The Ninth Amendment was added to the Constitution specifically because the framers were worried that people would assume that if a right wasn't enumerated then it did not exist.

Right, and free speech doesn't mean that you HAVE to be allowed to speak freely in public. It could mean that you can say whatever you want, so long as you're locked inside a soundproof room so that nobody can hear you. And the right of women to vote doesn't mean that they HAVE to be allowed to vote in governmental elections, maybe it just means that they must be allowed to vote for American Idol contestants.

Similarly, if a resident of Alaska wants to go to Washington to lobby his representatives, the right to travel means that he can be prohibited from taking a plane, train, bus, car or bike, but so long as he's allowed to walk or use a donkey, it's not an infringement upon his rights. Because it's completely reasonable to make that trek on donkey, thus his right to travel is not infringed upon. :rolleyes:

I don't find the "drivers license" "trump card" argument to be particularly persuasive, for two reasons.

First, one does need a license to actually drive a car, but one does not need a license to be a passenger. How does needing a license to operate a vehicle translate into riding on an airplane being a privilege? There's a serious problem with the logic behing that leap.

Second, a drivers license is simply a check on your ability to operate a vehicle safley, not authorization to travel to certain places or via certain routes. Controls on who is allowed to be an airplane passenger are more like the latter types of authorization, not the former.

I think you misinterpreted my intent. I mentioned the drivers license as an example where the Court has ruled that the right does exist, but is subject to certain conditions. An encumbered right.

There are some posters here who seem to advocate that the right to travel by air (which I agree does exist) should be free from any conditions. Not realistic and detracts from the main debate.

The "right" to drive is different than the right to move/travel, with the latter being a basic right that has existed since time immemorial. The reason why being a driver/pilot generally requires licensing but being a passenger does not has been discussed and enumerated before, here on FT and elsewhere. [Passengers don't need to direct the vehicle in a systemized manner to keep passageways safe; the operators do exactly that, with a license evidencing that they are capable of doing such. (In other words, same old story, same old discussions.)]

Material encumberances (i.e. placement of conditions) upon even basic rights can be found from place to place, from time to time; but that doesn't mean it is that way universally, should be that way anywhere, or will be that way always. Passenger licenses -- sort of domestic passports, Soviet-style :eek: -- are something I consider an unwanted condition for travel, an unnecessary encumberance upon a basic human right to movement and free association.

Government-sponsored, freedom-eroding* encumbrances upon basic human rights to mobility -- in the absence of due judicial process or (the proverbial) force majeure -- goes against the best of America. Or even Canada and France for that matter. :D There is no compelling state interest for the kind of questioning observed at CDG to be backed by the US (or French) government; nor is such questioning much of anything besides a diversionary waste of resources, a dog and pony show.

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* Privacy is instrumental to freedom -- especially in systems where spun stories linking disjointed facts through imaginative conjecture are increasingly used for/toward governmental action, such as to prosecute persons for crimes not materially committed, for so-called pre-emptive strikes against "gathering threats" involving future criminal possibility (rare possibility or not) and the like. [And without the freedom of association -- or non-association -- every person of normal mental capability could be considered a criminal somewhere.]

Sigh. What a stupid argument. Because email wasn't invented before the Constitution was drafted, that means that the right to free speech somehow doesn't apply to email until a specific amendment is passed that states that oh, yes, The First Amendment applies to email too? What an absurd notion! We recognize that the constitution right to freedom of speech applies to all modes of communication, whether that mode was mentioned explicitly in the constitution or not.

The real question is whether there is a broad constitutional right to freedom of travel. If there is, then it seems likely that this would lead to some kind of right to travel by airplane.

It's not clear to me whether there is such a broad right to travel embedded in the Constitution, or whether the Constitution should be read to imply such a broad right. It's a matter of interpretation. I can see an argument both ways. For instance, some folks find at least some kind of limited right to travel implicit in the right to free association and the right to petition government officials. Others find that a stretch. Ultimately, all that matters (for the purposes of the law) is what the SCOTUS thinks.

Right now, I suspect the SCOTUS would not hand down a favorable decision, given current trends. My own guess is that the Supreme Court would rule against a broad right to freedom of travel. I think that's unfortunate. But note that the Constitution isn't the be-all and end-all of civil liberty.

