Right to travel

The constitutional right to travel includes the freedom to enter and abide in any state in the Union.[36] However, the means or mode of traveling may be subjected to reasonable regulation.[37] While the freedom to travel within the United States has been held to be a basic right under the Federal Constitution which is independent of a specific provision therein,[38] the right of locomotion has also been held to be a part of the “liberty” guaranteed by the due process clauses.[39] The right to migrate protects residents of one state from being disadvantaged or from being treated differently, simply because of the timing of their migration, from other similarly situated residents. Laws which burden the right to migrate must be necessary to further a compelling state interest.[40] In addition to protecting persons against the erection of actual barriers to interstate movement, the right to travel when applied to residency requirements protects new residents of a state from being disadvantaged because of their recent migration or from otherwise being treated differently from longer term residents.[41] Thus, the Supreme Court has stated that the liberty secured by the Due Process Clause of the Fourteenth Amendment consists, in part, in the right of a person to live and work where he or she will.[42]
State law implicates the constitutional right to travel when it actually deters such travel, when impeding travel is its primary objective, or when it uses any classification which it serves to penalize exercise of that right.[43]
The Supreme Court has accepted as constitutional the federal statute authorizing the incarceration of material witnesses in advance of trial.[44] Similarly, the Uniform Act to Secure Attendance of Out-of-State Witnesses has been held not to violate the Fourteenth Amendment by unduly restricting a citizen’s right to ingress and egress.[45] And a bona fide residence requirement of a Texas statute, which was appropriately defined and uniformly applied with respect to attendance in free public schools, did not violate the equal protection clause of the Fourteenth Amendment, and does not burden or penalize the constitutional right of interstate travel.[46] But New York’s restriction of its civil service preference to veterans who entered the armed forces while residing in New York violated the constitutionally protected right to travel.[47]
IIII Practice guide: The “strict scrutiny” standard of constitutional review applies where the violated interest is a fundamental personal right or civil liberty, such as the right to interstate travel.[48]
The Supreme Court has stated that the right to travel abroad is part of the “liberty” of which a citizen cannot be deprived without due process of law.[49] However, the constitutional liberty to travel abroad is subject to limitations.[50] Thus, freedom to travel with a “letter of introduction” in the form of a passport issued by the sovereign is subordinate to national security and foreign policy considerations, and is, as such, subject to reasonable governmental regulation, inasmuch as the freedom of travel outside the United States is distinguishable from the right to travel within the United States.[51]



[36] Attorney General of New York v. Soto-Lopez, 476 U.S. 898, 106 S.Ct. 2317, 90 L.Ed.2d 899, 40 Empl. Prac. Dec. (CCH) ¶ 36158 (1986).
The right of a United States citizen to travel from one state to another and to take up residence in the state of his or her choice is protected by the Federal Constitution. Jones v. Helms, 452 U.S. 412, 101 S.Ct. 2434, 69 L.Ed.2d 118 (1981).
[37] Benning v. State, 161 Vt. 472, 641 A.2d 757 (1994) (a motorcycle headgear statute does not violate a state constitutional article guaranteeing the right of enjoying and defending liberty and pursuing and obtaining safety).
[38] [16B Am.Jur.2d,] §§ 612, 613
[39] U.S. v. Lamb, 385 U.S. 475, 87 S.Ct. 574, 17 L.Ed.2d 526 (1967).
Even though one may not have a constitutional right to be in a certain place, the government may not prohibit one from going there unless by means consonant with due process of law. Cafeteria and Restaurant Workers Union, Local 473, AFL-CIO v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961), reh’g denied, 368 U.S. 869, 82 S.Ct. 22, 7 L.Ed.2d 70 (1961).
Annotations:
Supreme Court’s views as to concept of “liberty’ under due process clauses of Fifth and Fourteenth Amendments, 47 L.Ed.2d 975.
As to freedom of travel in public vehicles or places, see § 577.
[40] Attorney General of New York v. Soto-Lopez, 476 U.S. 898, 106 S.Ct. 2317, 90 L.Ed.2d 899, 40 Empl. Prac. Dec. (CCH) ¶ 36158 (1986).
