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The National Council on Identity Policy Legal History: Passports & Identity The National Council on Identity Policy (NCIDP) was born of the struggles of one tenacious survivor of domestic violence and stalking. The NCIDP continues her work with the help of many. Read more about the NCIDP... ~ This is a page from the NCIDP "A Brief History of Identity" collection. These pages are intended to provide a context for understanding the development of legal principles regarding identity information as it continues to bear upon modern legal governance of identity information. This is an extract of a history of this subject highlighting those aspects that enhance understanding of why the laws of today are such as they are, and how they came to be that way. These pages are intended to cast important perspective upon relevant law, but are not intended as a comprehensive sociological study of these subjects. Throughout most of history, by custom and tradition, an ordinary individual's declared name was the extent of identity information used to describe a person. There were no Social Security Numbers, Drivers' Licenses, Passports, voter registries, deed polls, credit reports.... Any individual could [and can] adopt any identity they chose at will, and their word of it was [and is] the fact of it. (Jonson v. Greaves (KB, 1765); Christianson v. King County (S Ct., 1915); et al.). The idea that an individual might be stuck with a fixed identity at any time in life was never conceived of, and was [and is] abject violence. (Keeble v. Hickeringill (QB, 1707)). That it might be dictated to an individual at any time was unimaginable, and is unconstitutional in the U.S. (Entick v. Carrington and Three Other King's Messengers (KB, 1765); Planned Parenthood of Southeastern Pa. v. Casey (S Ct., 1992); Lawrence v. Texas (S Ct., 2003); et al.). Time and again, history has shown that the slightest routinized solicitations of government to identify individuals is born of, or leads to, the selective oppression of individuals. The privacy right of anonymity is the first and most profound defense of personal safety and common liberty. * Passports * Passports originated as letters from the King or Queen requesting safe conduct for the bearer. These were not identity documents as we understand such today, but correspondences directed to any whom the bearer might encounter. Such letters could be for domestic travel within the realm of the issuing monarch, directing all subjects of the realm to refrain from hindering the travels of the bearer, and provide aid as needed. These early passports were originally issued to agents of the monarch conducting official duties to better enable those agents to fulfill those duties, or to aristocrats, merchants, and travelers from foreign lands, if requested and granted. Common or average individuals generally never obtained or saw such documents. Domestic passports were issued to recipients regardless of the national origins or loyalties of the recipient. These early passport letters could also be in a form for foreign travels, such that the issuing monarch requested free and unfettered passage be granted to the bearer, but without the weight of law outside that monarch's realm. As with domestic passports, these were generally issued for the conduct of official duties, or to aristocrats or merchants by request. Such foreign passports bore no weight of law outside the realm of the issuing monarch, but were intended, in part, as an assurance that there were no international hostilities involved in the business and travel being conducted. These foreign passports, then, could be taken to the monarchs of other realms and presented by the bearer in accompaniment to a request for a domestic passport, as above, which would then have the weight of law. Keep in mind that many such expeditions were often composed of many individuals, almost always bearing arms, even though only a singular passport may have been issued to the leader of the group. So, not only did the presentation of a foreign passport assure the neighboring monarchs that hostilities were not intended, but it also bore the slight risk that dishonoring such request might itself be construed as an act of hostility, or at least an insult, toward the monarch that issued the foreign passport presented. Unless perceived as a hostile enemy combatant, travel across realms, through any nation, was essentially unhindered, regardless of such passports. Borders were not sealed, and any individual could cross any border at will, and travel across the lands virtually unrestricted. Entry into some fortress cities might not be permitted without some form of passport, but travelers would remain free to pass on to nearby towns, villages, and on down the roads toward their ultimate destinations. As above, there was no need for such passports for most common members of society. Such passports were issued in the declared identity of the bearer, in accordance with any individual's common law right to be known by any identity of choice, but were not themselves identity documents. In fact, the U.S. continues to issue multiple passports to individuals, displaying different identities for use in different contexts, in continuing recognition of the shifts of identity that occur from context to context. The most well-known context for such multiple-identity issuances is for individuals with Jewish sounding names whose lives are endangered in certain areas of the world by virtue of their names sounding or being Jewish. Survivors of criminal & identity violence generally also need such multiple identity issuances.
