There is a powerful fundamental right hiding in plain sight: the fundamental right to free movement. This right goes beyond the consistently acknowledged—though infrequently applied—fundamental right to interstate travel. The true scope of the Constitution’s protection of movement through substantive due process safeguards local, interstate, and international travel. Though overlooked today, the fundamental right to free movement has deep roots in history and tradition, and in the decisions of numerous state and federal courts, including the Supreme Court.
This Article is the first to examine freedom of movement using the history and tradition test for unenumerated fundamental rights. This Article begins by tracing the right to free movement from the Magna Carta, through Blackstone’s Commentaries, colonial America, early state constitutions, and the ratification of the Fourteenth Amendment. As this analysis shows, repressive governments have routinely sought to limit movement across and within boundaries. But the English and U.S. legal traditions are marked by repeated affirmations of the right—there is strong and persistent historical support for a fundamental right to free movement.
This Article then turns to judicial discussions of movement rights, both historical and contemporary. Drawing on several previously unconnected lines of decision, this examination surfaces a vibrant picture of the fundamental right to free movement recognized by the courts, including the U.S. Supreme Court.
Given its firm foundation and expansive reach, this is a right that should be applied regularly—to anti-gender-affirming-care or anti-abortion laws targeting travel, to quarantine restrictions locking down a community, and to any of the wide variety of other restrictions limiting free movement.