Do Americans have a constitutionally guaranteed right of freedom of movement? I’m thinking of the right to travel and live where we like. Obviously, freedom of movement doesn’t cover illegal trepassing, blocking road traffic, or sneaking across borders.
As far as I know, the constitution does not explicitly address the issue. Does freedom of assembly cover it? Or how about the regulation of interstate commerce? Is it a non-enumerated right, or just not exist at all?
For example, are any of these laws possible, either by a state government or the federal government:[ol][li]Prohibition of convicted sex-offenders to enter the state/nation.[]A pass-toll on anyone entering the state/nation[]Requiring a sixty-day notice before exiting the state/nation.Closing the state/national border on Sundays.[/ol][/li]
Additional hypothetical laws are welcome to illustrate subtleties.
This is true. But then again, we have many inalienable rights not enumerated in the Constitution, e.g. the right to self defense, the right to own property (assuming you have the means), and the right to make a profit.
The Privileges and Immunities Clause of Article VI guarentees that individuals have a fundamental right to travel between states, and to take up residence in another state. Some durational residency requirements before one can qualify for state benefits are valid (and some aren’t), but I don’t believe that any of the four examples in the OP would be constitutional.
The trimmed down phrase “Privileges and Immunities” was used as shorthand for the wordier and confused language of the Articles of Confederations, and encompassed the same rights as the longer phrase:
‘’[t]here can be but little question that the purpose of both these provisions is the same, and that the privileges and immunities intended are the same in each. In the Articles of Confederation we have some of these specifically mentioned, and enough perhaps to give some general idea of the class of civil rights meant by the phrase.’’
Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 75 (1873).
The right to travel between states and take up residence in a state has long been considered a fundamental right:
‘‘Protection by the Government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the Government must justly prescribe for the general good of the whole. The right of a citizen of one State to pass through, or to reside in any other State, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefits of the writ of habeas corpus ; to institute and maintain actions of any kind in the courts of the State; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the State; . . . .’’
I don’t have the year it was passed, but immigration law at one time (and perhaps still for all I know) prohibited people with “psychopathic personalities” from entering the United States. This was interpreted by the INS to include homosexuals* and may very well have included convicted sex offenders.
In Rosenburg v Fleuti 374 U.S. 449 (1963) SCOTUS vacated a 9th Circuit ruling that found the INS definition of “psychopathic personality” to include homosexuality to be unconstitutionally vague.
Congress in 1965 specifically added “sexual deviance” (meaning homosexuality) to the list of characteristics for which one could be excluded from the US or denied permanent residency.
In Boutilier v Immigration Service 387 U.S. 118 (1967) SCOTUS held that the term “psychopathic personality” was not unconstitutionally vague as applied to homosexuals.
In 1984, SCOTUS denied certiorari to Richard John Longstaff, who had at that time been living in the United States for 18 years and was first denied citizenship after acknowledging during an INS interview having had “some homosexual experiences” and then later found to have entered the country illegally because of the Court’s Boutilier ruling and because sodomy was a crime in Texas, where he resided.
Immigration law was not stripped of the gay exclusion until 1990.
So sadly I must disagree with your opinion that the exclusion of known sex offenders entering the US would be found unconstitutional. One would hope in light of the passage of time, the repeal of portions of the immigration law and the Court’s decision in Lawrence that you would be right but given the hysteria over sex offenders in this country one can’t know.
*I of course do not mean to equate homosexuals with sex offenders. But given that homosexuals have only recently been freed from the shackle of implied sex offenderdom by the Lawrence decision for purposes of this discussion the comparison is apt.
Constitutional rights are not absolute licenses. You may keep and bear arms, but you must register a machine gun and may not keep and bear it aboard an airline flight. You have freedom of speech but may not accuse your neighbor falsely of molesting underaged livestock. You have freedom of religion but may not offer up the still-beating heart of that neighbor’s firstborn in sacrifice to Huitzlopochtli. You have a right to be secure in your home and papers but outside the door is a SWAT team with a search warrant and a battering ram.
The Constitution already provides that after a due process of law, your property, liberty and even life may be forfeited. If your liberty is taken, that includes freedom of movement. Heck it PRIMARILY involves freedom of movement.
This strikes me as one case where the Framers must have considered “Freedom of Movement” to be in the category of “so bloody obvious that if the people need to have it enumerated you should really reconsider letting them set up a republic.”
As to the hypotheticals:
Prohibition of convicted sex-offenders to enter the state/nation - Nationally we already have something like that in immigration law. But that’s because any sovereign nation has an inherent power to control immigration, plus if you are a noncitizen outside US soil, you are NOT protected by the US Constitution anyway. Interstate, convicted sex offenders may be required to report their movements at all times and seek permissionto move (Megan’s Law), but that’s a public-safety measure.
A pass-toll on anyone entering the state/nation – Again, internationally that could conceivably be applied – say a very steep fee for an entry visa or an exit tax for noncitizens. States just can’t do that as they do not have immigration powers – it would cause interference with interstate commerce and Privileges and Immunities.
Requiring a sixty-day notice before exiting the state/nation. – Aliens? maybe. Citizens? not likely. State-level, I’d wonder under what authority.
BTW, people who seek to emigrate from the US with a net worth greater than $500K, are subject to an audit as suspected tax evaders. But if they’re clean, they can go.
Closing the state/national border on Sundays. – State? Can’t. Interference with interstate commerce and Privileges and Immunities. National? Unlikely. Plus it would be bloody impractical.
Don’t be sad, because you’re 100% right. I don’t know how I missed it, but I didn’t see the “nation” after “state”. Must have been a long day. I thought the OP was only asking about the right of one state to exclude resident citizens of another state from passing through or taking up residence there based on the criteria mentioned. My remarks are onlty correct if you remove “nation” and “national” from the questions; the P&I clause doesn’t apply to immigration and naturalization, which is a different matter entirely. One state can’t randomly exclude residents of another state, but Congress has very broad discretion over who to allow into the U.S. or extend citizenship to.
Thanks for the answers. So freedom of movement is a non-enumerated right.
Just to belabor the point: could the federal government “regulate inter-state commerce” and require the states to collect tolls on all persons crossing state borders? Or would the federal government have to collect the tolls itself (to avoid an unconstitutional delegation of power)? Would the courts definitely find such a law to be unconstitutional? Or is this a vague area that hasn’t been litigated (because no one has been stupid enough to pass such a law)?
Also, the federal government cannot generally restrict U.S. citizens from entering and exiting the nation (without due cause, etc.)? How do passports fit into this?
The fed couldn’t require states to collect tolls, certainly; the states don’t exist to do the federal government’s bidding. Could the fed require that persons pay tolls to cross state borders? Interesting question. I doubt it, but I’m not aware of any law on the subject other than what’s already been discussed on the thread. I don’t ever see it happening, though.
In the world of real law, wasn’t there some northern state (I’m thinking Illinois or Indiana) that passed on law back in the 19th century prohibiting black people from moving into the state? Granted there were a lot of other civil rights that blacks were being denied, but was there any constitutional challenge to that law (assuming it did exist)?