CNN analyst Leana Wen created controversy when she listed flying as a privilege that can be revoked based on vaccination status. Besides the stunning fact that she turned the rights of citizens into privileges that can be controlled by our new health care overlords, the statement showed a lack of knowledge of natural rights espoused by philosophers and America’s founders.
Natural law is something that is intrinsic to being born and which can be observed in human nature. Many writers such as the early modern scholar Francisco Vitoria wrote of these ideas of freedom of movement and they were later codified into principles of international law. Two of the most important for modern Americans should be what is called innocent passage and freedom of navigation. The former allows warships to move through the territorial waters of another nation if they obey certain conditions. Freedom of navigation allows a country flying the flag of one nation, to travel unmolested in international waters. Both have application in the South China Sea.
If the U.S. declares innocent passage instead of freedom of navigation, that confirms contested Chinese claims in the South China Sea. In contrast, freedom of navigation patrols undermines Chinese claims and upholds principles of international law and prevents the country with the most guns from brazenly seizing territory. All these principles derive from the basic concept that people have a right to travel without constraint.
CNN analysts must think the Constitution is as foreign as the South China Sea. But it’s not that hard to realize that if warships can move freely, and we have codified rules of movement in international law the average American has a right, not a privilege to fly.
The First Amendment says that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble.” The right to assemble combines both freedoms of speech and movement. The government can’t tell them to shut up and can’t forbid them from gathering in public spaces. The Fifth Amendment solidifies this concept: The people can’t “be deprived of life, liberty, or property, without due process of law;” Again, liberty in this case refers to movement. We are not Uighurs living in controlled cities that need papers, i.e., government permission, to leave our houses or travel to other cities.
If that wasn’t clear enough, case law undergirds these principles. During the communist hysteria of the 1950s the government passed laws to try and stop communists from attending meetings or traveling to meet fellow communists, which resulted in strong rebukes from the court:
“The right to travel is a part of the ‘liberty’ of which the citizen cannot be deprived without due process of law under the Fifth Amendment. If that ‘liberty’ is to be regulated, it must be pursuant to the law-making functions of the Congress…. Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage. Travel abroad, like travel within the country, …may be as close to the heart of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in our scheme of values.”
Not only does the CNN analyst support depriving citizens of their liberty without due process, but it will likely come via executive order or like the CDC suspending evictions, or OSHA requiring vaccinations, the decision will come from executives or unelected bureaucrats in agencies that don’t have that power. But the court case here expressly said that any restriction on travel was a function of Congress.
Finally, we have Article IV of the Constitution regarding the freedom of movement between states. As explained by Cornell Law, the right to travel between states is a long-standing tradition. It is expressly addressed in the first sentence of Article Four regarding how the rights of citizens in one state transfer to another.
COVID-19 sounded scary eighteen months ago. But the heavy-handed behavior from political and health officials have squandered the trust of fifteen days to flatten the curve. At this point we are well on our way to a Faucian dystopia and bio health security state. Basic freedoms like the right to property of landlords, and the right to liberty expressed in movement are being threatened and expressed as “privileges.” Americans not only have a constitutional but a natural human right to travel. This is supported by natural law, the Constitution, and even international law. And it remains even in the middle of a pandemic.