Kent v. Dulles

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 not issuing passports to communists violated the First Amendment's guarantee of freedom of association. More importantly, Douglas saw in the Fifth Amendment's guarantee that "No person shall be . . . deprived of life, liberty, or property, without due process of law," a right to travel:

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 . . . 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.

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 in Aptheker v. Secretary of State (1964). Fear of what American communists might do if they were permitted to travel abroad abated along with fear of the 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 in Regan v. Wald (1984)--it has not overruled Kent v. Dulles.