Restraining Orders: The government’s unconstitutional restrictions on our freedom to travel

After discovering a metal box with more than $4,700 in cash and checks inside Bierfeldt’s luggage, officials from the Transportation Security Administration (TSA) detained him for further screening. The TSA, you will recall, is the agency within the Department of Homeland Security that (according to its website) is tasked with protecting “the Nation’s transportation systems to ensure freedom of movement for people and commerce.” Bierfeldt had an altogether different experience.

TSA agents interrogated him for more than a half hour with a series of intrusive questions: “Where do you work?” “What are you planning to do with the money?” “Where did you acquire the money?” Although he had nothing to hide, Bierfeldt valued his privacy enough to refuse to answer the questions. The officers told him he wouldn’t be able to move on if he continued to clam up. But Bierfeldt stuck to his guns, and was eventually, if grudgingly, allowed to catch his flight.

Consider the potential consequences of the TSA’s open-ended license to hassle travelers. If Bierfeldt had stayed huddled inside his home rather than risk the whims of armed interrogators, he would no longer be able to pursue his lawful employment. He would be less free to express his political views by advocating Campaign for Liberty’s values. The government in this way can eviscerate constitutional rights simply by burdening the travel of those whose ideas it disfavors.

The right to travel enables the free exercise of the other rights we most cherish. We should not have to check our constitutional freedoms at the curb simply because we decide to leave the house. Sadly, freedom of movement has been one of the most disparaged rights throughout human history, and our country is no exception. If we are ever to be truly free, then we must possess an absolute, uninhibited right to travel throughout America and the world free from interference by government.

The Freedom to Travel in American Law

Of all the inalienable rights we possess as individuals, none is as basic, fundamental, and natural as the freedom of movement and travel. As human beings, we enter this world bestowed with two legs and feet and the muscles needed to power them. Furthermore, we are given a brain and the undying yearning to discover, to know the unknown, to see what lies hidden beyond the horizon. Thus, a fundamental right of movement is inherent in our very humanity. It is altogether fitting that one of the universal symbols of freedom is a broken chain.

The freedom to travel is also central to the American national psyche. Our European ancestors settled here because they had the right to move freely from their homelands. The very history and trajectory of the United States are testament to man’s inherent right to movement and travel, from Lewis and Clark to Armstrong and Aldrin.

State restrictions on the right to travel connote that the government is the individual’s master, and not his servant. The right to own property includes being able to decide which individuals may enter upon our property, and under what circumstances. If the government usurps this ultimate right from property owners, or grants itself a monopoly over certain modes of travel, then clearly the rights of individuals extend only so far as the government, and no one else, wills them. Thus, circumvention of the right to travel is particularly antithetical to the Natural Law, and to the principle that the temporal is always subject to the immutable. Freedom subject to the government’s whim is no freedom at all. Liberty, at its core, is encompassed in the right of exit. As constitutional scholar Randy Barnett has noted, if one wishes to discover which nations offer the best protection of natural rights, one only need observe the directional flow of its refugees.

American courts have, at least in theory, declared the freedom to travel to be near absolute. The right to travel is so basic to our nature that the Founding Fathers did not believe it needed to be documented in the text of the Constitution. In Saenz v. Roe (1999), the Supreme Court stated, “We need not identify the source of [the right to travel] in the text of the Constitution. The right of free ingress and egress [to enter and leave] to and from neighboring states which was expressly mentioned in the text of the Articles of Confederation, may simply have been conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created.” In other words, the right to travel is simply implicit in the concept of freedom, and indeed in the Constitution itself.

To further illustrate the point, consider the original meaning of Congress’s authorization to regulate interstate commerce: to keep commerce between the states regular. Indeed, the principal reason for the Constitutional Convention itself was to establish a central government that would prevent ruinous state-imposed tariffs that favored in-state businesses and impeded the natural flow of goods and services across state borders. Thus, the central purpose of the Commerce Clause was to secure, not inhibit, the free travel of goods. If this was the Founders’ attitude toward commerce (the trade of goods owned by individuals), then they most certainly would have held a similar view on the freedom of individuals themselves to travel.

