Right to travel and airplanes

Douglas Laycock laycockd at umich.edu
Wed Apr 11 19:30:17 PDT 2007



  on the issue of where the right to travel comes from, my
recollection is that the facts of Crandall v. Nevada arose before
ratification of the 14th Amdt, and thus that the decision could not
have been based on the Privileges and Immunities Clause of that Amdt.

  Quoting Ilya Somin <isomin at gmu.edu>:

> To briefly expand on Eugene's point, his analysis is consistent
with
> the precedent on the subject.
>
> In the 1870 case of Crandall v. Nevada, the Supreme Court held that

> the "right to travel" was enough to invalidate a Nevada law that 
> imposed an exit tax on people leaving the state by commercial 
> stagecoach or train. Note that the tax was struck down despite the 
> fact that it only affected people traveling on commercially
operated
> vehicles. True, this was a case on state law, not federal law. 
> However, in Shapiro v. Thompson (1969), the Supreme Court struck
down
> a District of Columbia law based on the right to travel, and 
> essentially concluded that the right to travel applies against 
> federal law as much as it does against state law.
>
> Finally, in Saenz v. Roe (1999),  the Court again reaffirmed the 
> right to travel, and also suggested that the right is lodged in the

> Privileges and Immunities Clause of the 14th Amendment and perhaps 
> also of Article IV, Section 4. If this is correct, it provides an 
> answer to a question that Eugene asked in his last post: whether
the
> right to travel applies to non-citizens. Since the Privileges and 
> Immunities Clause only protects the privileges and immunities "of 
> citizens of the United States," the answer is no.
>
> Ilya Somin
> Assistant Professor of Law
> George Mason University School of Law
> 3301 Fairfax Dr.
> Arlington, VA 22201
> ph: 703-993-8069
> fax: 703-993-8202
> e-mail: isomin at gmu.edu
> Website: http://mason.gmu.edu/~isomin/[1]
> SSRN Page: http://ssrn.com/author=333339[2]
>
>
> ----- Original Message -----
> From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
> Date: Wednesday, April 11, 2007 8:09 pm
> Subject: RE: Right to travel and airplanes
>
>>         I'm puzzled by this analysis.  I agree Congress is acting
within
>> its enumerated powers when it regulates air travel; but the
>> question is
>> whether some Bill of Rights provision constrains Congress from
>> using its
>> enumerated powers in a certain way.  A Congressional bar on the
>> wearingof racist T-shirts on airplanes, for instance, would be
within
>> Congress's Commerce Clause power, but I take it that it would
violate
>> the First Amendment.  A Congressional bar on traveling interstate
in
>> order to get an abortion would likewise be within Congress's
Commerce
>> Clause power, but I take it that it would violate the unenumerated
>> rightto get an abortion.  Likewise, if the federal government
excludes
>> (pursuant to some Congressional act) certain people from air
travel,
>> that might be within the federal government's enumerated powers,
but
>> still unconstitutional because it violates the right to travel.
>>
>>         Whether that's so depends on what the right to travel
consists
>> of, and on when, if ever, it may be trumped by some government
>> interests.  But simply pointing to the Commerce Clause power
doesn't
>> tell us much, it seems to me.
>>
>>         Eugene
>>
>> > -----Original Message-----
>> > From: conlawprof-bounces at lists.ucla.edu
>> > [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Royce
>> > Sent: Wednesday, April 11, 2007 4:47 PM
>> > To: conlawprof at lists.ucla.edu
>> > Subject: RE: Right to travel and airplanes
>> >
>> > Greetings Mark and all,
>> >
>> > The "government," meaning our servants, was granted the
>> > authority to regulate interstate commerce in our supreme law.
>> > Commerce is defined as the transportation of goods, services
>> > or persons here. Airlines transport passengers. Passengers
>> > pay money for a ride from one place to another.
>> >
>> > Therefore, the airlines may be regulated by the feds, our
>> > alleged servants.
>> > The feds may therefore dictate to the airlines who they are
>> > allowed to transport and who they may not transport.
>> >
>> > People, not persons, have the right to travel from one point
>> > to another, whether intrastate or interstate. People do not
>> > have the right to insist that another transport them from one
>> > place to another. People do have the right to contract for
>> > that transportation, but said transportation contract must
>> > comport itself with the law of our servants granted authority
>> > to regulate said transportation.
>> >
>> > Therefore, we are free to use our personal conveyances to
>> > travel beyond the control of commerce. But we have no right
>> > to insist that we be accepted as a passenger in any mode of
>> > transportation lawfully regulated by our servants.
>> >
>> > The trick is to keep our servants out of areas where they do
>> > not belong.
>> >
>> > Royce Mitchell
>> > NWCU law
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> _______________________________________________
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>

Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713

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