(International) Air Travel Is A Right
Wendy Thomson blogs at TSA News Blog that Judge William Alsup, in December, 2012, ruled against the TSA in a case about the No-Fly List -- Rahinah Ibrahim v. Department of Homeland Security et al. They'd sought to dismiss the case and have a Federal agent show the judge documents without sharing them with the opposing counsel. Denied!
The Judge also sent a strong message as to the hurdle the DOJ would have to overcome regarding air travel:"The right to travel here and abroad is an important constitutional right. To deny this right to a citizen . . . based on inaccurate information without an effective means of redress would unconstitutionally burden the right to travel. While the Constitution does not ordinarily agree the right to travel by any particular form of transportation, given that other forms of travel usually remain possible, the fact remains that for international travel, air transport in these modern times is practically the only form of transportation, travel by ship being prohibitively expensive or so it will be presumed at the pleading stage."This isn't exactly new, as so eloquently stated in Kent v. Dulles (1958):
"The right to travel is a part of the 'liberty' of which the citizen cannot be deprived without due process of law under the Fifth Amendment. So much is conceded by the Solicitor General. In Anglo-Saxon law, that right was emerging at least as early as the Magna Carta. Three Human Rights in the Constitution of 1787 (1956), 171-181, 187 et seq., shows how deeply engrained in our history this freedom of movement is. Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage. Travel abroad, like travel within the country, may be necessary for a livelihood. It may be as close to the heart of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in our scheme of values."So there, DHS. So there, everybody else: the constitutional right to travel by air exists . . . even if (at the moment) it's limited to international travel.
Good news, though it's a bit sad that I now find it a 'relief' to actually see a commonsense ruling :/
Lobster at January 4, 2013 3:33 AM
I'm actually a bit nervous about how Judge Alsop reached his conclusion. Regarding this bit:
"While the Constitution does not ordinarily agree the right to travel by any particular form of transportation, given that other forms of travel usually remain possible..."
Two points:
(1) Whether other forms of travel remain possible should not matter, per the Kent v. Dulles quote. The quote from Judge Alsop suggests that he might rule differently in a case involving domestic travel.
(2) The TSA, as we all know here, has asserted its authority over all forms of travel. It could just as easily create a "no-drive" list for car travel, and a "no-ride" list for bus or train travel. Therefore, the assumption that other forms of travel will remain available in a domestic case is not necessarily valid.
Cousin Dave at January 4, 2013 6:26 AM
Odd, I don't recall the bill of rights mentioning travel.
However, I would argue that if you purchase a plane ticket, and the govt denies you access, they have taken your property and therefore you are entitled to due process and/or compensation.
Bill O Rights at January 4, 2013 11:58 AM
"Odd, I don't recall the bill of rights mentioning travel."
Or breathing.
Gog_Magog_Carpet_Reclaimers at January 4, 2013 1:18 PM
"Odd, I don't recall the bill of rights mentioning travel."
You shouldn't need a piece of paper to figure out that simply being allowed to move your body around from A to B is a fairly self-evident natural right (as long as you don't violate the rights of others in the process).
Lobster at January 4, 2013 3:01 PM
I looked this one up a while back, and in fact, the right to travel is considered a basic HUMAN right, even by the United Nations (for what they're worth).
The right to travel was apparently considered so basic by our founding fathers that they saw no need to specifically mention it in the Constitution.
jefe at January 4, 2013 5:13 PM
Remember the head of TSA announcing to that Congressional committee that 'I think flying is a privilege'? Gee, up till recently it was just another means of travel; if you could buy a ticket, you could fly. But this bureaucrat announces that HE has decided this, and everyone better do as he says... I'm still wondering why nobody on that committee ripped his ass off for that.
On the right to travel, one of the things that's always pissed me off on driving is "You have a right to travel, but if you want to use any means of personal transport more advanced than shoes or a bicycle, THAT is a privilege for which you give up some of your rights."
Firehand at January 4, 2013 5:13 PM
"You have a right to travel, but if you want to use any means of personal transport more advanced than shoes or a bicycle, THAT is a privilege for which you give up some of your rights."
The funny thing is, the AARP will rip you a new one if you suggest that driving isn't a right, even if you're 90 years old and blind and physically incapable of handling your 8000-lb. land yacht. When Broward County in Florida suggested a while back that perhaps those over 85 should have to take eye tests before they could get their drivers' licenses renewed, the AARP went jihad on them, and the proposal was quickly withdrawn.
Cousin Dave at January 5, 2013 8:33 AM
"The funny thing is, the AARP will rip you a new one if you suggest that driving isn't a right, even if you're 90 years old and blind and physically incapable of handling your 8000-lb. land yacht"
Even if you're 90 and blind and actually can't drive yourself, you still have a right to hire a taxi to take you anywhere on the roads or have friends or family drive you wherever you want. With the TSA, your rights are simply obstructed.
Lobster at January 5, 2013 5:12 PM
"Even if you're 90 and blind and actually can't drive yourself, you still have a right to hire a taxi to take you anywhere on the roads or have friends or family drive you wherever you want."
Absolutely true. I was just trying to point out the irony of the fact that the TSA's stance contradicts that of one of the current Administration's biggest political supporters.
Cousin Dave at January 7, 2013 7:10 AM
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