Right To Travel

JOURNAL OF TRANSPORTATION LAW, LOGISTICS & POLICY
THE RIGHT TO TRAVEL:

A FUNDAMENTAL RIGHT OF CITIZENSHIP1
Richard Sobel2 and Ramón L. Torres3
ABSTRACT
The right to travel within the United States of America is a fundamental right inherent in
citizenship and the nature of the federal union. It existed before the creation of the United States
and appears in the Articles of Confederation. The United States Constitution and Supreme Court
recognize and protect the right to interstate travel in the U.S. jurisdiction. The travel right entails
privacy, leaving citizens free to travel interstate without government interference and intrusion.
In the post-hijacking surveillance society, the imposition of official photo identification for
travel, watch-list prescreening programs, and intrusive airport screening and search methods
unreasonably burden the right to travel. They undermine citizens’ rights to travel and privacy.
These regulations impermissibly require citizens to relinquish one fundamental right of privacy in
order to exercise another fundamental right of travel.
The original conception of the travel right embodies the right as a broadly-based one that
encompasses all modes of transportation. Its explicit articulation in the Articles of Confederation
remains implicit in the Privileges and Immunities Clause of the U.S. Constitution. Contrary to
arguments in the appellate single mode doctrine, if any mode of travel is abridged, then citizens’
constitutionally enshrined right to travel is violated. The Supreme Court needs to articulate an
originally consistent and politically robust doctrine of the multi-modal right to travel.
1
An earlier version of this paper, “The Right to Travel: Intersection with the Right to Privacy and a Personal Liberty,” was
presented at the Northwestern University Transportation Center Seminar Series on January 6, 2011. We would like to
thank Kathleen Bennett, Dawid Danek, Kevin Doran, Brian Kebbekus, Tim Lamoureux, Catherine Nance, Allison Trzop
and Michael Zhang, for research assistance and comments on the paper. We appreciate the assistance of Barry Horwitz,
Gerald Jenkins, the Buffett Center, Transportation Center, NICO, Du Bois Institute, Houston Institute, and the editors and
staff of the Journal of Transportation Law, Logistics & Policy.
2
Buffett Center for International and Comparative Studies and Transportation Center Northwestern University, at richard-
sobel@northwestern.edu As a political scientist and policy analyst, Dr. Sobel explores issues at the intersection of national
security and civil liberties. These include constitutional issues around privacy and identification policies as they apply to
the right to travel and transportation policy as well as to vote and work. He is currently a Visiting Scholar at the Buffett
Center for International and Comparative Studies, a faculty affiliate of the Transportation Center at Northwestern
University, and an associate of the Du Bois Institute at Harvard. Bachelors, Princeton University; doctorate, University of
Massachusetts, Amherst.
3
Doctoral candidate in Civil Engineering at the McCormick School of Engineering and Applied Sciences, Northwestern
University, at ramon@u.northwestern.edu He holds a Bachelor of Science in Aerospace Engineering from the
Massachusetts Institute of Technology. His master’s thesis was entitled, “The Right to Travel: Intersection with the Right
to Privacy and a Personal Liberty.”
13
TABLE OF CONTENTS
Introduction: Travel As a Fundamental Right of Citizenship
Part I: The Historical Origins of the Travel Right

The Right to Travel Across the American Union
The Right to Travel as Fundamental to Citizens and Union
Part II: The Modern Context of the Right to Travel

Intersection of the Right to Travel and the Right To Privacy
Common Carriers in Travel Rights
The Single Mode Doctrine and Its Infirmities
Part III: Unjustified Limitations on the Right to Travel

Identification Requirements to Travel
Passenger Watch-List Prescreening Programs
Whole Body Scans and “Enhanced” Pat Down Searches
Constitutional Questions about Whole Body Scans and Enhanced Pat Downs
Conclusion: Toward a Robust Right To Travel
INTRODUCTION: TRAVEL AS A FUNDAMENTAL RIGHT OF CITIZENSHIP
The right to travel is a fundamental political liberty that existed before the adoption of the
United States Constitution. The travel right in the U.S. jurisdiction is inherent both in citizenship
and the nature of the Union, and may not be abridged. The Constitution and U.S. Supreme Court
recognize and protect the right to interstate travel.4
The travel right enables U.S. citizens to move interstate in privacy without undue government
interference. Regulations requiring citizens to relinquish one fundamental right to exercise
another are inherently suspect: “Exercise of the constitutional right to travel may not be
conditioned upon the relinquishment of another constitutional right absent a compelling state
interest.”5
The original conception of the travel right appears explicitly in Article IV of The Articles of
Confederation and implicitly in the same article of the U.S. Constitution. It embodies a broadly-
based personal, political and economic right that encompasses all modes of travel. If any mode is
abridged, the right is violated. The single mode doctrine, articulated in recent years6 by certain
circuit courts,7 truncates the plenary scope of the travel right. The imposition of governmental
4
See Saenz v. Roe, 526 U.S. 489, 498 (1999) (the right to travel is “firmly embedded” within the jurisprudence of the
Supreme Court); Shapiro v. Thompson, 394 U.S. 618, 630 (1969); Ronald D. Rotunda and John E. Nowak, Treatise on
Constitutional Law: Substance and Procedure at § 4.8 (2007).
5
United States v. Davis, 482 F.2d 893, 913 (9th Cir. 1973).
6
See John Doe No. 1 v. Georgia Dept. Of Pub. Safety, 147 F. Supp. 2d 1369, 1375 (N.D. Ga. 2001) (“[T]he denial of a
single mode of transportation does not rise to the level of a violation of the fundamental right to interstate travel.”).
7
Including the 2d, 5th, 6th, and 9th Circuits. See, e.g., Town of Southold v. Town of East Hampton, 477 F.3d 38, 54 (2d
Cir. 2007); Gilmore v. Gonzales, 435 F.3d 1125, 1137 (9th Cir. 2006); Duncan v. Cone, 2000 WL 1828089 (6th Cir. 2000);
14
requirements such as official photo identification for travel, watch-list prescreening programs, and
intrusive airport screening methods like “whole body scans” and “enhanced” pat-down searches
unreasonably burden the right to travel in privacy.
This article traces the evolution of the right to travel, from its robust early conceptualization
to its truncated modern-day misconstruction. Part I looks at the historical origins of the travel
right. Part II places the travel right in modern context. Part III discusses unjustified appellate
limitations on the rights to travel and privacy in a surveillance age. The conclusion argues that the
Supreme Court is overdue in returning to an original and historically consistent articulation of an
expansive right to travel.
PART I: THE HISTORICAL ORIGINS OF THE TRAVEL RIGHT
The right to travel precedes the American union. In shaping medieval English law in 1215, the
Magna Carta articulated travel rights for personal liberties and unfettered commerce.8
Blackstone’s Commentaries on the Laws of England in 1765 identified freedom of movement as a
natural liberty inherent by birth. “This personal liberty consists in the power of loco-motion, of
changing situation, or removing one’s person to whatsoever place one’s own inclination may
direct, unless by due course of law. … [I]t is a right strictly natural.”9
The right to travel is well established in U.S. history. In 1770, Thomas Jefferson argued that
freedom of movement is a personal liberty of all men by birth. “Under the law of nature, all men
are born free, every one comes into the world with a right to his own person, which includes the
liberty of moving and using it at his own will. This is what is called a personal liberty.”10 Explicit
recognition in The Articles of Confederation of 1777 of a right to travel in Article IV informed its
implicit inclusion in the Privileges and Immunities Clause of Article IV of the Constitution of
1789. The Articles’ explicit travel right was so fundamental and originally implicit that the
subsequent parallel article in the U.S. Constitution needed not spell it out explicitly.11 For
example, the U.S. Supreme Court established in Gibbons v. Ogden, that commerce, as intercourse
between States, is a right that precedes the creation and adoption of the U.S. Constitution.12
Miller v. Reed, 176 F.3d 1202, 1205 (9th Cir.1999); Houston v. F.A.A., 679 F.2d 1184, 1198 (5th Cir. 1982); Monarch
Travel Servs., Inc. v. Associated Cultural Clubs, Inc., 466 F.2d 552, 554 (9th Cir. 1972).
8
Peter Linebaugh, Magna Carta Manifesto: Liberties and Commons for All 179 (2008). Nicholas Vincent, Magna Carta, A
Very Short Introduction, 118 (2012). "All merchants are to be safe and secure in leaving and entering England, and in
staying and traveling in England…”
9
William Blackstone, Commentaries on the Laws of England: Book the First of the Rights of Persons at 130 (1765). The
Delaware Chancery Court agreed with Blackstone, in Douglass v. Stephens, 1. Del. Ch. 465, 471 (1821), and established
that freedom of movement is fundamental for “the enjoyment and defense of liberty.”
10
Thomas Jefferson, Argument in the Case of Howell v. Netherland, The Writings of Thomas Jefferson (1892).
11
Article IV of the Articles of Confederation says: “The better to secure and perpetuate mutual friendship and intercourse
among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds and
fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and
the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the
privileges of trade and commerce, subject to the same duties, impositions and restrictions as the inhabitants thereof
respectively, provided that such restrictions shall not extend so far as to prevent the removal of property imported into any
state, to any other State of which the owner is an inhabitant; provided also that no imposition, duties or restriction shall be
laid by any State, on the property of the United States, or either of them.”
12
Gibbons v. Ogden, 22 U.S. 1 (1824).
15
Early courts confirmed and extended this broad conception. In the 1823 decision in Corfield
v. Coryell,13 the Supreme Court recognized the right to travel by explicating the relationship
between the “free ingress and regress” clause in Article IV of the Articles of Confederation and
the U.S. Constitution’s Privileges and Immunities Clause.14 The Court also affirmed that the
privileges and immunities of citizenship encompass several fundamental rights, including “the
right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade,
agriculture, professional pursuit, or otherwise.”15 The imperative of free interstate travel was
“better to secure and perpetuate mutual friendship” of the states.16
Historically, the original conception of the right to travel is broadly-based and encompasses
all available modes of travel. The 1831 Court ruling in Beckman v. Saratoga & Schenectady
R.R.17 established that whenever there is a compelling public interest in a technology available for
the public, for instance, a new mode of transportation, then all citizens are equally entitled to enjoy
its benefits and to access it and its instrumentalities. This ruling also established transportation
service providers as common carriers18—scheduled passenger transport services by any means.
The Right to Travel Across the American Union
The right to interstate travel has fostered the connective sinews of this country since its
inception. It is fundamental and structural to maintaining the strong political and economic union
of the sovereign states. “The Court views the concepts of the federal union and personal liberty
rights in the Constitution as closely related. Their union requires that all citizens be free to travel,
uninhibited by regulations that unreasonably burden their movement.”19 In the 1849 Passenger
Cases, the Court declared that the right to travel within the United States may be exercised without
interference. The Court established that state taxation of imports and exports was an
unconstitutional imposition on commerce and interstate travel.20 The Court ruled against the states
of New York and Massachusetts imposing taxes on alien passengers arriving from out-of-state
ports.21 To ensure uniformity of treatment of citizens across different states, and to help bind
together the Union, the Constitution gave the power to regulate commerce (intercourse) between
the United States and among the States only to Congress.22
The right to travel is “so rooted in the traditions and conscience of our people as to be ranked
as fundamental.”23 The Court emphasized in the 1867 case of Crandall v. Nevada, for example,
that interstate travel is necessary to exercise other personal rights and liberties. The charge was “a
13
6 F. Cas. 546 (1823).
14
U.S. Const. art. IV, § 2.
15
Corfield, 6 F.Cas. at 552.
16
Id. (citing Articles of Confederation art. IV).
17
3 Paige Ch. 45 (N.Y. 1831).
18
“[T]he public [has] an interest in the use of the road, and the owners of the franchise are liable to respond in damages, if
they refuse to transport an individual or his property upon such road, without any reasonable excuse, upon being paid the
usual rate of fare.” Beckman., 3 Paige Ch.at 75.
19
Ronald Kahn, The Supreme Court and Constitutional Theory, 1953-1993, at 50 (1994).
20
The Passenger Cases, 48 U.S. 283 (1849).
21
Congress may and does impose taxes on common carriers and ports. However, these taxes are strictly regulated and
uniform throughout the nation since, in accordance to the Constitution: “all duties, imposts and excises shall be uniform
throughout the United States.” U.S. Const. art. 2, § 8, cl.1.
22
The Passenger Cases, 48 U.S. at 492. (Chief Justice’s dissenting opinion).
23
Griswold v. Connecticut, 381 U.S. 479, 493 (1964) (citing Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)).
16
tax on the passenger for the privilege of passing through the State by the ordinary modes of
transportation.”24 Even one state electing to impose a tax on those exiting that state could prove
detrimental to the overall federation of states. “If one State can [levy such a tax], so can every
other State. And thus one or more States covering the only practicable routes of travel from the
east to the west, or from the north to the south, may totally prevent or seriously burden all
transportation of passengers from one part of the country to the other. . . .”25
The Court determined that it was an unconstitutional limitation on citizens’ right to travel for
the state of Nevada to impose a per passenger tax on railroad or stagecoach companies for
passengers transported out of the state. The tax levied by the state of Nevada on passengers for
the privilege of passing through Nevada was an unconstitutional burden on the right to travel:26
“We are all citizens of the United States, and as members of the same community must have the
right to pass and repass through every part of it without interruption, as freely as in our own
States.”27 The tax could prohibit them from exercising other fundamental rights, such as the right
to approach the government for redress of grievances and the right to access ports through which
commerce was conducted.28
In The Slaughter House Cases,29 as in Corfield, the Court in 1873 affirmed the existence of
the right to travel, determining that “the privileges and immunities intended [in Article IV of the
U.S. Constitution and Article IV of the Articles of Confederation] are the same in each.”30 By
asserting that link so clearly, the Court confirmed that the right to interstate travel is protected, as
it was in the Articles of Confederation, by the Constitution’s Commerce Clause and as a Privilege
and Immunity of citizens under Article IV.31 In Williams v. Fears in 1900, the Supreme Court
declared, "Undoubtedly the right of locomotion, the right to remove from one place to another
according to inclination, is an attribute of personal liberty, and the right, ordinarily of free transit
from or through the territory of any State is a right secured by the 14th amendment and by other
provisions of the Constitution." 32
In 1966, the Court articulated in United States v. Guest that the right to travel was not
explicitly mentioned in the Constitution because “a right so elementary was conceived from the
beginning to be a necessary concomitant of the stronger Union the Constitution created.”33 “The
constitutional right to travel from one State to another...occupies a position so fundamental to the
concept of our Federal Union. It is a right that has been firmly established and repeatedly
recognized...” 34 Then, as now, the right to travel remains crucial in the formation and ongoing
prosperity of our political union and common market.
24
Crandall v. Nevada, 73 U.S. 35, 49 (1867).
25
Id. at 35.
26
The Court described that the tax had a power “being in its nature unlimited,” which interfered with the powers of the
federal government. See id. at 36, 46-48.
27
Id. at 49.
28
See id. at 43-44.
29
The Slaughter House Cases, 83 U.S. 36, 79 (1873).
30
Id. at 75.
31
Reaffirmed in Ward v. Maryland, 79 U.S. 418 (1870) and Hoxie v. New York, N.H. & H.R. Co., 82 Conn. 352 (1909).
32
Williams v. Fears, 179 U.S. 270 (1900), quoted in Schactman v. Dulles, 225 F.2d 938.
33
383 U.S. 745, 758 (1966).
34
Id. at 757
17
Because Congress does not possess a “general police power,” its authority is limited to what
the Constitution expressly grants it.35 The Ninth and Tenth Amendments reserve all other un-
enumerated rights to the states and the people, ensuring that those rights not delegated to the
Federal and State governments cannot be stripped from citizens without due process of law under
the Fifth and Fourteenth Amendments: as the Supreme Court noted in 1958 in Kent v. Dulles,
“[t]he right to travel is a part of the ‘liberty’ of which the citizen cannot be deprived without due
process of law.”36
In addition to Fifth Amendment due process guarantees,37 the Court established in the 1941
case Edwards v. California,38 that the Fourteenth Amendment extends Constitutional due process
protection to all citizens of the United States. It thereby protects citizens from infringement by
states, as well as by the federal government. The right to travel is also one of the implied and
unenumerated rights reserved to the people of the United States by the Ninth Amendment and is
inherent in intercourse among the states.
The Court spoke to the importance of such connectivity in Shapiro v. Thompson.39 In

