The arguments for rights of Americans to travel to Cuba are primarily grounded in
amendments to the U.S. Constitution. These expand
out to include the rights of to travel abroad, to seek
information relevant to public issues through foreign travel, and to
exchange information and views with people in other countries; rights
derived from the First and Fifth Amendments of the "Bill of
Before the "Bill of Rights," in Anglo-Saxon law, the of the right to travel emerges at least as earl
as the Magna Carta. Article 42 reads:
shall be lawful to any person, for the future, to go out of our kingdom,
and to return, safely and securely, by land or by water, saving his
allegiance to us, unless it be in time of war, for some short space, for
the common good of the kingdom: excepting prisoners and outlaws,
according to the laws of the land, and of the people of the nation at
war against us, and Merchants who shall be treated as it is said above.
Bolling v. Sharpe, 347 U.S. 497 (1948) at 499 -500, the United States
Surpeme Court stated that: "Although
the Court has not assumed to define `liberty' with any great precision, that term is
not confined to mere freedom from bodily restraint. Liberty under law
extends to the full range of conduct which the individual is free to
pursue, and it cannot be restricted except for a proper governmental
In the U.S., the right to travel is derived from the synthesis of
several rights. This was quite well laid out in Kent v. Dulles, 357
U.S. 116 (1958) at 125-126.
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. . . .
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."
The case involved the Secretary of States refusal
to issue a passport because the plaintiff wouldn't file an affidavit
regarding his political beliefs. In the majority (5-4) opinion Justice
William Douglas wrote"
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. So much is conceded by the Solicitor General. In Anglo-Saxon
law, that right was emerging at least as early as the Magna Carta.
Chafee, Three Human Rights in the Constitution of 1787 (1956), 171-181,
187 et seq., shows how deeply engrained in our history this
freedom of movement is. 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 necessary for a
livelihood. It 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. See Crandall v. Nevada, 6 Wall. 35, 44; Williams
v. Fears, 179 U.S. 270, 274; Edwards v. California, 314 U.S.
160. "Our nation," wrote Chafee, has thrived on the principle
that, outside areas of plainly harmful conduct, every American is left
to shape his own life as he thinks best, do what he pleases, go where he
pleases." Id. at 197.
Freedom of movement also has large social values. As Chafee put it:
Foreign correspondents and lecturers on public
affairs need first-hand information. Scientists and scholars gain greatly from
consultations with colleagues in other countries. Students equip themselves for
more fruitful careers in the United States by instruction in foreign universities. Then there are reasons close to the core of personal
life -- marriage, reuniting families, spending hours with old friends. Finally,
travel abroad enables American citizens to understand that people like
themselves live in Europe, and helps them to be well informed on public
issues. An American who has crossed the ocean is not obliged to form his
opinions about our foreign policy merely from what he is told by officials of
our government or by a few correspondents of American newspapers. Moreover, his
views on domestic questions are enriched by seeing how foreigners are trying to
solve similar problems. In many different ways, direct contact with other
countries contributes to sounder decisions at home. Id. at 195-196. And see Vestal, Freedom of Movement, 41 Iowa
L.Rev. 6, 13-14.
Freedom to travel is, indeed, an important aspect of the citizen's
"liberty." We need not decide the extent to which it can be
curtailed. We are first concerned with the extent, if any, to which Congress
has authorized its curtailment.
The court then discussed reason a passport could be denied. On
the subject of a broad denial of the right of travel under conditions of
war, the court wrote:
case of comparable magnitude, Korematsu v. United States, 323
U.S. 214 , 218 , we allowed the Government in time of war to exclude
citizens from their homes and restrict their freedom of movement only on
a showing of "the gravest imminent danger to the public
safety." There, the Congress and the Chief Executive moved in
coordinated action; and, as we said, the Nation was then at war. No such
condition presently exists. No such showing of extremity, no such
showing of joint action by the Chief Executive and the Congress to
curtail a constitutional right of the citizen, has been made here.
crucial function today is control over exit. And, as we have seen, the
right of exit is a personal right included within the word
"liberty" as used in the Fifth Amendment. If that
"liberty" is to be regulated, it must be pursuant to the
lawmaking functions of the Congress. Youngstown Sheet & Tube Co.
v. Sawyer, supra. And if that power is delegated, the standards must
be adequate to pass scrutiny by the accepted tests. See Panama
Refining Co. v. Ryan, 293 U.S. 388, 420-430. Cf. Cantwell v.