In more recent times, the United Nations, of which the United States is a member, adopted the Universal Declaration of Human Rights, which provides for a similar right on an international scale: “Everyone has the right to freedom of movement and residence within the borders of each State. Everyone has the right to leave any country, including his own, and return to his country.” This is significant for a number of reasons. First, it is further evidence of the absolute and universal nature of the right to travel. Second, it imposes upon the United States an international legal obligation to not inhibit travel within its borders, nor prevent individuals from leaving or coming back.

The U.S. Supreme Court formally recognized the freedom to travel as a fundamental right in Shapiro v. Thompson (1969), which examined statutes that denied welfare assistance to people who had not resided within their jurisdictions for at least one year. The Court held these laws to be unconstitutional because they inhibited migration and restricted movement. The majority wrote, “The constitutional right to travel from one State to another…occupies a position fundamental to the concept of our Federal Union. It is a right that has been firmly established and repeatedly recognized.”

Doctrinally, the right to travel can be separated into three constituent parts. First, taken from Article IV, Section 2, Clause 1 of the Constitution, a person from State A who is temporarily visiting State B has the same “Privileges and Immunities” as a state resident. Second, an individual may move freely between states. Third, when an individual establishes residency in a new state, he or she enjoys the same rights and benefits as other individuals who have been there for years. Together, these components ensure that the individual can fully enjoy an uninhibited, natural right to travel. How faithful the government has been in following these principles is another story.

Physical Restrictions

As Steve Bierfeldt and anyone else who has flown a plane over the last decade can testify, the federal government impedes travel by monopolizing the protection of airports. Like monopolies everywhere, the TSA is overly expensive, customer-unfriendly, and famously inefficient, hassling grandmothers and toddlers while missing the open transport of weapons and other dangerous contraband. Law-abiding U.S. citizens can be put on watchlists and barred entry on planes without even having the right to know how and when they got on the list in the first place. And unfortunately, government intrusion on the freedom of movement long predates 9/11.

On September 12, 1986, New Jersey law enforcement officials established a roadblock during the height of rush hour on the George Washington Bridge connecting New York City to Fort Lee, New Jersey. The stated purpose was to detect persons transporting drugs or driving under the influence. As would have been predictable to even the most casual observer, the roadblock caused massive delays and traffic stalls. Capt. Robert Herb of the Bergen County Police Department, the highest-ranking uniformed officer supervising the roadblock, later testified that more than one million motor vehicles came to a complete stop; in other words, more than one in 300 of all Americans were blocked by law enforcement—in some cases for in excess of four hours.

There were plenty of adverse consequences. Infuriatingly, a woman was forced to give birth that night on the shoulder of the West Side Highway in New York City. People were prevented from returning home, from getting to work, and from seeking proper medical treatment, all so that police could identify individuals carrying drugs. If we as Americans possess an unconditional right to travel freely, how are such government actions tolerable? Shouldn’t mothers in labor have a constitutionally protected freedom to drive to a hospital?

Sadly, the freedom to travel has been among the most degraded rights throughout American history. Chattel slavery was obviously the most egregious restriction. The Constitution itself (Article IV, Section 2, Clause 3) enshrined this circumscription of travel by requiring that escaped slaves be returned to their “owners”: “No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.”

Nor did the freedom to travel become absolute with the passage of the 13th Amendment, which formally abolished slavery. During the height of World War II, the Supreme Court upheld the forcible internment of Japanese American citizens in the notorious decision of Korematsu v. United States (1944).

In 1942, President Franklin Roosevelt had issued an executive order which granted military officers the power to “prescribe military areas [from] which any or all persons may be excluded, and with respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever restrictions [the] Commander may impose in his discretion.” In other words, the natural right of individuals to move freely was subject to the discretion of a military officer. Subsequently, the military imposed a curfew on Japanese Americans, and shortly thereafter, the wholesale relocation of scores of thousands of U.S. citizens to detention centers.

Fred Korematsu, an ardent American patriot, was convicted of violating this military order after he rightfully refused to leave his home. The Supreme Court upheld Korematsu’s criminal conviction upon a finding of military necessity, namely, “the presence of an unascertained number of disloyal members of the group, most of whom we have no doubt were loyal to this country.” In other words, so long as there was some subjective, nebulous threat that our enemies had infiltrated our shores, the government was justified in detaining every member of the ethnic group to which those enemies belong.