[41] Zobel v. Williams, 457 U.S. 55, 102 S.Ct. 2309, 72 L.Ed.2d 672 (1982) (holding that the retrospective aspect of Alaska’s dividend distribution program, favoring established residents over new residents, was constitutionally unacceptable).
[42] Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 99 L.Ed. 643 (1905);
Booth v. People of State of Illinois, 184 U.S. 425, 22 S.Ct. 425, 46 L.Ed. 623 (1902);
Williams v. Fears, 179 U.S. 270, 21 S.Ct. 128, 45 L.Ed. 186 (1900) (also stating that the right to move from one place to another according to inclination is an &nbsp... attribute of personal liberty).
[43] Attorney General of New York v. Soto-Lopez, 476 U.S. 898, 106 S.Ct. 2317, 90 L.Ed.2d 899, 40 Empl. Prac. Dec. (CCH) ¶ 36158 (1986).
[44] Hurtado v. U.S., 410 U.S. 578, 93 S.Ct. 1157, 35 L.Ed.2d 508 (1973), reh’g denied, 411 U.S. 978, 93 S.Ct. 2151, 36 L.Ed.2d 701 (1973).
[45] People of State of New York v. O’Neill, 359 U.S. 1, 79 S.Ct. 564, 3 L.Ed.2d 585 (1959).
[46] Martinez v. Bynum, 461 U.S. 321, 103 S.Ct. 1838, 75 L.Ed.2d 879, 10 Ed.Law Rep. 11 (1983).
[47] Attorney General of New York v. Soto-Lopez, 476 U.S. 898, 106 S.Ct. 2317, 90 L.Ed.2d 899, 40 Empl. Prac. Dec. (CCH) ¶ 36158 (1986).
[48] Cummins v. X-Ray Associates of New Mexico, P.C., 121 N.N. 821, 918 P.2d 1321 (1996), reh’g denied, (June 20, 1996).
[49] 60 Am.Jur.2d, Passports § 14. Generally, as to the right with respect to international travel, see § 616.
[50] Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271, 14 L.Ed.2d 179, 1 Media L.Rep. (BNA) 2299 (1965), reh’g denied, 382 U.S. 873, 86 S.Ct. 17, 15 L.Ed.2d 114 (1965) (the exercise, by the Secretary of State, of his or her authority to refuse to validate passports of United States citizens for travel to Cuba is constitutionally permissible).
Generally, as to passport legislation and regulation, see 60 Am.Jur.2d, Passports §§ 12 et seq.
[51] Haig v. Agee, 453 U.S. 280, 101 S.Ct. 2766, 69 L.Ed.2d 640, 7 Media L.Rep. (BNA) 1545 (1981) (holding that the President, by acting through the Secretary of State, has authority to revoke a passport on the ground that the holder’s activities in foreign countries are causing or are likely to cause serious damage to the national security or foreign policy of the United States).




American Jurisprudence 2d Series, Volume 16A, CONSTITUTIONAL LAW (pp. 601-602)
§ 577. Rights in public vehicles and places
Under the constitutional guarantee of liberty one may, under normal circumstances, move at his or her own inclination along the public highways or in public places, and while conducting himself in an orderly and decent manner, neither interfering with nor disturbing another’s rights, one will be protected, not only in his or her person, but in his or her safe conduct.[52] For example, the right of a citizen to drive on a public street with freedom from police interference, unless he or she is engaged in suspicious conduct associated in some manner with criminality, is a fundamental constitutional right.[53] However, the liberty of each individual in a public vehicle or public place is subject to reasonable limitations in relation to the rights of others.[54]
Statutes or ordinances regulating loitering,[55] arrests for vagrancy,[56] breach of the peace,[57] or disorderly conduct[58] in public places, challenged on due process grounds, have been sustained in some cases and invalidated in others, depending upon the language and scope of the provisions.[59] A person is free to live on the street, if that person chooses to do so; a person may not be held against [his or] her will merely to improve [his or] her standard of living or because society may find it uncomfortable to see such people on the street.[60] Curfew ordinances affecting juveniles and children have been held constitutional in some cases,[61] although there is much authority to the contrary, and there is an increasing tendency to hold them unconstitutional.[62]
[52] Pinkerton v. Verberg, 78 Mich. 573, 44 N.W. 579 (1889); City of St. Louis v. Gloner, 210 Mo. 502, 109 S.W. 30 (1908) (loitering on the street)
[53] People v. Horton, 14 Cal.App.3d 930, 92 Cal.Rptr. 666 (5th Dist. 1971).