Connecticut, 310 U.S. 296 , 307 ; Niemotko v. Maryland, 340
U.S. 268, 271. Where activities or enjoyment natural and often necessary
to the well-being of an American citizen, such as travel, are involved,
we will construe narrowly all delegated powers that curtail or dilute
them. See Ex parte Endo, 323 U.S. 283, 301-302. Cf. Hannegan
v. Esquire, Inc., 327 U.S. 146, 156; United States v. Rumely,
345 U.S. 41, 46. We hesitate to find in this broad generalized power an
authority to trench so heavily on the rights of the citizen......
repeat, we deal here with a constitutional right of the citizen, a right
which we must assume Congress will be faithful to respect. We would be
faced with important constitutional questions were we to hold that
Congress, by § 1185 and § 211a, had given the Secretary authority to
withhold passports to citizens because of their beliefs or associations.
Congress has made no such provision in explicit terms, and, absent one,
the Secretary may not employ that standard to restrict the citizens'
right of free movement.
To curtail freedom of movement the government had to make a "showing of
the gravest imminent danger to the public safety" and ""liberty" is to be regulated, it must be pursuant to the
lawmaking functions of the Congress." This
may raise questions about OFAC use of restrictions on financial transactions
as a proxy to interfere with travel. If the executive branch is going to
restrict travel Congress has to provide for this in explicit terms.
Following these arguments the court might look much more critically at travel that
took place after
the passage Cuban
Liberty and Democratic Solidarity (LIBERTAD) Act of 1996, which codified
restrictions on travel, than before.
But LIBERTAD may not be sufficient to protect the governments
restrictions on travel. In Aptheker v.
Secretary of State, 378 U.S. 500 (1964), the court looked more directly at
the constitutionality of Congressional interference with the right to
travel and determined that it was narrow.
Aptheker addressed the question of freedom
of association and whether a passport could be denied to a Communist, effectively preventing
them from traveling out of the Western Hemisphere. The interference was
much more substantial than restriction on visiting a single country, but
the language is interesting none-the-less.
[The current restrictions
for Cuba are even more interesting because they rely on positive
associations. If you associate with a group
that plans to spend most of there time on a Little League field you have
a fair chance of getting a license for travel to Cuba, but if you choose to associate
with a group that wants to travel around learning about Cuban history and
society your chances of getting a license are much less likely.
License from the Department of the Treasury are taking the place of
passports from the Department of State.]
In majority opinion,
Justice Goldberg wrote:
restrictive effect of the legislation cannot be gain-said by emphasizing,
as the Government seems to do, that a member of a registering organization
could recapture his freedom to travel by simply in good faith abandoning
his membership in the organization. Since freedom of association is itself
guaranteed in the First Amendment, restrictions imposed upon the right to
travel cannot be dismissed by asserting that the right to travel could be
fully exercised if the individual would first yield up his membership in a
Although previous cases have not involved the constitutionality of
statutory restrictions upon the right to travel abroad, there are
well-established principles by which to test whether the restrictions
here imposed are consistent with the liberty guaranteed in the Fifth
Amendment. It is a familiar and basic principle, recently reaffirmed in
NAACP v. Alabama, 377 U.S. 288, 307 , that "a governmental purpose
to control or prevent activities constitutionally subject to state
regulation may not be achieved by means which sweep unnecessarily
broadly and thereby invade the area of protected freedoms." See, e.
g., NAACP v. Button, 371 U.S. 415, 438 ; Louisiana ex rel. Gremillion v.