Shapiro, “[t]his Court long ago recognized that the nature of our Federal Union and our
constitutional concepts of personal liberty unite to require that all citizens be free to travel
throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which
unreasonably burden or restrict this movement.”40 The Court added: “[t]his constitutional right …
is not a mere conditional liberty subject to regulation and control under conventional due process
or equal protection standards.”
Shapiro reaffirmed the long-standing opinion that the right to travel, “is a right broadly
assertable against private interference as well as governmental action.”41 Yet again, travel should
be free of regulations that unreasonably burden or restrict it. The right to travel is a “fundamental
right” and personal liberty, which the government may not abridge.
Dunn v. Blumstein in 1972 ruled, quoting Guest, that, “Freedom to travel throughout the
United States has long been recognized as a basic right under the Constitution.” The Dunn court
held, “Since the right travel was a constitutionally protected right, any classification which serves
to penalize the exercise of the right….is unconstitutional.”42
In Saenz v. Roe in 1999, the Court most recently affirmed the existence of the fundamental
constitutional right to travel. Among its three components, the first is most relevant to interstate
travel: “citizens have the right to enter and leave another State.”43 The Court held as
unconstitutional a state statute that discriminated against new residents. The ruling agreed with
35
See, e.g., Lawrence H. Tribe, American Constitutional Law § 5-2 (1988).
36
Kent v. Dulles, 357 U.S. 116, 125 (1958).
37
See, e.g., United States v. Guest, 383 U.S. 745, at 759 n. 17 (1966); Kent, 357 U.S. at 125.
38
314 U.S. 160 (1941).
39
394 U.S. 618 (1969). As Justice Brennan added in his concurrence in Zobel v. Williams, 457 U.S. 55 (1982), the origin of
the travel rights “unmistakable essence [is] that document that transformed a loose confederation of States into one
Nation.”
40
Shapiro v. Thompson, 394 U.S. 618, at 629.
41
Id. at 630-631.
42
Guest, 383 US 745; Dunn v. Blumstein 405 U.S. 330, 338 (1972) (striking down a residency requirement restricting
voting rights.)
43
Saenz v. Roe, 526 U.S. 489 (1999) at 498, 500.
18
Shapiro in that “a classification that has the effect of imposing a penalty on the right to travel
violates the Equal Protection Clause ‘absent a compelling governmental interest.’”44 While Saenz
focused on state-to-state travel, the Court’s holding was not state-specific; thus, the case paints a
picture of a broad travel right that extends across the entire nation.
Travel is an instrumentality of commerce, which Congress has the authority to regulate in

order to encourage commercial activities and intercourse. In Kent v. Dulles, the Court established
that the Interstate Commerce Clause45 protected interstate travel and its instrumentalities against
governmental infringement.46 It reasoned that Guest affirmed “[t]he constitutional right to travel
from one State to another, and necessarily to use the highways and other instrumentalities of
interstate commerce in doing so, occupies a position fundamental to the concept of our Federal
Union. It is a right that has been firmly established and repeatedly recognized.”47 The Court
reaffirmed that the right to engage in interstate commerce encompasses both the freedom of
movement and the instrumentalities of transportation required to do so.
Congress may not pass legislation that imposes unreasonable burdens on the right to travel.
This right to travel within the jurisdiction of the United States may be exercised without
impediments imposed by the government. “One has the right, as against any prohibitory or other
restrictive legislation, whether by Congress,48 or by the States, to engage in the interstate or
foreign commerce, that is, to transport persons or articles from State to State, or to or from a
foreign country.”49 Thus, Congress must eschew infringing upon the right to travel for all citizens.
The travel right ensures the vitality of the government not merely through the free movement
of citizens, but also through their more purposive travel as well. Specifically, the right preserves
and facilitates citizens’ ability to journey to their representative seats of government, both
statewide and nationally, in order to petition under the First Amendment to have their grievances
redressed. To foreclose such a right in any fashion would have been anathema to the Founders,
who operated against the backdrop of suspicion of government overreach into citizens’ rights.
They therefore laid down protections for expressing political speech and association inherent in
the underlying travel right. Even when there were comparatively few modes of travel available,
the Founders conceived of the travel right as a broad and plenary right.
Moreover, requirements for a passport, identification, or permit to travel domestically hamper

