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.