Amdt5.7.8 Right to Travel Abroad and Substantive Due Process

Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The Supreme Court has recognized that the Fifth Amendment’s Due Process Clause protects an individual citizen’s right to travel abroad from arbitrary and indiscriminate government restrictions.1 The Court recognized such a right in Kent v. Dulles when it held that the Secretary of State had exceeded his statutory authority by denying passports to citizens solely because they declined to respond to an inquiry about their beliefs and associations.2 Subsequently, the Court confirmed that the Fifth Amendment protects a right to travel when it struck down Section 6 of the Subversive Activities Act, which made it unlawful for certain members of Communist organizations to apply for, or use, a passport.3 The Court held that Section 6 “too broadly and indiscriminately restrict[ed] the right to travel and thereby abridge[d] the liberty guaranteed by the Fifth Amendment.” 4 However, the Court has acknowledged that the federal government may restrict citizens’ travel abroad to particular areas of the world for national security reasons.5

E.g., Aptheker v. Sec’y of State, 378 U.S. 500, 505 (1964). For information on the right to travel between states, see Amdt14.S1.2.1 Privileges or Immunities of Citizens and the Slaughter-House Cases to Amdt14.S1.2.2 Modern Doctrine on Privileges or Immunities Clause and Amdt5.7.3 Equal Protection. back
Kent v. Dulles, 357 U.S. 116, 130 (1958). back
See Aptheker, 378 U.S. at 501–02. back
Id. at 505. back
Zemel v. Rusk 381 U.S. 1, 14 (1965). back