| Aptheker v. Secretary of State
(No. 461)
219 F.Supp. 709, reversed and remanded. |
||||
|---|---|---|---|---|
| Syllabus
| Opinion
[ Goldberg ] | Concurrence
[ Black ] | Concurrence
[ Douglas ] | Dissent
[ Clark ] |
| HTML version
PDF version | HTML version
PDF version | HTML version
PDF version | HTML version
PDF version | HTML version
PDF version |
Aptheker v. Secretary of State
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
MR. JUSTICE DOUGLAS, concurring.
While I join the opinion of the Court, I add only a few words to indicate what I think is the basic reach of the problem before us.
We noted in Kent v. Dulles, 357 U.S. 116, 126, that "freedom of movement," both internally and abroad, is "deeply engrained" in our history. I would not suppose that a Communist, any more than an indigent, could be barred from traveling interstate. I think that a Communist, the same as anyone else, has this right. Being a Communist certainly is not a crime, and, while traveling may increase the likelihood of illegal events' happening, so does being alive. If, as I think, the right to move freely from State to State is a privilege and immunity of national citizenship (see Edwards v. California, 314 U.S. 160, 178), none can be barred from exercising it, though anyone who uses it as an occasion to commit a crime can, of course, be punished. But the right remains sacrosanct, only illegal conduct being punishable.
Free movement by the citizen is, of course, as dangerous to a tyrant as free expression of ideas or the right of assembly, and it is therefore controlled in most countries in the interests of security. That is why riding boxcars carries extreme penalties in Communist lands. That is why the ticketing of people and the use of identification papers are routine matters under totalitarian regimes, yet abhorrent in the United States.
Freedom of movement, at home and abroad, is important for job and business opportunities -- for cultural, [p520] political, and social activities -- for all the commingling which gregarious man enjoys. Those with the right of free movement use it at times for mischievous purposes. But that is true of many liberties we enjoy. We nevertheless place our faith in them, and against restraint, knowing that the risk of abusing liberty so as to give rise to punishable conduct is part of the price we pay for this free society.
Freedom of movement is kin to the right of assembly, and to the right of association. These rights may not be abridged, De Jonge v. Oregon, 299 U.S. 353"]299 U.S. 353; 299 U.S. 353; NAACP v. Alabama, 357 U.S. 449, 460-462, only illegal conduct being within the purview of crime in the constitutional sense.
War may be the occasion for serious curtailment of liberty. Absent war, I see no way to keep a citizen from traveling within or without the country unless there is power to detain him. Ex parte Endo, 323 U.S. 283. And no authority to detain exists except under extreme conditions, e.g., unless he has been convicted of a crime or unless there is probable cause for issuing a warrant of arrest by standards of the Fourth Amendment. This freedom of movement is the very essence of our free society, setting us apart. Like the right of assembly and the right of association, it often makes all other rights meaningful -- knowing, studying, arguing, exploring, conversing, observing and even thinking. Once the right to travel is curtailed, all other rights suffer, just as when curfew or home detention is placed on a person.
America is, of course, sovereign; but her sovereignty is woven in an international web that makes her one of the family of nations. The ties with all the continents are close -- commercially as well as culturally. Our concerns are planetary, beyond sunrises and sunsets. Citizenship implicates us in those problems and perplexities, as [p521] well as in domestic ones. We cannot exercise and enjoy citizenship in world perspective without the right to travel abroad, and I see no constitutional way to curb it unless, as I said, there is the power to detain.