ArcaMax

"The enumeration in the Constitution of

certain rights shall not be construed to deny

or disparage others retained by the people."

-- Ninth Amendment to the U.S. Constitution

When the Texas legislature decided to engage in the reapportionment of congressional districts in the middle of this summer -- having just done so in 2020, in response to the nationwide census that year -- the Democrats in the lower house decided that the only way to prevent this was to leave the state and thereby deny the legislature the two-thirds quorum needed in order to enact legislation.

Stated differently, President Donald Trump -- fearful of a Democratic House in 2027 -- asked Texas officials to realign the state's congressional districts so as to make it more likely that additional Republicans would be sent to the U.S. House of Representatives from the Lone Star State as a result of the 2026 midterm congressional elections.

Congressional districts are customarily drawn at the conclusion of the decennial census; but no federal or state law prevents the realignment whenever a state legislature pleases.

Since the Texas legislature is controlled by the Republicans, and since the lower house requires a two-thirds quorum, the Democrats' only feasible means of preventing the redistricting was to leave the state, thereby preventing a vote on the redistricting. If representatives simply stayed home or went to their jobs in Texas, they could be forcibly brought to the legislature and thus involuntarily provide the quorum needed in order to conduct business. Hence their departure to other states.

In response to the exodus of nearly 60 Democratic representatives, Texas Gov. Greg Abbott has called for their arrest and forcible return. Can he do that?

Here is the backstory.

The Supreme Court has defined the right to travel as a fundamental liberty protected by the Constitution. In a 1969 case called Shapiro v. Thompson, which addresses the waiting time for financial assistance in Connecticut for those newly arriving in the state as compared to long-time residents, the court ruled that Connecticut officials needed to treat all residents equally because making new arrivals wait longer than long-time residents imposed a burden on the right to travel from one state to another, and since that right is protected by the Constitution, the states cannot put a burden upon it.

Though the Shapiro opinion doesn't address this, the right to travel is also a natural right -- and natural rights are protected by our humanity and recognized by the Ninth Amendment, which expressly prohibits their governmental denial or disparagement. A natural right is one that stems from our humanity, does not require anyone's approval as a precondition for the exercise of it, need not be written down and must be protected by the government.

When he wrote the Bill of Rights, James Madison did his best to codify the natural rights that all persons above the age of reason may exercise with impunity. During the course of that codification, and challenged by those who wanted no rights to be listed in the Constitution for fear that the enumeration of some would leave the unenumerated rights unprotected, Madison recognized that it would be an unending task to list all protected rights.

Thus, after enumerating the rights contained in the first eight amendments -- religion, assembly, speech, press, self-defense, privacy, fairness from the government, property ownership, jury trials, confrontation of evidence and witnesses, counsel, no excessive bail or cruel and unusual punishments -- he struggled with how to end this list.

His solution was the Ninth Amendment, which recognizes the existence of pre-political rights, without naming them. "Pre-political" is a modern term referring to natural rights. There are very few Supreme Court cases interpreting the Ninth Amendment and even fewer addressing natural rights. Yet, from the history of the drafting of this amendment and from the cases addressing it and the values it protects, we know that the courts will recognize that there are rights too numerous to list in one place, and among these is the right to travel.

Travel is a natural right because it stems from our humanity, it existed before governments did, we all exercise it nearly every day, and the drafters of the Constitution recognized as much when they gave Congress the power to regulate interstate commerce but tempered that power with the recognition of natural rights.

Thus, Congress can enact legislation to criminalize the interstate transportation of lottery tickets or filled milk (milk to which olive oil is added, a common practice during the Depression in the 1930s), but Congress cannot prohibit the movement of persons in interstate travel.

Now, back to the runaway Texas Democrats.

Just as Congress cannot burden the interstate movement of persons, neither can the states do so. We are not talking about a guy who robs a bank in Texas fleeing to Massachusetts. In that case, the governor of Texas would sign an extradition warrant and the governor of Massachusetts would presumably honor it because the Full Faith and Credit Clause of the Constitution requires honoring warrants for felonies.

But here, we have folks -- the runaway Democrats -- who not only are not charged with felonies; they are not charged or even chargeable with any crimes related to their departure. Thus, Gov. Abbott and his colleagues are out of options and out of luck. The natural right to travel, recognized in the Ninth Amendment, preserves the right of the runaway Democrats to go wherever they please.

Gov. Abbott has complained that the Constitution is an obstacle to law enforcement. No surprise here; liberty is always an obstacle to order. The Constitution is an intentional obstacle to government power and a purposeful deference to personal liberty. But it is only a restraint on government and a protection of liberty when the folks in whose hands we repose it for safekeeping honor and comply with it. How likely is that?

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To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.

Copyright 2025 Creators Syndicate, Inc.