It Is Dangerous to Be Right When the Government Is Wrong

by Andrew P. Napolitano

  Conclusion

  Court orders can’t make the races mix.

  —ZORA NEALE HURSTON

  A folklorist associated with the Harlem Renaissance, Zora Neale Hurston was a preeminent author of the twentieth century most famous for her novel, Their Eyes Were Watching God. She staunchly opposed governmental intervention when the result was any kind of violation of individual freedoms. Even as a black woman, she stayed true to her belief that national law should be colorblind and went so far as to oppose government-mandated racial integration in schools because she respected the freedom of association and believed the state should never have a role in violating personal rights. Zora Neale Hurston knew laws should not be enforced based on an individual’s race, but rather decisions, such as association, must be left up to individuals to make for themselves, whether based or not based on another’s race. She believed integration would never be successful under the forcible hand of the state; rather, segregated schools would become equal when people personally decided to integrate.

  66

  Zora Neale Hurston was so true to her convictions and belief in freedom that she vehemently disagreed with the Supreme Court’s Brown v. Board of Education decision in 1954 mandating the racial integration of government-owned schools. She even wrote a letter to the Orlando Sentinel entitled, “Court Order Can’t Make the Races Mix.” Not trusting the government to help black America, she continually questioned, “How much satisfaction can I get from a court order for somebody to associate with me who does not wish me near them?” Just as Zora Neale Hurston espoused: The federal government cannot solve our problems, the South’s, or anyone else’s for that matter. We must be free to associate with those we choose, and the rest is up to time, education, and free market principles.

  How dedicated is the government to the freedom of association? Professor Walter E. Williams suggests a test:

  The true test of one’s commitment to freedom of association doesn’t come when he permits people to associate in ways he deems appropriate. It comes when he permits people to voluntarily associate in ways he deems offensive.24

  Unfortunately for us, the freedom of association is just one more test the government has failed.

  67

  Chapter 5

  You Can Leave Any Time You Want:

  The Freedom to Travel

  Steve Bierfeldt, the Director of Development for Ron Paul’s Campaign for Liberty, had a particularly frustrating day of travel on March 29th 2009 after attending his organization’s regional conference in St. Louis. There, he sold Campaign for Liberty items, such as conference tickets, bumper stickers, T-shirts, and books.1 Transporting more than $4,700 in cash and checks from merchandise sales, Bierfeldt traveled from downtown St. Louis to Lambert-St. Louis International Airport with the intention of returning to Washington, D.C. The government, however, had another idea.

  Transportation Security Administration (TSA) officials detained Bierfeldt for further screening when they discovered a metal box in his luggage containing a large amount of cash and checks. The TSA is an agency of the U.S. Department of Homeland Security, and according to its Web site, “protects the Nation’s transportation systems to ensure freedom of movement for people and commerce.” Bierfeldt might not agree with that last part. TSA agents interrogated Bierfeldt for over a half hour and would not allow him to continue to his gate until he answered some very directed questions: “Where do you work?” “What are you planning to do with the money?” “Where did you acquire the money?” Although having nothing to hide, Bierfeldt, in an effort to maintain his privacy, refused to answer the questions. The officers retaliated by further detaining him and asking viciously demeaning questions. As far as they were concerned, Bierfeldt could be prevented from moving freely so long as he refused to answer every prying inquiry they might conjure up. To them, if he wished to keep his privacy, then he should have wallowed in the safety of his own home. Bierfeldt never answered their questions, and they eventually let him go in time to catch his flight.

  68

  As terrifying as it is to envision a world where authority figures could detain and question us for nearly any reason they chose, consider the further effects of this policy. Bierfeldt, if he valued his privacy above all else and, therefore, stayed huddled in his home, would no longer be in a position to pursue his lawful employment as a Director of Development for Dr. Paul. Furthermore, he would also no longer be free to express his political views by participating in and advocating the Campaign for Liberty’s values. Still further, if individuals such as Steve Bierfeldt were forced to stay at home in order to keep their privacy and dignity, then the public would lose all access to these political ideas. Stated simply, the government could eviscerate constitutional rights simply by burdening the ability to travel of those whose ideas it hates or fears.

  A companion phenomenon now becoming apparent is the resort by the President to ruling by decree—and the people’s general acceptance of it. I speak, of course, of the decision by the Obama administration to purchase from former members of the Bush administration so-called back scanner X-ray machines for use at airports. These devices, which cannot detect small amounts of plastic explosive on the skin or anything, plastic or metal, hidden in a body cavity, nevertheless give the false impression of enhancing the safety of the flying public because of the lurid, graphic, even pornographic nature of the digital images they produce.

  The government, in order to induce the public into a sheep-like, dazed-infused, knee-jerk acceptance of the porn scanners, offered an alternative even more invasive, unconstitutional, and odious: A public zipper-opening, blouse-removing, groping-your-private-parts alternative.