NAACP, 366 U.S. 293 ; Shelton v. Tucker, 364 U.S. 479, 488 ; Schware v.
Board of Bar Examiners, 353 U.S. 232, 239 ; Martin v. Struthers, 319
U.S. 141, 146 -149; Cantwell v. Connecticut, 310 U.S. 296, 304 -307;
Schneider v. State, 308 U.S. 147, 161 , 165. In applying this principle
the Court in NAACP v. Alabama, supra, referred to the criteria
enunciated in Shelton v. Tucker, supra, at 488:
"[E]ven though the
governmental purpose be legitimate and substantial, that purpose cannot
be pursued by means that broadly stifle fundamental personal liberties
when the end can be more narrowly achieved. The breadth of legislative
abridgment must be viewed in the light of less drastic means for
achieving the same basic purpose."
This principle requires that we consider the
congressional purpose underlying 6 of the Control Act. 8
The Government emphasizes that the legislation in question flows,
as the statute itself declares, from the congressional desire to protect
our national security. That Congress under the Constitution has power to
safeguard our Nation's security is obvious and unarguable. Cf. Kennedy
v. Mendoza-Martinez, 372 U.S. 144, 159 -160. As we said in
Mendoza-Martinez, "while the Constitution protects against
invasions of individual rights, it is not a suicide pact." Id., at
160. At the same time the Constitution requires that the powers of
government "must be so exercised as not, in attaining a permissible
end, unduly to infringe" a constitutionally protected freedom.
Cantwell v. Connecticut, supra, at 304.
The court went to look at the balance between the
governments objectives and the rights of the individuals. Justice
Goldberg Goldberg continued:
In determining the constitutionality of 6, it is also important to
consider that Congress has within its power "less drastic"
means of achieving the congressional objective of safeguarding our
national security. Shelton v. Tucker, 364
U.S., at 488 . The Federal Employee Loyalty Program, which was before
this Court in Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123
, provides an example. Under Executive Order No. 9835, membership in a
Communist organization is not considered conclusive but only as one
factor to be weighed in determining the loyalty of an applicant or
is relevant to note that less than a month after the decision in Kent v.
Dulles, supra, President Eisenhower sent a message to Congress stating
that: "Any limitations on the right to travel can only be tolerated
in terms of overriding requirements of our national security, and must
be subject to substantive and procedural guaranties." Message from
the President - Issuance of Passports, H. Doc. No. 417, 85th Cong., 2d
Sess.; 104 Cong. Rec. 13046. The legislation which the President
proposed did not make membership in a Communist organization, without
more, a disqualification for obtaining a passport. S. 4110, H. R. 13318,
85th Cong., 2d Sess. Irrespective of views as to the validity of this or
other such proposals, they demonstrate the conviction of the Executive
Branch that our national security can be adequately protected by means
which, when compared with 6, are more discriminately tailored to the
constitutional liberties of individuals.
In our view the foregoing considerations compel the conclusion that 6
of the Control Act is unconstitutional on its face. The section, judged
by its plain import and by the substantive evil which Congress sought to
control, sweeps too widely and too indiscriminately across the liberty
guaranteed in the Fifth Amendment. The prohibition against travel is
supported only by a tenuous relationship between the bare fact of
organizational membership and the activity Congress sought to proscribe.
The broad and enveloping prohibition indiscriminately excludes plainly
relevant considerations such as the individual's knowledge, activity,
commitment, and purposes in and places for travel. The section therefore
is patently not a regulation "narrowly drawn to prevent the
supposed evil," cf. Cantwell v. Connecticut, 310 U.S., at 307 , yet
here, as elsewhere, precision must be the touchstone of legislation so
affecting basic freedoms, NAACP v. Button, 371 U.S., at 438 ........
