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Race and the great American adventure -- Scalawag Magazine
The right to travel was inscribed into the Magna Carta in 1215 and into the Universal Declaration of Human Rights in 1948, but it doesn't appear in the U.S. Constitution. For Americans, the only legal protection of what the United Nations considers a fundamental human right was won through a series of court cases that have hitched themselves to the "privileges and immunities" clause of the Constitution. The clause reads, rather dryly: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."

Like so much constitutional law, the clause is an ugly kernel that was forced open under the scrutiny of later judges. In 1823, circuit court judge Bushrod Washington established that privileges and immunities implied "the right of a citizen of one State to pass through, or to reside in any other State."

The proper unfurling of the right to travel didn't come until 1857, however, when Supreme Court Chief Justice Roger Taney, in his majority opinion to Scott v. Sandford, culled from the privileges and immunities clause the poetry it deserved as the Constitution's only defense of the freedom of movement. The clause, wrote Taney in prose seeded with alliteration, was intended to provide US citizens

the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a White man would be punished.

The fact that Justice Taney refers specifically to laws governing White men was not incidental. His opinion for Scott v. Sandford, also known as the Dred Scott case, was written not to define the privileges of Americans -- or even White Americans -- but to define the privileges that Black Americans didn't have. The Dred Scott case stripped Black people of their right to citizenship, establishing that slaves were private property and could not earn their freedom simply by establishing residence in a free state. The above passage, which remains the most resonant legal enunciation of the right to travel, was written in the negative. If you scroll back a few sentences, here's how it's couched:

It cannot be believed that the large slaveholding States regarded [Black people] as included in the word citizens. ...For if they were so received, and entitled to the privileges and immunities of citizens... it would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased...
by das monde on Sat Jun 4th, 2016 at 02:03:27 AM EST

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