exercising the right to interstate travel, and invert the proper relationship between citizens and
44
Id. at 490.
45
U.S. Const., art. I, § 8, cl. 3. Daniel A. Farber, “National Security, The Right to Travel, and the Court,” Sup. Ct. Rev.
1981, 263-287.
46
President Wilson would not proceed to abridge the American citizens’ rights to travel and engage in commerce, even
during wartime. Woodrow Wilson, “President Wilson’s Letter to Senator Stone Announcing His Stand on Armed Liner
Issue,” The New York Times, February 25, 1916. In response to a letter by Sen. W. J. Stone suggesting that “this
government tak[e] definite steps toward preventing American citizens from embarking upon armed merchant vessels,“
Wilson wrote, “ “For my own part, I cannot consent to any abridgement of the rights of American citizens in any
respect....To forbid our people to exercise their rights for fear we might be called upon to vindicate them would be a deep
humiliation indeed.” http://americainclass.org/wp-content/uploads/2012/02/wilson-stonefeb1916.pdf
47
Guest, 383 U.S., at 757.
48
“Congress can set the regulations, conditions, or prohibitions regarding the permissibility of interstate travel or
shipments if the law does not contravene a specific constitutional guarantee.” Ronald D. Rotunda and John E. Nowak,
Treatise on Constitutional Law: Substance and Procedure at § 4.8 (2007).
49
Frederick H. Cooke, “The Right to Engage in Interstate and Foreign Commerce as an Individual or as a Corporation,” 8
Mich. L. Rev. 458, 459 (1910).
19
their government.50 Government derives its “license” to operate from the people: when the
government instead requires the people to first obtain a license to travel, it abrogates foundational
rights. As Justice Ruth Bader Ginsburg stated in a public forum: “[t]here is a right to travel. We
have had a common market in that respect from the very beginning; you can go from one state to
another without any passport.”51
In short, the right to travel existed before the invention of modern means of transportation like
railroads and airplanes. It was conceived as a liberty inherent in individuals themselves because it
was an aspect of citizenship and personhood. The right was not linked to the instrumentalities
used to exercise this personal liberty. Accordingly, the right to travel is not tied to any mode of
transportation, and it must therefore encompass all modes of travel.
The Right to Travel as Fundamental to Citizens and Union
The right to interstate travel encompasses personal, political, and commercial movement
rights and privileges. This nexus of individual rights with the nature of the nation guarantees
unrestricted geographical mobility to citizens within the entire jurisdiction of the American
political and economic union. Politically, the right to interstate travel is based on the Founders’
desire to structure the nature of the federal union under the Constitution to create one strong
political union and one common market composed of the free sovereign states. The Privileges and
Immunities Clause in Article IV of the Constitution, by “place[ing] the citizens of each State upon
the same footing with citizens of other States,”52 guarantees them the freedom to move from state
to state and set up residence anywhere within. In that security, they are entitled to the same
privileges and immunities as the citizens of any state.
From an individual rights standpoint, the ability to move freely within the jurisdiction of the
United States is a personal liberty, inherent by birth and in U.S. citizenship. The travel right is
essential to guarantee equality of opportunities, and the pursuit of happiness among the citizens of
the federal union. Freedom of personal movement is an essential natural liberty to guarantee
citizens the ability to exercise other fundamental rights and privileges.
A principal aspect of the notion that the states belong to a broader union manifests in the right
to travel between the states on a basis of equality.53 The Court recognized that without this
50
Richard Sobel & John A. Fennel, “Troubles with Hiibel: How the Court Inverted the Relationship between Citizens and
the State,” 48 South Texas L. Rev. 3 (2007)
51
Associate Justice of the Supreme Court Ruth Bader Ginsburg responding in a public discussion to a question by Dr.
Richard Sobel, Northwestern University, 15 September 2009. “A Conversation with Justice Ruth Bader Ginsburg.” C-
SPAN Video Library. http://www.c-spanvideo.org/program/288900-1. Justice Louis Brandeis, the coauthor of “The Right
to Privacy,” 4 Harvard Law Review. 193 (Dec, 15, 1890) and the privacy dissent in Olmstead v. U.S., 277 U.S. 438 (1928)
also concluded that the Fourteenth amendment protects the right to travel: “...the 14th amendment due process clause...had
to be applied ...to protect ...fundamental rights--speech, education, choice of profession, and the right to travel...” Melvin
Urofsky, Louis D. Brandeis, A Life, 2009, at 562.
52
Paul v. Virginia, 75 U.S. 168, 180 (1869). See also Sonia Sotomayor, “Statehood and The Equal Footing Doctrine: The
Case for Puerto Rican Seabed Rights,” Yale Law Journal, Volume 88, Number 5, April 1979. See also her comments at
Northwestern Law School on March 7, 2011 distinguishing travel rights for constitutional versus statutory citizenship. See
Pat Vaughn Tremmel, “Long Way Up to Highest Court of the Land” (not discussing the distinction).
http://www.northwestern.edu/newscenter/stories/2011/03/sotomayor-trienens-judicial-scholar.html
53
Seth F. Kreimer, “The Law of Choice and Choice of Law: Abortion, the Right to Travel, and Extraterritorial Regulation
in American Federalism,” 67 NYU L. Rev. 451, 519 (1992).
20
expansive provision “the Republic would have constituted little more than a league of States; it
would not have constituted the Union which now exists.”54 Thus the right to travel is fundamental
and structural to the nature of a large union, and without it the Founders’ vision of a
transcontinental nation could not have been fulfilled.
As a commercial union, the United States is a common market that must enjoy the right of
free interstate movement of people and goods in order to guarantee its economic prosperity as a
political union. “The Founders had a desire to create one nation with regard to economic
movement and change…The Founders established national control of commerce55 to encourage
individuals who seek to move from state to state for economic reasons.”56
Our political history and Supreme Court crafted the right to travel as a fundamental one
accruing naturally to every U.S. citizen and to the nation. The Court has repeatedly recognized a
fundamental right to travel as a right of citizenship preceding and informing the Constitution’s
establishment. Although the constitutional text no longer explicitly mentions the right to travel of
the Articles of Confederation, Articles I and IV, and the First, Fifth, Ninth, Tenth, and Fourteenth
Amendments protect the right. Here facilitation of ports and exports (Article 1, Section 9)
coincide with the Privileges and Immunities of citizens of all states (Article IV). Due process and
equal protection (Fifth and Fourteenth Amendments) intersect with reserved rights to the people
and states (Ninth and Tenth Amendments).57
PART II: THE MODERN CONTEXT OF THE RIGHT TO TRAVEL
Fundamental rights expand to encompass new technologies and evolving case law, yet they
retain their essence. When the right to travel was written into the Articles of Confederation, for
example, it preceded the formulation of the related right to privacy; yet the travel right continues
to drive that construction. The travel right also preceded and catalyzed progressive non-
discrimination policies, like those embedded in current federal definitions of and access to
54
Paul, 75 U.S. at 180.
55
Article 2, § 8 of the U.S. Constitution enumerates the powers of Congress, which include the power to regulate
commerce. This power is regulated in Article 2, § 9 of the U.S. Constitution.
56
Ronald Kahn, The Supreme Court and Constitutional Theory, 1953-1993 39 (1994).
57
More broadly, freedom of movement within the territory of a country is internationally recognized as a fundamental
right. The right to travel is embodied in several national constitutions. Most pertinent is The Mexican Constitution’s
(1917) guarantee of the right of any person to enter, leave, or travel within the Mexican territory without the need of any
means of identification. The Argentinean Constitution of 1994, Spanish Constitution of 1978, German Basic Law of 1949,
Romanian Constitution of 1991, Croatian Constitution of 1990, Turkish Constitution of 1982, Indian Constitution of 1949,
and South African Constitution of 1996, mention explicitly the right to move freely within the respective countries.
International law recognizes the right to travel. It is defined as fundamental by international governmental organizations
and is included in international treaties: the American Declaration of the Rights and Duties of Man (ADRD) of 1948,
American Declaration of the Rights and Duties of Man, adopted by the Ninth International Conference of American States,
April 1948, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OAS/Ser.L/V/I.4
Rev. 9 (2003), 43 AIJL Supp. 133 (1949); the Universal Declaration of Human Rights (UDHR) of 1948, particularly
Article 12, Universal Declaration of Human Rights, G.A. Res. 217A(III), U.N. Doc. A/810 (1948): 71; the Convention for
the Protection of Human Rights and Fundamental Freedoms (1953), Convention for the Protection of Human Rights and
Fundamental Freedoms, 3 September 1953, 213 UNTS 221; the Helsinki Act (1975), Conference on Security and Co-
operation in Europe Final Act [OSCE Final Act], Helsinki 1975, 1 August 1974, http://www.osce.org/item/4046.html. (to
which the U.S. and thirty-five countries are signatories); the African Charter on Human and Peoples’ Rights, African
Charter on Human and People’s Rights, 21 October 1986, 1520 UNTS 217; and the International Covenant on Civil and
Political Rights (ICCPR),” 23 March 1976, 999 UNTS 171.
21
common carriers. Here government sought more equal and uniform protection of rights to
common carriage. Definitional evolution parallels the track of citizens’ right to travel. But
evolution may not fundamentally alter the original right. A modern invention that inaptly collides
with the travel right is the single mode doctrine.
Intersection of the Right to Travel and the Right to Privacy
The right to privacy has evolved from a focus on the protection of an individual’s physical
58
property, to encompass a broader swath of privacy safeguards and expectations pertaining to an
59
individual as person. The oldest protection to personal privacy resides in the Fourth Amendment
safeguards against unreasonable searches and seizures, absent probable cause of criminal
60
activity.
The fundamental right to privacy protects the free choice of individuals to conduct their
61
personal lives free from government interference. The Court established in Griswold v.
Connecticut that the right to privacy protected individuals engaging in private acts from
62
government interference.
63
The U.S. Constitution recognizes and protects the right to privacy in travel. The intersection
of the right to travel and the right to privacy as fundamental liberties allow individuals to engage in
travel in privacy and anonymity. Indeed anonymous travel represents the concurrent exercise of
overlapping personal liberties. The right to travel entails a right to privacy in its basis of individual
64
choice on when, where and how to move.
The right to travel in anonymity, without having to identify oneself or carry identification
documents, underlies Kolender v. Lawson.65 Edward Kolender was an African-American who
liked to wander in white California neighborhoods and was repeatedly stopped by the police and
asked for identification. In Kolender, the Court dealt with the California statute that required
“persons who loiter or wander on the streets to provide a ‘credible and reliable’ identification and
to account for their presence when requested by a peace officer.”66 The Court struck down the
58
See, e.g., Boyd v. United States, 116 U.S. 616 (1886). (“a search and seizure [was] equivalent [to] a compulsory
production of a man's private papers” and “an 'unreasonable search and seizure' within the meaning of the Fourth
Amendment”).
59
See, e.g., Griswold v. Connecticut, 381 U.S. 479 (1964).
60
See Rotunda and Nowak, § 18.26. The oldest constitutional right to privacy is that protected by the Fourth Amendment’s
restriction on governmental searches and seizures. See also Sobel, Horwitz and Jenkins, “The Fourth Amendment Beyond
Katz, Kyllo and Jones: Reinstating Justifiable Reliance as a More Secure Constitutional Standard for Privacy,” Public
Interest Law Journal, Vol. 22, No. 1, 2013.
61
The right to privacy was used in Meyer v. Nebraska, 262 U.S. 390 (1923) to protect the freedom of schools to teach
subjects in languages other than English; in Pierce v. Society of Sisters, 268 U.S. 510 (1925) to protect the parents’
decision to have their children attend private schools, and in other cases to protect the intimate and family lives of citizens.
See, e.g., Lawrence v. Texas, 539 U.S. 558 (2003) and Village of Belle Terre v. Boraas, 416 U.S. 1 (1974).
62
Griswold, 381 U.S. 479 (1965). While better known in other contexts, Roe v. Wade, 401 U.S. 113 (1973) and Planned
Parenthood v. Casey, 505 U.S. 822 (1982) also upheld the bodily autonomy of individuals. See also the transcript of
Affordable Care Act oral argument on March 27, 2012, when Chief Justice Roberts references “means of travel,” at 43.
63
See supra Part I.
64
Kent and Shapiro established that the right to travel must be free from government interference, thus implying a right to
privacy associated with the exercise of the right to travel. See supra notes 36 and 40.
65
Kolender v. Lawson, 461 U.S. 352, 353-354 (1983).
66
Id. at 353.
22
statute on the basis that it was “constitutionally vague within the meaning of the Due Process
Clause of the Fourteenth Amendment by failing to clarify what is contemplated by the
requirement that a suspect provide a ‘credible and reliable’ identification.”67
The decision on vagueness in Kolender affirmed the Ninth Circuit Court’s judgment that the
statute violated the Fourth Amendment. “The appellate court determined that the statute was
unconstitutional in that it violates the Fourth Amendment’s proscription against unreasonable
searches and seizures, it contains a vague enforcement standard that is susceptible to arbitrary
enforcement, and it fails to give fair and adequate notice of the type of conduct prohibited.”68
Moreover, Justice Brennan concurred that, had the statute not been vague, it would have violated
the Fourth Amendment: “[e]ven if the defect identified by the Court were cured, however, I would
hold that this statute violates the Fourth Amendment.”69
The Court reaffirmed in Hiibel v. Nevada 70 that absent reasonable suspicion and an enabling
state statute, individuals may not be required to provide identification. Unlike previous cases
where, for instance, Kolender had simply been walking, Hiibel (although a pedestrian when
confronted) was pursued under reasonable suspicion based on a report that an offense had been
committed in a motor vehicle. The Nevada statute required Hiibel to disclose his name, without
having to produce an identification document.71 Nonetheless, the demand in Hiibel for
identification contradicts the now-famous principles in Miranda v. Arizona72 and a series of cases
of strong dicta, protecting individuals’ right to remain silent.73
Thus, an individual wandering or moving freely has the right to be private in his or her affairs,
free from government intrusion. Hence, the demand for identification, without reasonable cause
that the individual is engaging in an illegal activity, interferes not only with privacy, but also with
travel rights. In short, the right to travel entails the right to privacy and to travel anonymously free
from governmental infringement. 74 In the concurrent exercise of two fundamental rights, one
67
Id. at 353-354.
68
Kolender, 461 U.S. at 355.
69
Id. at 362. (Brennan, J. concurring).
70
542 U.S. 177 (2004).
71
Id. at 185.
72
384 U.S. 436 (1966).
73
The Aviation and Transportation Security Act, Pub. L. No. 107-71, 115 Stat. 579 (2001), establishes TSA as responsible
for security in all modes of transportation. TSA could expand Secure Flight to trains, subways and buses, or create similar
pre-screening programs, and implement them on all possible ways to interstate travel, including Amtrak. If this were to
happen, it could abridge the right to travel by every single mode. See Thom Patterson, “TSA rail, subway spot-checks raise
privacy issues,” CNN.com, January 28, 2012. Jen Quraishi, “Surprise! TSA Is Searching Your Car, Subway, Ferry, Bus,
AND Plane,” Motherjones.com, June 20, 2011.
74
In The Right to Mobility (1979), Gerald Houseman identifies how the right to travel is essential for the exercise of other
fundamental rights. “Mobility is a right which makes many other rights we hold dear both tenable and possible – the rights
of association, privacy, and equality of opportunity, for example, at 7. He notes, further that in the late 1970’s Congress
first considered establishing "a system of ‘forgery-proof’ Social Security cards, complete with photographs and plastic
lamination, for everyone entitled to have one. While its sponsors denied "that this could easily be turned into a national
identification system, it is not difficult to imagine this being done in the name or bureaucratic efficiency, national security,
or … to snoop and perhaps to limit mobility,” at 17. These constitute an “internal passport” which he calls the “hallmark
of repressive regimes such as [Apartheid] South Africa, the Soviet Union, or Nazi Germany” at 17. Houseman identified
the proposed Social Security card as a national passport – internal passport – by acting as a work ID. “Any potential
employer must then refuse to hire anyone who fails to produce this card,” at 42. Houseman argues that a national ID
system would face American citizens with “a totalitarian potential of invasion of privacy, harassment, and denial of
mobility.” at 43. A national ID can easily become an internal passport, which is an instrument of “mobility control” and a
feature of authoritarian governments. See infra note 198.
23
right may not be conditioned on abrogating another.75
Common Carriers in Travel Rights
The right to travel encompasses the right to movement on common carriers. “A carrier
becomes a common carrier when it ‘holds itself out’ to the public, or to a segment of the public, as
willing to furnish transportation within the limits of its facilities to any person who wants it.”76
Any individual or corporation becomes a common carrier by promoting to the public the ability
and willingness to provide transportation service, including air travel.77
Air transport providers operating within, to, or from the United States act as common carriers
under common carrier imperatives.78 “An air carrier or foreign air carrier may not subject a
person in air transportation to discrimination on the basis of race, color, national origin, religion,
sex, or ancestry.”79 If there is space available, the fee is paid, and no reasonable grounds exist to
refuse the service to an individual, the air carrier is legally bound to provide the transportation of
passengers or goods. Denying passage violates federal law.80
The federal government exercises broad national jurisdiction.81 When vehicles are engaged in
commerce, the United States claims jurisdiction over the respective vehicle, even when they travel
outside the specific area in 18 U.S.C. § 7 (2006).82 Under aircraft jurisdiction explained in Special
Aircraft Jurisdiction of the United States,83 the government of the United States exercises national
jurisdiction over its territory and “in-flight” aircraft, even outside national airspace. Therefore,
travel conducted between contiguous and non-contiguous United States by air remains within
national jurisdiction and requires adherence to U.S. federal law and regulations, the U.S.
Constitution generally, and specifically rights and privileges of citizenship. Accordingly, this
75
United States v. Davis, 482 F.2d 893, 913 (9th Cir. 1973). See also Kroll, at 886.
76
Advisory Circular from William T. Brennan, Acting Director of Flight Standards, Federal Aviation Administration,
Advisory Circular AC 120-12A (Apr. 24, 1986) (on file with FAA).
77
But see Gonzales v. Williams, 192 U.S. 1 (1904). In the series of “Insular Cases,” the Court considered whether or not
to extend full constitutional protection to territories that the U.S. gained in the Spanish-American War; it initially
distinguished between travel rights for continental versus territorial citizens, e.g. a U.S. citizen traveling from the non-
continental U.S. (i.e., Alaska or Hawaii) to the continental part would have more rights than a citizen of a territory or
commonwealth like Puerto Rico traveling to the continental U.S. The distinction depends partly on the difference between
birth, naturalized or granted (statutory) citizenship (See Sonia Sotomayor, My Beloved World, 2013 at 179).
78
Brennan, Advisory Circular AC 120-12A, 1986.
79
49 U.S.C. § 40127 (2006).
80
Id.
81
The federal jurisdiction is explained in detail in Special Maritime and Territorial Jurisdiction of the United States
defined, 18 U.S.C. § 7 (2006). The U.S. has federal jurisdiction over their territory and over any vessel registered, licensed
or enrolled under the United States.
82
Rail vehicle carrier, motor carrier, and water carrier operations are subject to U.S. jurisdiction when operating within the
area defined in 18 U.S.C. § 7 (2006) and outside it when traveling to/from/between U.S. destinations. Motor carriers are
exempt when traveling through Canada between Alaska and the contiguous United States. However, they shall still
comply with the requirements related to rates and practices applicable to the transportation. See 49 U.S.C. §§ 10501,
13502(a), 13521(a) (2006).
83
9 U.S.C. § 1405 (2006). Included in the special U.S. jurisdiction are any “in-flight” civil or military aircraft of the U.S.,
as well as any aircraft in the U.S., including foreign aircraft that are scheduled to land or last departed from the United
States. An aircraft “in-flight” corresponds to an aircraft from the time the door is closed to the time it is opened at the
destination. See 49 U.S.C. § 46501 (2006). The law also includes any aircraft leased to an American resident or business,
even when the lease is made outside the United States and/or using a non-U.S. registered aircraft.
24
jurisdiction empowers citizens with the right to travel freely. 84
Sovereignty and Use of Airspace maintains sovereignty of the airspace of the United States to
the government and guarantees citizens the right to use and access it.85 Air commerce and safety
regulations provide for the establishment of an air transportation network consistent with public
convenience and necessity.86 The air travel network is a public infrastructure open for use and
enjoyment. The government furthers this by ensuring, through legislation, that all citizens have
adequate access to the air system.
U.S. law (49 USC § 40103) on sovereignty and use of airspace maintains under “Sovereignty
and Public Right to Transit” that (1) “The United States Government has exclusive sovereignty of
airspace of the United States. (2) A citizen of the United States has a public right of transit
through the navigable airspace.” Moreover, 49 USC § 40101, “Policy,” notes under “General
Safety Considerations” that in carrying out regulation the FAA administrator shall consider “the
public right to freedom of transit through the navigable airspace.” Hence, under both U.S.
sovereignty and public rights, as well as in considering safety, the public's right to freedom of
travel includes air travel.
The Single Mode Doctrine and Its Infirmities
Historically and politically, the right to travel within the jurisdiction of the United States is a
broad one that encompasses all modes of travel. However, in conflict with the original nature of
the right in a large Union, some circuit courts have maintained that limiting one mode of travel
does not implicate the right to travel.
In Monarch Travel Services v. Associated Cultural Clubs,87 the Ninth Circuit ruled that the
inability of a person to pay the fare of a common carrier, in this case, charter flight fees, was not
an unconstitutional limitation of their right to travel, since there was no state action in government
interference.88 In Miller v. Reed,89 the Ninth Circuit used the Monarch argument to create the
single mode doctrine: “burdens on a single mode of transportation do not implicate the right to
interstate travel.”90 Miller was deprived of his privilege to operate a motor vehicle under that
doctrine, but not the right to ride as a passenger or to travel by other means.91 When the court
proffered its opinion, however, it created an unconstitutional limitation on the fundamental
interstate travel right.92 Moreover, in Gilmore v. Gonzales the Court inaptly relied on the single
mode doctrine and applied the doctrine to restricting freedom of movement based on
unwillingness to submit to an identification requirement.93
The deficiencies of the single mode doctrine are particularly apparent when a citizen needs to
travel between the contiguous and the non-contiguous United States.94 Commercial air service is
the only mode of passenger common carrier transportation available between many points,
84
This is true as long as the travel adheres to the U.S. Code statutes respective to the mode of transportation. The same
also applies to travel on common carriers by ground or water. The U.S. Code for transportation of goods and passenger is
different across modes of transportation. Rail, coach buses, aircraft, and ships, all have different set of rules that they need
to follow, and different situations where American jurisdiction will apply. A coach bus for example is outside U.S.
jurisdiction when traveling in or through Canada, even if the trip starts and ends in the U.S.
85
49 U.S.C. § 40103(a)(2) (2006).
86
49 U.S.C. §§ 40101-46507 (2006).
25
especially U.S. states and territories outside the contiguous union. Particularly with respect to
non-contiguous interstate travel, where the only viable means of travel is by airplane, the single
mode doctrine imposes on citizens an onerous, irrational, and unjustifiable burden.
In short, contrary to the Ninth Circuit ruling, burdens on a single mode of transportation do
implicate the right to interstate travel. This is especially so when there is only one mode of
common carrier travel, such as flying by commercial airline, available between the two non-
continental U.S. locations, for instance, between the mainland and Hawaii.
The only other hypothetical way to reach offshore locations is by ship, but commercial ship
service rarely exists.95 Here, the doctrine proves deficient, since burdens imposed on a single
mode of travel abridge entirely the right to interstate travel. Especially in the non-contiguous
U.S., when a single mode of transportation become the sole mode of travel, citizen’s constitutional
protections for travel are broadest. To be plenary, the right to travel must include protections for
using all possible modes of travel.
87
466 F.2d 552 (9th Cir. 1972).
88
The Court did not mention limitations on travel, except those derived from personal wealth. See Monarch, 466 F.2d at
554. The Supreme Court established a similar economic argument in Harris v. McRae, 448 U.S. 297 (1980), that a woman
was free to have an abortion, if she can afford it. The government does not have to allocate funds or resources to facilitate
the exercise of the right.
89
176 F.3d 1202 (9th Cir. 1999).
90
Miller, 176 F.3d at 1205.
91
Miller could still use his personal vehicle, but could not legally drive it, since he had no license (indicating the required
skills to do so). He could, however, have someone else drive his vehicle for him. Miller could also ride public transit
and/or other modes of transportation. For discussion of the right to drive, see also Roger I. Roots, “The Orphaned Right:
The Right to Travel by Automobile, 1890-1950,” 30 Okla. City U.L. Rev. 245, Summer, 2005.
constitution.org/lrev/roots/orphaned_right.pdf and Con Law II Blog (Manheim), Fall 2005,
manheimk.lls.edu/blog/conlaw2/archives/2005/11/the_right_to_tr.html Initially due to constitutional right to travel
questions and strong protests, drivers were not required to get license plates with numbers for automobiles or licenses to
drive them.
92
The Ninth Circuit’s holding conflicted, for example, with the Supreme Court’s emphasis in Shapiro that the right to
travel should be free of regulations that unreasonably burden or restrict it. See 394 U.S. at 638.
93
Gilmore v. Gonzales, 435 F.3d 1125, (9th Cir. 2006). However, in Gilmore, at 1143, the government noted that ID was
not absolutely required in order to fly if a passenger became a “selectee” and submitted to a pat down search. On the
ability to fly without ID, see also State of New Mexico v. Mocek (2011), and Phillip Mocek v. Albuquerque et al. U.S.
District Court for the District of New Mexico, Case No. 1:11-cv-1009; Filed November 14, 2011; decision, January 14,
2013. A Commentary on the case notes, “ Do you have a right to travel by air? Answers Yes. The Airline Deregulation
Act of 1978 guarantees the “public right of freedom of transit” by air, and the TSA is required by Federal law (49 USC §
40101) to consider this right when it issues regulations. Airlines are common carriers. Mr. Mocek’s attempted trip was an
exercise of “the right … peaceably to assemble,” which is guaranteed by the First Amendment. Freedom of movement is
also guaranteed by Article 12 of the International Covenant on Civil and Political Rights, a human rights treaty signed and
ratified by the U.S. http://www.papersplease.org/wp/mocek/
94
The United States comprises the 48 contiguous states, and the non-contiguous U.S., states of Alaska and Hawaii, plus
Puerto Rico, Guam, the U.S. Virgin Islands, and other offshore territories.
95
A common carrier passenger ship service does not exist to and from Puerto Rico, for example. See Welcome to Puerto
Rico, Tourist Information, available at: http://www.topuertorico.org/tinfo.shtml (accessed 27 July 2011). The Passenger
Vessel Services Act of 1886, see 46 App. U.S.C. §289 (2006), established that passenger transport within the United States
could only be carried out on a U.S. registered vessel. This would make any common-carrier scheduled ship passenger
service expensive, unprofitable, and therefore non-existent. For Puerto Rico, there is a special section: Transportation of
passengers between Puerto Rico and other United States ports; foreign-flag vessels; unavailability of United States flag
service, 46 App. U.S.C. § 289c (2006), which authorizes passenger service between the contiguous U.S. and Puerto Rico
under certain conditions and permissions. This allows cruise ship services to stop in Puerto Rico when traveling directly
between U.S. territories. But still no direct common carrier water passenger service exists between the contiguous U.S.
and Puerto Rico. Hence, leisure cruise ships do not provide service between non-contiguous parts of the U.S., since their
business purpose and schedule practices are not intended for point-to-point passenger and freight transportation.
26
The single mode doctrine is also inapt for travel within the contiguous United States. This is
especially so because of limitations on national air transportation. The general provisions of the
Air Commerce and Safety Regulations96 recognize that it is in the public’s interest97 to have an air
transportation network. This ensures “the availability of a variety of adequate, economic,
efficient, and low-priced services without unreasonable discrimination or unfair or deceptive
practices.”98 The federal government has invested broadly to create and maintain the requisite
network.
As Congress recognized through codification, there is a compelling public interest in

