THE RIGHT TO TRAVEL FREELY The right to travel freely is enshrined in English common law, dating to the Magna Carta, which twenty-five English barons forced King John to sign at Runnymede on June 15, 1215, nearly 800 years ago. The Magna Carta, paragraph 41, reads in relevant part: “All merchants shall have safe and secure exit from England, and entry to England, with the right to tarry there and to move about as well by land as by water, for buying and selling by the ancient and right customs, quit from all evil tolls, except (in time of war) such merchants as are of the land at war with us.” The Magna Carta was in the form of a feudal contract, a list of concessions forcing the king to respect the traditional rights of the land barons, and of reciprocal obligations on the part of the land barons. The Magna Carta was not intended to be a charter of liberties for the common man. But over the years, the rights enshrined in the Magna Carta came to apply to commoners as well. Under American principles of jurisprudence, the people do not derive their rights as concessions from the government; rather, the government derives its powers as concessions from the people. This principle is enshrined in the Declaration of Independence: “Governments are instituted among Men, deriving their just Powers from the Consent of the Governed” For context, the complete sentence is as follows: “We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness – That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or abolish it, and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness.” Either the people are sovereign, and the government is their servant; or the government is sovereign, and the people are its servants. One cannot have it both ways. The American Revolution was fought under the Articles of Confederation and Perpetual Union, signed by the delegates to the Continental Congress on July 1, 1778, and ratified on March 1, 1781. The very first right of the people enshrined therein appears in Article IV: “the people of each State shall have free ingress and regress to and from any other State” The context is given below: “the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, 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” The Articles of Confederation were largely superseded by the United States Constitution. When it was sent to the state legislatures for ratification on September 28, 1787, opponents protested that it lacked a bill of rights. Thomas Jefferson wrote that: “A bill of rights are what the people are entitled to against every government on earth, ... and what no just government should refuse, or rest on inference.” James Madison initially opposed the idea of a bill of rights. He argued that specifying rights that were reserved to the people would have the effect of limiting their rights to the ones specified. The consent of nine states was required for ratification of the Constitution. Only eight states ratified it unconditionally. Massachusetts, Virginia and New York ratified it by narrow margins, on the condition that a bill of rights be added. North Carolina decided to wait for such a bill of rights, and Rhode Island did not even call a convention to consider ratification. On September 25, 1789, The United States Congress, led by Madison, now a member of the House of Representatives, submitted twelve proposed amendments to the states, ten of which were ratified and became the law of the land on December 15, 1791. The Ninth Amendment, written and proposed by Madison himself, resolved his initial opposition: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Surely the right to travel freely, dating to the Magna Carta and specifically enshrined in the Articles of Confederation, is one of those rights endowed by the creator and retained by the people. Why the right to travel freely was not specifically enumerated in the Bill of Rights is a matter of speculation. The general consensus is that the right to travel was so obvious that it needed no enumeration. It goes without saying. Note that the Bill of Rights has a Preamble, usually ignored by historians. The Preamble describes the Bill of Rights as being “further declaratory and restrictive clauses” imposed upon the government “in order to prevent misconstruction or abuse of its powers.” FEDERAL CASE LAW No less an authority than President Lyndon B. Johnson has recognized the “constitutionally protected right to travel freely.” In a signing statement accompanying a revision of the Federal Voting Assistance Act (82 Stat. 180 and 82 Stat. 181), dated June 18, 1968, Johnson wrote the following: “An analysis of the 1960 presidential election … indicates that between 5 and 8 million Americans were disfranchised because they moved their residence from one State to another, or even, in many cases, simply from one county to another. The only fault of these citizens is the exercise of their constitutionally protected right to travel freely within the United States -- to pull up stakes and seek a new life.” The three most often cited federal court cases on the subject also recognize the constitutional right to travel. On June 16, 1958, in Kent v. Dulles (357 US 116), the United States Supreme Court wrote these words, which appear three times in the decision: “The right to travel is a part of the ‘liberty’ of which a citizen cannot be deprived without the due process of law of the Fifth Amendment.” “In Anglo-Saxon law that right was emerging at least as early as the Magna Carta,” wrote Justice William O. Douglas in the majority opinion. He stressed “how deeply engrained in our history this freedom of movement is. Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage.” The Court viewed the “right to travel” as “a constitutional right of a citizen,” and the “constitutional protection” of that right as settled law. The Court applied the doctrine of “strict construction,” saying: “The Supreme Court will construe narrowly all delegated powers that curtail or dilute activities or enjoyment, natural and often necessary to the well- being of an American citizen, such as travel.” The issue in Kent v. Dulles was the denial of passports to two members of the Communist Party who refused to fill out affidavits on the subject. Wrote Douglas: “We must remember that we are dealing here with citizens who have neither been accused of crimes nor found guilty. They are being denied their freedom of movement solely because of their refusal to be subjected to inquiry into their beliefs and associations. They do not seek to escape the law nor to violate it.” On April 21, 1969, in Shapiro v. Thompson (394 US 618), the United States Supreme Court reaffirmed the “constitutional right to travel freely from state to state.” The issue in Shapiro v. Thompson was the constitutionality of state laws requiring a one year residency period within the state prior to applying for welfare assistance. Justice William Brennan, in the majority opinion, wrote that such laws “violated the equal protection clause of the Fourteenth Amendment” and “the due process clause of the Fifth Amendment” by “imposing a classification of welfare applicants which impinged upon their constitutional right to travel freely from state to state.” Brennan called such policy “invidious discrimination” which “cannot be answered by the argument that public assistance benefits are a ‘privilege’ and not a ‘right.’” Brennan defended the “right to travel freely from one state to another” as “a virtually unconditional personal right guaranteed by the Constitution.” On June 14, 1982, in Zobel v. Williams (457 US 55),the United States Supreme Court once again upheld the “right to travel” and to “free interstate migration.” The issue in Zobel v. Williams was the distribution of income, or royalties, derived from the mineral resources of the State of Alaska. The state wished to distribute the income “in varying amounts based in length of each citizen’s residency.” Chief Justice Warren Burger, writing for the majority, “held that the Alaska dividend distribution plan violated the equal protection clause of the Fourteenth Amendment. In a concurring opinion, Justice Brennan and three others expressed “the view that the right to travel – or, more precisely, the federal interest in free interstate migration -- was affected by the Alaska dividend-distribution law, and that this threat to free interstate migration provided an independent rationale for holding that law unconstitutional.” Justice Sandra Day O’Connor, in a separate concurring opinion, expressed “the view that the Alaska law should be measured against the principles implementing the privileges and immunities clause, and that this analysis supplies a needed foundation for many of the ‘right to travel’ claims discussed in the court’s prior opinions.” Justice O’Connor was referring to Article IV, Section 2, Paragraph 1 of the United States Constitution, which reads, in its entirety: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” Note that this is almost the exact wording that appears in the Articles of Confederation, immediately prior to the guarantee that “the people of each State shall have free ingress and regress to and from any other State.” It is this “free ingress and regress” provision, never superseded, upheld by the Ninth Amendment to the Constitution, which binds all state and federal judges, and all law enforcement agents. RESTRICTIONS ON THE BORDER PATROL A Trailways representative told me on the phone that nobody at Trailways can cite statutory or regulatory authority for Border Patrol agents to board Trailways buses and question all the passengers. The Trailways drivers simply let them do it, because they think they have to, and because the officers are uniformed and armed. The fact is that the Border Patrol has no such statutory or regulatory authority. According to the American Friends Service Committee, Border Patrol agents conducting similar interrogations in San Diego cited, as legal authority, 8 USC 1357 and 8 CFR 287.5. Having read this, I spent the day of April 5, 2007 in the St. Lawrence County Law Library and online, studying the cited statute and regulation, and the federal case law pursuant to them. 8 USC 1357 states, in relevant part: § 1357. Powers of immigration officers and employees (a) Powers without warrant. Any officer or employee of the Service authorized under regulations prescribed by the Attorney General shall have power without warrant – (1) to interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States; (3) within a reasonable distance from any external boundary of the United States, to board and search for aliens any vessel within the territorial waters of the United States and any railway car, aircraft, conveyance, or vehicle, and within a distance of twenty-five miles from any such external boundary to have access to private lands, but not dwellings, for the purpose of patrolling the border to prevent the illegal entry of aliens into the United States; (4) to make arrests for felonies which have been committed and which are cognizable under any law of the United States regulating the admission, exclusion, expulsion, or removal of aliens, if he has reason to believe that the person so arrested is guilty of such felony and there is likelihood of the person escaping before a warrant can be obtained for his arrest ... I submit that a Trailways bus that has not crossed and will not cross the border is not subject to 8 USC 1357(a)(3), because the actions of the Border Patrol are not ”for the purpose of patrolling the border to prevent the illegal entry of aliens into the United States.” Each and every person on such buses purchased a ticket within the United States, and the actions of the Border Patrol are not to prevent entry, but to engage in a blanket interrogation of each and every passenger, each of whom is, without probable cause, treated as a “person believed to be an alien.” 8 CFR 287.5 states, in relevant part: § 287.5 Exercise of power by immigration officers. (a) Power and authority to interrogate and administer oaths. Any immigration officer as defined in 8 CFR 103.1(b) is hereby authorized and designated to exercise anywhere in or outside the United States the power conferred by: (1) Section 287(a)(1) of the Act to interrogate, without warrant, any alien or person believed to be an alien concerning his or her right to be, or to remain, in the United States, and (2) Section 287(b) of the Act to administer oaths and to take and consider evidence concerning the privilege of any person to enter, reenter, pass through, or reside in the United States; or concerning any matter which is material or relevant (thereto). I submit that these Border Patrol agents have no reason to believe I am an “alien,” and therefore have no authority to interrogate me without a warrant. The reasons for which I could be lawfully arrested by the Border Patrol are listed as follows: (1) Arrests of aliens under section 287(a)(2) of the Act for immigration violations.
Thursday, August 20, 2015
Subscribe to:
Post Comments (Atom)
No comments:
Post a Comment