Since this case involves a personal liberty protected by the Bill of
Rights, we believe that the proper approach to legislation curtailing
that liberty must be that adopted by this Court in NAACP v. Button, 371
U.S. 415 , and Thornhill v. Alabama, 310 U.S. 88 . In NAACP v. Button
the Court stated that:
"[I]n appraising a
statute's inhibitory effect upon such rights, this Court has not
hesitated to take into account possible applications of the statute in
other factual contexts besides that at bar. Thornhill v. Alabama, 310
U.S. 88, 97 -98; Winters v. New York, [ 333 U.S. 507 ], 518-520. Cf.
Staub v. City of Baxley, 355 U.S. 313 . . . . The objectionable quality
of vagueness and overbreadth does not depend upon absence of fair notice
to a criminally accused or upon unchanneled delegation of legislative
powers, but upon the danger of tolerating, in the area of First
Amendment freedoms, the existence of a penal statute susceptible of
sweeping and improper application. Cf. Marcus v. Search Warrant, 367
U.S. 717, 733 . These freedoms are delicate and vulnerable, as well as
supremely precious in our society. The threat of sanctions may deter
their exercise almost as potently as the actual application of
sanctions." 371 U.S., at 432 -433.
For essentially the same reasons this Court had
concluded that the constitutionality of the statute in Thornhill v.
Alabama should be judged on its face:
"An accused, after
arrest and conviction under such a statute [on its face
unconstitutionally abridging freedom of speech], does not have to
sustain the burden of demonstrating that the State could not
constitutionally have written a different and specific statute covering
his activities as disclosed by the charge and the evidence introduced
against him." 310 U.S., at 98 .
Similarly, since freedom of travel is a
constitutional liberty closely related to rights of free speech and
association, we believe that appellants in this case should not be
required to assume the burden of demonstrating that Congress could not
have written a statute constitutionally prohibiting their travel.
MR. JUSTICE BLACK, concurring.
... I concur in the Court's holding that this section of the Act is
unconstitutional, but not on the ground that the Due Process Clause of
the Fifth Amendment, standing alone, confers on all our people a
constitutional liberty to travel abroad at will. Without reference to
other constitutional provisions, Congress has, in my judgment, broad
powers to regulate the issuance of passports under its specific power to
regulate commerce with foreign nations. The Due Process Clauses of the
Fifth and Fourteenth Amendments do mean to me, however, that neither the
Secretary of State nor any other government agent can deny people in
this country their liberty to travel or their liberty to do anything
else except in accordance with the "law of the land" as
declared by the Constitution or by valid laws made pursuant to it. For
reasons stated in my dissenting opinion in Communist Party v. Subversive
Activities Control Board, 367 U.S. 1, 137 , I think the whole Act,
including 6, is not a valid law, that it sets up a comprehensive
statutory plan which violates the Federal Constitution because (1) it
constitutes a "Bill of Attainder," which Art. I, 9, of the
Constitution forbids Congress to pass; (2) it penalizes and punishes
appellants and restricts their liberty on legislative and administrative
fact-findings that they are subversives, and in effect traitors to their
country, without giving them the benefit of a trial according to due
process, which requires a trial by jury before an independent judge,
after an indictment, and in accordance with all the other procedural
protections of the Fourth, Fifth, and Sixth Amendments; and (3) it
denies appellants the freedom of speech, press, and association which
the First Amendment guarantees.
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
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, 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 ; 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 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.
Justice Clark, with two others, dissenting, wrote:
While the right to travel abroad is a part of the liberty protected
by the Fifth Amendment, the Due Process Clause does not prohibit
reasonable regulation of life, liberty or property. Here the restriction
is reasonably related to the national security....The right to travel is
The next critical case on the right to travel address Cuba specifically
and seems to have established much looser tests for the government curtailing
the right to travel than had been described earlier. Chief Justice
Earl Warren delivered the opinion of the Court:
... This case is therefore not like Kent v. Dulles, supra, where we
were unable to find, with regard to the sort of passport refusal
involved there, an administrative practice sufficiently substantial and
consistent to warrant the conclusion that Congress had implicitly
approved it. Appellant
reminds us that in summarizing the Secretary's practice in Kent, we
"So far as material
here, the cases of refusal of passports generally fell into two
categories. First, questions pertinent to the citizenship of the
applicant and his allegiance to the United States had to be resolved by
the Secretary . . . . Second, was the question whether the applicant was
participating in illegal conduct, trying to escape the toils of the law,
promoting passport frauds, or otherwise engaging in conduct which would
violate the laws of the United States." 357 U.S., at 127 .