Saying that any restriction of the right to freely travel is a violation of civil liberties is emphatically not the same as saying that it is a violation of the Constitution. It is perfectly possible to believe that the Constitution does not contain a right to free travel, but that it should, or that this right should be established and recognized by some other route (even if it is isn't found in the Constitution). The Constitution isn't the final word on justice, civil liberty, and what is good public policy.

Anyone who confuses what is legal with what is right and good is in for a world of confusion.

Indeed, I'm not aware of any clear SCOTUS ruling establishing a broad right to freedom of travel. I agree.

Actually, that doesn't follow. Legal scholars spend a great deal of time arguing over what the Constitution might or might not imply, and sometimes they come to the conclusion that the Constitution should be recognized to protect some right, even before the SCOTUS rules accordingly. Likewise, lower courts sometimes rule that the Constitution protects certain rights before the SCOTUS rules this way. Please recognize that the law is not quite so black-and-white as you seem to imply.

Sorry, this is far too simplistic. Constitutional rights are never inviolable. It's not that black-and-white. The question is whether the individual has any interest, and how strong that interest is, and what test is used to balance the individual's interest in being left alone vs the government's interest in regulation.

In the case of freedom of speech, the Court has established a test and level of review that generally puts its thumb on the scales in favor of the individual and requires a very high bar before government regulation is allowed. If you've studied the subject, I'm sure you're familiar with "strict scrutiny", which is the strictest level of review (it comes with the strongest presumption against regulation). Generally, to regulate speech, the burden is on the government to show a "compelling state interest", to show that the regulation is "narrowly tailored" to advancing this interest, and to show that the regulation is the "least restrictive means" for advancing this interest. This tends to mean that courts are extremely skeptical of regulations that restrict or regulate speech, except in certain narrowly prescribed ways.

There are other, less restrictive, levels of scrutiny. "Rational basis" is a very loose kind of scrutiny, where the courts give great deference to the government, and where the courts are very reluctant to overturn regulation (generally, it is overturned only if the regulation appears to be totally irrational -- there is no conceivable rational basis for the regulation). "Intermediate scrutiny" is an intermediate balancing test. I suspect you know all of this.

One of the questions here, if there is a right to freedom of travel, is what level of scrutiny is appropriate. Do restrictions on the freedom to travel deserve "strict scrutiny", "intermediate scrutiny", a "rational basis" test, or some other degree of judicial scrutiny? And, how broadly does the freedom to travel apply?

What I'm trying to say is that the answers here are not so clearcut. If I had to guess, I'd guess that the SCOTUS would not support the kind of broad right to freedom of travel (by any mode of transportion) that I'd like to see -- but, this is only a guess. There is room for legitimate debate about how the SCOTUS might rule, and how they ought to rule.

My thought is that freedom to travel is an "essential liberty". The Fifth Amendment states that depriving us of liberty requires due process of law. For example, a person on probation or parole is required to obtain permission before traveling out of State. However, this person is on probation or parole as a result of some due process.

I also think that there is a right to travel by airplane. I cannot see how a resident of Hawaii can travel to the US Mainland by any other practical means.

I hate these people asking us these security questions. Do they see us frequent flyers as terrorists? I like working on my quilts during long haul flights and I have had a pair of small sewing scissors confiscated at CDG before boarding a flight.

When you think that CDG airport has some 50 under the cover mosques which have been spotted in it... :mad: A book on the subject by politician Philippe de Villiers has made the news lately. ^

This investigation found out that many muslim fundamentalists were hired for baggage handling and other strategic services in the airport among other things. :td:

http://fr.news.yahoo.com/22042006/5/...roport-de.html

I don't care if they hire fundamentalist sikhs, fundamentalist muslims, fundamentalist jews, fundamentalist hindus, fundamentalist christians, fundamentalist buddhists or fundamentalist atheists. That someone is a religious fundamentalist does not mean they are a security risk, for a religious fundamentalist and violent extremist are not the same thing. Of course scapegoating ethnic and religious minorities as security risks is old game -- including in France -- where a handful of examples are used to smear the many that share a few common characteristic but have many other characteristics that are distinguishing. "J'accuse" -- I think we remember -- came as a result of a not too different context, as a reaction to the same old game.

