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57 Chapter Three Freedom of Movement and the Constitution Travel is a part of America’s DNA. There would be no America without the explorers, settlers, slaves, revolutionaries, and wave after wave of immigrants who all traveled (if not always freely) from a known world to an unknown one, and then continued westward across an uncharted continent. For much of American history, travel was difficult, expensive, and inordinately timeconsuming . The flow of travel was therefore primarily unidirectional: it followed the international currents of immigration and the domestic economic needs of American homesteaders and those who traveled west in search of a better future. The idea of such travel was so crucial to the American dream that it is commemorated by the most famous landmark in New York Harbor , with a poem by Emma Lazarus at its base and an outstretched torch high overhead lighting the way. Travel is still at the heart of the American idea, but its manifestations are strikingly new and different. The technologies that render our world ever smaller have made travel faster, cheaper, and more accessible. The harrowing journey of the immigrant is no longer its primary manifestation. In an era of globalization, it is no longer the province of the very rich; millions of Americans travel within the country’s borders and abroad for work and play. Nor is the typical transoceanic journey a unidirectional one. Millions of Americans journey back and forth between their old and new homes. In 2006, the year the Ismails struggled to return home, more than 39 million Americans traveled to foreign countries aboard commercial air carriers.1 In 2010, according to the Bureau of Transportation Statistics, domestic commercial aircraft transported 629,521,640 passengers in the United States.2 That is more than 1.7 million people in the air every day. In other words, if every man, woman, 58 ◆ Mrs. Shipley’s Ghost and child in Philadelphia boarded a plane each day, there would still be over 198,000 airplane seats to fill.3 How, then, does the Constitution protect this freedom, so intrinsic to the idea of America? The text itself says nothing at all about it. One searches in vain for any “right to travel” expressly protected in the way that the freedom of speech or right to a speedy and public trial are protected. In fact, the only explicit textual reference to a right of “free ingress and regress” in American constitutional history was found in the Articles of Confederation .4 But that clause was removed from the final draft of the Constitution without any recorded debate at the convention that met in Philadelphia in the summer of 1787.5 Does that mean that the Founding Fathers did not intend to recognize any such right? Though some have strained to make this argument, it goes too far.6 The importance of freedom of movement, and especially the right to enter and leave one’s own country, was well known to that generation of Americans, who could easily locate it in the common law of England and railed against its denial to the American colonies.7 Hadn’t the early colonists exercised that very right to flee religious persecution and make fresh starts in the New World? Indeed, restriction of freedom of movement was one of the “injuries and usurpations” listed in the Declaration of Independence.8 Several early colonial charters and bills of rights in the states also referenced the right to exit or otherwise travel freely abroad.9 The logic of the original document also made explicit protection of the right to travel, considered so essential to the life of a free citizen, seem unnecessary .10 After all, the government established by the new constitution was to be one of limited and enumerated powers. Since the text of the Constitution gave Congress no power to abridge this right, what need was there of explicit textual protection for it? This, of course, was Alexander Hamilton ’s logic concerning a Bill of Rights: “why declare that things shall not be done which there is no power to do?”11 Perhaps, then, it is understandable that a freedom felt so essential to citizens of this new democratic republic should have been left without explicit reference in the founding text. Although the words may have been absent , the right was solidly felt. In fact, the country’s early foreign policy was shaped by a strong defense of the right of expatriation (arguably the most extreme form of freedom...

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