Right to Travel

Some cherished individual rights do not appear in the U.S. Constitution. One prominent example is the right of privacy; another is the right to travel. Former U.S. Supreme Court Justice William Douglas observed, ‘‘[f]reedom of movement is the very essence of our free society, setting us apart.... [I]t often makes all other rights meaningful.’’

The right to travel, while not expressly contained in the text of the U.S. Constitution, is ingrained throughout this nation’s history. Regardless, many have had trouble interpreting the basis for this now commonly accepted right.

When Judge Bushrod Washington handed down his famous decision in Corfield v. Coryell (1823), the right to travel was a matter of first impression in American jurisprudence. The court held that the State of New Jersey could prevent nonresidents from raking oysters in its waters, whereas in dictum it proscribed prohibition of interstate travel under the protections afforded by the Article IV privileges or immunities clause. The court articulated the perimeters of the rights therein, finding that the privileges or immunities clause protects the right to travel as well as the rights of citizens who have arrived or relocated in a new state.

In 1873, the Court decided the Slaughterhouse Cases, which dealt with Louisiana’s quasi-monopoly of in favor of the slaughtering business. Competing businesses challenged the state’s action, contending that the contract award constituted ‘‘involuntary servitude’’ in violation of privileges and immunities and in defiance of equal protection of the law. Moreover, competitors accused the state denying them the right to liberty and property without due process of law. The Supreme Court held that the alleged monopoly violated neither the Thirteenth nor Fourteenth Amendments. For the most part, the Court devoted its opinion to the narrow construction of the privileges and immunities clause, which it interpreted as applicable to national Citizenship, not state Citizenship. This distinction has fostered much confusion in courts’ application of this ruling.

In Edwards v. California (1941), the Supreme Court looked to the commerce clause as an alternate source of protection. The Court held that a law prohibiting importations of indigents into California exceeded the scope of a state’s police power, thus unconstitutionally interfering with interstate commerce.

In Shapiro v. Thompson (1969), the Supreme Court declared the conditioning of welfare aid on various residency requirements unconstitutional under the Fourteenth Amendment’s equal protection clause. While the comprehensiveness of Shapiro has been tested over time, courts have consistently deemed durational residency requirements unconstitutionally burdensome on the right to travel. Gradually, the Court has expanded the scope of Shapiro’s protection so as to render unconstitutional state-prescribed deterrents to resettlement in other states.

Recently, the Supreme Court revived the Fourteenth Amendment privileges or immunities clause, which had largely remained dormant since the Slaughterhouse Cases. In 1999, the Court held that the Fourteenth Amendment protects the right to travel in three ways: permitting citizens to move freely about the states, securing the right to be treated equally in all states when visiting, and ensuring the rights of new citizens to be treated the same as longestablished residents of a state. In Saenz v. Roe (1999), plaintiffs, having moved to California for the purposes of seeking employment sought to enjoin the state’s use of a durational residency requirement which as applied would have limited plaintiffs’ welfare benefits to the amount received in their former states of residence. The district court granted the injunction and the Ninth Circuit affirmed. The U.S. Supreme Court granted certiorari and in a sevento- two decision affirmed. The Court explained that by paying first-year residents the same welfare benefits as those collected in their state of origin, states created two classes of residents and rendered services discriminatorily.

While the right to travel is sometimes difficult to interpret, or ground in a specific part of clause of the U.S. Constitution, it is an enduring ‘‘right’’ within American constitutional jurisprudence.

LAUREN M. WEBB and MARC M. HARROLD

References and Further Reading

• Harrold, Marc M., Constitutional Law—‘‘Right to Travel’’— Fourteenth Amendment Privileges or Immunities Clause Invalidates a State’s Durational Residency Requirement for Full Welfare Benefits, Mississippi Law Journal 69 (Winter 1999): 993.
• Strasser, Mark, The Privileges of National Citizenship: On Saenz, Same-Sex Couples, and the Right to Travel, Rutgers Law Review 52 (Winter 2000): 553.

Cases and Statutes Cited

• Aptheker v. Secretary of State, 378 U.S. 500, 520 (1964)(Douglas J., concurring).
• Corfield v. Coryell, 6 F. Cas. 546 (E.D. Pa. 1823)
• Edwards v. California, 314 U.S. 160 (1941)
• Saenz v. Roe, 526 U.S. 489 (1999)
• Shapiro v. Thompson, 394 U.S. 618 (1969)
• Slaughterhouse Cases, 83 U.S. 36 (1873)