Freedom to Travel

by JUDGE CHARLES E. WYZANSKI, JR.

1

UNESCO recently proposed a conference in the United States of teachers throughout the world whose special field is civil liberties, but the State Department withheld the invitation because, under the McCarran Act, Communist teachers of even that subject are excluded from our land. More recently the government, without explanation, refused passports to a Harvard professor, once associated with the Institute of Pacific Relations, who wished to take a short teaching assignment in Japan; to a Protestant minister, critical of our post-war treaty with Japan, who wished to visit friends in the Orient; and to several nonCommunist scientists who planned to attend European meetings of professional societies. And in dozens of less conspicuous cases citizens and aliens with unacceptable views have been denied passports to travel from, or visas to enter, the United States.

These actions, characteristic of both our country and other countries in this age of crisis, invite a review of the legal, historical, and policy considerations underlying the freedom of men to travel — or, as it is sometimes technically phrased, the right of intercourse between nations.

In this discussion we are not concerned with the right of a citizen permanently to withdraw from our community, and thus expatriate himself; nor with his right to leave our shores, or remain abroad, to avoid taxes, military service, or other domestic obligation. Our interest is only in these physically healthy visitors who come to observe, to learn, to teach, to confer, or to trade — those whom Francis Bacon described in his Eighteenth Essay when he wrote, “Travel, in the younger sort, is a part of education; in the elder, a part of experience.”

Before indulging in any criticism of our present statutes, administration, or policies, we should remind ourselves that, whatever may be said of specific cases, of recent rules governing particular classes of travelers, and of novel dangers and remedies, America has in these post-war, as in earlier, years a record of hospitality to temporary visitors, scholars, teachers, merchants, that no nation, behind or before the Iron Curtain, has come close to matching. Over 80 million persons annually now cross our borders, many of them more than once. We are the most open society that the world has ever seen. We have adopted our liberal practice despite the doctrine of international law that there is no limitation upon the sovereign state’s power to restrict travel.

In the United States the most that can be derived from precedents is that in 1868 Congress declared, and in 1939 Chief Justice Hughes repeated, that the right of expatriation is a natural and inherent light of all people"; that our Constitution protects the right of a citizen to travel within the forty-eight states; that it is an open question whether the Bill of Rights assures him the privilege of foreign travel; that if he does go abroad, but on his return fails to persuade the immigration inspectors of his citizenship, he is excludable without the possibility of judicial review. As to a foreigner, as distinguished from a citizen, neither international nor American law accords him any inherent, natural, or positive right to enter the United States as an immigrant or visitor.

Historically our nation has a long record of exercising its power to exclude some aliens. Washington’s and Adams’s administrations furnish early examples. However, in the eighteenth and nineteenth centuries, and even in the first quota acts of 1921 and 1924, we left an open door for the temporary visitor, unless he had a loat hsome or contagious disease, carried on a criminal profession, or sought the overthrow of our government. We were, in those older times, glad to show our land not only to the admiring Tocqueville or Bryce, and to the not overenthusiastic Dickens and Trollope, but to those subverters of the democratic order now known to history as Napoleon III and Trotsky. Not until the McCarran Act of 1950 did we flatly exclude all associated with Communist parties or their affiliates_— though, as far back as 1918, enactments yielding varying interpretations reached toward the same end.

So far as travel from the United States was concerned, for 130 years we did nothing to restrain our journeying citizens, unless one counts as an exception the Logan Act, forbidding an American private citizen to negotiate with a foreign government. This legislation, we would do well to remember, was directed at a good Quaker doctor and United States Senator who had succeeded in persuading Talleyrand to lift the Napoleonic embargo against the United States, and who hoped to induce the British Cabinet to desist from the vexatious conduct that ultimately led to the War of 1812.

It may also be worth recalling that freedom of travel was in the nineteenth century a dominant theme in our foreign policy. We fought the Barbary States because of the restrictions and exactions they placed upon our traders; we sent warships under command of Commodore Matthew Perry to open up the ports of Japan to American visitors; we protested to the Czar when he expelled American Jews visiting their Russian relatives. Almost all our treaties of commerce and friendship had clauses looking toward unfettered freedom of intercourse.

With World War I a change set in. For the first time passports became a common incident of travel. Unless they had these certificates of nationality, our citizens could not enter most countries; and after President Wilson’s Executive Order, they could not cross our own borders in wartime. By 1918 the Wilsonian policy was crystallized in statutory form, so that now a citizen who leaves this land in time of war or declared emergency, while he retains a legal right to return to this country, may find in practice that his right is to return to that part of our land which is a federal prison.

As one would expect, when passports became mandatory the governmental control of travel became vested in theory in the Secretary of State, but in practice in a corps of specialists, devoted to their task, informed of the technicalities, but exercising in the interstices of their daily duties a range of policy judgments which were not always overt and were almost never the subject of detailed scrutiny by the busy Secretary, Congress, and press. This departmental power over passports has often been said to be discretionary, and virtually nonreviewable by courts. Certainly the tradition has been that the subordinates of the Secretary could refuse a passport to one whose conduct, or communications, or presence in a foreign land would prove embarrassing to this country. And, indeed, the practice has been fortified by the McCarran Act, in which Congress has forbidden the Department of State to issue a passport to a member of either the Communist Party or one of its affiliates.

Yet there are signs that the courts may be ready to put some elementary curbs on administrative absolutism. In July of this year a lower federal court ruled that the Secretary could not refuse a citizen the renewal of her passport without giving her the opportunity to be heard. The State Department now plans to allow interdepartmental appeals from the Passport Division, and in such appeals the Division will be required to explain its reasons for a denial of the passport and to give the applicant a chance to give his side.

