ARTICLE
International Travel and the Constitution
Jeffrey Kahn* 
56 UCLA L. Rev. 271

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Abstract

This Article makes the case for the fundamental right of U.S. citizens to leave their country and return home again. Surprisingly, Americans do not enjoy such a fundamental right. Under current U.S. Supreme Court precedents, the right to travel abroad is merely an aspect of liberty that may be restricted within the bounds of due process. The controversial No Fly List is one such result. Anyone whose name appears on this government-run database (or one of several variations on it) may find his or her air travel prohibited or subject to varying levels of restriction. Although the so-called War on Terror raises new concerns about a right-to-travel case law developed during the Cold War, no one has yet made the case for stronger constitutional protection for international travel. The Article begins with an in-depth case study (based on interviews and primary sources) of two citizens who were recently denied permission to return to the United States for more than five months. The Article proceeds to explain the origins of weak support for foreign travel and then advances an unconventional source for its heightened protection. Whereas most unenumerated fundamental rights seek their foundation in the substantive due process guarantees of the Fifth and Fourteenth Amendments, I advance a more straightforward textual source: the Citizenship Clause of the Fourteenth Amendment. After developing the historical and theoretical support for my argument, I examine the policy implications of strict judicial scrutiny of travel restrictions, including the No Fly List, which are intended to combat terrorism in a globalized world.


* Assistant Professor of Law, Southern Methodist University, Dedman School of Law. B.A., Yale, 1994; M.Phil., Oxford, 1996; D.Phil., Oxford, 1999; J.D., University of Michigan Law School, 2002.

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