It must be remembered, in reading this passage,
that the issue involved in Kent was whether a citizen could be denied a
passport because of his political beliefs or associations. In finding
that history did not support the position of the Secretary in that case,
we summarized that history "so far as material here" - that
is, so far as material to passport refusals based on the character of
the particular applicant. In this case, however, the Secretary has
refused to validate appellant's passport not because of any
characteristic peculiar to appellant, but rather because of foreign
policy considerations affecting all citizens.
Having concluded that the Secretary of State's refusal to validate
appellant's passport for travel to Cuba is supported by the authority
granted by Congress in the Passport Act of 1926, we must next consider
whether that refusal abridges any constitutional right of appellant.
Although we do not in this case reach the question of whether the 1952
Act should be read to attach criminal penalties to travel to an area for
which one's passport is not validated, we must, if we are to approach
the constitutional issues presented by this appeal candidly, proceed on
the assumption that the Secretary's refusal to validate a passport for a
given area acts as a deterrent to travel to that area. In Kent v.
Dulles, supra, at 125, we held that "[t]he 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." See also Aptheker v.
Secretary of State, supra, at 505-506. However, the fact that a liberty
cannot be inhibited without due process of law does not mean that it can
under no circumstances be inhibited.
The requirements of due process are a function not only of the extent
of the governmental restriction imposed, but also of the extent of the
necessity for the restriction. Cuba is the only area in the Western
Hemisphere controlled by a Communist government. It is, moreover, the
judgment of the State Department that a major goal of the Castro regime
is to export its Communist revolution to the rest of Latin
America. The United States and other members of the Organization
of American States have determined that travel between Cuba and the
other countries of the Western Hemisphere is an important element in the
spreading of subversion and many have therefore undertaken measures to discourage such
travel. It also cannot be forgotten that in the early days of the
Castro regime, United States citizens were arrested and imprisoned
without charges. We think, particularly in view of the President's
statutory obligation to "use such means, not amounting to acts of
war, as he may think necessary and proper" to secure the release of
an American citizen unjustly deprived of his liberty by a foreign
government, that the Secretary has justifiably concluded that travel to
Cuba by American citizens might involve the Nation in dangerous
international incidents, and that the Constitution does not require him
to validate passports for such travel.
The right to travel within the United States is of course also
constitutionally protected, cf. Edwards v. California, 314 U.S. 160 .
But that freedom does not mean that areas ravaged by flood, fire or
pestilence cannot be quarantined when it can be demonstrated that
unlimited travel to the area would directly and materially interfere
with the safety and welfare of the area or the Nation as a whole. So it
is with international travel. That the restriction which is challenged
in this case is supported by the weightiest considerations of national
security is perhaps best pointed up by recalling that the Cuban missile
crisis of October 1962 preceded the filing of appellant's complaint by
less than two months.
Appellant also asserts that the Secretary's refusal to validate his
passport for travel to Cuba denies him rights guaranteed by the First
Amendment. His claim is different from that which was raised in Kent v.
Dulles, supra, and Aptheker v. Secretary of State, supra, for the
refusal to validate appellant's passport does not result from any
expression or association on his part; appellant is not being forced to
choose between membership in an organization and freedom to travel.