  Never mind that you own your own body, never mind that the Fourth Amendment to the Constitution guarantees that the government cannot touch you against your will without probable cause of crime or a warrant from a judge based on probable cause, and never mind that there is no authority in the Constitution for the federal government to protect private property; it has reached its ugly hands and peering eyes and insatiable lust into our trousers as a way to induce us to be submissive.

  The Congress did not authorize the porn-or-grope alternative. Indeed, no member of Congress could vote for this and survive politically. And the one who will rule by decree, that would be the President, claims he did not authorize this; the “security professionals” who work for him did so. He is fooling no one. He can stop this with a telephone call. He prefers us to be pliant.

  Even in the Bush years, this porn-or-grope choice was unthinkable. Today it is with us. However, worse than this Hobson’s choice is the repellant submissive acceptance of all this by millions of innocent flyers whom the government has duped into thinking it can keep safe. Question: Has the porn-or-grope regime discovered a single dangerous item of contraband at an American airport—a box cutter, a handgun, or an explosive—in or on anyone flying in America? Answer: No. But government propaganda works.

  As this discussion shows, the right to travel enables the free exercise of so many of the other rights we most cherish, here the right to pursue lawful employment and freedom of speech. We should not have to check our constitutional rights at the curb simply because we decide to travel. Sadly, it is the right to travel which has been most disparaged throughout human history, our country being no exception. If we are ever to be free, then we must possess an absolute, uninhibited right to travel the world free from interference by government.

  One Small Step for Man, One Giant Leap for mankind

  Of all the inalienable rights we possess as individuals, none is as basic, fundamental, and natural as the right to movement and travel. As human beings, we enter this world bestowed with natural gifts: Two legs and feet, and the muscles needed to power them; or, in other words, body parts the essential purpose of which is to move from place to place. Furthermore, we are given a brain and the undying yearning to discover, to know the unknown, to see what lies hidden beyond the horizon. Thus, a fundamental right o
f movement is inherent in our very humanity. And after all, although we can become slaves in many different ways, none is more evident than by losing our ability to move about the world as we please. It is altogether fitting that a symbol of freedom is a broken chain.

  70

  The freedom to travel is a part of our national psyche. Our European ancestors settled in America because they had the right to move freely from their homelands. The very history and trajectory of our nation’s colonization are testament to man’s inherent right to movement and travel. We are a country made up of travelers, wanderers, and explorers. Examples span from NASA to Thomas Jefferson’s selection of Meriwether Lewis and William Clark to explore the mysterious and unknown lands of the West.

  More fundamentally, restrictions on the right to travel connote that the government is the individual’s master, and not his servant. As explored elsewhere, the right to own property includes when and which individuals may enter upon our property, and under what circumstances. If the government usurps this ultimate right from property owners, or grants itself a monopoly over certain modes of travel, then clearly the rights of individuals extend only so far as the government, and no one else, wills them. Thus, circumvention of the right to travel is particularly antithetical to the Natural Law, and the principle that the temporal is always subject to the immutable. Freedom subject to the government’s whim is no freedom at all.

  The importance of the freedom to travel, however, extends much further than the ability to go where one desires. As mentioned before, movement is essential to the existence and recognition of other inalienable rights. If you are prevented from leaving your home, your speech is automatically repressed. If you are not permitted to travel, you are kept from practicing your religion in a community of believers. As a result, you are restricted from selecting who you meet, who you marry, and whether you have children with whom you associate. You are held back from potential employment opportunities and prevented from receiving the education you desire. Stated simply, the right to move and be present is inextricably linked to a host of other fundamental rights that you possess as a free individual. Liberty, at its core, is encompassed in the right to leave the place of repression. As Professor Randy Barnett notes, if one wishes to discover which nations offer the best protection of natural rights, one only need observe the direction of the flow of refugees.

  71

  The Freedom to Travel in American Law

  American courts have, at least in theory, declared the freedom to travel to be near absolute (how they actually apply the right is a separate issue to which we will turn our attention later). The right to travel is so basic to our nature that the Founding Fathers did not believe it needed to be documented in the text of the Constitution. In Saenz v. Roe (1999), the Supreme Court stated,

  We need not identify the source of [the right to travel] in the text of the Constitution. The right of free ingress and egress [to enter and leave] to and from neighboring states which was expressly mentioned in the text of the Articles of Confederation, may simply have been conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created.2

  In other words, the right to travel is simply implicit in the concept of freedom, and indeed in the Constitution itself.

