The constitutional right to travel domestically, though frequently proclaimed as fundamental, remains doctrinally under-theorized and riddled with exceptions. This vulnerability creates an opening for an oppressive new form of domestic movement regulation: a “No Drive” list, modeled after the No Fly list, that bars designated individuals from operating vehicles or traveling as passengers, either across state lines or potentially within states.
The No Fly list rests on four premises that could justify automobile travel restrictions: that flying is a privilege rather than a right; that special circumstances justify prophylactic restrictions on persons neither charged with nor convicted of offenses; that government can identify these individuals through secretive processes; and that administrative procedures with limited judicial review satisfy due process. The long-established principle that driving is a privilege not a right provides immediate doctrinal support, while automated license plate readers, facial recognition, GPS tracking, and comprehensive surveillance systems transform an apparently unenforceable scheme into a feasible regulatory program.
Though recognized for over two centuries, the doctrinal foundations of the right to travel remain uncertain, grounded variously in structural principles, multiple constitutional clauses, and the Fourteenth Amendment. Numerous exceptions already constrain domestic movement. Most significantly, the Supreme Court has never definitively established whether intrastate travel enjoys fundamental constitutional protection.
Enter the No Fly list. Despite constitutional challenges, courts have upheld its basic framework although requiring some enhanced procedural protections. This opens the door to a No Drive list, which could be justified and implemented through congressional authorization, emergency powers, or immigration-related authority. Current political rhetoric designating domestic opponents as “terrorists” provides potential justification mirroring the No Fly list rationale. Continue reading "Three Paragraph Tester"
