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Indiana Law Journal

Document Type

Article

Publication Date

2025

Publication Citation

100 Indiana Law Journal 1063

Abstract

Travel rights and travel restrictions shape nearly every part of society, moderating where and how we go about our daily lives. Yet a central aspect of travel has gone largely unnoticed in the legal literature. Oppressive governments have routinely restricted free movement as a principal means of effectuating discrimination. And travel rights, as a result, have always had a strong anti-discriminatory valence. From the Magna Carta to Blackstone’s Commentaries to the Constitution itself, rights to travel have consistently emerged from struggles against discrimination.

This Article makes several independent but related contributions. First, the Constitution’s protections of travel have a strong anti-discriminatory core. Second, travel restrictions have been used as a key tool for effectuating discrimination throughout history. Third, because constitutional rights to travel were intended to serve as a bulwark against discriminatory travel restrictions, these same restrictions should not be used to support the constitutionality of contemporary restrictions. Rather than reflecting a historical acceptance of certain restrictions on travel, such laws represent the evil to which travel rights respond.

These insights have sweeping implications for a wide span of contemporary restrictions on travel, ranging from vagrancy and loitering ordinances to the federal No Fly List. Such restrictions have largely withstood constitutional challenge because of their historical antecedents. What this Article suggests is that these histories—histories of discrimination—instead render such restrictions especially constitutionally infirm. Recognizing the anti-discriminatory thrust of the Constitution’s rights to travel will reshape the landscape of both travel rights and travel restrictions.

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