Appellant's allegation is, rather, that the "travel ban is a direct
interference with the First Amendment rights of citizens to travel
abroad so that they might acquaint themselves at first hand with the
effects abroad of our Government's policies, foreign and domestic, and
with conditions abroad which might affect such policies." We must
agree that the Secretary's refusal to validate passports for Cuba
renders less than wholly free the flow of information concerning that
country. While we further agree that this is a factor to be considered
in determining whether appellant has been denied due process of law, we
cannot accept the contention of appellant that it is a First Amendment
right which is involved. For to the extent that the Secretary's refusal
to validate passports for Cuba acts as an inhibition (and it would be
unrealistic to assume that it does not), it is an inhibition of action.
There are few restrictions on action which could not be clothed by
ingenious argument in the garb of decreased data flow. For example, the
prohibition of unauthorized entry into the White House diminishes the
citizen's opportunities to gather information he might find relevant to
his opinion of the way the country is being run, but that does not make
entry into the White House a First Amendment right. The right to speak
and publish does not carry with it the unrestrained right to gather
challenges the 1926 Act on the ground that it does not contain
sufficiently definite standards for the formulation of travel controls
by the Executive. It is important to bear in mind, in appraising this
argument, that because of the changeable and explosive nature of
contemporary international relations, and the fact that the Executive is
immediately privy to information which cannot be swiftly presented to,
evaluated by, and acted upon by the legislature, Congress - in giving
the Executive authority over matters of foreign affairs - must of
necessity paint with a brush broader than that it customarily wields in
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE GOLDBERG concurs,
We held in Kent v. Dulles, 357 U.S. 116 , that the right to travel
overseas, as well as at home, was part of the citizen's liberty under
the Fifth Amendment. That conclusion was not an esoteric one drawn from
the blue. It reflected a judgment as to the peripheral rights of the
citizen under the First Amendment. The right to know, to converse with
others, to consult with them, to observe social, physical, political and
other phenomena abroad as well as at home gives meaning and substance to
freedom of expression and freedom of the press. Without those contacts
First Amendment rights suffer. That is why in Kent v. Dulles, supra, we
said that freedom of movement has "large social values." Id.,
The ability to understand this pluralistic world, filled with
clashing ideologies, is a prerequisite of citizenship if we and the
other peoples of the world are to avoid the nuclear holocaust. The late
Pope John XXIII in his famous encyclical Pacem in Terris stated the idea
"Men are becoming
more and more convinced that disputes which arise between States should
not be resolved by recourse to arms, but rather by negotiation.
"It is true that on
historical grounds this conviction is based chiefly on the terrible
destructive force of modern arms; and it is nourished by the horror
aroused in the mind by the very thought of the cruel destruction and the
immense suffering which the use of those armaments would bring to the
human family; and for this reason it is hardly possible to imagine that
in the atomic era war could be used as an instrument of justice.
unfortunately, the law of fear still reigns among peoples, and it forces
them to spend fabulous sums for armaments: not for aggression, they
affirm - and there is no reason for not believing them - but to dissuade
others from aggression.
"There is reason to
hope, however, that by meeting and negotiating, men may come to discover
better the bonds that unite them together, deriving fromthe human nature
which they have in common; and that they may also come to discover that
one of the most profound requirements of their common nature is this:
that between them and their respective peoples it is not fear which
should reign but love, a love which tends to express itself in a
collaboration that is loyal manifold in form and productive of many
He also said:
"From the fact that
human beings are by nature social, there arises the right of assembly
Since we deal with rights peripheral to the
enjoyment of First Amendment guarantees, restrictive legislation must be
"narrowly drawn" (Cantwell v. Connecticut, 310 U.S. 296, 307 )
to meet a precise evil. Only last Term, in Aptheker v. Secretary of
State, 378 U.S. 500 , we reaffirmed that when we struck down a provision
of the Subversive Activities Control Act of 1950 (64 Stat. 987) because
it "too broadly and indiscriminately" restricted the right to
travel. Id., at 505. We should do the same here.