  To further illustrate this point, consider the original meaning of Congress’s authorization to regulate interstate commerce: To keep commerce between the states regular. Indeed, the principal reason for the Constitutional Convention was to establish a central government that would prevent ruinous state-imposed tariffs that favored in-state businesses and impeded the natural flow of goods and services across state borders. Thus, the central purpose of the Commerce Clause was to secure, not inhibit, the free travel of goods. If this was the Founders’ attitude toward commerce (goods owned by individuals), then they most certainly would have held a similar view on the freedom of individuals themselves to travel.

  In more recent times, the United Nations, of which the United States is a member, adopted the Universal Declaration of Human Rights, which provides for a similar right to travel on an international scale: “Everyone has the right to freedom of movement and residence within the borders of each State. Everyone has the right to leave any country, including his own, and return to his country.” This is significant for a number of reasons. First, it is further evidence of the absolute and universal nature of the right to travel. Second, it imposes upon the United States an international legal obligation not to inhibit travel within its borders, or to prevent individuals from leaving or coming back.

  72

  The Supreme Court of the United States formally recognized the freedom to travel as a fundamental right in Shapiro v. Thompson (1969).3 This particular case examined statutes that denied welfare assistance to residents who had not resided within their jurisdictions for at least one year. The Court held these laws to be unconstitutional because they inhibited migration and restricted movement. The majority wrote, “The constitutional right to travel from one State to another . . . occupies a position fundamental to the concept of our Federal Union. It is a right that has been firmly established and repeatedly recognized.”4 The government simply cannot “chill” travel, as the federal police officers so egregiously did to Steve Bierfeldt.

  Doctrinally, the right itself can be separated into three constituent parts. First, taken from Article IV, Section 2, Clause 1 of the Constitution, a person from state A who is temporarily visiting state B has the same “Privileges and Immunities” of a state resident. Second, an individual may move freely between states. Third, when an individual establishes residency in a new state, he or she enjoys the same rights and benefits as other individuals who have been there for years. Together, these components ensure that the individual can fully enjoy an uninhibited, natural right to travel. How faithful the government has been in following these principles is a separate issue to which we now turn our attention.

  Physical Restrictions on Travel

  On September 12th 1986, New Jersey law enforcement officials stopped Frank Barcia and Alphonse Siracusa during the height of rush hour at a police roadblock on the George Washington Bridge spanning from New York City to Fort Lee, New Jersey. The stated purpose of the roadblock was to detect persons under the influence of drugs or alcohol or transporting drugs. As would seem obvious to even the casual observer, the roadblock caused massive delays and traffic stalls. Captain Robert Herb of the Bergen County Police Department, who was the highest-ranking uniformed officer supervising the roadblock, testified himself that as a result of this roadblock, over one million motor vehicles came to a complete stop; or in other words, more than one in three hundred Americans—in some cases for in excess of four hours.

  73

  Most infuriatingly, a woman was forced to give birth on the shoulder of the West Side Highway in New York City, without the benefits of advanced medicine that a hospital would provide. People were prevented from returning home, from attending work, and from seeking proper medical treatment, all so the police could identify individuals carrying drugs. If we as Americans possess an unconditional right to travel freely, how are these government actions allowed to take place? Shouldn’t mothers in labor have a constitutionally protected freedom to travel to a hospital to give birth? By engaging in such police stops, the government is making a calculated decision that we the people are better off not making and executing decisions regarding where we should be going and what we should be doing.

  Despite the seemingly absolute treatment of the right to travel by the Founders and the Supreme Court, sadly it is the right to travel which has been most victimized throughout our history. As noted before, the American system of slavery, in which slaves were confined to their owners’ plantations, is the most egregious restriction on the freedom to travel. Even the Constitution (Article IV, Section 2, Clause 3) itself enshrined this circumscription of the freedom to travel by requiring that escaped slaves be returned to their “owners”: “No Perso
n held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.”

  Nor did the freedom to travel become absolute with the passage of the Thirteenth Amendment, which formally abolished slavery. During the height of World War II, the Supreme Court upheld the internment of Japanese American citizens in Korematsu v. United States (1944). In 1942, President Roosevelt issued an executive order which granted military officers the power to “prescribe military areas [from] which any or all persons may be excluded, and with respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever restrictions [the] Commander may impose in his discretion.” In other words, the natural right of individuals to move freely was subject to the whim of a military officer; there can be no clearer statement of the philosophy of Positivism. Subsequently, the military imposed a curfew on Japanese Americans, and shortly thereafter, the wholesale relocation of many to detention centers. Fred Korematsu, an ardent American patriot, was convicted of violating this military order after he refused to leave his home, as any true American understanding the Natural Law and the ideals of our Founders would.

  74

  The Supreme Court upheld Korematsu’s criminal conviction, upon a finding of military necessity, namely, “the presence of an unascertained number of disloyal members of the group, most of whom we have no doubt were loyal to this country.” In other words, so long as there was some subjective, nebulous threat that our enemies’ ideas had reached our shores, the government was justified in detaining every member of the racial group to which those enemies belong.