maintaining a national air transportation network available especially to all citizens.99 Therefore,
the Court’s opinion in Beckman v. Saratoga requiring that railroad common carrier services be
available to all citizens analogously requires the U.S. air transportation network and air common
carrier services to be available to all the citizens of the United States, regardless of location. 100
The single mode doctrine contravenes this congressional intent.
Air transportation is typically the most convenient method of even moderately distant
interstate travel. In many cases, it is the only feasible mode of interstate and in some cases of
intrastate travel.101 The Eighth Circuit Court held in United States v. Kroll that “flying may be the
only practical means of transportation”; when limited, it often deprives an individual of the right
to travel.102 Even if other modes of travel exist, the Second Circuit held in United States v.
Albarado, it is not acceptable to force travelers to forego using air travel because “it would work a
considerable hardship on many air travelers to be forced to utilize an alternate form of
transportation, assuming one exists at all.”103 In short, court decisions recognized the unique
nature of flight as a necessarily accessible and protected mode of transportation.
Passenger travel by air common carrier constitutes the only mode for covering large distances
in a timely manner within the contiguous United States. People today do not have the luxury to
journey for days across widely disbursed coastal areas within the United States from California to
Maine. Citizens have responsibilities, and time is valuable. Jobs do not allow persons to spend a
96
49 U.S.C. § 40101 (2006).
97
Id.
98
49 USC 40101(a)(4). To further notion of fairness and good business, recent regulations require airlines to be more
transparent with pricing, taxes, and fees, by including all taxes and fees--the full price of the ticket---in promotions and
from the beginning of the web search.
99
See 49 U.S.C. §§ 40101, 40103 (2006).
100
Beckman, 3 Paige Ch. at 75.
101
Some cities within Alaska, for instance, Juneau, the capital, are only accessible by air or sea, air being the only timely
mode. Intrastate travel in some states is more convenient by air for travel between cities within a state separated by great
distances and/or natural barriers, e.g., California, Florida, Illinois, New York, and Texas.
102
United States v. Kroll, 481 F.2d 884, 886 (8th Cir. 1973).
103
United States v. Albarado, 495 F.2d 799, 806 (2d. Cir. 1974). However, in Town of Southold v. Town of East Hampton,
477 F.3d 38 (2d. Cir. 2007), the Second Circuit stated that travelers do not have “a constitutional right to the most
convenient way of travel” and that minor restrictions do not abridge the right to travel. 477 F.3d at 54 (making reference to
City of Houston v. FAA, 679 F.2d 1184, 1198 (5th Cir.1982)). This decision conflicts with the decisions in Kroll and
Albarado, and with the right of citizens to enjoy the benefits and access to all public transportation modes.
27
great amount of time traveling.104 Political rights require timely access for citizens to travel great
distances to petition the national government and exercise political liberties.105
Traveling long distances within the contiguous United States relies on only one mode of
travel: domestic air transportation. Therefore, restricting any single mode of travel, particularly by
air, abridges the right to travel and the right to exercise political and personal liberties. The single
mode doctrine thus contravenes the right to travel within the modern U.S. territory.106
By threatening what is often the only viable method of transportation, air travel, and imposing
corollary chilling effects on citizens’ right to seek redress from government, the single mode
doctrine limits interstate travel. In doing so, it undermines the right to travel that is broadly non-
discriminatory. The travel right is a multi-modal one that encompasses all forms and approaches
to travel. If any single mode is limited, the right to travel is abridged.
PART III: UNJUSTIFIED LIMITATIONS ON THE RIGHT TO TRAVEL
As articulated in Shapiro, the right to travel is a “fundamental right” guaranteed by the

Constitution.107 “An individual’s liberty may be harmed by an act that causes or reasonably
threatens a loss of physical locomotion or bodily control.”108
In recent years, especially in the surveillance age after 9/11, federal impediments to domestic
travel, particularly by air transportation, have undermined the rights of millions of travelers. The
major limitations on travel rights derive from identification and informational requirements as
well as intrusive physical screening. On the one hand, they encompass air identification
requirements to fly, and passenger pre-screening schemes to get a reservation. On the other, they
involve Whole Body Scanning (WBS) and “enhanced” pat downs (EPD). Each burdens citizens'
rights to travel and to privacy. As analyzed below, they abrogate citizens’ rights without
materially improving security procedures.
Since 1996, passengers have had to provide identification in order to board airplanes. Yet, on
Christmas 2009, a man submitted his real name, Umar Farouk Abdulmutallab, for identification
104
Air travel has allowed for Congress to remain in session more days throughout the year and for members to return home
for every recess and even weekly. Cal Jillson, American Government: Political Development and Institutional Change 234
(2009).
105
An individual who, for example, needs to approach the seat of the federal government in Washington, D.C. or the seat
of the state government in Juneau, Alaska to petition the government for redress of grievances, a right guaranteed by the
First Amendment, may require traveling by air, which may also be the only available mode to reach the government.
106
The single mode doctrine is also inconsistent with federal law requiring that modes of transportation be accessible. The
federal government mandates that most public buildings, including airports and train stations, be accessible to people with
disabilities. See 49 U.S.C. § 40101 (2006) for handicap accessibility and 49 U.S.C. § 41705 (2006) for discrimination
laws. See 42 U.S.C. § 4151, et seq. (2006). All transportation buildings must be handicapped accessible. These
handicapped-accessibility requirements conflict with the single mode doctrine because its strictures deny access to modes
of transportation that handicapped-accessibility laws promote. Similarly, federal law ensures that citizens living in remote
areas are entitled to subsidized scheduled air service. A regular minimum air service is maintained to many small
communities in the U.S. Territory under the Essential Air Service codified in Small Community Air Service, 49 U.S.C. §§
41731-41748 (2006). The federal government subsidizes airlines to provide a minimum level of air service to “eligible”
small communities in the United States.
107
Shapiro v. Thompson, 394 U.S. 618, 630-631 (1969). In parts not related to the right to travel, it was overruled by
Edelman v. Jordan.
108
Elizabeth P. Foley, Liberty for All: Reclaiming Individual Privacy in a New Era of Public Morality 49 (2006).
28
and boarded an international flight from Amsterdam to Detroit. This occurred despite being on a
British passenger watch list, and the database of the U.S. National Counterterrorism Center. The
would-be terrorist had hidden in his clothing a powdered explosive compound, PETN. Both
layers of then-current security procedures, physical and watch list, failed to capture the suspect, a
task left to his fellow passengers. Investigators later concluded that that the compound would
have been unlikely to be detected by even the latest wave of body-scanning devices.109 As this
shows, many air travel requirements and procedures represent what security expert Bruce Schneier
has called “security theater,” as they are mainly “measures that make people feel more secure
without doing anything to actually improve their security.”110
Invasive searches at the airports also violate the fundamental conception of the Fourth
Amendment and the right to privacy. They essentially function as mass searches without even the
general warrants and writs the Founding Fathers opposed. During a trial against writs of
assistance in the pre-Revolutionary colonies, “James Otis attacked the Writ of Assistance because
its use placed the liberty of every man in the hands of every petty officer. His powerful argument
so impressed itself first on his audience and later on the people of all the Colonies that John
Adams was in retrospect moved to say that ‘American Independence was then and there born.’”111
The intrusiveness of current airport searches is currently sanctioned by the questionable

administrative search doctrine112 that eroded Fourth Amendment rights over time.113 This
administrative doctrine itself degrades the Fourth Amendment by revivifying the government use
of general warrants.114
Despite quoting Adams about fighting unreasonable searches without warrants, Frank v. State
of Maryland in 1959 created non-criminal public safety searches that require no warrants. This
first major departure from the founding principles of the Fourth Amendment opened the door to
further government mischief. The Court found that a health inspector may enter a home without a
warrant to find a public health hazard.115 It sanctioned an expanding invasion of privacy.116
Justice Douglas’s Frank dissent eloquently identifies the essence of the majority’s mistake:
the Fourth Amendment was not “designed to protect criminals only.”117 The dissent clarifies,
“‘[t]he security of one's privacy against arbitrary intrusion by the police—which is at the core of
the Fourth Amendment—is basic to a free society.’”118 The Douglas dissent also highlights the
confusion that arises when administrative searches can lead to criminal penalties or are carried out
by a police force: “[t]his is a strange deletion to make from the Fourth Amendment. In some States
109
U.S. Government Accountability Office, “Aviation Security: Computer-Assisted Passenger Prescreening System Faces
Significant Implementation Challenges.” GAO-04-385. 2004.
110
Bruce Schneier, “Flying on Someone Else’s Airplane Ticket,” C RYPTO-G RAM N EWSLETTER, Aug. 15, 2003, available
at: http://www.schneier.com/blog/archives/2005/02/flying_on_someo_1.html
111
Frank v. State of Md., 359 U.S. 360, 364 (1959)
112
Eva Primus, “Disentangling Administrative Searches,” 111 Colum. L. Rev. 254, 262 (2011).
113
See Frank, 359 U.S. at 365; compare e.g., Federal Trade Commission v. American Tobacco Co., 264 U.S. 298 (1924),
Boyd v. U.S., 116 U.S. 616 (1886), Interstate Commerce Commission v. Brimson, 154 U. S. 447 (1894), Trupiano v. U.S.,
334 U.S. 699 (1948), McDonald v. U.S., 335 U.S. 451, (1948).
114
See Frank, 359 U.S. at 364.
115
Frank, 359 U.S. at 373.
116
See id. at 375.
117
Frank, 359 U.S. at 377 (1959) (Douglas, J., dissenting).
118
Id. at 375.
29
the health inspectors are none other than the police themselves. In some States the presence of
unsanitary conditions gives rise to criminal prosecutions.”119
The pivotal place of privacy against unreasonable personal searches has been apparent for
over a century in the Supreme Court jurisprudence since the 1886 decision in Boyd.120 While the
majority in Frank appropriately explored the relation of the Fourth and Fifth Amendment in
criminal law, Justice Frankfurter mistook criminality as the key to whether a search is reasonable.
Earlier decisions like Boyd, which Frankfurter cites, did not require criminality for a search to
require a warrant. Instead, Boyd states all “official acts and proceedings” apply the Fourth
Amendment.121 Boyd placed the primary importance on whether what is being searched for “is a
material ingredient, and affects the sole object and purpose of search and seizure,” whether the
case involved a crime was merely dicta.122 The dilution of the distinction in administrative search
doctrine by requiring criminality weakens the Fourth Amendment as the Frank dissent feared.
The Fourth Amendment protection against unwarranted government searches “applies to

governmental actions.”123 It is “intended as a restraint upon the activities of sovereign
authority.”124 Searches or seizures, like those that occur in airports, are “ordinarily unreasonable
in the absence of individualized suspicion of wrongdoing.”125 Certainly, the privacy inherent to
the Constitution has eroded over time when the Court undervalues privacy rights. The Court found
exceptions to the Fourth Amendment based on administrative convenience or putative necessity.126
As Justice Scalia wrote in Kyllo v. United States “[i]t would be foolish to contend that the degree
of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the
advance of technology.”127
Despite the protections promised by the Fourth Amendment, the historical search and seizure
doctrine has been diluted over time.128 Now government may often search persons to find
evidence of a crime with no warrant or reasonable suspicion.129 Thus, even when the potential
criminality making a warrant necessary in Frank is present, the administrative search concept
allows searching a person’s body without probable cause or writ.
The privacy associated with one’s house should extend to one’s body, more private
historically than the home. 130 “Anyone who respects the spirit as well as the letter of the Fourth
Amendment would be loath to believe that Congress intended to authorize one of its subordinate
agencies to sweep all our traditions into the fire, and to direct fishing expeditions into private
119
Id.
120
Boyd, 116 U.S. at 633 (1886). See note 58 supra.
121
Boyd, 116 U.S. at 624 (1886).
122
Id. at 622.
123
Burdeau v. McDowel, 256 U.S. 465, 475 (1921).
124
Id.
125
City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000). See also William W. Greenhalgh. “In defense of the 'per se'
rule: Justice Stewart's struggle to preserve the Fourth Amendment's warrant clause,” American Criminal Law Review, Vol.
31 No. 4, June 1994.
126
See Katz v. United States, 389 U.S. 347, 357 (1967). United States v. Davis, 482 F.2d 893, 908 (9th Cir. 1973)
(“airport screening searches ... are constitutionally reasonable administrative searches because they are conducted as part of
a general regulatory scheme in furtherance of an administrative purpose, namely, to prevent the carrying of weapons or
explosives aboard aircraft, and thereby to prevent hijackings.”).
127
Kyllo v. United States, 533 U.S. 27, 33-34 (2001). Sobel, Horwitz and Jenkins supra note 60.
128
Eva Primus, “Disentangling Administrative Searches,” 111 Colum. L. Rev. 254, 262 (2011).
129
Elec. Privacy Info. Cert. v. U.S. Dept. of Homeland Sec., 653 F.3d 1, 1 (D.C. Cir. 2011).
130
See Frank, 359 U.S. at 375 (1959).
30
papers on the possibility that they may disclose evidence of crime.”131 Wide ranging searches into
private papers and houses are anathema to liberty guaranteed by the Fourth Amendment.
Expeditions into a person’s body are even more repugnant to the Fourth Amendment’s purposes as
a cornerstone of liberty. As the Ninth Circuit in York v. Story explained, “we cannot conceive of a
more basic subject of privacy than the naked body. The desire to shield one's unclothed figured
from view of strangers . . .is impelled by elementary self-respect and personal dignity.”132
As McDonald v. U.S. noted, “The presence of a search warrant serves a high function. Absent
some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen
and the police. This was done not to shield criminals, nor to make the home a safe haven for
illegal activities. It was done so that an objective mind might weigh the need to invade that
privacy in order to enforce the law. The right of privacy was deemed too precious to entrust to the
discretion of those whose job is the detection of crime and the arrest of criminals. Power is a
heady thing; and history shows that the police acting on their own cannot be trusted.”133
The Court in U.S. v. Lefkowitz previously articulated the notion: “Security against unlawful
searches is more likely to be attained by resort to search warrants than by reliance upon the
caution and sagacity of petty officers while acting under the excitement that attends the capture of
persons accused of crime.”134
The Frank dissent rings even truer now: “We live in an era ‘when politically controlled
officials have grown powerful through an ever increasing series of minor infractions of civil
liberties.’ One invasion of privacy by an official of government can be as oppressive as
another.”135
Airport Searches
Restraint upon government authority restricts airport searches.136 In U.S. v. Marquez, a