I agree that there are areas to which Congress can restrict or ban
travel. Pestilences may rage in a region making it necessary to protect
not only the traveler but those he might infect on his return. A theatre
of war may be too dangerous for travel. Other like situations can be
put. But the only so-called danger present here is the Communist regime
in Cuba. The world, however, is filled with Communist thought; and
Communist regimes are on more than one continent. They are part of the
world spectrum; and if we are to know them and understand them, we must
mingle with them, as Pope John said. Keeping alive intellectual
intercourse between opposing groups has always been important and
perhaps was never more important than now.
The First Amendment presupposes a mature people. not afraid of ideas.
The First Amendment leaves no room for the official, whether truculent
or benign, to say nay or yea because the ideas offend or please him or
because he believes some political objective is served by keeping the
citizen at home or letting him go. Yet that is just what the Court's
decision today allows to happen. We have here no congressional
determination that Cuba is an area from which our national security
demands that Americans be excluded. Nor do we have a congressional
authorization of the Executive to make such a determination according to
standards fixed by Congress. Rather we have only the claim that Congress
has painted with such a "broad brush" that the State
Department can ban travel to Cuba simply because it is pleased to do so.
By permitting this, the Court ignores the "familiar and basic
principle." Aptheker v. Secretary of State, supra, at 508, that
"a governmental purpose to control or prevent activities
constitutionally subject to state regulation may not be achieved by
means which sweep unnecessarily broadly and thereby invade the area of
protected freedoms." NAACP v. Alabama, 377 U.S. 288, 307 .
As I have said, the right to travel is at the periphery of the First
Amendment, rather than at its core, largely because travel is, of
course, more than speech: it is speech brigaded with conduct.
"Conduct remains subject to regulation for the protection of
society. . . . [But i]n every case the power to regulate must be so
exercised as not, in attaining a permissible end, unduly to infringe the
protected freedom." Cantwell v. Connecticut, supra, at 304.
Restrictions on the right to travel in times of peace should be so
particularized that a First Amendment right is not precluded unless some
clear countervailing national interest stands in the way of its
In a separate dissent Justice Arthur Goldberg , after a review of the
legislative history and administrative practices connected with the 1926
Act, and a review of the implications of the Kent and Aptheker decisions,
he concluded that "it is Congress did not mean the 1926 Act to
authorize the Executive to impose area restrictions in time of
In Regan v. Wald 468 U.S. 222 (1984), Justice Rehnquist delivered the
opinion of the court (5-4), which further narrowed the interpretation of
Kent and Aptheker and affirmed the executives power to restrict travel:
Respondents finally urge that if we do find that the President is
authorized by Congress to enforce the regulations here in question,
their enforcement violates respondents' right to travel guaranteed by
the Due Process Clause of the Fifth Amendment. Respondents rely on a
number of our prior decisions which recognized such a right, beginning
in 1958 with Kent v. Dulles, 357 U.S. 116 . Respondents' counsel
undoubtedly speaks with some authority as to these cases, since he
represented the would-be travelers in most of them.
In Kent, the Court held that Congress had not authorized the
Secretary of State to inquire of passport applicants as to affiliation
with the Communist Party. The Court noted that the right to travel
"is a part of the `liberty' of which the citizen cannot be deprived
without due process of law," id., at 125, and stated that it would
"construe narrowly all delegated
powers that curtail or dilute" that right. Id., at 129.
Subsequently, in Aptheker v. Secretary of State, 378 U.S. 500, 514
(1964), the Court held that a provision of the Subversive Activities
Control Act of 1950, 64 Stat. 993, forbidding the issuance of a passport
to a member of the Communist Party, "sweeps too widely and too
indiscriminately across the liberty guaranteed in the Fifth
Both Kent and Aptheker, however, were qualified the following Term in
Zemel v. Rusk, 381 U.S. 1 (1965). In that case, the Court sustained
against constitutional attack a refusal by the Secretary of State to
validate the passports of United States citizens for travel to Cuba. The
Secretary of State in Zemel, as here, made no effort selectively to deny
passports on the basis of political belief or affiliation, but simply
imposed a general ban on travel to Cuba following the break in
diplomatic and consular relations with that country in 1961. The Court
in Zemel distinguished Kent on grounds equally applicable to Aptheker.
