Simone Lawson
Freedom of movement is a fundamental right in many countries, and it is often protected by their constitutions. In the United States, freedom of movement is primarily governed by the Privileges and Immunities Clause of the United States Constitution, which states that The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. This clause ensures that state governments must treat all American citizens equally, regardless of whether they are visitors or residents. While the right to travel is not explicitly stated in the US Constitution, it has been interpreted by the Supreme Court as essential to the united nature of the country. Similarly, the Syrian Constitution guarantees freedom of movement within its territory unless restricted by a court order or public health and safety regulations. In contrast, countries like North Korea and those with apartheid regimes, such as South Africa in the past, have imposed significant limitations on their citizens' freedom of movement.
| Characteristics | Values |
|---|---|
| Country | United States, India, Israel, Syria, South Africa, France, North Korea |
| Constitutional Coverage | The right to travel between states is considered a fundamental right in the US Constitution, though it is an unenumerated right, not explicitly stated. It falls under the Privileges and Immunities Clause, which states: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States". |
| Court Cases | Crandall v. Nevada (1868), United States v. Wheeler (1920), Corfield v. Coryell (1823), Paul v. Virginia (1869), Hendrick v. Maryland (1915), Saenz v. Roe (1999), Kent v. Dulles (1958), Shapiro v. Thompson |
| Other Notes | The Supreme Court views the right to travel as essential to the "united" aspect of the United States. The right to travel is closely related to freedom of association and expression. The right to freedom of movement is not mentioned in the French Constitution. |
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What You'll Learn
The right to enter and leave states
The right to interstate travel is governed primarily by the Privileges and Immunities Clause of the United States Constitution, which states, "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." This clause ensures that state governments must treat all American citizens equally, regardless of whether they are visitors or residents of the state.
The Supreme Court has played a significant role in interpreting and protecting the right to enter and leave states. In Crandall v. Nevada (1868), the Court declared that freedom of movement is a fundamental right, preventing states from inhibiting people from leaving by imposing taxes. The Court further clarified the right to travel in United States v. Wheeler (1920), reaffirming that the Constitution does not grant the federal government the power to protect freedom of movement. Instead, this authority was given to the states.
While the right to interstate travel is generally respected, there have been instances where it has been challenged or restricted. For example, passport requirements during wartime and durational residency requirements have sometimes limited the ability of individuals to move freely between states. Nonetheless, the right to enter and leave states remains a fundamental aspect of freedom of movement in the United States.
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The Privileges and Immunities Clause
The clause was intended to create a national economic union, helping to fuse a collection of independent sovereign states into one nation. It protects the fundamental rights of individual citizens by preventing states from treating citizens of other states in a discriminatory manner. For example, a state cannot inhibit people from leaving by taxing them, as in Crandall v. Nevada.
The clause covers rights such as the right to travel between states, the right to enter public lands, the right to petition, the right to issue grievances, and the right to communicate with the federal government. It also includes the right to government seats/positions, habeas corpus, and the use of navigable waters.
The clause does not extend to all commercial activity and does not apply to corporations, only citizens. There is debate surrounding the particular rights protected by the clause due to its ambiguity. However, the Supreme Court has recognised some rights protected by the clause over the years, such as the right to own property.
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Supreme Court interpretations
The right to freedom of movement in the United States is governed primarily by the Privileges and Immunities Clause of the United States Constitution, which states: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."
The Supreme Court has interpreted this clause as providing a fundamental right to freedom of movement, or the right to travel, for American citizens. This interpretation was first established in the circuit court ruling in Corfield v. Coryell, 6 Fed. Cas. 546 (1823), and has been consistently upheld by the Supreme Court in subsequent cases.
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. This decision reaffirmed the Court's interpretation of the Privileges and Immunities Clause as protecting the right to travel.
In United States v. Wheeler, 254 U.S. 281 (1920), the Supreme Court reiterated its position that the Constitution did not grant the federal government the power to protect freedom of movement. However, the Wheeler court located the right to travel within the Privileges and Immunities Clause, providing it with a specific guarantee of constitutional protection.
In Saenz v. Roe, 526 U.S. 489 (1999), the Supreme Court again addressed the right to travel and held that the United States Constitution protected three separate aspects of the right to travel among the states. These include the right to enter one state and leave another, the right to be treated as a welcome visitor, and the right for permanent residents to be treated equally to native-born citizens.
The Supreme Court has also acknowledged that freedom of movement is closely related to freedom of association and expression, and that strong constitutional protection for the right to travel could have significant implications for state laws and policies on issues such as abortion, same-sex marriage, and consumer protection.
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Durational residency requirements
The right to travel is closely related to the freedom of expression and association, and 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.
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The right to a passport
One of the earliest mentions of passports in US history dates back to the period between 1783 and 1789, when the Department of Foreign Affairs, carried over from the Articles of Confederation government, continued to issue passports. In 1789, the department was renamed the Department of State and was responsible for issuing passports and handling foreign relations. From 1789 until the mid-19th century, passports were issued not only by the Department of State but also by individual states, cities, and notaries public.
The Supreme Court has played a significant role in interpreting the right to travel and its connection to passport restrictions. In Kent v. Dulles (1958), the United States Secretary of State refused to issue a passport to an American citizen based on suspicions that the individual intended to promote communism abroad. While the court did not rule directly on the constitutionality of this action, Justice William O. Douglas opined that the federal government could not restrict the right to travel without due process. This case established that the right to travel is inherent to the 'liberty' protected by the Fifth Amendment.
In Crandall v. Nevada (1868), the Supreme Court affirmed that freedom of movement is a fundamental right, and states cannot impede people from leaving by imposing taxes. However, in United States v. Wheeler (1920), the Court maintained that the Constitution does not empower the federal government to safeguard freedom of movement. Instead, the "privileges and immunities" clause grants this authority to the states. This clause, found in Article IV of the Constitution, states that "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."
The right to interstate travel is considered a fundamental right under the Fourteenth Amendment, though it is an unenumerated right, meaning it is not explicitly stated in the Constitution. This right encompasses the ability to move freely between states, the privileges granted to temporary visitors of another state, and the rights afforded to new arrivals who establish citizenship in a new state.
While the right to travel is strongly protected, there are some limitations. For example, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) imposed restrictions on international travel for child support debtors, which federal courts upheld as serving an important government interest. Additionally, while the lack of a valid passport does not render a US citizen unable to leave or enter the country, travel to certain destinations may require specific documentation or compliance with initiatives like the Western Hemisphere Travel Initiative.
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Frequently asked questions
Freedom of movement is not explicitly stated in the US Constitution, but it is considered a fundamental right. The Supreme Court views the right to travel as essential to the "united" nature of the United States.
The right to travel is covered by the Constitution's "Privileges and Immunities" clause, which states: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."
The Supreme Court has acknowledged that freedom of movement is closely related to freedom of association and expression. In United States v. Wheeler (1920), the Court reiterated that the Constitution does not grant the federal government the power to protect freedom of movement.
