Air travel is a right

by Wendy Thomson on January 3, 2013


Ladies and gentlemen, now we have it. On December 20, 2012, Judge William Alsup ruled against the TSA.

But before you get your hopes up, this is a case about the No-Fly List: Rahinah Ibrahim v. Department of Homeland Security et al. (The case is covered in layman’s terms here.)

The Department of Justice had filed for the following:

(1) Dismiss the case. DENIED

(2) Allow a Federal agent to fly to California to show certain documents to the Judge, in camera (that means in chambers), without leaving any copies and without sharing the information with defendant’s counsel. DENIED

(3) Stay discovery. 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 being narrowly interpreted by the latest case to be limited to international travel.

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