challenge to a magnetic wand search in the Ninth Circuit for reasonableness, the court found that
“even with the grave threat posed by airborne terrorist attacks, the vital and hallowed strictures of
the Fourth Amendment still apply: these searches must be reasonable to comport with the
Constitution.”137
Two federal circuit courts' rulings in the 1970s apply to airport searches the fundamental
principles of the right to travel and privacy together.138 In Kroll, the Circuit court affirmed that
relying on warrantless searches at the airport was an invalid procedure after which the court
131
American Tobacco Co., 264 U.S. at 305-306 (1924) (citing Interstate Commerce Commission v. Brimson, 154 U.S.
447, 479 (1894)).
132
York v. Story, 324 F.2d 450, 455 (9th Cir. 1963)
133
McDonald v. United States, 335 U.S. at 455-456 (1959).
134
United States v. Lefkowitz, 285 U.S. 452, 464 (1932).
135
Frank, 359 U.S. at 382 (1959). (Citing Comment, “Health Inspection of Private Dwelling Without Search Warrant,” 17
U. Chi L. Rev. 733 (1950)).
136
Burdeau v. McDowel, 256 U.S. 465, 475 (1921).
137
United States v. Marquez, 410 F.3d 612, 616 (9th Cir. 2005). Because the right to travel is a fundamental constitutional
principle, courts need to apply strict scrutiny: that there is a compelling state interest, the restrictions are narrowly tailored
and they are incorporated by the least restrictive means. See Stephen A. Siegel, “The Origin of the Compelling State
Interest Test and Strict Scrutiny,” American Journal of Legal History, Vol. 48, No. 4, p. 355, 2006.
138
Kroll, 481 F.2d at 886, Albarado, 495 F.2d at 806-07.
31
suppressed the evidence gained in this manner.139 This involved a less invasive procedure than
physical searches: the passenger’s profile matched a terrorist’s and thus he had to pass through a
magnetometer before being allowed to embark on his flight. “Because the search was conducted
without a warrant, the government is required to show that it was justified by exceptional
circumstances. It attempts to meet this burden by contending, first, that the defendant consented
to the search and, second, that it was a reasonable search for weapons or explosives.”140 The court
found the government failed to do so.141 On these facts, the search was found to be too invasive
and a violation of the traveler’s Fourth Amendment rights.142
While Kroll is unclear on to what extent the court separates the physical search of belongings
from the magnetometer scan of the passenger, the principles espoused there show a strong view of
liberty. Even magnetometers raise constitutional questions by placing two fundamental rights,
travel and privacy, at odds.143
Kroll also succinctly spells out the constitutional troubles: “[i]n any meaningful sense . . .
[c]ompelling the defendant to choose between exercising Fourth Amendment rights and his right
to travel constitutes coercion; the government cannot be said to have established that the defendant
freely and voluntarily consent[ed] to the search when to do otherwise would have meant foregoing
the constitutional right to travel.”144
Albarado explores a similar scenario, in which a man’s belongings were subjected to a

magnetometer search and then he was subjected to a pat down. Both searches the court ruled as
requiring “reasonableness of the total circumstances.”145 These circumstances require sensitivity
to the constitutional rights at issue: “[t]o make one choose between flying to one's destination and
exercising one's constitutional right appears to us, as to the Eighth Circuit. . . . in many situations a
form of coercion, however subtle. While other forms of transportation may be available, it would
work a considerable hardship on many air travelers to be forced to utilize an alternate form of
transportation, assuming one exists at all.”146
The Second Circuit concluded similarly in Albarado: “The court dismissed the notion the
government could announce its intention to deprive citizens of Fourth Amendment protection in a
widely used medium of travel and then claim citizens using that medium consented to have their
rights violated.”147 “Until the Fourth Amendment, which is closely allied with the Fifth, is
rewritten, the person and the effects of the individual are beyond the reach of all government
agencies until there are reasonable grounds to believe (probable cause) that a criminal venture has
been launched or is about to be launched.”148
139
Kroll, 481 F.2d at 886
140
Id. at 885.
141
Id.
142
Id.
143
Id. at 887.
144
Id. at 886
145
Albarado, 495 F.2d at 808.
146
Id. at 806-807 (citing Kroll, 481 F.2d at 885).
147
M. Madison Taylor, “Bending Broken Rules: The Fourth Amendment Implication of Full-Body Scanners in Preflight
Screening,” 17 Rich. J.L. & Tech. 1, 16 (2010).
148
Terry v. Ohio, 392 U.S. 1, 39. (Douglas, J., dissenting).
32
The two circuits conclude similarly that the government violates the constitutional rights of
travelers when it forces individuals to choose between two inherent rights: privacy and travel.
Therefore, the use of overly intrusive security measures violates their rights as citizens and inhibits
their exercise of the right to travel.
Despite the strong case for civil liberties in airports, the theories espoused in Kroll and
Albarado have given way to those in Frank. Frank’s conception of reasonable warrantless
searches was expanded in Terry v. Ohio’s airport progeny, U.S. v. Epperson 149 and U.S. v. Bell150
concurring opinion. 151 Epperson allowed a hand scan by a magnetic wand because of the danger
to passengers in the potential for hijacking even after the drop in hijackings when metal detectors
were placed into use.152 The Bell concurrence used similar logic to describe the limitation of scans
alone as making searches reasonable.153
Despite focusing on increased safety, the circuit decisions do not mean magnetometer usage,
much less more intrusive searches, is constitutional. Terry involved a stop and frisk scenario
based on the suspicion of danger to an officer from a particular individual as considered by a
“reasonably prudent man.”154 As Herzog noted in 2005, “[t]he Supreme Court has not decided
whether the expansion of the Terry doctrine, is constitutional. Terry allowed a mere stop and frisk
based upon reasonable suspicion; however, at airports, actual searches without suspicion are
conducted.”155 Surprisingly, this issue is unresolved by the highest court in the United States.
Indeed, when examining airport security, various circuits use modern tests that arguably
violate the Fourth Amendment. Instead, Kroll and Albarado represent the basic standards for
determining the constitutionality of invasive airport searches.
Balancing tests have been used to examine airport security against the Fourth Amendment. In
United States v. Skipwith156 in 1973 the Fifth Circuit applied a three-factor test for whether a
search violates the Fourth Amendment: (1) public necessity, (2) efficacy of the search, and (3)
degree of intrusion. Applying Skipwith’s balancing test or Kroll and Albarado’s holdings
identifies what rights are threatened by airport searches. Skipwith found for the government but
established the basis for prohibiting search techniques that provide little value as a preventative
measure against terrorists while simultaneously invading travelers’ privacy thoroughly. Kroll and
Albarado support finding more intrusive searches than metal detectors157 as too invasive.
These three cases look directly at security in the airport, and balance the liberty of the
traveler’s privacy against the need for security.158 What they also share in common is to examine
the exigency of the circumstances and the government interest in relation to the extent of a liberty
infringed upon, in other words, rights balancing.159 Skipwith engages in this more transparently by
149
454 F.2d 769 (4th Cir. 1972).
150
464 F.2d 667 (2d Cir. 1972).
151
Simcha Herzog, “Constitutional Problems Posed by Aviation Security Post September Eleventh,” 6 Fla. Coastal L. Rev.
361, 372-373 (2005). See infra note 259.
152
Epperson, 454 F.2d at 771.
153
Bell, 464 F.2d at 675.
154
Terry, 392 U.S. at 27.
155
Herzog, supra note 151.
156
482 F.2d 1272, 1276 (5th Cir. 1973)
157
See Kroll, 481 F.2d at 885; Albarado, 495 F.2d at 807.
158
See Kroll, 481 F.2d at 885; Albarado, 495 F.2d at 807; Skipwith, 482 F.2d at 1275.
159
See Kroll, 481 F.2d at 885; Albarado, 495 F.2d at 807; Skipwith, 482 F.2d at 1275.
33
spelling out its balancing test, but it also finds that the airport security measures are
constitutional.160 On the other hand, the courts in Kroll and Albarado examine the need for liberty
in travel and privacy more closely, recognizing a stronger need for evidence of the government’s
intentions due to infringement on two rights, travel and privacy.161 These courts find the airport
security measures are too invasive, and require a stronger showing of the efficacy of the
government’s actions against a threat.162
As recognized in Kroll and Albarado, forcing the choice between travel and privacy is
coercion even in the face of any prior warning: “[w]hat is clear is that the public does have the
expectation, or at least under our Constitution the right to expect, that no matter the threat, the
search to counter it will be as limited as possible, consistent with meeting the threat.”163 The
Founding Fathers “were skeptical of using the rules for search and seizure set by government
actors as the index of reasonableness.”164 This means that expectation of being searched in an
airport and eroding privacy over time do not change the rights guaranteed by the Founders in the
Constitution.
Identification Requirements to Travel
A further infringement on the domestic right to travel was the requirement to show
government identification in order to board an aircraft. The identification requirement was
introduced in 1996 to check in and board flights. Presentation of government identification165 also
more recently became necessary for travelers to enter the “sterile” areas166 in airports.167
160
Skipwith, 482 F.2d at 1275.
161
Kroll, 481 F.2d at 885; Albarado, 495 F.2d at 807.
162
163
Albarado, at 807. See also Kroll, at 886.
164
Virginia v. Moore, 553 U.S. 164, 169-70 (2008)
165
Currently, the states set their own criteria to license their resident drivers, the documentation needed and age
restrictions, among others requirements. To standardize government-issued ID requirements at a national level, Congress
introduced the REAL ID Act of 2005, a national identification scheme (NIDS). The Act gives the Secretary of Homeland
Security the power to impose the use of the REAL ID for any purpose. In practice, a REAL ID could be required to board
any public transportation vehicle, vote, work, open a bank account, access a national park, or even to merely stand on the
street. It would give the federal government broad police power over the citizenry. The REAL ID requirements form the
basis of an internal passport, the “hallmark of repressive regimes such as [Apartheid] South Africa, the Soviet Union, or
Nazi Germany.” Gerald Houseman, Right to Mobility 7 (1979). This abridges the right of free movement of citizens within
the U.S. as well as free market for movement of people carrying goods in the U.S. There are “23 states that have passed
legislation partially or completely prohibiting participation in the REAL ID program.” Chad Vander Veen, “Is Pass ID
Better Than REAL ID? (Analysis),” Government Technology, August 14, 2009, available at:
www.govtech.com/security/Is-PASS-ID-Better-Than-REAL.html. The most recent iteration, PASS ID (June 2009) would
eliminate some of the burdensome technological requirements, “but keeps in place most of the other REAL ID
cornerstones.” Id. Real ID was proposed partly because some September 11 terrorists used U.S. IDs to board the aircrafts.
U.S. Congress. Senate Committee on Homeland Security and Governmental Affairs. Hearing on the Impact of
Implementation: A Review of the Real ID Act and the Western Hemisphere Travel Initiative. 110th Cong., 2nd sess., April
29, 2008, See Richard Sobel, “The Demeaning of Identity and Personhood in National Identification Systems,” Harvard
Journal of Law and Technology, Vol. 15, No. 2, Spring 2002, at 319. See also Richard Sobel, “Citizenship as Foundation,”
Triquarterly, 131, 2008.
166
“Sterile areas” are the areas in airports located after clearing the security checkpoints. As early as July 18, 1996, in
some airports, these areas were only accessible to ticketed passengers and certain approved non-travelers. Douglas Martin,
“Explosion Aboard T.W.A. Flight 800: The Aftershocks; Most Passengers are Tense, But Take Comfort in Odds,” New
York Times, July 19, 1996. Ironically, the TWA 800 explosion was proven to have been caused by a mechanical problem,
34
Absent probable cause or reasonable suspicion, identification demands constitute unwarranted

