The Right to Travel

 By Harvey Silverglate

The American Civil Liberties Union of Massachusetts, along with its counterparts in Florida and Vermont and the Center for Constitutional Rights, has filed an amicus (“friend of the court”) brief in Vilaseca v. Paulson, a lawsuit pending in the federal district court in Vermont. The lawsuit challenges the travel restrictions the U.S. Treasury Department places on American citizens with family members in Cuba. The ACLU argues that the U.S. government's prohibition on American citizens visiting direct family members living in Cuba more than once every three years, even in emergency family situations, violates “the due process right to preserve family relationships… deeply rooted in the First and Fifth Amendments of the U.S. Constitution.” (The Boston Globe provides good background on the Cuban-American plaintiffs in this suit.

The ACLU state affiliates’ brief makes a compelling argument that American courts have, over the years, established the sanctity of family as a sort of penumbral right within the constitution. This hinges the legal argument on a series of Supreme Court opinions in what we can call, I suppose, the “family values” and “familial relationships” arena. Indeed, one of the most important decisions in this arena in American history was the pivotal Griswold v. Connecticut, in which the high court held that it was unconstitutional for the state of Connecticut to criminalize the distribution of birth control devices to, and their use by, married couples for family planning purposes. And it was only a short hop-skip-and-jump from there to the high court’s protection of a woman’s right to plan to have, or not to have, children – the “right to choose” an abortion, protected by Roe v. Wade.

But it seems to me that these travel restrictions are not only a civil rights “familial relations” violation, but even more fundamentally an assault on a fundamental right of free people – the right to leave the country to visit any damned place they wish, and to then be able to return unmolested by the goons from the Immigration and Treasury and other federal bureaucracies that have been enlisted in the tawdry task of policing the nation’s counter-productive and anti-libertarian restrictions on travel to, or sending money to relatives and friends living in, nations with which the United States is unhappy (often for very good reason) at the time. It seems to me to be a no-brainer that part of what it means to be a free citizen of the United States, includes the right to travel somewhere in order to see for oneself what’s going on. There’s no reason to have to satisfy oneself with the bilge that we get from our government – as if the State Department actually knows much about the world these days anyway.

I doubt that the federal courts anytime soon are going to include the right to travel anywhere in the world, to spend whatever money it takes for such travel (including food and lodging), and to then return to the United States unmolested by government agents – among the fundamental rights to which American citizenship entitles us. Doubtless the “strict constructionists” would holler that it’s no business of the courts whether we are treated as free citizens or as tools of what passes these days for government diplomacy. But if the courts cannot see that this fundamental right of free people surely should be deemed protected by the Bill of Rights, then what hope is there?

In any event, if the ACLU chapters and their allies win this lawsuit on a narrower “familial rights” ground, I’ll be the first to cheer. But it’s too bad that the right to travel is not more fully protected by the courts, thus necessitating the family-relations legal hook.

(With thanks to my research assistant Jan Wolfe for assisting on this blog entry.)