Enslaved Constitution: Obstructing the Freedom to Travel

43 Pages Posted: 12 Dec 2009 Last revised: 28 Feb 2012

Mitchell F. Crusto

Loyola University New Orleans College of Law

Date Written: February 2, 2010

Abstract

Does the Constitution protect a citizen's intra-state travel (within a state) from unjustified state prohibition? To date, the Supreme Court has not ruled directly on the issue, and many federal courts believe that the right to intra-state travel is not constitutionally protected. This Article explores the constitutional right of intra-state travel that is free from wrongful state infringement along public roadways by law-abiding citizens. Using critical legal history, this Article poses that federal courts' denial of the right to intra-state travel consciously or unconsciously reflects the antebellum, Southern legal doctrine of people as property, which regulated the travel of enslaved African descendants.

The constitutionality of intra-state travel arose most recently during the Hurricane Katrina Crisis when the City of Greta, Louisiana police barricaded a federal highway, denying would-be evacuees the ability to flee from the flooding City of New Orleans. In an ensuing action for infringement of the would be evacuees' constitutional right to intra-state travel, Federal District Judge Mary Ann Vial Lemmon dismissed the matter in Dickerson v. City of Gretna, holding that “while there is no doubt that a fundamental right of interstate travel exists, the Supreme Court has not ruled on whether a right of intra-state travel exists. This Court declines to find that there is a fundamental right to intra-state travel.” The Fifth Circuit affirmed the ruling.

This Article recommends that when federal courts assess whether there is a constitutional right to intra-state travel, they should embrace the American paradigm of liberty and abandon the antebellum, Southern paradigm of enslavement. Consistent with Professor Derrick Bell's “interest-convergence” principle, all Americans benefit when the Constitution protects the human rights of the least powerful American.

Keywords: intra-state travel, constitution, freedom to travel, constitutionality, law-abiding citizen, Dickerson decision

Suggested Citation

Crusto, Mitchell F., Enslaved Constitution: Obstructing the Freedom to Travel (February 2, 2010). University of Pittsburgh Law Review, Vol. 70, pp. 233-275, 2008. Available at SSRN: https://ssrn.com/abstract=1522191

Mitchell F. Crusto (Contact Author)

Loyola University New Orleans College of Law ( email )

7214 St. Charles Ave.
Campus Box 901
New Orleans, LA 70118
United States
504-861-5743 (Phone)

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