searches.168 As established in Kolender v. Lawson169 and Hiibel v. Nevada, 170 individuals need
not provide identification to government authorities without probable cause or reasonable
suspicion of wrongdoing, and an enabling state statue.171 An identification requirement assumes
that citizens exercising their right to travel are also engaged in unlawful activities. In itself, this
violates the presumption of innocence and the Fourth Amendment guarantee against unreasonable
searches. The need to show an official document to travel domestically is a governmental
interference in both the right to travel and the rights of citizens not to carry identification.172
The proposed purpose of requiring photo identification in air travel is to check that the person
traveling is the passenger on the flight ticket.173 Yet, the photo identification requirement does not
eliminate the threat of terrorism or even assure increased security.174 As incidents since 9/11 have
sadly shown, previously unknown terrorists may have valid licenses or passports, and not appear
on terrorist watch lists. For example, “[a]ll of the 9/11 terrorists presented photo-IDs, many in
their real names.”175 Although terrorists may train to use and obtain false identification, the 9/11
Commission spent little time examining that problem since the 9/11 hijackers used their own
official identification.176 Further, most of the terrorists involved in 9/11 “were in the U.S. legally
and had no record with the FBI or other security agency.”177 As 9/11 demonstrated, first time
terrorists were able to obtain IDs and board aircraft without much added inconvenience and
without arousing suspicion. “A [national ID system] offers no security against terrorists who have
no record of prior misconduct and are not worried about being identified after the attack….”178 In
short, the identification requirement is ineffective and imposes an unreasonable burden on privacy
not terrorism, yet the ID requirement remained in place. See NTSB “Aircraft Accident Report,” July 17, 1996,
http://www.ntsb.gov/investigations/summary/AAR0003.html
167
An FAA regulation implementing a nationwide government-issued ID requirement to fly was introduced shortly after
the explosion of TWA Flight 800 in July 17, 1996. Edwin McDowell, “Tighter Airline Security Will Add Inconvenience,”
New York Times, August 11, 1996. Until 2008, passengers could travel without identification if they underwent a more
intrusive search, where they would be categorized as “selectees.” See Gilmore, 435 F.3d at 1130.
168
See Richard Sobel and John A. Fennel, “Troubles with Hiibel: How the Court Inverted the Relationship between
Citizens and the State,” 48 S. Tex. L. Rev. 613 (2007).
169
461 U.S. 352 (1983).
170
542 U.S. 177 (2004).
171
See Brown v. Texas, 443 U.S. 47 (1979), Terry v. Ohio, Kolender v. Lawson, and Hiibel v. Nevada, 542 U.S. 177
(2004).
172
By adding procedural barriers to interstate travel, the ID requirements parallel earlier taxes as impediments to travel that
states tried to levy upon exiting travelers until the Supreme Court held such taxes unconstitutional. See supra note 20.
173
Transportation Security Administration. ID Requirements for Airport Checkpoints, available at:
http://www.tsa.gov/travelers/airtravel/acceptable_documents.shtm. (July 28, 2010). When originally implemented in 1996,
the ID requirement was often administered simply to establish that someone had an ID, without actually checking it against
the ticket.
174
Within the sterile area, for example, airlines do not require ID to board the aircrafts since the person was already
inspected. “This is a classic example of a security failure because of an interaction between two different systems. …
[T]here's no system to make sure that the name on the photo ID matches the name in the computer.” Schneier, supra note
110.
175
Bruce Schneier, Flying on Someone Else’s Airplane Ticket, Crypto-Gram Newsletter, Aug. 15, 2003, available at:
http://www.schneier.com/blog/archives/2005/02/flying_on_someo_1.html The hijacker could also have flown using their
passports, though this might have prompted more scrutiny.
176
Bob Sullivan, “9/11 Report Light on ID Theft Issues,” MSNBC, (Aug. 4, 2004),
http://www.msnbc.msn.com/id/5594385/ns/us_news-security/t/report-light-id-theft-issues/#.UBAOb6PrlEI.
177
Andrew Clement et al, “National Identification Schemes (NIDS) and the Fight against Terrorism: Frequently Asked
Questions,” Computer Professionals for Social Responsibility, 2001. Available at:
http://cpsr.org/issues/privacy/natidfaq/.
178
“…(possibly because they will be dead).” Id.
35
and anonymity in abridging citizens’ exercise of their right to travel. Moreover, many travelers
take offense at the idea that they need official “papers” in order to travel.179 If a law has “no other
purpose...than to chill the assertion of constitutional rights by penalizing those who choose to
exercise them, then it [is] patently unconstitutional.”180
Passenger Watch-List Prescreening Programs
Concern about a terrorist threat against the United States contributed to passenger watch-list
prescreening programs supposed to root out terrorists attempting to board airplanes to, from, or
within the United States. 181 The first pre-screening program introduced in the U. S. was the
Computer Assisted Passenger Prescreening System (CAPPS) in 1998.182 CAPPS was
administered by the airlines, which compared information recorded in the Passenger Name Record
(PNR) with government lists of individuals banned from flying. 183 It also targeted travelers
whose behavior, such as traveling alone, buying a one-way ticket, paying with cash, or not
bringing luggage, raised the level of suspicion. The latter flagged half of the 9/11 hijackers, but at
the time, those signals only led to x-raying of their checked baggage.184
After 9/11, the newly created Transportation Security Administration (TSA) in November
2001 received authority to establish security procedures in U.S. airports toward the goal of
“prevent[ing] terrorist attacks and reduc[ing] the vulnerability of the United States to terrorism
within the nation’s transportation networks.”185 The TSA then introduced the more intrusive
CAPPS II system, which went beyond the original CAPPS by further collecting sensitive
information about passengers and relying on commercial databases.186 After controversy over
privacy and many unresolved system issues and flaws, President Bush terminated the CAPPS II
Program in 2004.
In 2009, however, the TSA began a similar program known as “Secure Flight,”187 which
assigns the TSA the task of executing passenger prescreening.188 Its purpose was to ”more
179
Robert Hardaway, “The Role of Media, Law, and National Resolve in the War on Terror,” 33 Denv. J. Int’l L. & Pol’y
104, 122 (2004). Gilmore v. Gonzales, 435 F.3d 1125, (9th Cir. 2006).
180
United States v. Jackson, 390 U.S. 570, 581 (1968).
181
U.S. Government Accountability Office. “Aviation Security: Computer-Assisted Passenger Prescreening System Faces
Significant Implementation Challenges.” GAO-04-385. 2004.
182
U.S. Government Accountability Office, 2004.
183
The PNR is used by airlines to maintain and share passengers’ reservations and personal information for operational
purposes. “A PNR may include each passenger’s full name, home address, home telephone number, and date of birth, as
well as some information about that passenger’s itinerary.” 68 Fed. Reg. 45266, Aug. 1, 2003.
184
See 911 Commission Report, at 392, that the CAPPS system flagged half of the 911 hijackers only led to the x-raying
of their checked baggage. http://www.9-11commission.gov/report/911Report.pdf “Ten out of the 19 hijackers (including 9
out of 10 on the two American Airlines flights) were identified by the CAPPS system.”
http://govinfo.library.unt.edu/911/report/911Report_Notes.htm
185
See 49 U.S.C. § 114; 6 U.S.C. § 202(1); 49 C.F.R. § 1540.107; Redfern v. Napolitano at 2 (quoting declaration of Lee
R. Kair, Assistant Administrator for Security Operations for TSA).
186
“The Five Problems with CAPPS II, ACLU post August 25, 2003,” available at: http://www.aclu.org/national-
security/five-problems-capps-ii. CAPPS II was to be administered by TSA. Id. These rules cover flights operated by U.S.
aircraft operators and flights operated by foreign carriers operating in U.S. airspace, and includes en-route flights over
contiguous U.S. Airspace, as specified in the rule and in accord with the U.S special aircraft jurisdiction.
187
Transportation Security Administration. “Secure Flight Program,” available at:
http://www.tsa.gov/what_we_do/layers/secureflight/index.shtm.
188
69 Fed. Reg. 65619, Nov. 15, 2004.
36
effectively and consistently prevent certain known or suspected terrorists from boarding aircraft
where they may jeopardize the lives of passengers and others.”189 The program tries to achieve
this goal by comparing the Secure Flight Passenger Data (SFPD) that the airlines collect and
transmit to the TSA—including each passenger’s full name, gender, date of birth, and Redress
Number or known traveler number—against the Terrorist Screening Database (TSDB), a
consolidated watch list maintained by Terrorist Screening Center (TSC).190 This comparison is
meant to enable the TSA to identify and screen “known or suspected terrorists,”191 and to clear
others to board aircraft.
Secure Flight, as well as other passenger watch-list prescreening programs, violates rights to
travel, privacy, and the presumption of innocence.192 Rather than the default being that a citizen
may fly absent evidence that the individual poses a danger, the default becomes that one may not
fly without proving both identity and innocence. Instead of screening a passenger list if there is
intelligence about a possible threat, all flights and all passengers are screened. Rather than
conducting further questioning or screening only if there is a match initially based on names,
Secure Flight requires declarations of gender and dates of birth for all travelers. In essence, one
cannot travel in the U.S., without proving identity at the time of travel and without receiving prior
official permission of the U.S. government193 to fly.194 Citizens are required to give up their
private information to obtain a government pre-clearance or permission to exercise their
constitutional right to travel. This reduces travel to a privilege requiring government approval. It
restricts travel rights unconstitutionally since the government cannot force an individual to give up
a fundamental constitutional right like privacy to exercise another like travel.195
189
72 Fed. Reg. 43357, Aug. 23, 2007.
190
72 Fed. Reg. 48359, Aug. 23, 2007.
191
69 Fed. Reg. 65619, Nov. 15, 2004.
192
In comments to the TSA, several major airlines agreed with the criticism of Secure Flight requirements. Continental
Airlines, for example, asserted that “there should be no requirement for a full name, date of birth or gender from customers,
which Continental believes would be highly burdensome and intrusive while not producing any meaningful additional
security.” Similarly, Northwest Airlines stated that “[o]nly on the occasion that the full name itself was not enough, would
there be a need or want to provide additional information. To require date of birth and gender for all, when only a small
percentage of the total vetting responses result in a false positive identification, seems a disservice. There is a definite need
to minimize the data demands to reduce impositions on passenger privacy and airline resources. ”Thomas Frank, TSA Plan
to Gather More Data Protested, USA Today, Nov. 29, 2007 http://www.usatoday.com/travel/flights/2007-11-29-secure-
flights_N.htm Moreover, “[a]sking a passenger's birth date and gender "would create a new level of complication for
completing air reservations," United Airlines wrote to the TSA. "Seeking useless data carries an unacceptably high price
tag." Id. Secure Flight is premised on the unlikely prospect of knowing birth dates for terrorists, and it does not validate
the dates provided by passengers. On November 1, 2010, nine organizations petitioned the TSA to drop or significantly
modify Secure Flight.
193
If a passenger refuses or fails to provide the information, TSA will not clear her to fly and the airline is not allowed to
issue a boarding pass. Though the Secure Flight information is not required until 72 hours before departure, it is not
possible to get an advance reservation without providing it. As the Southwest Airlines website notes, “What happens if I
choose not to provide my Secure Flight Passenger Data? Airlines are required to provide this data to the TSA before the
carrier can issue a boarding pass (either in advance or at the airport)…[Y]ou can choose to provide the personal data
directly to the airline at the airport each time you travel. However…you will not be able to purchase a reservation online.
You also will not receive a boarding pass or be able to travel until the appropriate data has been collected.
www.southwest.com/html/customer-service/faqs.html?topic=tsa_secure_flight.
194
Once at the airport the person needs to produce “adequate” photo identification or s/he will be denied access to the
sterile area. See TSA, ID Requirement for Airport Checkpoint, 2010.
195
United States v. Davis, 482 F.2d 893, 913 (9th Cir. 1973). See also Kroll, at 886.
37
Inclusion in the Secure Flight “No-Fly” list, which prevent matched passengers from flying, is
directed by suspicion and not by proof of a threat.196 The government’s use and storage of Secure
Flight Passenger Data for the purpose of knowing who travels where and when undermines the
constitutional concept of personal liberty by restricting the right to travel until officials clear
individuals to exercise what becomes a privilege. “An individual’s liberty may be harmed by an
act that causes or reasonably threatens a loss of physical locomotion or bodily control.”197
Yet, if there is adequate justification to prohibit someone from flying, the government should
get a search or arrest warrant to stop the suspected violent individual before he reaches the airport.
If there is sufficient information about a threat to a particular flight or airport, then the TSA can
examine passenger lists. The TSA should not subject every flyer and flight to unwarranted
provisions and screening of personal information.198
Combined with the travel identification requirements, Secure Flight creates the basis for an
internal passport system like those in authoritarian regimes.199 Under such a system, the
government may approve (or disapprove) movement within U.S. jurisdiction. In combination with
extensive records of the passengers’ itineraries, the government can construct dossiers of where
and when individuals travel. Surveillance information on travel can eventually be used to prohibit
travel to local or national destinations. Under such a rubric, citizens lose the right to move freely
and anonymously around the U.S. territory.
196
In a high-profile example, the late U.S. Senator Ted Kennedy (D-Mass.) was notoriously stopped from boarding an
aircraft since his name resembled a suspected terrorist’s alias (“Edward Kennedy”). Rachel L. “Swarns, Senator? Terrorist?
A Watch List Stops Kennedy at Airport,” New York Times, Aug. 20, 2004, at A1. More recently, in June 2010, Sean Kelly,
a weekly flier, was included in the No-Fly list for unknown reasons. After months of being treated as a terrorist he decided
to apply to the redress program, which required him to submit exhaustive documentation to prove his identity. The system
failed and TSA ignored his following redress requests, until he got the press involved, at which point his issue was
immediately resolved. Jon Yates, “Frequent Flier has Rough Landing on TSA Watch List,” Chicago Tribune, June 3,
2010. Other people with common names like David Nelson are also often mismatched. If the individual is mistakenly and
repeatedly identified for screening, he or she may apply for a Redress Number or a Known Traveler Number, which will in
theory identify that person when he flies in the future.
197
Elizabeth P. Foley, Liberty for All: Reclaiming Individual Privacy in a New Era of Public Morality 49 (2006). Steve
Chapman, “A Radical Idea for Airport Security, The Government Shouldn't Decide Who Can Fly,” Chicago Tribune, July
18, 2010, Steve Chapman, "Why the No-Fly List Doesn’t Fly, Depriving People of the Right to Travel,” Chicago Tribune,
March 31, 2013, p. 23.
198
Gerald Houseman, The Right to Mobility 7 (1979). As Houseman notes (see supra note 74) national identification
documents used for work per se restrict the right to travel as internal passports. A more current example of this is under the
proposed 2013 “Comprehensive Immigration Reform” bill (S.744) that in order to work in the U.S., American citizens
would be required to have their biometric digital photograph in a government database and it would need to be matched by
a “photo tool” with a passport or drivers license photo. The same bill calls for a biometric Social Security card (see
Houseman, at 17. Combined with security databases and facial recognition capacity these identification systems could
prevent e.g. anyone from entering a subway or an airport. See "EPIC sues FBI to Obtain Details of Massive Biometric
Database" at epic.org/2013/04 Hence, both in limiting mobility to take jobs and to enter nodes of transportation, the
“comprehensive” parts of immigration reform like biometric Social Security cards and photo identification requirements to
fit with facial recognition technology would deform the citizens' and non-citizens’ rights to travel. See April 2013 EPIC v.
FBI suit against the FBI biometric databank and facial recognition at www.epic.org. See also Orin Kerr, "Use Restrictions
and the Future of Surveillance Law," in Jeffrey Rosen and Benjamin Wittes, Constitution 3.0, Freedom and Technological
Change, 2011. See also “In the Matter of an Application of the United States of America for an order authorizing
disclosure of location information of a specified wireless telephone,” U.S. District Court, District of Maryland, August 3,
2011, on the “rights to privacy” in “location” and “movement,” at 22, 31-34.
38
Moreover, Secure Flight information requirements are easy to bypass for those bent on
harm.200 False matches to the watch list pre-screening programs have degraded the right to travel
of many innocent citizens but located no terrorists.201 In short, Secure Flight requires unnecessary
personal information that cannot be matched with potential terrorists not included on the pre-
screening watch lists.
Whole Body Scans and “Enhanced” Pat-Down Searches
Since 2010, the TSA has implemented devices for primary screening that rely on Whole Body
Scanning (WBS) technology.202 According to the TSA, the scanners were introduced to speed up
security screening as well as to “enable screeners to find nonmetallic weapons, including
concealed powdered and liquid explosives that do not set off metal detectors.” Whole body
scanners examine passengers for carrying suspected weapons. 203
Two varieties of WBS (or AIT, Advanced Imaging Technology), backscatter (x-ray) scanners
and millimeter (radio) wave scanners, were hurried into service at dozens of domestic airports.204
Both can create nude images of passengers’ bodies.205 The scanners create images for screening
199
The pre-clearance process misses any terrorists not on the No Fly or selectee lists. Changing the name on a print-at-
home boarding pass could evade detection, since no one in the security checkpoints compares the passenger on the
boarding pass with the ones on the pre-screening list. The birth date and gender provided during booking are not checked
for validity. (If a person could use a false date of birth and gender at the time of booking, the pre-screening would not be
able to establish if the person is an alleged danger to air travel.) TSA argues that reservation systems do not print the entire
name on boarding passes, so small differences will not affect the travelers’ experience at the airport. (TSA, ID
Requirements for Airport Checkpoints, 2010). People with similar names may travel with someone else’s ticket, which
may allow an actual terrorist onboard. Individuals with more than one last name may claim that the last name in the ticket
is theirs as it matches one of the last names in the photo ID. Also parents and children with the same name could exchange
boarding passes.
200
For a discussion of passengers subject to unjustified scrutiny for FBI mishandling of the No-Fly list, see Kim Zetter,
“Threshold for Getting Onto No-Fly List Lowered,” Wired.com, (Jan. 6, 2010), www.wired.com/threatlevel/2010/01/no-
fly-list/. ”The Constitution Applies When the Government Bans Americans from the Skies,” Nusrat Choudhury, ACLU,
March 25, 2013 about the ACLU suit against No-Fly list restrictions on American citizens. www.aclu.org. See also Latif
v. Holder, U.S. District Court of Oregon, June 29, 2010, and Latif v. Holder, memorandum, March 22, 2013 (particularly at
19-22 on the right to travel by plane and ship) on the ACLU website.
201
Transportation Security Administration. “Screening Management Standard Operating Procedures,” Rev. 3. 2008.
202
“AIT currently provides the best available opportunity to detect non-metallic explosives, non-metallic explosive devices
and non-metallic weapons.” (TSA, “Passenger Screening Using Advance Imaging Technology,” March 26, 2013, at 7).
203
Ken Dilanian, “New Concerns Arise Over Body Scanners,” Los Angeles Times, 2 June 2010,
http://articles.latimes.com/2010/jun/12/nation/la-na-body-imagers-20100611. As the article reports, a TSA officer was
charged with aggravated battery for attacking a co-worker for joking about his genitalia after going through a body
scanner. A similar situation in London’s Heathrow International Airport in England involved an officer making lewd
comments about a female colleague as she entered the scanner. “TSA Screener Attacked After Making Fun of Man’s Penis
on Body Scanner,” KTLA News, May 7, 2010, http://www.ktla.com/news/landing/ktla-body-scan-penis-tsa-
attack,0,2428734.story.
204
Id. Connecting WBS images with passengers names from governmental identification, boarding passes, or facial
recognition creates the possibility of retaining nude images of individual passengers by name. TSA maintains that it will
not identify images.
205
See U.S. Dept. of Homeland Sec., “Privacy Impact Assessment Update for TSA Whole Body Imaging,” 2009, at 2.
Although it is beyond the scope of this article, radiation emitted by the scanners has also raised a host of health concerns,
including concerns voiced by TSA employees. See, e.g., Sarah J. Welch, “Airport Body Scanners and Health,” New York
Times, (July 12, 2011), http://intransit.blogs.nytimes.com/2011/07/12/airport-body-scanners-and-
health/?ref=transportationsecurityadministration; Mark Fogione, “TSA Body Scanners Still Raising Concerns? Here’s
Why,” L.A. Times, Nov. 18, 2010 (discussing health concerns voiced by pilot unions).
206
Id.
39
that so expose travelers that the American Civil Liberties Union referred to the TSA’s WBS as
conducting “virtual strip searches.”206 The scanners impose a burden on travelers to give up their
constitutionally guarded privacy and protection against unreasonable searches, as well as travel
rights, for the sake of questionable security technology.207 Negative media exposure of the TSA’s
deployment and use of these devices has left many in the public all-too-familiar with the nude
images from Whole Body Scanners. 208
Passengers may “opt out” of the scanning but then must undergo an “enhanced” pat down
search instead.209 These “enhanced” pat-downs are intrusive, physical searches.210 Hence,
passengers faced the “option” to appear “virtually” naked in an x-ray photograph before one
government agent, or to be virtually “molested” by another.211 Both “options” violate personal
privacy.212
The ineffectiveness of the body scans may render them unreasonable and unrelated to the
objectives of the search.213 TSA scans also take no account of age or sex of the subject, or
whether the passengers may have been abused in some way rendering the process particularly
harmful.214 Thus, Whole Body Scans are overbroad in their application to all flyers, and
207
“ACLU Backgrounder on Body Scanners and ‘Virtual Strip Searches,’” ACLU (Jan. 8, 2010), available at:
http://www.aclu.org/technology-and-liberty/aclu-backgrounder-body-scanners-and-virtual-strip-searches. “The lawfulness
of a strip search depends on whether the circumstances reasonably justify such an intrusive invasion of privacy.” United
States v. Cofield, 391 F.3d 334, 336 (1st Cir. 2004).
208
Europe has banned the x-ray scanners due to the risk for cancer, but no data exists for the cancer risk of scanners using
radio waves. David DiSalvo, “Europe Bans Airport Body Scanners for ‘Health and Safety’ Concerns,” Forbes, (Sep. 15,
2011), http://www.forbes.com/sites/daviddisalvo/2011/11/15/europe-bans-airport-body-scanners-over-health-and-safety-
concerns.
209
See, e.g., Laura Riparbelli, “TSA Screenings Outrage Some Airline Passengers,” ABC News, (July 16, 2011),
http://abcnews.go.com/US/airport-security-measures-prompt-outrage-elderly-children/story?id=14081084; Leonora
LaPeter Anton, “Scan of Girl, 12, Upsets Parents,” St. Petersburg Times, July 18, 2010, at B1; David Ovalle, “Miami
Airport Screener Accused of Attack After Jeers at Genitals,” Miami Herald, May 7, 2010. Fox 8 News Staff. “TSA Agent
Brawls over Full Body Scan.” Fox 8 News Cleveland. (7 May 2010), http://www.fox8.com/news/wjw-full-body-scan-tsa-
brawl,0,4672707.story. The Gilmore court indicated “selectees” got a “light body patdown,” at 1158.
210
Meagan Kelleher, “Body Scanner Unveiled at KCI,” Fox4kc.com, (March 16, 2010), television broadcast available at:
http://www.fox4kc.com/wdaf-body-scanners-kci-airport-031610,0,3922967.story.
211
The Fourth Amendment protects against frisk searches. See Terry v. Ohio, 392 U.S. 1, 16 (1968). “[I]t is nothing less
than sheer torture of the English language to suggest that a careful exploration of the outer surfaces of a person's clothing
all over his or her body in an attempt to find weapons is not a ‘search.’ Moreover, it is simply fantastic to urge that such a
procedure performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands
raised, is a ‘petty indignity.’ It is a serious intrusion upon the sanctity of the person, which may inflict great indignity and
arouse strong resentment, and it is not to be undertaken lightly.”
212
“[The] U.S. Court of Appeals for the 3rd Circuit… stressed that screening procedures must be both ‘minimally
intrusive’ and ‘effective’ - in other words, they must be ‘well-tailored to protect personal privacy,’ and they must deliver
on their promise of discovering serious threats.” Jeffrey Rosen, “Why TSA Pat-Downs and Body Scans are
Unconstitutional,” Washington Post, November 28, 2010.
213
Privacy violations form the grounds, in part, for three recent suits brought against the TSA’s WBS protocols. In the first,
EPIC v. the Department of Homeland Security, Case No. 10-1157 (D.C. Cir. filed July 2, 2010), the D.C. Court of Appeals
found that the TSA violated the Administrative Procedure Act and indicated that the claimed constitutional violations
would prove unconvincing. At the District Court level, in Redfern & Pradhan v. Napolitano, Slip Copy, 2011 WL
1750445, D.Mass., May 09, 2011, a court did not reach the constitutional complaint, finding that the TSA’s statutory
authority granted exclusive jurisdiction to Courts of Appeals. A D.C. District Court reached the same conclusion in
Roberts v. Napolitano, WL 2678950 (D.D.C. 2011).
214
Government Accountability Office, GAO report number GAO-12-541T Transportation Security Administration,
“Progress and Challenges Faced in Strengthening Three Key Security Programs,” March 26, 2012. Available at:
www.gao.gov/assets/590/589588.txt See also Corbet v. TSA, 12-CV20863, SD FL. (2012).
215
See Kate Dailey, “For Survivors of Sexual Assault, New TSA Screenings Represent a Threat,” Newsweek, (Nov. 17,
2010), http://www.thedailybeast.com/newsweek/2010/11/17/tsa-screenings-worry-sexual-assault-survivors.html.
40
disparately impact particular passengers, especially women and/or those experiencing previous
physical trauma.
In response to mounting public outcry over these nude images and pat downs, on July 20,
2011,215 TSA Administrator John Pistole announced that the millimeter wave scanners’ software
would be upgraded to “enhance privacy by eliminating passenger-specific images.”216 Dubbed
“stick figure” software,217 such modifications of scans do not remove privacy concerns, even if the
still-graphic initial scan can be filtered into a generic outline. It was “unclear whether the body
scanners are capable of capturing, storing, or transferring the underlying graphic naked image.”218
Additionally, without knowing more about the method of data transmission between scanner and
display, vulnerabilities over potential interception of raw graphic images remains a concern.219
Since the possibility for abuse remains if the scans may be converted into more graphic images,
whether the silhouette body scanners may impose less unreasonable burdens on travelers is
unclear.220
“Scanners will not detect material concealed in the groin or in body cavities.”221 Tests show it
is unclear whether the scanners would have detected the PETN that the so-called “underwear
bomber” Abdulmutallab smuggled on board a flight in December 2009.222 Yet scanners’
effectiveness is assumed by TSA as in its presentation in EPIC v. DHS in 2011. 223
216
See, e.g., Gary Stoller, “Backlash Grows Vs. Full-Body Scanners, Fliers Worry About Privacy, Health Risks,” USA
Today, (July 13, 2010), at A1. By Evann Gastaldo, “So How Many Terrorists Has the TSA Actually Caught? None—that
it's publicized, at least,” Nov 20, 2010. http://www.newser.com/user/3732/1/evann-gastaldo.html?type=stories . Juliet
Lapidos, “Does the TSA Ever Catch Terrorists? If they do, for some reason they won't admit it.” Nov. 18, 2010.
http://www.slate.com/articles/news_and_politics/explainer/2010/11/does_the_tsa_ever_catch_terrorists.html . But see,
“TSA Top 10 Good Catches of 2011,” January 5, 2012 , http://blog.tsa.gov/2012/01/tsa-top-10-good-catches-of-2011.html
For a list of “prohibited, dangerous and illegal items” found by TSA, see TSA “Passenger Screening Using Advanced
Imaging Technology,” March 26, 2013, at. 21-22. The filing does not indicate that any attacks have been halted by this
means. Moreover, recently TSA has re-permitted small knives on flights. See Chapman, “Allowing Knives on an
Airplane?” Chicago Tribune, April 28, 2013, at 23, for the contradictory nature for airline safety.
217
“TSA Announces Installation of ‘Stick Figure’ Software for Some Body Scanners,” EPIC, (July 21, 2011),
http://epic.org/2011/07/tsa-announces-installation-of.html. TSA replaced nude scanners with stick figures.
http://www.tsa.gov/press/news/2013/01/17/security-effectiveness-and-efficiency . Adam Snider, “TSA pulls plug on
'naked' body scanners,” January 18, 2013, http://www.politico.com/story/2013/01/tsa-pulls-plug-on-naked-body-scanners-
86421.html
218
Id.
219
Id. In a session about the EPIC suit at the Cato Institute on April 2, 2013, lead attorney for EPIC, Ginger McCall
suggested that the modified scanners still obtained the nude images (and potentially could retain them) and could not detect
powdered explosives. “Travel Surveillance, Traveler Intrusion,” www.cato.org/events/travel-surveillance-traveler-intrusion
See also details in epic.org/privacy/body_scanners/epic_v_tsa.html on body scanners’ retention of images and powder
detection.
220
M. Madison Taylor, supra note 147. (Citing Albarado, 495 F.2d 799, 807 n.14 (2d Cir. 1974)).
221
“[T]he Dutch use scanners known as ProVision ATD… If the software detects contraband or suspicious material under
a passenger's clothing, it projects an outline of that area of the body onto a gender-neutral, blob-like human image, instead
of generating a virtually naked image of the passenger. The passenger can then be taken aside for secondary screening.”
Rosen, supra note 212.
222
United Press International, “Experts: Whole Body Scanners Can be Fooled, UPI.COM. 16 June 2010, available at:
http://www.upi.com/Top_News/US/2010/06/13/Experts-Whole-body-scanners-can-be-fooled/UPI-84861276469712/.
Especially problematic is not requiring passengers to go through a magnetometer, which detect metal, before a scanner or
pat down, which might miss a metal object.
223
Stephen Lord, of the Government Accountability Office (GAO), speaking to Congress in March 2010.
224
Elec. Privacy Info. Ctr. v. DHS, 653 F.3d at 1. TSA, “Passenger Screening Using Advanced Imaging Technology,”
March 26, 2013, at 7
41
Passengers are expected not to be shocked or offended by having to pass through either a
scanner producing a picture of their (or their children’s) nude body or an invasive pat down by a
government official. In unrolling those new technologies, the TSA has often been marked for
tactless and aggressive application of new protocols.224 This treatment represents a drastic
reversal from the constitutionally protected presumption of innocence. Because of their
questionable effectiveness and invasiveness, TSA does not have compelling evidence to submit all
passengers to such intrusive searches as primary screening tools. 225
Constitutional Questions about Whole Body Scans and Enhanced Pat Down
When viewing “strip searches,” even without physical contact, courts balance the value of the
search over the loss of an individual’s privacy.226 The Sixth Circuit in Reynolds v. City of
Anchorage stated that the virtual strip search violates the rights guaranteed by the Fourth
Amendment unless the “‘scope when the measures adopted are reasonably related to the objectives
of the search and not excessively intrusive in light of the age and sex of the [subject of the search]
and the nature of the infraction.”227 Under this test, with the default to scan anyone, Whole Body
Scans violate the Fourth Amendment prohibitions of unreasonable searches and seizures.
Kroll and Albarado would also find searches like Whole Body Scans and Enhanced Pat
Downs too invasive to pass constitutional muster.228 In looking to the liberty of travelers, the
government also fails balancing tests like Skipwith because WBS are ineffective and violate
Constitutional rights without protecting safety. An ineffective search is per se unreasonable.229
Using the balancing tests in Skipwith, Whole Body Scans and Enhanced Pat-Downs are
unreasonable, invasive, and unnecessary in the three factor test for violating the Fourth
Amendment: public necessity, efficacy, and intrusion.230 Although protection from a terrorist
attack in a plane is a public purpose, Whole Body Scans fail the next two Skipwith prongs of
efficacy and intrusion. The searches themselves fail to protect the public. Considering the likely
evasion by the so-called “underwear bomber” even had a scanner been in use, as well as the
inherent weaknesses of the technology, as the GAO report demonstrates,231 body scanners simply
provide terrorists with a hurdle a fanatic can easily overcome. Little evidence exists that shows
225
See, e.g., Ben Mutzabaugh, “TSA Under Fire for Enhanced Pat Down of 6-Year-Old Girl,” USA Today, April 13, 2011,
available at http://travel.usatoday.com/flights/post/2011/04/tsa-screening-controversy/155793/1; Joel Johnson, “One
Hundred Naked Citizens: One Hundred Leaked Body Scans,” Gizmodo, (Nov. 16, 2010),
http://gizmodo.com/5690749/these-are-the-first-100-leaked-body-scans?skyline=true&s=i.
226
Recently the TSA has begun phasing out back-scatter (nude) scans for stick figure machines Whether the stick figures
could be converted into nude scans is unclear. See supra note 217.
227
Reynolds v. City of Anchorage, 379 F.3d 358, 361 (6th Cir. 2004) (The police officer defendant conducted a virtual strip
search, in which she inspected but did not touch the plaintiff she instructed to disrobe).
228
Id.
229
230
See William W. Greenhalgh, “In defense of the 'per se' rule: Justice Stewart's struggle to preserve the Fourth
Amendment's warrant clause,” American Criminal Law Review, Vol. 31 No. 4, June 1994
231
482 F.2d 1272, 1276 (5th Cir. 1973).
232
Transportation Security Administration: “Progress and Challenges Faced in Strengthening Three Key Security
Programs,” supra note 214.
42
the efficacy of the WBS to prevent terrorist attacks.232 In short, applying Skipwith today, the body
scanners fail.233
Yet a circuit court used this balance as recently as Elec. Privacy Info. Cert. v. U.S. Dept. of
Homeland Sec. in 2011.234 The DC Circuit Court described the necessity to balance two factors,
“degree to which the search intrudes upon an individual’s privacy and the degree to which it is
needed for the promotion of legitimate governmental interests”235
The court found that WBS passed the test, but the decision barely discussed the facts of the
case and ignored the ineffectiveness of the scans.236 EPIC restates fewer prongs of what is
necessary than Skipwith, because this decision does not as clearly require efficacy. Since efficacy
matters, the scans fail the test, because they do not work to increase safety against the type of
explosive they are supposed to detect. As with the more obtrusive nude body images, the new
stick figure software scans fail to mitigate concerns that even upgraded devices will not be able to
detect powdered explosives such as PETN.237 Nor can the scans find internally concealed
weapons. In short, as generally ineffective, WBS are not reasonable, and fail Skipwith’s second
prong (efficacy).
In response to the court order in EPIC v. DHS, the TSA issued “Passenger Screening Using
Advanced Imaging Technology,” on March 26, 2013. It claims that “the TSA was created to
ensure freedom of movement for people and commerce…[and] effectively securing all modes of
238
transportation, including aviation.”
Other technologies that are not as intrusive as the WBS provide better layers of security.
They also protect travelers’ constitutional rights. These include metal detectors for weapons and
hand swabs to detect explosive particles.239 On the other hand, “[u]nlike metal detectors, the body
imagers rely on TSA employees to accurately read the image.”240 Moreover, the rate of detection
by employees reading X–ray screenings of baggage is “disastrously low, and it’s no better than it
was on 9/11.”241 Yet, the operation of the Whole Body Scanners depends on the same employees,
but with the added distraction of viewing nude human images. Thus, body scanners are no more
233
See Michael Kelly, “The Government Admits that TSA Body Scanners are a Huge Waste of Money,” Business Insider.
(May 10, 2012) http://articles.businessinsider.com/2012-05-10/politics/31650296_1_tsa-to-advanced-imaging-technology-
scanners.
234
See Skipwith, 482 F.2d at 1275.
235
Elec. Privacy Info. Cert., 653 F.3d at 1. See also, U.S. v. Hartwell, 436 F.3d 174, 179-180 (3d Cir. 2006) (The court
applied a three part balancing test looking at necessity, the effectiveness of the search, and the level of invasiveness); U.S.
v. Aukai, 497 F.3d 955, 962 (9th Cir. 2007) (the court describes using the test “no more extensive nor intrusive than
necessary under the circumstances.” This in effect is also the same balancing test wherein the government interest and
importance of those circumstances are weighed against the effectiveness and intrusiveness of the search being conducted).
236
Elec. Privacy Info. Cert., 653 F.3d at 10 (quoting United States v. Knights, 534 U.S. 112, 118–19 (2001)).
237
Id.
238
Kelly, supra note 233.
239
TSA, “Passenger Screening Using Advanced Imaging Technology,” March 26, 2013 at 10. See
epic.org/redirect/TSAcomment on the efficacy of Alternative #3, metal detectors and swabs.
240
See Steve Chapman, “A Radical Idea for Airline Security,” Chicago Tribune, July 18, 2010. The TSA federal register
submission notes in Table 9, Regulatory Alternative #3, ETD Screening (Explosive trace detection), “Under this
alternative, TSA continues to use WTMDs as the primary passenger screening technology. In addition, TSA supplements
the WTMD screening by conducting ETD screening on a randomly selected portion of passengers after screening by
WTMD.” Details discussed in Chapter 3 of regulatory evaluation located in this docket (p. 29), which could not be located.
241
Dilanian, supra note 203.
242
Id.
43
reliable than baggage X-ray machines with the added inability to identify objects under skin folds
and in body cavities. These expensive devices unreasonably divert resources that could be better
spent on more effective and less intrusive technologies.
More traditional police and intelligence work, for threats both to aviation and other forms of
transportation, are also better investments of scarce funds. Individually targeted investigations
typically prove more effective in deterring threats before they arrive at airports or other travel
nodes.242
In short, also under the third prong (intrusion) of Skipwith, Whole Body Scanners fail the test
because the degree of intrusiveness is extreme. The search procedure violates privacy in body
scanners’ nature as a virtual strip search. Similarly, their alternative, a highly invasive pat down,
fails in its intrusiveness as well.
Whole Body Scanners also fails the intrusive prong of the Skipwith test because of the
psychological trauma that can result from this sort of intrusive violation of personal bodily
rights.243 This includes fear of being touched in a pat down, which can trigger flashbacks and
other traumatic experiences.244 This trauma does not stop at physical contact; for victims of sexual
assault that involved being photographed, the Whole Body Scanning can reignite the previous
trauma.245
Moreover, both body scanners and pat downs have more discriminatory impacts on women
and others.246 “Searches and seizures that create opportunities for sexual oppression, harassment,
or embarrassment are unreasonable both as a matter of common sense and constitutional morality,
whether one uses the language of privacy or equality or both.”247 Airport searches’ disparate
243
See Steven E. Miller, “After the 9/11 Disaster: Washington's Struggle to Improve Homeland Security,” 2 Axess 8.
Available at: http://belfercenter.ksg.harvard.edu/publication/254/after_the_911_disaster.html
244
Willard Shepard and Brian Hamacher, “Suspicious Package: TSA Worker Jailed After Junk Joke,” NBC, (May 7,
2010), http://www.nbcmiami.com/news/local/TSA-Fracas-After-Body-Scanner-Reveals-TMI-92971929.html (A TSA
worker continually mocked due to the size of his genital, which was seen because he walked through a whole body
scanner, snapped and violently beat a fellow worker who mocked him).
245
Dailey, supra note 215. “‘[W]e’ve had a number of survivors who have had their pictures taken and put online,’ as part
of a sexual assault, says Lambert. ‘So for them, even though [the TSA photo is] deleted, even if the person is in the other
room, the idea that the photo’s being taken can be difficult to handle.’ For adults who were assaulted as children, watching
their children go through either invasive photographs or excessive pat-downs can be traumatic as well.” All these
problems exist even assuming there is no misuse of power by a TSA agent.
245
The TSA “Passenger Screening Using Advanced Imaging Technology, March 26, 2013, notes that “individuals are
directed to stand with arms raised and to remain still for several seconds, while the image is created, at 21. TSA
accommodates those passengers whose conditions “make them ineligible for AIT screening because they cannot stand in
the necessary pose.” The nature of this "necessary pose" as that of a suspect or arrestee also raises issues of demeaning and
intrusive official requirements.
247
Profiling is discriminatory when the TSA targets individuals based on their race or family origins, such as targeting
Mexicans and Dominicans. (Harriet Baskas, “Report: TSA Screeners at Newark Airport Targeted Mexicans,” MSNBC,
(June 14, 2011), http://overheadbin.msnbc.msn.com/_news/2011/06/13/6849790-report-tsa-screeners-at-newark-airport-
targeted-mexicans.) As Daniel Solove suggests, when “[a]n individual fitting a profile” is made to “refrain from doing
things he is legally entitled to do,” including travel with ease and dignity, then he is “being treated no longer as an equal
but as someone who is inherently suspicious. No law-abiding citizen should be treated this way.” (Daniel Solove,
Nothing to Hide: The False Tradeoff between Privacy and Security 197 (2011).) Through its ubiquitous primary
screening protocols, the TSA has begun to do to all passengers what it has selectively and illegally done to many of those
profiled in the past: treat them as people who are “inherently suspicious.” Id.
248
Akhil Reed Amar, “Fourth Amendment First Principles,” 107 Harv. L. Rev. 757, 808-09 (1994).
44
impact on women can be extensive.248 Many women who have been singled out for search feel
targeted and other women feel particularly sensitive to violations of their bodily privacy.249 Over
the years, the TSA has received hundreds of complaints by women about mistreatment by TSA
agents.250 Women, or men, who have previously been molested or abused in some way are
especially vulnerable and at risk from these searches.251
Using multipronged balancing tests in Skipwith, the government has evaded the Fourth
Amendment in airports, by understating the intrusiveness of the searches and overvaluing their
effectiveness in preventing terrorism. In Electronic Privacy Information. Center v. U.S. Dept. of
Homeland Security, the D.C. Circuit described the necessity to balance two factors of the degree
the search “intrudes upon an individual’s privacy” and to which it promotes legitimate
governmental interests.252 EPIC specifically dealt with the advanced imaging technologies (AIT
or WBS) implemented in lieu of magnetometers. EPIC challenged this new policy on a number of
grounds, including a violation of the Fourth Amendment on its face.253 Though restating in fewer
prongs Skipwith, EPIC does not as clearly indicate the essentiality of efficacy for constitutionality.
Although EPIC lost the Fourth Amendment challenge, the ineffectiveness of the scans fails
the constitutional test. While holding the least intrusive method has never been prescribed by the
Supreme Court, the appellate court places too much faith into the efficacy of the scanners.254
Furthermore, the decision underplays the ineffectiveness of the searches. The Constitution
protects against actions not intentions. Ineffective methods are per se unreasonable and hence
unconstitutional. The court also fails to consider the erosion of the rights to travel and privacy in
dismissing the Fourth Amendment claim.255
Nonetheless, the D.C. Circuit court required TSA to follow a rule making procedures. It
noted that AIT as primary screening “substantively affects the public to a degree sufficient to
implicate the policy interests animating notice and comment rulemaking.” In short, the court
256
recognized the widely intrusive nature of whole body scanning required further examination.
Far from offering a solution to preventing terrorist attacks on airlines more intrusive measures
like Whole Body Scans and Enhanced Pat Downs are props in “security theater.”257 “In the
absence of clear and convincing evidence of the effectiveness . . . the Court can easily imagine
249
Kate Merrill, “Many Women Feel Targeted by TSA Agents,” CBS, (Feb. 16, 2012),
http://boston.cbslocal.com/2012/02/16/many-female-travelers-feel-targeted-by-tsa-agents/.
250
Id.
251
Id.
252
Id.
253
653 F.3d at 10 (quoting United States v. Knights, 534 U.S. 112, 118–19 (2001)).
254
Id. at 3.
255
See id. at 10.
256
The EPIC opinion is unduly dismissive in accepting that an airport scan is necessary for public safety, and ignores the
ineffectiveness and invasion of privacy WBS entails. Elec. Privacy Infor. Ctr. 653 F.3d at 10. Additionally, while the
court cites Hartwell in saying that one does not need the “minimally” intrusive search method to be consistent with the
Fourth Amendment, Hartwell did not discuss the limits of what level of intrusion would be permissible. The court in Elec.
Privacy Infor. Ctr. fails to grapple with this issue as well. Compare United States v. Hartwell, 436 F.3d 174, 175-76 (3d
Cir. 2006) and Elec. Privacy Infor. Ctr., 653 F.3d 10-11 (D.C. Cir. 2011). In Hartwell, cocaine was located when the
defendant’s bag passed through a magnetometer. While the court argues the test was minimally intrusive, it did “not
purport to set the outer limits of intrusiveness in the airport context.” Hartwell, 436 F.3d at 180.
256
EPIC v. DHS, 653 F.3d, 1 (DC Cir, 2011) at 6.
257
Schneier, “Security Theater,” supra note 110.
45
other methods of law enforcement which are less intrusive upon individual rights of Plaintiffs.”258
WBS fail to do much more than provide false comfort to travelers and the public while limiting
their rights and diverting resources.
As casualties of the rhetoric of the government’s “War on Terror” as justification for invasive
scans and security regulations, citizens have had to yield to overly burdensome, yet not
demonstratively more effective discomforts and indignities associated with the increased security
measures.259 The burdens260 and the requirements imposed for air transportation further
discourage citizens and other persons from exercising their right to travel.261
In short, official air identification requirements, passenger pre-screening programs like