To add insult to injury, the Court justified internment in the language of patriotic duty: “Citizenship has its responsibilities as well as its privileges, and in time of war the burden is always heavier.” It was simply assumed that such measures were just, expedient, and proper, and that the executive branch was free to incarcerate innocent civilians so long as it could muster up the most tenuous showing of military necessity. Liberty cannot exist, much less thrive, in such an atmosphere.

In 1983, Fred Korematsu, the primary litigant in the case, had his conviction formally vacated. His response? “If anyone should do any pardoning, I should be the one pardoning the government for what they did to the Japanese-American people.” Korematsu was right.

Financial and Other Restrictions

Like freedom of speech, if the right to travel is fully protected, it must be freed from the “chilling” effects of government burdens. Financial restrictions can serve as such a burden, deterring us from freely exercising those rights.

As in federalized airport security, financial restrictions often come in the form of government monopolization and the subsequent inefficiencies that inevitably result when an entity is shielded from competition. Take, for example, the government-subsidized railroad system.

This behemoth transportation matrix has survived solely on subsidies, grants, and loans totaling more than $25 billion throughout its existence (with that amount growing after the immense bailout payments bequeathed in the wake of the 2008 recession). Despite these handouts, train ticket prices have continued to grow over the years. In October, a last-minute search for a train ticket from New York Penn Station to Washington, D.C., Union Station turned up a price of $160. A quick online search for a round-trip airline ticket between the two cities produced a $136 flight on JetBlue. So it is cheaper to travel on a privately owned airline than on a land-based railroad owned and operated by the government.

Monopolized government transportation is subject to sudden massive increases whenever the state needs more cash. On Sept. 18, 2011, the Port Authority of New York and New Jersey jacked up the toll for the George Washington Bridge from $8 to $12. The Port Authority, one of the most powerful and least accountable public agencies in the country, justified the 50 percent price hike in part because of cost overruns in rebuilding the World Trade Center. The new toll, currently the subject of multiple lawsuits, can be the difference between a poor person visiting his ailing grandparents or staying at home.

Until the government has legitimate competition, or abdicates control over transportation altogether, these escalating prices—for services that were originally paid for by our tax dollars—will continue to inflict and restrict Americans’ natural right to move and travel.

Then there are the explicit travel restrictions that the United States places on its citizens. If you owe more than $5,000 in back child support, the State Department will not issue you a passport. The same applies if you have ever been convicted of a drug offense that involved crossing an international border. Citizens under both descriptions, even if they are not otherwise under the supervision of the criminal justice system, are effectively sentenced to remain in their home country. And the rest of us still must ask the federal government’s permission to visit such Washington-disfavored countries as Cuba.

Immigration Restrictions

In 2009, Roxroy Salmon, a human rights activists and married father of four U.S.-born children, was ordered to be deported from America. A Jamaican national who had lived in the U.S. for more than 30 years, Salmon ran afoul of a 1996 immigration law that made past drug offenses a deportable crime (he had pleaded guilty in 1989 of drug possession and the sale of narcotics). By the applicable law, there is no consideration in deportation hearings allowable for the preservation of families.

Sadly, this was no isolated incident. A study conducted by the Department of Homeland Security showed that from 1998 to 2007, 108,434 parents of American-born children were deported. And more recent statistics have shown that President Barack Obama has set all-time records for deporting immigrants. How can a country that prides itself on a respect for liberty adopt a policy which tears families apart, leaves children without parents, and treats the right to travel as subject to the government’s whim?

Limitations on immigration fundamentally inhibit a person’s free will to come and go as he or she pleases. Because the right to move is a natural right, it should not be limited to just American citizens.

As Americans we are not worthy of life, liberty, and the pursuit of happiness merely by virtue of being born in the United States of America; these rights do not depend upon American citizenship for their existence. They are self-evident. In fact, our nation was built on the promise of freedom, not just to those who were born here, but to all those struggling under the yoke of oppression. America is not a geographical border, but rather an ideal: that “all Men are created equal, that they are endowed by their Creator with certain unalienable Rights.” Thomas Jefferson did not qualify this statement by saying that all men born in America deserve access to these rights; such a statement would have been even more ludicrous then than it is now.

