandates that individuals in similar situations be treated equally by the law. It states that no state shall "deny to any person within its jurisdiction the equal protection of the laws".
The Equal Protection Clause was enacted to address the inequality imposed by Black Codes and to validate the equality provisions contained in the Civil Rights Act of 1866. The Act provided that all persons born in the United States were citizens and were entitled to the full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens".
Despite the Equal Protection Clause, systemic and intergenerational racial discrimination against African Americans has persisted. In the 1857 Dred Scott v. Sandford decision, the Supreme Court ruled that black men, whether free or enslaved, had no legal rights under the US Constitution. It wasn't until 1954, with Brown v. Board of Education, that the Supreme Court unanimously overruled the "separate but equal" doctrine and held that segregation in schools violated the Equal Protection Clause.
The Equal Protection Clause has also been invoked in cases involving other marginalized groups, such as in Romer v. Evans (1996), where the Court struck down a Colorado constitutional amendment that denied homosexuals equal protection under the law.
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Religious discrimination
The First Amendment of the US Constitution enshrines the fundamental right to religious liberty. Federal laws like the Religious Freedom Restoration Act of 1993 and Title VII of the Civil Rights Act of 1964 further prohibit government interference with Americans' rights to exercise their religion. The Free Exercise Clause protects religious observers against unequal treatment. Even laws that are neutral on their face and in their purpose may violate the Free Exercise Clause if they are applied in a discriminatory fashion.
In the case of the Trump Administration's travel ban, the question of religious discrimination was raised in courts. The revised Executive Order bans travel for citizens of Iran, Libya, Somalia, Sudan, Syria, and Yemen, all of which are predominantly Muslim countries. While the order does not explicitly mention Muslims or Islam, courts interpreted political discourse and television interviews of Trump as evidence of an intent to discriminate on religious grounds.
In one instance, Judge Watson on the federal district court in Hawaii issued a temporary restraining order, which was later converted into a preliminary injunction, as the constitutionality of the executive order was litigated. The ruling by the federal appeals court stated that the travel ban "drips with religious intolerance, animus, and discrimination". This marked the second time the fourth circuit had rejected a version of the travel ban, with a previous iteration also being blocked by a federal judge in Seattle.
In another case, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the Court set aside state administrative proceedings enforcing Colorado's anti-discrimination laws against a baker who refused to make a cake for a same-sex wedding. The Court held that the state had violated the Free Exercise Clause as the baker's religious freedom was infringed upon.
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Federalism
The right to travel is a constitutionally protected liberty under the Fifth Amendment, which states that citizens cannot be deprived of their freedom of movement without due process of law. This right to travel includes the freedom to move across state lines and international borders, and it is deeply rooted in the nation's heritage and values.
However, there have been instances where federal travel restrictions have been imposed, such as the Trump administration's travel ban targeting citizens of certain countries. While the federal government may not restrict the right to travel without due process, it has been argued that the collection of child support or national security interests could justify such restrictions.
The Supreme Court has acknowledged the close connection between freedom of movement and other fundamental rights, including freedom of association and expression. As a result, strong constitutional protection for the right to travel could impact state attempts to regulate certain issues, such as abortion rights, same-sex marriage, and consumer protection laws. This interplay between federal and state powers underscores the complexities of federalism in the US constitutional framework.
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Frequently asked questions
The Trump administration is considering issuing sweeping travel restrictions for the citizens of dozens of countries as part of a new ban. A draft list of recommendations suggests an "orange" and "red" list of countries whose citizens would face partial or complete restrictions on entering the U.S.
The travel ban is still being reviewed by officials at embassies, regional bureaus, and security specialists. The ban has not been implemented as of March 2025.
The travel ban may defy the First Amendment's Establishment Clause, which prohibits the government from pursuing a religiously discriminatory policy. The ban also undermines freedom of movement, which is closely related to freedom of association and expression.
The travel ban may have significant implications for state attempts to limit abortion rights, ban or refuse to recognize same-sex marriages, and enact anti-crime or consumer protection laws. It may also affect the concept of federalism.
The Supreme Court ruled on whether the travel ban could be enforced as challenges continued in the lower courts. The Brennan Center for Justice has stated that Trump's travel ban is still unconstitutional.
