The “Right to Travel”

During the COVID-19 epidemic, state and local governments have restricted greatly the freedom of citizens to travel from one place to another. As I have pointed out, many of these restrictions violate modern constitutional law.  The Supreme Court characterizes the right to travel as fundamental. That means that even infringements imposed for “compelling governmental purposes” must be “narrowly tailored.” Government COVID restrictions frequently are over-broad or otherwise not adequately targeted at the problem they purport to address.

The Supreme Court cases enunciating a right to travel involve movement from state to state. The cases arose when a person moved from State X to State Y and State Y discriminated against him or her in some way. The Court invalidates the discrimination by saying that State Y violated the person’s right to travel.

If there is a constitutionally-recognized right to travel among states, then a fortiori it includes a right to travel within one’s own state. After all, you can’t get to another state without moving first within your own. Moreover, moving locally seems to be an even more basic right than moving elsewhere. Not surprisingly, in 2002 the U.S. Court of Appeals for the Sixth Circuit ruled that the right to travel includes in-state movement.

Most people would recognize “freedom of locomotion” as an inherent, natural right of free people. But, of course, not every natural right is given specific protection by the Constitution. There is no specifically constitutional right to eat Chinese food or wear the hat of one’s choice. Nor does the Constitution mention a right to travel. So is it a constitutional as well as a natural right? I think the honest answer is “no.”

The Constitution was never designed to be a document to cure every human problem. But many writers seem to think it has to be, and they have struggled to find the right to travel among its provisions.

For example, some claim the right derives from the Privileges and Immunities Clause of Article IV. That provision bans certain kinds of discrimination by states against outsiders. It does not apply to the federal government.

However, copious evidence—which commentators have largely ignored—tells us that when the Constitution was adopted, the terms “privileges” and “immunities” did not refer to natural rights such as freedom of locomotion. Rather, they were technical legal terms that represented alternative ways of referring to entitlements created by civil government. Notable privileges and immunities included formal procedures for transferring property, access to state courts, trial by jury, and the writ of habeas corpus (which the Constitution specifically calls a “privilege”). The Constitution’s Privileges or Immunities Clause focused on entitlements rather than natural rights.

Commentators frequently cite a statement by a single Supreme Court justice suggesting that the Privileges and Immunities Clause did include natural rights. But that statement was not relevant to the issues in the case under decision, and it was not issued by the full court. And the case in which it appeared, Corfield v. Coryell (1823), was decided more than three decades after the Constitution was ratified. Moreover, if you read the statement thoughtfully, you see that it is so obviously inaccurate you can’t rely on it without abandoning your critical faculties.

There is also this important fact: The Articles of Confederation included a right to travel immediately after its privileges and immunities clause. But the framers of the Constitution removed it! Here is the language of the Articles:

“The . . . the free inhabitants of each of these States . . . shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall have free ingress and regress to and from any other State and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions as the inhabitants thereof respectively . . .”

Here is the language in the Constitution:

“The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”

An obvious reason the Constitution’s framers dropped the right to travel was that the Constitution, unlike the Articles, granted Congress authority over interstate trade. The Federal Congress would be able to eliminate state barriers to free movement in ways the Confederation Congress could not.

Can a right to travel be found in other parts of the Constitution? Some commentators cite the Due Process Clause of the 5th amendment (which applies to the federal government) and the Due Process Cause of the 14th amendment (which applies to the states).

The phrase “due process of law” was a 1354 re-formulation of the “law of the land” clause in Magna Carta (1215). Its sole purpose was to stop arbitrary government legal proceedings. Despite the Supreme Court’s lame efforts to read substantive rights into “due process,” historically the phrase means only this: When the government proceeds against you criminally or civilly it must follow established procedures and not make up the rules as it goes along. In other words, the due process clauses are really just protections against unfair government retroactivity.

Another possible source of the right to travel is the Equal Protection Clause of the 14th amendment. This is better grounded: The “State X/StateY” hypothetical case above really is an Equal Protection Clause case. It makes sense to apply the Equal Protection Clause to prevent states from discriminating senselessly against their newer citizens. But granting such protection is not the same as creating a self-contained “right to travel.” It also does nothing to protect the right against the federal government.

Finally, there are those who argue that travel is a “privilege or immunity” of “citizens of the United States,” thereby protected by the Privileges or Immunities Clause of the 14th amendment.

Constitutional commentators of all political stripes love the idea of using the Privileges or Immunities Clause to prevent the states from treading on favorite constitutional rights. (Many libertarians support the concept, oblivious to the fact that the more broadly you read the Privileges or Immunities Clause the more powerful Congress becomes, because of the enforcement rule in Section 5 of the 14th amendment.)

Those commentators have struggled mightily to show that the Privileges or Immunities Clause protects natural rights. They loathe the 1873 Supreme Court opinion, subscribed to by justices with personal knowledge of the framing and ratification of the 14th amendment, that interpreted the Clause more narrowly.

The flood of words purporting to prove that “privileges or immunities” includes “natural rights” masks the weaknesses of the case. You don’t have to navigate far into that flood to spy some of those weaknesses: One commentator says “privileges or immunities” comprise only the content of the Bill of Rights. Another says they include unenumerated rights. For one commentator “the privileges or immunities of citizens” include property rights. For another, they include abortion. For yet another, they encompass both—or neither.  Additionally, the commentators produce little evidence about the views of the ultimate authorities: the ratifying state legislatures. Instead they discuss what one or two members of Congress said, or a remark made years after the amendment was ratified, or the gibberish from Corfield v. Coryell.

Now, as we have seen, in the original Constitution the terms “privileges” and “immunities” mean entitlements. Without strong evidence to the contrary, it makes sense to apply the same meaning in the 14th amendment because:

• When the same word (and here, almost the same phrase) appears several times in a document, it is presumed to mean the same thing,
• the state legislatures that ratified the 14th amendment were familiar with that presumption, and
• that interpretation serves what everyone admits was the core purpose of the 14th amendment: to protect entitlements created by federal law—such as equal access to public institutions and accommodations—against state interference.

Now, let me be clear: I would love for there to be a constitutional right to travel. But honesty compels me to admit that the one the courts apply is probably a judicial fiction.

The Constitution does not always agree with me. Nor are my personal preferences always constitutional law.