2

THE present unfettered and strict executive control of passports and visas is, of course, not a curiosity of American statesmanship. It is a universal response to a world in fear of atomic war and planned insurrection. Yet it flies in the face of the cherished experiences of our Western world.

Twenty-four hundred years ago in his Funeral Speech, Pericles reminded the Athenians: ”[We] throw our city open to all the world, and we never by exclusion acts debar anyone from learning or seeing anything which an enemy might profit from observing if it were not kept from his sight ; for we place our dependence, not so much upon prearranged devices to deceive, as upon the courage which springs from our souls when we are called to action.” While this may not have been a representative pronouncement of the ancient world - and reflects a quite opposite view from Plato’s Laws, which proposed to confine foreign travel to those whose reliability was evidenced by their having passed their fortieth birthday and served in public office — the Periclean ideal came to be accepted early in European history for both men of business and men of learning. Magna Charta’s forty-first clause guarantees freedom of entry for foreign merchants. Traders of the Hanseatic League gained the right of access to most Continental as well as English markets, and English and Italian traders were to be found in many lands. Marco Polo gained entrance to China. Even Russian barriers finally yielded to Peter the Great’s ukase of April, 1702.

This freedom of intercourse extended far beyond the demands of commerce, and was most utilized by the very type of academic traveler and publicist whose journeys are now most carefully scanned. A tradition of academic intercourse began with the medieval wandering scholars moving from Paris, to Bologna, to Oxford; it grew with the pilgrimages of men of letters in Chaucer’s age, swelled with the generation of Erasmus, Colet, and More, found its permanent justification in the essays of Montaigne and Bacon, and became one of the impelling forces behind the Grand Tour taken by all gentlemen in Chesterfield’s day.

But the freedom of travel which characterized the seventeenth, eighteenth, and nineteenth centuries, and reached even across the mountains of Tibet, has been sharply curtailed by two world wars and the two periods of unsettlement that followed in their wake. We shall not find modern parallels for the visit of Spinoza to discuss philosophy with the Prince of Condé, while that French general was fighting the Dutch; or the Sentimental Journey of Laurence Sterne, who went without a passport from England to belligerent France; or that extraordinary social call paid in the middle of the War of 1812 by Lord Jeffrey, a Scottish Law Lord, upon President Madison in the White House. For many years to come, we must anticipate rigid passport inspection as the most convenient device for keeping out admittedly excludable persons and those who, pretending to come for a short sojourn, plan to remain as unauthorized permanent residents.

But an issue which deserves to be further debated is whether we ought to continue rigid administrative passport and visa censorship of tourists having no purpose but to exchange ideas and experiences.

This travel does not differ from any other exercise of the manifold freedoms of expression — from the right to speak, to write, to use the mails, to publish, to assemble, to petition. In all these liberties the principal element is the stretching of the mind to accommodate the growing spirit. The physical contact between men of different nationality while they exchange ideas, no matter how unconventional, is no evidence of a clear and present danger, unless the ideas themselves include a punishable incitement to immediate action.

To be sure, when men are face to face there may be greater understanding and increased possibilities of coöperation, but how can these be noxious if the same ideas may be lawfully communicated by post or print? And can any devotee of our liberal traditions argue that because a passport and a visa are governmental licenses, it follows that the authorities may arbitrarily withhold those official permissions from men whose actions are innocent, but whose thoughts alone are dangerous? Is not freedom to carry on such intercourse the core of our creed? For we cherish this liberty of communication not only for the sake of the traveler and his ideas, but more especially for the growth of the rest of us and our adventurous society.

Someone may urge that this nation will be embarrassed in its foreign relations if we permit noisy citizens from the extreme left and right wings of our commonwealth to go abroad posing as typical Americans. The first answer to that argument was given three decades ago by President Lowell when he was pressed to restrict Harvard professors whose public speeches caused the university annoyance: if we censor certain utterances, we tacitly assume responsibility for whatever we do not censor.

There is, however, a deeper answer for this country to ponder in this hour when its greatest need is to hold and to win allies. The most attractive promise of America has always been, not its natural resources, but its assured welcome to liberty. Belief in freedom is our only orthodoxy. The untouched radical is an irrebuttable exhibit of the stability of the society which he attacks. Just the other day, our British friends showed how applicable these principles are to the traveler who on his foreign journey exploits his mission to spread calumny and to create dissension. The spectacle of the Red Dean of Canterbury left free by Parliament became far better propaganda for the Western world than his preposterous charges of germ warfare could ever have been for the Communist despotism.

Yet, though we leave even our misguided, irresponsible citizens free to travel, and stop standing them in the corner when their views are unacceptable to Washington legislators and administrators, is it so clear that we should be hospitable to the foreigner who comes to spread divisive propaganda, or possibly to extract secrets from our arsenals and laboratories? If the alien’s errand be to circulate lies, then the proper way to deal with him, as Milton, Blackstone, Mill, Holmes, Brandeis, and Hughes have taught us, is not to censor him, by travel document or otherwise, but to let him proceed, subject, however, to the risk of criminal punishment and libel suit. If the traveler’s errand be to steal our confidential information, he is, and should be held, inadmissible, as a person whose journey is a punishable first step in an attempt to commit the crime of espionage. But let us be sure that crime is his real purpose, and that curtailment of his travel is not founded on distrust of his philosophy rather than on distrust of his respect for the locks, keys, and regulations which justifiably guard our military and other official secrets.

We can never afford to forget that in our war to win the world for liberty, our ultimate appeal must be not primarily to arms and secret weapons, but to the minds and spirits of men throughout the globe. And let us not be unmindful that in that vast area where the destiny of man may yet be decided, millions of men, for hundreds of years, have repeated the words of Confucius: “Within the four seas all men are brothers. . . . Good government obtains when those who are near are happy, and those who are far are attracted to come.”