"It must be
remembered . . . that the issue involved in Kent was whether a citizen
could be denied a passport because of his political beliefs or
associations. . . . In this case, however, the Secretary has refused to
validate appellant's passport not because of any characteristic peculiar
to appellant, but rather because of foreign policy considerations
affecting all citizens." 381 U.S., at 13 .
The Court went on to note that, although the ban in
question effectively prevented travel to Cuba, and thus diminished the
right to gather information about foreign countries, no First Amendment
rights of the sort that controlled in Kent and Aptheker were implicated
by the across-the-board restriction in Zemel. And the Court found the
Fifth Amendment right to travel, standing alone, insufficient to
overcome the foreign policy justifications supporting the restriction.
"That the restriction
which is challenged in this case is supported by the weightiest
considerations of national security is perhaps best pointed up by
recalling that the Cuban missile crisis of October 1962 preceded the
filing of appellant's complaint by less than two months." 381 U.S.,
at 16 .
We see no reason to differentiate between the
travel restrictions imposed by the President in the present case and the
passport restrictions imposed by the Secretary of State in Zemel. Both
have the practical effect of preventing travel to Cuba by most American
citizens, and both are justified by weighty concerns of foreign policy.
Respondents apparently feel that only a Cuban missile crisis in the
offing will make area restrictions on international travel
constitutional. They argue that there is no "emergency" at the
present time and that the relations between Cuba and the United States
are subject to "only the `normal' tensions inherent in contemporary
international affairs." Brief for Respondents 55. The holding in
Zemel, however, was not tied to the Court's independent foreign policy
analysis. Matters relating "to the conduct of foreign relations . .
. are so exclusively entrusted to the political branches of government
as to be largely immune from judicial inquiry or interference."
Harisiades v. Shaughnessy, 342 U.S. 580, 589 (1952). Our holding in
Zemel was merely an example of this classical deference to the political
branches in matters of foreign policy. [468
U.S. 222, 243]
The Cuban Assets Control Regulations were first promulgated during
the administration of President Kennedy. They have been retained, though
alternately loosened and tightened in response to specific
circumstances, ever since. In every year since the enactment of IEEPA in
1977, first President Carter and then President Reagan have determined
that the continued exercise of the authorities of 5(b) of TWEA against
Cuba is in the national interest. See n. 10, supra. Since both were
acting under the grandfather clause of Public Law 95-223, there was no
legal requirement that either of them proclaim a new national emergency
under the procedures of IEEPA. But the absence of such a proclamation
does not detract from the evidence presented to both the District Court
and the Court of Appeals to the effect that relations between Cuba and
the United States have not been "normal" for the last quarter
of a century, and that those relations have deteriorated further in
recent years due to increased Cuban efforts to destabilize governments
throughout the Western Hemisphere. See Enders Declaration 5, App. 172.
In the opinion of the
State Department, Cuba, with the political, economic, and military
backing of the Soviet Union, has provided widespread support for armed
violence and terrorism in the Western Hemisphere. Cuba also maintains
close to 40,000 troops in various countries in Africa and the Middle
East in support of objectives inimical to United States foreign policy
interests. See Frechette Declaration 4, App. 107. Given the traditional
deference to executive judgment "[i]n this vast external
realm," United States v. Curtiss-Wright Export Corp., 299 U.S. 304,
319 (1936), we think there is an adequate basis under the Due Process
Clause of the Fifth Amendment to sustain the President's decision to
curtail the flow of hard currency to Cuba - currency that could then be
used in support of Cuban adventurism - by restricting travel. Zemel v.
Rusk, supra, at 14-15; Haig v. Agee, 453 U.S. 280, 306 -307 (1981).