Aptheker v. Secretary of State

The decision effectively established a constitutional right to travel. Although this particular decision barred government from denying passports to members of allegedly subversive organizations, the principle was soon applied to uphold the government's right to prohibit discrimination in public accommodations, such as motels, against African Americans.

The Passport Act of 1926 gave the secretary of state the power to issue passports to American citizens. During the Cold War, however, when paranoia about Communist infiltration was high, the U.S. State Department adopted a policy of denying passports needed for foreign travel to American Communists. In Kent v. Dulles (1958), the Supreme Court, arguing that the right to travel was a fundamental right guaranteed by the Fifth Amendment, declared this policy unconstitutional.

In 1950, however, Congress had passed the Internal Security Act, also known as the McCarran Act, requiring registration of members of the Communist Party of America with the attorney general. Once registered, individuals were, among other things, denied passports. The registration provisions of the McCarran Act had been upheld by the Court in Communist Party of the United States v. Subversive Activities Control Board (1961), but now the chairman of the American Communist Party filed suit challenging the constitutionality of the provision denying passports to registered persons. The U.S. District Court for the District of Columbia upheld the constitutionality of the provision, and Aptheker petitioned the U.S. Supreme Court for review of this decision.

In a 6-3 vote, the Court overturned the decision of the district court, basing its opinion on the view that the provision was too broad on its face, indiscriminately restricting the right to travel both of actual subversives and passive, "unknowing" members of the Communist Party. Congress had, said Justice Goldberg for the majority, "less drastic" means of achieving the goal of safeguarding national security. The right to travel, although not absolute, is a constitutional liberty closely related to freedom of speech and of association:

Since freedom of association is itself guaranteed in the First Amendment, restrictions imposed upon the right to travel cannot be dismissed by asserting that the right to travel could be fully exercised if the individual would first yield up his membership in a given organization.

This emphasis on the right to travel was to remain very much on the justices' minds. In the fall of the same year in which they handed down their decision in Aptheker, they delivered their opinion in an important civil rights case, Heart of Atlanta Motel v. United States, in which Congress's power under the Commerce Clause to regulate business affecting interstate commerce was cited as the rationale for outlawing racial discrimination in a privately-owned place of accommodation. In essence, by not providing African Americans with a place to stay, the Heart of Atlanta Motel was unconstitutionally restricting their right to travel. The prevailing mood of the Court during the activist era overseen by Chief Justice Warren restored civil liberties--including the right to travel--both to political dissidents and to racial minorities.