INTERNATIONAL TRAVEL: PRIVILEGE OR CONSTITUTIONAL RIGHT?

Free movement guarantees freedom of opportunity. Reasons for traveling abroad do not matter.

This distinguishes a democratic society from a totalitarian or authoritarian society, which represses the free movement of people. Broadly denying freedom of movement is undemocratic on this basis.

The right to travel outside of the United States is a liberty guaranteed by the Fifth Amendment. Aptheker v. Secretary of State (1964); Kent v. Dulles (1958). However, the application of the Fifth Amendment due process requirement must balance the individual right and the governmental interest because the liberty guaranteed by the U.S. Constitution is not absolute. Freedom to travel abroad, like other rights, is subject to reasonable regulation and control in the interest of the public welfare. The Constitution requires due process and equal protection of the laws in the exercise of that control. See Bauer v. Acheson , 106 F. Supp. 445 (D.D.C. 1952). Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order, without which liberty itself would be lost in the excesses of unrestrained abuses. See Cox v. New Hampshire , 312 U.S. 569 (1941). Free movement is subject to limitations justified by public policy, public security, or public health.

Governments may generally restrict the freedom of movement of persons who have been convicted of crimes, most conspicuously in the context of imprisonment. Restrictions may also be placed on convicted criminals who are on probation or have been released on parole. Persons who have been charged with a crime and have been released on bail may also be prohibited from traveling abroad. A material witness may also be denied the right to travel abroad.

Laws that allow the U.S. government to revoke an American passport from a person who is only a citizen of the United States and not a citizen of any other country violate the Fourteenth Amendment to the United States Constitution, which prohibits any State from making or enforcing any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. In other words, when a sole U.S. citizen’s passport is revoked, they cannot leave the country, but if a dual citizen’s U.S. passport is revoked, they can still use their non-U.S. passport to leave the country. This is a violation of the Equal Protection Clause, as two U.S. citizens are effectively being treated differently.

Modern times require new laws that will put everyone on the same scale. Moreover, these laws should not only apply to U.S. citizens but should also apply to all individuals who want to leave the United States without any exceptions. At the same time, it is necessary to ensure that these new laws comply with the Fifth Amendment of the U.S. Constitution, which means the right to travel cannot be deprived without due process of law. If such a right is regulated, it must be carried out through congressional action.