Constitutional Law II
Right to Travel
Various Meaning of Right to Travel
Right
Right
Right
Right
Fall 2006
to enter and leave a State
to equal treatment when visiting
to change residency
of foreign travel
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Right to enter and leave a State
General Principles of “Union”

Corfield v. Coryell (1823): commercial fishing
 fundamental right of a citizen of one state to pass through, or
to reside in any other state"
Under Art. IV Privileges & Immunities Clause
Passenger Cases (1849): no tax on ingress
 Crandall v. Nevada (1867): no tax on egress

 “[N]o power can exist in a State to obstruct this right that
would not enable it to defeat the purposes for which the
government was established.”
Under the Dormant Com. Clause

Edwards v. California (1941)
 State law denying ingress to indigents
Fall 2006
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Equal treatment when visiting
Under Art. IV Privileges & Immunities Clause

Paul v. Virginia (1868): right to conduct business
 “It has been justly said that no
provision in the Constitution
has tended so strongly to
constitute the citizens of the
United States one people as
this.”

Fall 2006
Concept of nondiscrimination with respect
to P&I “fundamental rights”
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Right to change residency
Ways in which a state might deter or
burden in-migration

Denial of residency
 E.g., setting onerous residency requirements

Unequal allocation of rights of citizenship
 Some state residents get benefits that others do not

Imposing a penalty on the right to migrate
 Taxes
 Loss of benefits
 Physical assaults (applies to all interstate travel)
Fall 2006
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Burdening the Right to Travel
Note: the (non-textual) right of interstate travel is so
fundamental that it applies against private actors as well.
US v. Guest, 1966
Fall 2006
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Shapiro v. Thompson
(1969)
Right of interstate migration is fundamental
under the EP clause

Derivative of textual & foundational rights
How does temporary denial of welfare to
new residents burden their EP fund’l right?

both
discourages
travel &
exacts a
price for
the
exercise
of this
right

Loss of life necessity if move to another state
Penalty imposed on anyone exercising the right
 Although welfare is not a fundamental right on its
own, the denial of this important interest constitutes
a burden (penalty) on EP fundamental right to travel
 See also Memorial Hosp. v. Maricopa Cty (1974)

Fall 2006
Medical services
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Saenz v. Roe
(1999)
Cal. Welf. & Inst. Code § 11450.03


Aid to “families that have resided in this state
for less than 12 months shall not exceed the
maximum that would have been received by
that family from the state of prior residence.”
Congress approves in 1996 Welfare Reform Act
Violate Art. IV P&I Clause?


Fall 2006
State residents have no standing under Art. IV
Doesn’t apply against US
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Saenz v. Roe
(1999)
Violate EP Clause ?

New residents not an EP Suspect Class
 Exception – permanent classes (Zobel v. Williams)

Restriction doesn’t burden interstate migration
 only incidental because get same as previous state

Note: not total denial of benefits
Although temporary, Cal. law creates 2
classes of state “citizen” (short/long-term)

Fall 2006
Does the Const. permit this?
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Saenz v. Roe
(1999)
14th Amd P/I Clause:
“All persons born or naturalized in the United
States, and subject to the jurisdiction thereof,
are citizens of the United States and of the
State wherein they reside. No State shall make
or enforce any law which shall abridge the
privileges or immunities of citizens of the
United States”
Clause does not recognize
different degrees of state
citizenship. Second-class
status “is itself a penalty”
Fall 2006
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Saenz v. Roe
(1999)
14th Amd P/I Clause:
“All persons born or naturalized in the United
States, and subject to the jurisdiction thereof,
are citizens of the United States and of the
State wherein they reside. No State shall make
or enforce any law which shall abridge the
privileges or immunities of citizens of the
United States”
Similar non-discrimination
principle as Art. IV P&I,
but applies to state’s own
residents (not just others)
Fall 2006
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Saenz v. Roe
(1999)
Effect on Right to Travel

Does Saenz render EP analysis unnecessary?
Bona-fide residency requirements

State may discriminate against non-residents
WRT non-Art. IV “fundamental rights”
 Must be able to assure bona fides of residency

Elements of state residency
 Physical presence in state
 Subjective intent to remain indefinitely

Problem of “portable” benefits
 e.g., subsidized college tuition
Fall 2006
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Saenz v. Roe
(1999)
Bona Fide residency requirements

Subjective intent to remain indefinitely
 Rehnquist: state can enact “objective” standards for
this (durational residency requirements), as in



tuition (Starns, Vlandis),
divorce (Sosna v. Iowa)
Primary voting (Rosario) – but see Dunn v. Blumstein
 Is there anything unusual about the “subjective”
intent element in Rehnquist’s cases vs. here?

State did not defend law as BF residency test
 Stevens: “We thus have no occasion to consider what weight
might be given to a citizen's length of residence if the bona
fides of her claim to state citizenship were questioned.”
Fall 2006
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Foreign Travel
Is there a constitutional right to do so?

Under what provision?
 Art. IV P&I
 14th Amd. P&I
 Equal Protection
 First Amendment
 Due Process “Liberty”

Don’t forget the “Plenary Powers Doctrine”
 and extreme deference to political branches in
international affairs
Fall 2006
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