[54] Public Utilities Commission of District of Columbia v. Pollak, 343 U.S. 451, 72 S.Ct. 813, 96 L.Ed. 1068 (1952).
Annotations:
Supreme Court’s views as to concept of “liberty’ under due process clauses of Fifth and Fourteenth Amendments, 47 L.Ed.2d 975.
[55] Bullock v. City of Dallas, 248 Ga. 164, 281 S.E.2d 613 (1981) (a statute which provides that no person shall remain or loiter upon any premises to which the public has access, including but not limited to such places as business and shopping area parking lots, where the person’s presence upon such premises is unrelated to normal activity or use of the business for which such premises are made available to the public, is void since it makes no exceptions for persons thus engaged who are in no way interfering with the rights of others, who are guilty of no disorderly or obnoxious conduct, and who are engaged in no conduct resulting in impeding traffic or interfering with the normal use of the property).
[56] See 77 Am.Jur.2d, Vagrancy §§ 5, 8, 14, 18.
[57] 12 Am.Jur.2d, Breach of Peace and Disorderly Conduct § 13.
[58] 12 Am.Jur.2d, Breach of Peace and Disorderly Conduct § 13.
[59] State ex rel. DeConcini v. Gatewood, 10 Ariz.App. 274, 458 P.2d 368 (1969).
Note, also, Walker v. District of Columbia, 196 A.2d 92 (D.C. 1992); and
&... People v. Merolla, 9 N.Y.2d 62, 211 N.Y.S.2d 155, 172 N.E.2d 612 (1961) and cert. denied, 365 U.S. 872, 81 S.Ct. 906, 5 L.Ed.2d 861 (1961)
[60] Abney v. U.S., 451 A.2d 78 (D.C. 1982), related reference, 616 A.2d 856 (D.C. 1992);
In re Long, 237 Ill.App.3d 105, 180 Ill.Dec. 182, 606 N.E.2d 1259 (2d Dist. 1992) and cert denied, 149 Ill.2d 650, 183 Ill. Dec. 861, 612 N.E.2d 513 (1993).
[61] People in Interest of J.M., 768 P.2d 219 (Colo. 1989);
City of Milwaukee v. K.F., 145 Wis.2d 24, 426 N.W.2d 329 (1988).
[62] Mc Collester v. City of Keene, 586 F.Supp. 1381 (D.N.H. 1984);
Naprstek v. City of Norwich, 545 F.2d 815 (2d Cir. 1976);
Johnson v. City of Apelousas, 658 F.2d 1065 (5th Cir. 1981);
Alves v. Justice Court of Chico Judicial Dist., Butte County, 148 Cal.App.2d 419, 306 P.2d 601 (3d Dist. 1957);
K.L.J. v. State, 581 So.2d 920 (Fla.Dist.Ct.App. 1st Dist. 1991);
In Interest of Doe, 54 Haw. 647, 513 P.2d 1358 (1973);
City of Maquoketa v. Russell, 484 N.W.2d 179 (Iowa 1992);
Allen v. City of Bordentown, 216 N.J. Super. 557, 524 A.2d 478 (Law Div. 1987);
In re Mosier, 59 Ohio Misc. 83, 13 Ohio Op.3d 290, 394 N.E.2d 368 (C.P. 1978);
Ex Parte McCarver, 39 Tex. Crim. 448, 46 S.W. 936 (1898);
City of Seattle v. Pullman, 82 Wash.2d 794, 514 P.2d 1059 (1973).
Generally, as to municipal curfew laws, see 56 Am.Jur.2d, Municipal Corporations, Counties, and Other Political Subdivisions § 486.
Law Reviews:
Kizer, Juvenile Curfew Laws: Is There a Standard? 45 Drake LR 749, 1997.
Chen, Youth Curfews and the Trilogy of Parent, Child and State Relations, 72 NYU LR 131, April 1997.
Federle, Children, Curfews, and the Constitution, 73 Wash U LQ 1315, 1995.
Trollinger, The Juvenile Curfew: Unconstitutional Imprisonment, 4 Wm & Mary Bill Rts J 949, Summer 1996.