From a practical perspective, an absolute, uninhibited freedom to travel would not have the “devastating” impact on American jobs that is so often conjectured, so long as it was accompanied by the abolition of the minimum wage. When the minimum wage rises, some jobs that were worth hiring someone to do are no longer worth filling. As a result, there are fewer low-skilled jobs available for people who live here legally. Thus, when the minimum wage rises, employers, to cut costs, hire black-market labor (illegal immigrants) at a lower price instead of hiring people who live here legally and paying them the minimum wage. If the minimum wage were eliminated, the opposite effect would occur; employers would pay people who live here legally fair market value—not the government-mandated amount—for their work. As a result, immigrants would be less inclined to move here for fear of not finding work.

Rep. Ron Paul (R-Texas) explains the problem this way: “Our current welfare system…encourages illegal immigration by discouraging American citizens from taking low-wage jobs. This creates greater demand for illegal foreign labor. Welfare programs and minimum wage laws create an artificial market for labor to do the jobs Americans supposedly won’t do.”

Opponents argue that legalizing immigration will only make our nation less safe. Studies say otherwise. Since 1986, the year amnesty was granted to illegal immigrants in the United States, the U.S. murder rate has dropped by 37 percent. Forcible rape is down 23 percent. Drunk driving deaths are down by more than 50 percent. If these illegal immigrants are so dangerous, violent, and predatory, why are these numbers not going the other direction? Most of the immigrants in U.S. prisons are not there due to violent crime, but rather for violation of immigration laws.

Militarizing our southern border with Mexico has mostly served to perpetuate the one-way flow of illegal immigrants northward, making it more dangerous and expensive for all parties involved, and therefore discouraging job seekers from returning home after seasonal work. Consider that 30 years ago, nearly half of undocumented arrivals departed within a year. Today, only one in 14 does.

Moreover, if these men and women were made legal while the minimum wage was abolished, then they would not have to “steal” jobs and Social Security numbers, but rather they would have their own. They would not work under the table, but rather on the books. They would not avoid taxes (though many pay sales, Social Security, and even income taxes currently), but rather would pay everything owed. The net effect of the legalization of immigration would be positive. Immigrants would gain more of a stake in participating in and preserving our way of life.

I leave you with an egregious story of travel restriction inflicted by government on the oldest and most aboriginal of Americans: the Iroquois tribe.

The Iroquois, who helped invent the game of lacrosse, at one point fielded the fourth-ranked lacrosse team in the world. The Iroquois team was set to travel to Manchester, England, for an international competition in July 2010. Problems soon arose from the fact that the tribe governs itself, independent of the U.S. government, and thus issues Iroquois their own passports. These passports symbolize that independence; in the words of one of the players, “it’s a huge deal because these visas mean so much to our sovereignty.”

Before the Iroquois team’s flight abroad, the British consulate declined to recognize their tribal passports and informed players that “it would only issue visas to the team upon receiving written assurance from the United States government that the Iroquois had been granted clearance to travel on their own documents and would be allowed back into the United States.” The State Department and the Department of Homeland Security refused to grant the request. Only after public embarrassment at the debacle did Secretary of State Hillary Clinton finally agree to waive the travel restrictions.

The next time you believe that the government has your best interests at heart when it restricts the freedom to travel, remember this story of the government’s unjust treatment of the Iroquois lacrosse team.

After self-preservation, the urge to move about the world is the most fundamental of human yearnings. Although our human desires to think and work hard may be chilled with free speech restrictions and taxation, as animate beings we lose our naturally endowed vitality when the government mandates where we can and cannot go. Thus, the right to travel is not only essential to, but directly symbolizes our freedom.

Perhaps then it should come as no surprise that curfews, internment camps, and unlawful imprisonment are common denominators among despotic regimes. Although the U.S. government may claim to have our best interests at heart when it commands who may go where and at what times, to grant Washington that power means subjecting our liberty to the beneficence of a government which legitimized slavery for 200 years. The War on Terror is no excuse to abandon what strands remain of our withering Constitution.

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is senior judicial analyst for Fox News Channel and anchor of Freedom Watch on Fox Business Network. This article is adapted from his sixth book, It Is Dangerous to Be Right When the Government Is Wrong, with permission from Thomas Nelson.