“Secure Flight,“ and “No Fly” lists, and intrusive scans and searches, all raise constitutional
questions from their impingements on the right to travel. Each of these and their combination
restrict constitutionally guaranteed rights to travel. Each limits travel rights even though their
efficacy is questionable and unproven. Moreover, the scans and searches are intrusive on personal
privacy in travel beyond their benefits or effectiveness.
258
Shankle v. Texas City, 885 F. Supp. 996, 1002 (S.D. Tex. 1995).
259
Although the federal government’s efforts to prevent airplane hijacking have dramatically risen since 2001, the terrorist
threat itself has not magnified substantially since 1968, when “[t]he major governmental effort to meet the threat of
hijacking began.” Davis, 482 F.2d at 897. The last hijacking before September 911 was in 1991. “Note: There were no
hijackings in the United States from 1991 through 2000. Data are through 2000 and do not include the hijacking of 4
airplanes used in attacks on the United States by terrorists on Sept. 11, 2001.” Source: U.S. Department of Transportation,
Federal Aviation Administration, Office of Civil Aviation Security, Criminal Acts Against Civil Aviation,
http://cas.faa.gov/crimacts/pf/crim2000.pdf, as of Feb. 8, 2002.
260
Scanners using x-rays, which were banned in Europe for radioactivity concerns, are invasive as they bombard the skin
of travelers with radiation. When it comes to violating a person’s privacy or bodily integrity, violating one’s privacy in a
harmful fashion is doubly intrusive. Travelers experience a health risk merely by going to the airport and passing the WBS
security checkpoint. Ben Mutzabaugh, “Full-Body Scanners Could Pose Cancer Risk at Airports, U.S. Scientists Warn,”
USA Today, (July 1, 2010), http://travel.usatoday.com/flights/post/2010/07/full-body-scanners-pose-cancer-risk-at-airports-
us-scientists-warn/98552/1
261
See TSA, Screening Management Standard Operating Procedures, 2008. The manual includes discriminatory policy for
individuals of certain nationalities. (Id. at App. 2A-2 (C)(1)(b)(iv)). See also requirement that TSA evaluate the impact on
lost travel opportunities for those who reduce or end their air travel because of objections to whole body scanning or
enhanced pat downs in TSA, “Passenger Screening Using Advanced Imagining Technology,” March 26, 2013, at 7-8. A
similar analysis might apply to those who no longer fly because of objections to being required to provide air identification.
46
CONCLUSION: TOWARD A ROBUST RIGHT TO TRAVEL
The right to travel has been a fundamental political liberty since the Magna Carta,
Blackstone’s Commentaries, and the Articles of Confederation. Domestically, it is broadly-based
in the privileges and immunities in the U.S. Constitution and encompasses all modes of travel
across the federal union.
The travel right encompasses personal, political, and commercial movement fundamental to
the United States by effectively stitching the union together. The right to travel guarantees the
free movement of people and goods throughout the nation. It allows citizens to exercise other
fundamental rights, like petitioning for redress and privacy, guaranteed by the Constitution and
Bill of Rights.
The federal government’s extensive national jurisdiction provides American citizens with
constitutional protection for traveling domestically on common carriers. The single mode doctrine
fails for its inconsistencies with the potent original historical and political articulations of travel
rights. It also fails for its undue burdens on long distance travel, especially from the non-
contiguous United States, necessary to live and carry out economic and political activities also
within the contiguous U.S. territory. ID requirements and passenger pre-screening programs
similarly abridge the right to travel.
The constitutionality of Whole Body Scans and Enhanced Pat Down searches under travel
rights and the Fourth Amendment remains in question due to conflicting circuit court tests because
the Supreme Court has not addressed the issues. Under the primary test in Skipwith about
necessity of the search, efficacy, and intrusiveness, Whole Body Scans and Enhanced Pat Downs
fail constitutionally because they are ineffective and unnecessarily intrusive. Whole body
scanning and pat down searches as primary screening in airports are too invasive in pitting two
fundamental rights against each other: the right to travel and the right to privacy.
The impositions of burdens and regulations like government identification requirements,