Later, however, at the brink of the Twentieth Century vehement colonialism gave rise to rabid nationalism and repressive regimes across Europe and around the world, tinged with the early taint of fascist ideologies. This engendered a significant shift in the role and usages of passports, and passports began a rapid shift toward becoming identity documents, initially by the addition of photographs, and originating among the most oppressive of regimes. The original intent of this transition into use of passports as identity documents was to keep people in those oppressive regimes - to keep people as prisoners within their own country. The idea was that intellectuals and potential conscripts alike would flee their oppression and, in the process, deprive the oppressive regime of its intellectual capital and military manpower. Indeed, by their own thinking, borders wide open to individuals for travel and emigration/immigration may be the most effective, most efficient, and most peaceful defense against oppression and tyranny available to the world. Modern examination does, in fact, show us clearly that nations closing borders to the entry of peoples serves to enforce the tyranny of other nations regardless of the border policies of those tyrannical nations, nations and tyrannies from which those peoples might otherwise flee.
Shortly thereafter, World War I broke out, national borders were abruptly sealed in both directions, and passports became a matter of national identity issued only to citizens of an issuing nation. Adopted as a war security measure presuming every individual to be an enemy combatant, ostensibly to inhibit wartime spying activities, this military combat activity of sealed borders and nationalized passports vis-a-vis identity documents inexplicably never ceased in Europe after World War I ended. Ultimately, this persistent and rabid militarized nationalism, and growing fascism, led directly to World War II.
As documents of national identity, passports became documentation of the right of the bearer to return to his or her own nation of origin after traveling abroad. In the U.S., passport requirements for travel abroad and return to the U.S. were initiated during World War I, dropped afterward, and then re-instituted again as a World War II wartime measure. Again, as inexplicably as for European nations in the wake of World War I, in the wake of World War II the U.S. militarization policy of requiring passports persisted, and remains to the present day. Consequently, as with birth certificates, it is again the Baby Boom Generation that was the first in the nation to see any regular requirement for passports imposed upon Americans by their own government. This inherent presumption then, that every individual is an enemy combatant unless demonstrated otherwise, has persisted in Europe for the four score years since World War I. Meanwhile, in the U.S., this same presumption has persisted for the six decades and more since World War II ended.
The utter novelty of passport requirements within the U.S. begs close legal inspection. They quickly became extremely intrusive, demanding and displaying gravely private, personal medical data, such as date and place of birth, and gender, as well as a great deal more. Only sixty-something years after initiation of a wartime military protocol, that protocol has continued to be enforced and expanded, and the passports now co-opt more of the private and personal property (identity information) of individuals than ever. The arrival of biometric passports has gravely expanded the trade in the personal identity information of individuals, and has grossly undermined the constitutionally protected right to privacy of individuals, and particularly the privacy right to remain anonymous. Tragically, this intrusion appears to have progressed largely unquestioned. Yet it turns on its head the founding philosophies of the U.S. Notably, because the U.S. banished the monarchy and aristocracy, and transferred such powers of determination to each individual, the U.S. government lost the power at common law to issue passports. Consequently (in part), to this day, and because of the constitutionally protected rights of individuals themselves to travel unhindered, it remains unconstitutional for the U.S. government to issue or require national identity documentation to U.S. nationals traveling domestically. Indeed, the first wartime effort to require passports, initiated during the Civil War, was found to be constitutionally unsupportable and rejected as improper. Likewise, the novel issuance or requirement of similar documents issued by state or local governments remains a constitutionally tenuous and questionable practice.
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