Kent v. Dulles

Appellant
Rockwell Kent
Appellee
John Foster Dulles, U.S. Secretary of State
Appellant's Claim
That the State Department's denial of a passport to an acknowledged communistviolates the right to travel and the First Amendment right of free association.
Chief Lawyer for Appellant
Leonard B. Boudin
Chief Lawyer for Appellee
J. Lee Rankin, U.S. Solicitor General
Justices for the Court
Hugo Lafayette Black, William J. Brennan, Jr., William O. Douglas (writing for the Court), Felix Frankfurter, Earl Warren
Justices Dissenting
Harold Burton, Tom C. Clark, John Marshall Harlan II, Charles Evans Whittaker
Place
Washington, D.C.
Date of Decision
16 June 1958
Decision
The Supreme Court ruled that it was unconstitutional for the State Departmentto withhold a passport based on the beliefs or associations of an applicant.
Significance
Kent v. Dulles arose from the general fear of communism that characterized the 1950s, the period known as the McCarthy era. Its long-lasting impactwas the recognition of a constitutionally-protected right to travel abroad.
During the 1950s, the nation was engaged in a Cold War with the U.S.S.R. andits communist allies. American fears about a world-wide communist plot were fueled by Senator Joseph McCarthy of Wisconsin, who conducted a witch hunt forcommunists that touched most aspects of society and stopped only when it challenged the loyalty of high ranking members of the military.
Amidst this climate of fear, Rockwell Kent, well-known painter and acknowledged member of the Communist Party, applied for a passport in order to travel to England and to attend a conference of the World Council of Peace in Helsinki, Finland. The passport office denied his application on grounds that he wasa communist. The only way he could be issued a passport was to file an affidavit indicating that he was not a communist. Kent declined to do so, insteadapplying to the U.S. District Court for the District of Columbia for a declaration that the passport office rules were unconstitutional. When the districtcourt decided instead that he had no case, Kent applied to the U.S. SupremeCourt for review of this decision.
Supreme Court Recognizes a New Fundamental Right: Foreign Travel
Four of the members of the Court joined in the opinion of Justice Douglas that although Congress had granted the secretary of state the power to issue passports, the statute granting this authority did not also confer the prerogative to withhold passports because of the beliefs or associations of passport applicants. This seemed a highly legalistic rationale for overruling the secretary of state, but the vote was a close one, and Justice Frankfurter agreed to sign on to Douglas's opinion only if it were based on a narrow statutory reading.
Douglas's actual reasons for overruling the passport office grew out of the First Amendment. He agreed with Kent that the passport office's policy of notissuing passports to communists violated the First Amendment's guarantee of freedom of association. More importantly, Douglas saw in the Fifth Amendment'sguarantee that "No person shall be . . . deprived of life, liberty, or property, without due process of law," a right to travel:

The right totravel 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 partof 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.

The immediate impact of Kent v. Dulles was that questions about Communist Party affiliations were removed from the passport application. Kent was issued a passport. Cold War era laws ordering members of communist organizations to register with the Subversive Activities Control Board were overruled inAptheker v. Secretary of State (1964). Fear of what American communists might do if they were permitted to travel abroad abated along with fear ofthe Red Menace.
The right to foreign travel remained on the books, however. It seemed to at least four members of the Kent Court to be a natural extension of the right to travel within the United States--even of the fundamental concept of liberty itself. While the Court has upheld the constitutionality of some passport restrictions--for example, the ban on tourist travel to Cuba at issue inRegan v. Wald (1984)--it has not overruled Kent v. Dulles.
Related Cases

• Browder v. United States, 312 U.S. 335 (1941).
  
• Edwards v. California, 314 U.S. 160 (1941).
  
• Aptheker v. Secretary of State, 378 U.S. 500 (1964).
  
• Regan v. Wald, 468 U.S. 222 (1984).

The Right to Travel
The right to travel does not appear in any explicit provision of the Constitution. Nonetheless, this right is clearly implied, simply by virtue of the freedoms suggested elsewhere in the document.
Nor is it a right to be taken lightly, as is clear when one considers the situation under the Communist system that dominated Russia for most of the twentieth century. International travel, unless one were a member of the CommunistParty or an otherwise privileged individual such as an athlete or author, was usually out of the question; but even travel within the nation--what Americans would call interstate travel--was rigidly controlled by means of internalpassports. If one lived in Kiev and wanted to visit a relative in Leningrad(now St. Petersburg), one could not simply jump in an airplane: forms had tobe filled out, and the machinery of bureaucracy had to undergo its slow, grinding process.
It is ironic, then, that the most significant challenges to freedom of international travel have occurred in reaction to Communism. in such cases as Aptheker v. Secretary of State (1964), in which the Supreme Court invalidated the State Department's denial of passports for members of the Communist party; and Zemel v. Rusk (1966), when the Court upheld the denial of a passport to travel to Cuba.
Sources
Levy, Leonard W., ed. Encyclopedia of the American Constitution. New York: Macmillan, 1986.