passenger watch-list programs, and Secure Flight passenger pre-screening and permission
programs undermine the nature and exercise of the travel right. They make travel a privilege
requiring governmental approval, and they form the basis for a domestic passport system that
undermines the right to travel and other fundamental freedoms. Similarly, the imposition of
unreasonable searches like Whole Body Scans or Enhanced Pat Downs violates Fourth
Amendment rights to privacy complementary to and implicit in the right to travel.
The travel right is multi-modal and encompasses all methods of transportation. Contrary to
the crabbed single mode doctrine, if any single mode of transportation is limited, then citizens’
constitutionally enshrined rights of travel are abridged. Moreover, the lawful and healthy
relationship between the government and those it governs by their consent becomes inverted by
requirements for government ID and permission to travel. In the post-9/11 era, overreaching
government agencies have assaulted the foundational travel and privacy rights.
Certain circuit courts have misstepped by inaptly construing as narrow the original broad
scope and strength of the right to travel, which empowers the very nature of a more perfect union.
The Supreme Court of the United States needs to step in now to correct the course by articulating
a plenary and multi-modal meaning to the constitutional right to travel.
47

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JOURNAL OF TRANSPORTATION LAW, LOGISTICS & POLICY

THE RIGHT TO TRAVEL:

Richard Sobel2 and Ramón L. Torres3

Introduction: Travel As a Fundamental Right of Citizenship

Part I: The Historical Origins of the Travel Right

Part II: The Modern Context of the Right to Travel

Part III: Unjustified Limitations on the Right to Travel

Conclusion: Toward a Robust Right To Travel

INTRODUCTION: TRAVEL AS A FUNDAMENTAL RIGHT OF CITIZENSHIP

PART I: THE HISTORICAL ORIGINS OF THE TRAVEL RIGHT

The Right to Travel Across the American Union

The Court spoke to the importance of such connectivity in Shapiro v. Thompson.39 In

Travel is an instrumentality of commerce, which Congress has the authority to regulate in

Moreover, requirements for a passport, identification, or permit to travel domestically hamper

The Right to Travel as Fundamental to Citizens and Union

PART II: THE MODERN CONTEXT OF THE RIGHT TO TRAVEL

Intersection of the Right to Travel and the Right to Privacy

right may not be conditioned on abrogating another.75

Common Carriers in Travel Rights

jurisdiction empowers citizens with the right to travel freely. 84

The Single Mode Doctrine and Its Infirmities

As Congress recognized through codification, there is a compelling public interest in

PART III: UNJUSTIFIED LIMITATIONS ON THE RIGHT TO TRAVEL

As articulated in Shapiro, the right to travel is a “fundamental right” guaranteed by the

The intrusiveness of current airport searches is currently sanctioned by the questionable

The Fourth Amendment protection against unwarranted government searches “applies to

Restraint upon government authority restricts airport searches.136 In U.S. v. Marquez, a

Albarado explores a similar scenario, in which a man’s belongings were subjected to a

Identification Requirements to Travel

Absent probable cause or reasonable suspicion, identification demands constitute unwarranted

Passenger Watch-List Prescreening Programs

Whole Body Scans and “Enhanced” Pat-Down Searches

In short, official air identification requirements, passenger pre-screening programs like

CONCLUSION: TOWARD A ROBUST RIGHT TO TRAVEL

The impositions of burdens and regulations like government identification requirements,

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