RichardKenner

I just went and read the whole case (383 US 745) rather than just that quote and feel even stronger that the court did not do as you suggest. The part quoted is near the end of the opinion. It states quite clearly that it is not meant to create a new right, but to acknowlege an existing one and refers repeatedly to the "right of free interstate passage" and similar language. The third from last sentence says
So the right being protected is "interstate travel", not "interstate travel by mode X" for any X. It's not that they didn't "exclude" any particular mode, but rather than there was no discussion whatsoever of modes. In other words, this is yet another case that acknowleged that there's a fundamental right to travel between states, but is completely silent on whether there's a fundamental right to do so by any particular mode. Saying it another way, acknowleging that a person has a right to interstate travel by one of an ennumerated set of modes doesn't necessarily mean a person has a right to travel by any one of them in particular, just that at least one of them must be available.

Look, for example, at the cases cited in Footnote 16. These clearly talk about the fundamental right of citizens to reside peacefully within a state and to move from state to state. At the time of those cases, there were two common modes of transportation: train and road. None of these cases address, in any way, the question of whether a person had the right to travel using either of such modes: they merely discussed the right that a person has to get in some way from state to state, but not necessarily using the mode of their choice. There's no statement in this case or in any of the cited cases that would establish or acknowlege such a right.

But also note that this is a discrimination case and there the standard is different. There doesn't have to be a right to do something for it to be illegal to prevent somebody from doing it for reasons of race. There's no fundamental right to be able to drink water from a water fountain, for example, but if a fountain is available, it's not permitted to say that only white people can use it. Clearly, the court in this case would have found it illegal to restrict air travel just to white people, but that would not imply a "right" to air travel.

Let me ask the question this way: let's suppose that congress, using its power to regulate interstate commerce, passed a new law that said that large portions of the interstate rail system were to be used only for goods and that passenger travel on such tracks would no longer be legal. Do you think that this case would make such a law unconstitutional? I don't. And I don't see any other case or argument that would.

It's important to understand the origin of these rights. One, more modern, theory is that the right to travel is part of the First Amendment's protection of free association, but the more traditional view is somewhat different. The whole theory behind the formation of the US was that each state would have different sets of laws and that if somebody didn't like the laws in one state, they had the right to move to another state. But nobody in that time would have argued that this produced the right to do so in any particular way: it was the responsibility of the people who wanted to move to figure out a way to do so and in those times, transportation was exceptionally nontrivial.

Let me make this already long post longer by giving another analogy. Everybody agrees that a US citizen who's outside the country has an absolute right to reenter the US. But does this mean that he has the right to do so at any point along the border? Can you argue that because the court didn't exclude the right to enter at some particular point that a right to enter at any point of the person's chosing exists? Or just the right to enter at some points? In other words, do you accept that the designation of particular places to enter the US doesn't infringe the right of a citizen to return to the US? It's similar here: the right to travel between states doesn't necessarily imply a right to do so in any particular manner, just that some way must exist.

Air travel is indeed special because it's sometimes the only practical way to do certain travel due to its speed and there are indeed cases working there way through the courts making that argument. We'll have to see how the Supreme Court rules if it takes one of them. It may well accept that argument, and perhaps even cite this case in doing so, but until that happens, I don't see that any court has acknowleged such a right.

Most of it certainly doesn't and clearly relates to rights of pilots, but part of it talks about accommodation of disabled people on commercial carriers, so it's very confused. I think one would have to go deep into the legislative history here to understand that particular code: my guess is that that part was added later.