The right to travel in the United States is a little-discussed right given by the Constitution under the 5th Amendment. Under the 5th Amendment, the right to travel is considered part the “liberty” that US citizens cannot be deprived with without due process.
Author: Brad Nakase, Attorney
It stems from the right to freedom of movement and allows the following “travel”:
- The right to move freely between states
- The right to privileges and immunities enjoyed by a citizen of another state when visiting that state
- The right to enjoy the benefits and rights of a citizen in a state as soon as you move to that state.
The right to travel is a constitutional right and gives all American citizens and legal residents the right to move between states. It also allows all American citizens to enter the country and to leave the country at any time. The right to travel may have restrictions imposed in extreme circumstances, such as risk to public health. In the past, the government has legally implemented a travel ban for reasons of national security and public health and safety. The government would need to show that there is a reasonable threat to the public to restrict the right to travel. The right to travel appears in Article IV Section 2 of the Privileges and Immunities Clause of the Constitution.
In contrast to the explicit reference in the Articles of Confederation to the right of the people to move to and from other states, neither the United States Constitution nor the California Constitution mentions the right to travel. Despite the absence of an express guarantee, state and federal courts have recognized the right to travel as a fundamental right entitled to constitutional protection. The right to intrastate travel (which includes intramunicipal travel) is a basic human right protected by the United States and California Constitutions as a whole. Such a right is implicit in the concept of a democratic society and is one of the attributes of personal liberty under common law.
The right to travel, or right of migration, now is seen as an aspect of personal liberty which, when united with the right to travel, requires 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.
Do I Need to Have a Driver’s License When Exercising My Right to Travel?
Not always. The right of an individual to operate a private automobile cannot be equated with the fundamental constitutional right of an individual to travel. The right to operate motor vehicles in public places is not a natural and unrestrained right, but a privilege subject to reasonable regulation, under the police power, in the interest of the public safety and welfare.
If you are driving, then you always need to carry a driver’s license while operating a vehicle. Therefore, if you are moving between states by driving, you will need to have your license. However, the driver’s license is not necessary to the right to travel. Some other forms of transportation do require ID to prove you are the person supposed to be travelling.
The impact of California’s driver’s license requirement on the right to travel is incidental. The requirement is a valid exercise of the state’s police power because the requirement is rationally related to the legitimate state interest in safeguarding the health and safety of its citizens. To obtain a driver’s license, individuals must pass a test showing their knowledge of the traffic laws and their physical ability to control an automobile or truck. By granting licenses only to people who have passed the test, California has increased the safety of its highways and streets. Halajian v. D & B Towing, 209 Cal. App. 4th 1.
Bill of Rights, Fundamental Rights
The right to freedom of travel is constitutionally protected. Even so, California state courts have found a violation of the constitutional right of intrastate travel only when there is a direct restriction on the right to travel, such as where a parent is ordered to move to another county as a condition of continued custody of a child. Otherwise lawful ordinances that have an indirect or incidental impact on the right to travel and do not discriminate among classes of persons by penalizing the exercise of the right to travel are not constitutionally impermissible. Allen v. City of Sacramento, 234 Cal. App. 4th 41.
Right to Travel Not Absolute and May Be Limited
The right of free movement is not absolute and may be reasonably restricted in the public interest. As a result, conditions that negatively affect the right to travel are not automatically invalid. Only statutes, rules, or regulations that unreasonably burden or restrict the right to travel are constitutionally impermissible. Halajian v. D & B Towing, 209 Cal. App. 4th 1.
Right to Travel After Criminal Conviction
Following a defendant’s conviction of a crime, the sentencing court may choose among a variety of dispositional options. One option is to release the offender on probation. Probation is generally reserved for convicted criminals whose conditional release into society poses minimal risk to public safety and promotes rehabilitation. A grant of probation is qualitatively different from such traditional forms of punishment as fines or imprisonment. Probation is neither punishment, Pen. Code, § 15, nor a criminal judgment, Pen. Code, § 1445. Instead, courts deem probation an act of clemency in lieu of punishment, and its primary purpose is rehabilitative in nature. Accordingly, a grant of probation is an act of grace or clemency, and an offender has no right or privilege to be granted such release. Stated differently, probation is not a right, but a privilege. People v. Moran, 1 Cal. 5th 398.
Probation Condition Right to Travel
When an offender chooses probation, thereby avoiding incarceration, state law authorizes the sentencing court to impose conditions on such release that are “fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and … for the reformation and rehabilitation of the probationer.” Accordingly, we have recognized a sentencing court has “broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1.” (People v. Carbajal (1995) 10 Cal.4th 1114, 1120 at p. 1120.) But such discretion is not unlimited: “[A] condition of probation must serve a purpose specified in the statute,” and conditions regulating noncriminal conduct must be “‘reasonably related to the crime of which the defendant was convicted or to future criminality.’” (Id. at p. 1121.) “If the defendant finds the conditions of probation more onerous than the sentence he would otherwise face, he may refuse probation” (People v. Anderson (2010) 50 Cal.4th 19, 32 at p. 32) and simply “choose to serve the sentence” (People v. Olguin (2008) 45 Cal.4th 375, 379.
Right to Intrastate Travel
The right of intrastate travel has been recognized as a basic human right protected by Cal. Const., art. I, §§ 7, 24. And the United States Supreme Court has observed that the freedom to loiter for innocent purposes is part of the liberty protected by the Due Process Clause of the Fourteenth Amendment, U.S. Const., 14th Amend. This right to remove from one place to another according to inclination has been expressly identified as an attribute of personal liberty protected by the Constitution. The right to intrastate travel is based on its necessity for daily life. The right to travel locally through public spaces and roadways—perhaps more than any other right secured by substantive due process—is an everyday right, a right people depend on to carry out daily life activities. It is, at its core, a right of function. People v. Padilla-Martel.