International Travel and the Constitution

Abstract

This Article makes the case for the fundamental right of U.S. citizens to leave their country and return home again. Surprisingly, Americans do not enjoy such a right. Under current Supreme Court precedents, the right to travel abroad is merely an aspect of liberty that may be restricted within the bounds of due process. The controversial No Fly List is one result. Another is a new rule that went into effect in February 2008, under which all travelers now require the express prior permission of the U.S. Government to board any aircraft or maritime vessel that will enter or leave the United States. Although the War on Terror raises new concerns about a right-to-travel caselaw developed during the Cold War, no one has yet made the case for stronger constitutional protection for international travel.

The Article begins with an in-depth case study (based on interviews and primary sources) of two citizens who were denied permission to return to the United States for more than five months. The Article proceeds to explain the origins of this weak support for foreign travel before advancing an unconventional source for heightened protection. Whereas most unenumerated fundamental rights seek their foundation in the substantive due process guarantees of the Fifth and Fourteenth Amendments, I advance a more straightforward, textual source: the Citizenship Clause of the Fourteenth Amendment. After developing the historical and theoretical support for my argument, I examine the policy implications of strict judicial scrutiny of travel restrictions, including the No Fly List, which are intended to combat terrorism in a globalized world.

Keywords: Constitutional Law, International Travel, Civil Rights, Human Rights, Fourteenth Amendment, Citizenship