I go through CDG a lot and I've never seen 50 "under the cover" mosques there. And even if CDG did, big whoppy-dee-do. They could have 100 "under the cover" mosques, 1000 "under the cover" churches or 200 "under the cover" temples and it wouldn't change a thing. Many US and international airports have an airport chapel -- not so under the cover -- and I don't see planes falling uncontrollably from the sky every day.

N.B. According to the linked article, there's talk about Roissy and then talk about CDG, which are not interchangeable -- although the author of the item commented about in the article loves to confuse matters to peddle xenophobia -- since the latter is the airport and the former is the Commune (basically administrative-type area) where c. 25% of CDG is located. (The other c. 75% of CDG is located in a different geographic zone than Roissy.)

I would like to come back to the drivers license argument and explore it a little further.

Yes, driving is privilege. However, there is a clearly stated set of rules covering granting and revoking this privilege. Specifically, you must show ability to drive to get your license. That is all. If you show this ability, you are issued your license. No security questions, no background investigations, nothing of a sort. Furthermore, you do not forfeit any of your constitutional rights by driving a car: Cops cannot stop, question and search you just because you are driving. Moreover, once issued, your license cannot be taken away without some measure of due process.

If we follow the logic of some people who compare the two, the cops should be allowed to stop and search any vehicle at will, without any level of suspicion, as well as to interrogate the driver and passengers. Not only that, the State should have the power to revoke your drivers license at any time, without any due process and even without telling you - this is what the no-fly list essentially does to your right to travel.

The Canadian Charter of Rights and Freedoms, which is a part of our written Constitution, enshrines mobility rights in section 6; Canadian citizens have the right to travel to any other Canadian jurisdiction for the purpose of engaging in lawful employment. As the Charter used the Bill of Rights almost exclusively as a template, one could arge that this right also implicitly exists in the US Constitution. And it does, to a degree: the American Constitution enshines the principle of interjurisdictional reciprocity, which means that all states in principle have to recognize and give merit to other states' laws, and not punish citizens from other American states who move to yours. Unless, of course, you're talking about gay couples from Massachusetts.

Although not directly delineated in the US Constitution, American mobility rights are now generally recognized as an established right in US Constitutional law. This absolute right is, however, limited to private transportation; courts have generally upheld the right of state and federal governments to regulate and limit access to most forms of public transportation.

I think it should be pointed out that you can never forfeit your Constitutional rights. Any party that breaches your rights, which are enshrined in any Constitutional document, is required to justify that act. Courts do not require individuals to justify the decision to exercise their Constitutional rights. The creation of child pornography and "hate speech" (e.g. encouraging people to kill certain groups of people) are obvious exceptions to this general rule.

They actually can. In Alberta, cars can be stopped randomly to select drivers who may be impaired. This is a breach of citizens' Constitutional rights, but it's a justified breach, given the aim to reduce the prevalence of drinking and driving.

Most Drivers' Boards are Administrative Tribunals, which adhere to the principles of Natural Justice, and not what most people think of as "due process". Yes, you get a hearing, but decisions are often arbitrary and no reasons are articulated by the licensing board. Driver Licensing Boards are not courts.

As above; the real difference here is that the police are interfering with citizens' private property. Their respective authority to intervene/search/regulate is therefore greatly circumscribed by law. This is not, however, the case of public transport, in which pax travel as guests of a corporation. Because they do not actually own the jet/car/bus/train in which they're travelling, they subsequently enjoy few/no privacy rights and are deemed to have no expectation of having any.

If a court were to rule that residents of AK or HI had a right to travel by air because it was their only means to do so, would equal protection or some such similar doctrine mean that the rest of us have the same right? It seems illogical that the federal govt. could recognize a right for residents of only certain states.

Again, all Americans have the right to travel to another state, and you are not required to take public transportation to do so. It may be ridiculously expensive for residents of Alaska and Hawaii to travel by private vessel -- which would enable them to avoid most security regulations -- but increased cost is not a concern for the Courts.

They are allowed, in the US at least, to see if you're drunk. They're not allowed to search your vehicle (aside from what is in plain view) without your consent, a warrant or probable cause. A drunk driving checkpoint isn't an automatic excuse to make people pop open the trunk.

If you are a passenger in someone else's vehicle you lose your right? What is the argument to support that claim?

Ship???