Why “It’s Not In the Constitution” Is Sometimes the Wrong Answer

Anthony Sanders · September 22, 2021

A few people got some chuckles last week when Brian Williams of NBC said he looked through the Constitution and didn’t see a right to travel on an airplane. At least that’s what I think he meant. More exactly he stated “We checked the constitution, no mention that we could find of airlines, increased legroom, tray tables, carry on bags, peanuts, none of it.”

This actually wasn’t all that funny. It’s not that he was wrong, it’s that he was speaking nonsense.

Williams was responding to the claim that a proposed government requirement that airline passengers be vaccinated against COVID-19 would violate the Constitution because it would violate the right to travel. It appears Williams thinks this argument is off-the-wall stupid because the right to air travel isn’t “in” the Constitution.

Actually, as they say, it’s more complicated than that. As Williams himself should know, just because something isn’t specifically mentioned in the Constitution doesn’t mean it isn’t constitutionally protected. The right to travel is not enumerated in the Constitution but the Supreme Court has repeatedly recognized it as a constitutional right. That’s true of many other rights such as the right to privacy and the right to raise one’s children. None of these are mentioned in the Constitution yet the courts properly protect them. There are many provisions in the Constitution, such as the Ninth Amendment, the Privileges or Immunities Clause, and the due process clauses, that protect rights beyond those specifically enumerated.

This isn’t just true of rights but of what the rights apply to. For example, television isn’t mentioned in the Constitution yet the First Amendment applies what you say on T.V. I’m certain that if the U.S. government ordered Brian Williams off the air he would (rightly) argue it would violate the rights to free speech and the press even though the medium he uses to speak and report isn’t mentioned. Automobiles aren’t mentioned either, yet you don’t lose all your constitutional rights just because you drive one. And the same is true of riding on an airplane. Further, this principle even extends to your carry on bags. If a police officer randomly seized Williams’ bags as he was boarding a plane he would have a constitutional right to try and get them back and to demand the government demonstrate it had probable cause to do so.

That’s pretty basic stuff. (Again, basic stuff Williams should understand.) What’s not basic is how a right like the right to travel applies to specific instances depending on what the government is trying to do. You and an airline have a right to contact for it to fly you somewhere. (That right to contract is a necessary corollary of the right to travel itself, as it doesn’t just mean the right to walk across the country.) However, the government can regulate that right if it has a good reason for doing so in order to protect public health and safety. For example, the federal government requires certain safety standards of planes and dictates, through air traffic control, the sequence of which planes can land and when. It also, of course, regulates what passengers can do on a plane. But that regulation has limits. Thus, the government can prohibit a passenger from boarding a plane if he’s carrying dynamite but not just because he’s wearing a Philadelphia Eagles jersey. One is a reasonable restriction on the right to travel, and one is not.

So, does requiring passengers to be vaccinated against COVID-19 violate the right to travel, or is it a reasonable public health and safety regulation? This is not the post in which to deliberate that question. It will depend on the facts, dangers, burdens, and benefits. The government’s power to require vaccination has been recognized in other areas and vaccines are a proven way to fight the spread of disease. It’s very easy to get vaccinated and the approved vaccines for COIVD-19 are very safe. Further, commercial airplanes are small spaces where people can easily infect each other. All that being said, air travel is by far the most convenient way to move around the country. Prohibiting someone from boarding a plane certainly could be a tremendous hardship on them depending on their employment or family situation.

Thus, it’s possible that the right to travel yields to the government’s power in this situation. But the answer to whether it does won’t simply be based on whether the right to travel, carry on bags, or peanuts are listed in the Constitution.

Anthony Sanders is the director of IJ’s Center for Judicial Engagement.