Enslaved Constitution: Obstructing the Freedom to Travel
DOI:
https://doi.org/10.5195/lawreview.2008.126Abstract
Does the Constitution protect a citizen’s intra-state travel (within a state) from unjustified state prohibition? To date, the Supreme Court has not ruled directly on the issue, and many federal courts believe that the right to intrastate travel is not constitutionally protected. This Article explores the constitutional right of intra-state travel that is free from wrongful state infringement along public roadways by law-abiding citizens. Using critical legal history, this Article poses that federal courts’ denial of the right to intrastate travel consciously or unconsciously reflects the antebellum, Southern legal doctrine of people as property, which regulated the travel of enslaved African descendants.
The constitutionality of intra-state travel arose most recently during the Hurricane Katrina Crisis when the City of Greta, Louisiana police barricaded a federal highway, denying would-be evacuees the ability to flee from the flooding City of New Orleans. In an ensuing action for infringement of the would-be evacuees’ constitutional right to intra-state travel, Federal District Judge Mary Ann Vial Lemmon dismissed the matter in Dickerson v. City of Gretna, holding that “[w]hile there is no doubt that a fundamental right of interstate travel exists, the Supreme Court has not ruled on whether a right of intra[-]state travel exists. This Court declines to find that there is a fundamental right to intra[-]state travel.” The Fifth Circuit affirmed the ruling.
This Article recommends that when federal courts assess whether there is a constitutional right to intra-state travel, they should embrace the American paradigm of liberty and abandon the antebellum, Southern paradigm of enslavement. Consistent with Professor Derrick Bell’s “interestconvergence” principle, all Americans benefit when the Constitution protects the human rights of the least powerful American.
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