From the Right



The Right to Travel

Judge Andrew P. Napolitano on

Watching the unprecedented, forced removals of immigrants from Texas to New York City, Martha's Vineyard and the District of Columbia, I thought that my grandparents were fortunate to have entered the United States in an era, though xenophobic toward those from Southern Europe, that did not condone the use of government assets to dupe and kidnap them.

I write, of course, about the profoundly unconstitutional and patently unlawful public aggression by the governors of Florida and Texas who used state funds and state force to trick and coerce Latin and Central American immigrants to board state-chartered flights and bus rides out of Texas.

All the immigrants victimized by this trafficking were here lawfully. All of them seek political asylum; each was properly channeled through the immigration process; and all were awaiting court dates in Texas.

Since they are fleeing either dictatorships that deny personal liberty or corrupt governments that condone gang lawlessness that denies the right to live, each is entitled to make their case for asylum.

Until their hearing dates, each immigrant is lawfully free to move about or stay put, and each enjoys the protections of the Constitution. Among those protections are the natural and fundamental right to travel or not to travel, and the constitutionally guaranteed right to due process.

This column has recently addressed natural rights. A right is a personal individual claim against the whole world that does not require a government permission slip or public approval to be exercised. Natural rights spring from our humanity. That is their only source; and, as such, these rights are not tempered by the geographical location of one's mother at the time of one's birth.


Hence, the rights to think as you wish, to say what you think, to publish what you say, to associate or not, to worship or not, to defend yourself, to travel or not, to own property and to be left alone all stem from every person's humanity. The Bill of Rights does not create rights; rather, it restrains the government from interfering with them.

The relevant protective clauses of the Bill of Rights protect each "person" and all "people," not just Americans. In fact, the courts have ruled that these protective clauses are so expansive and powerful -- based as they are on natural rights -- that they compel the government to recognize the basic rights even of those here illegally.

In the case of due process, the Constitution requires the government to hold a jury trial at which it must prove fault before it can take anyone's life, liberty or property. Government forcing or duping a person onto a plane or a bus is a material interference with the person's liberty and is unlawful absent due process.

In a famous 1969 case called Shapiro v. Thompson, the Supreme Court characterized the right to travel -- which encompasses the right to leave a political or geographical entity -- as fundamental. It did so again in Plyler v. Doe in 1982. The essence of both cases is that basic human rights -- here, interstate and international travel -- are fundamental, must be honored by the government, and, hence, the place of origin of the person whose rights are being impaired is irrelevant.


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A.F. Branco Mike Luckovich John Darkow Pat Byrnes Jeff Danziger Brian Duffy