Evening star., 1955-07-03
Passport Decisions Define
Citizens 'NoturoI Riuhts

Of life. liberty. privacy and good
reputation.
Three passport cases are serving
to clarity the travel problem.
. The Nathan case. New York
professor. Otto Nathan, executor Of
the estate of Albert Einstein, ap-
piled for q passport in 1852. For
reasons not specifically disclosed.
the State Department. over q 20.
month period, failed to grant 1t. DR..
Nathan went to court and on June
2, 1866, the State Department was
ordered to give him a quasi judicial
hearing on the matter and either
grant or deny the passport. II
denied, the department was or
dered to explain why or indicate
its reasons for failing to explain
why. The department avoided the
issue by granting the passport and
the case was dropped. The main
effect Of the ruling was simply
that "procedural due process" ap-
plies in the matter Of passports;
that is. one may not be denied .
passport without being given O
fair hearing. This was not q
totally new ruling as the matter
had been hashed over In previous
cases.
Q The ShGchtmGn case. Max
Schactman, chairman OF the Inde-
pendent Socialist League, which In
on the Attorney Generals subver-
sive list. tried unsuccessfully for over
three years to get passport for
European travel. As a result Of his
suit the State Department was told
that it could not be arbitrary in re-
fusing to issue passport. In other
words. the department had to have
a good reason for refusing, good"
meaning in the national interest.
This was a matter of Substantive
due process" and differed from the
Nathan case In that Schactman had
not been denied q hearing; the
State Department simply failed to
give positive reason for not grant,
ing the passport. The court did
not get into the merits of Schact-
mans request, but said the depart
ment was being arbitrary in failing
to give suf1lcient legal reasons for
Its acts.
In this opinion the right Of travel
was described as a natural right
which could not be denied without
due process. However, the decision
created no new right: it merely
kept the record straight in light OF
1852 statute which requires pass
port for foreign travel. Until then
(war periods excepted) anyone
could travel out of the country
without a passport If he cared to
incur the risk Of foreign travel sans
Government protection. Now pass
ports are mandatory.
Nevertheless, natural rights are
subject D to restraints in relation
to the rights Of others and (2) to
reasonable regulation under law"
The latter means, among other
things. that the State Departments
powers Of exit-which are part of
the Executive authority to conduct
foreign affairs-are as great as
ever.
Some. lawyers and members Of
Congress do not agree that foreign
travel is a right. They think 1t is a
privilege. While there Is a substan.
tial legal difference, it is quite pos
sible that defining travel as q
privilege would not change the
effect Of the Nathan-S -Shachtman
holdings. Courts today are prone
to apply due process to cases Of
privilege (such as broadcast licens-
ingl as well as cases Of right, and
this tendency is reinforced by the
Administrative Procedures Act Of
1946.
Q The Foreman case. Clark H.
Foreman. director Of the Emer-
gency Civil Liberties Committee,
has been seeking a passport since
1851. Last Tuesday, Federal Judge
Burnita s. Matthews, following the
Nathan case, ordered q quasi judi
cial hearing for Mr.. Foreman. Un-
ACoo WIG obdtC ACpdk btlCIlb hBAlU
voids the issue by granting q pass
port prior to hearing, q new ques-
ton may arise.
What kind Of a hearing Is q fair
hearing?
Does the State Department
merely have to appoint somebody
to listen to the applicants COM
plants. or does the applicant have
q right to be confronted by wit
nesses against him and to cross
examine them? This question was
side-stepped in the Scachtman case.
1--WE need not here decide" the
court said, whether the hearing
complied with all procedural re.
quirements.
It is at this point that the ques.
ton Of right VS.. privilege may be-
come important. A citizen has
much more leeway In challenging
the administrative process when
he. is defending his rights than
wt&n he is seeking q special faver.