RIGHT TO TRAVEL

The right to travel is a doctrinal orphan grown to vigorous adulthood. As the articles of confederation (1781) recognized expressly, the freedom of interstate movement follows logically from the recognition of our nationhood. The Constitution contains no similarly explicit guarantee, but the logic of nationhood remains, reinforced by two centuries of nationlizing experience. The modern right to travel may still be searching for its doctrinal sources, but its historical base is secure.

Personal mobility is a value Americans have always prized. franklin d. roosevelt brushed the edges of this idea when he greeted the Daughters of the American Revolution as fellow "immigrants." The nineteenth century, the formative era for our constitutional law, was also the century of the frontier. The twentieth century brought the automobile—and the moving van; each year nearly one family in five changes residence.

The power of Congress to protect the freedom of interstate movement is a theme both old and new. The great decision in gibbons v. ogden (1824) recognized that the commerce clause authorized congressional regulation of the interstate transportation of persons as well as goods. The modern reach of congressional power is illustrated by the holding in Griffin v. Breckinridge (1971) that Congress can protect civil rights by prohibiting private interferences with the right of black persons or civil rights workers to travel interstate.

The commerce power of Congress has long been held to imply limits on state regulation of commerce. When a state interferes with the interstate movement of persons, it must provide weighty justification for so burdening commerce. edwards v. california (1941) shows how difficult it is for a state to justify this sort of regulation.

The Edwards majority, resting decision on the commerce clause, said nothing about the right to travel. Four Justices, while not disputing the commerce ground, preferred to base decision on the privileges and immunities clause of Article IV. This clause, which superseded the Articles of Confederation provision guaranteeing "free ingress and egress" from one state to another, had been interpreted early in the nineteenth century (in corfield v. coryell, 1823) to include the "fundamental" right of a citizen of one state to travel through or migrate to another.

The Constitution's other privileges and immunities clause—that of the Fourteenth Amendment—is yet another potential source for a right of interstate travel. The concurring Justices in Edwards echoed the words of Chief Justice roger b. taney, dissenting in the passenger cases (1849), when they said that the freedom of interstate travel was one of the privileges of national citizenship. (See Crandall v. Nevada, 1868; slaughterhouse cases, 1873.)

This doctrinal untidiness has the blessing of the Supreme Court. Speaking for the Court in united states v. guest (1966), Justice potter stewart, who yielded to no one in expressing his affection for the right to travel, said: "The constitutional right to travel from one State to another … occupies a position so fundamental to the concept of our Federal Union. It is a right that has been firmly established and repeatedly recognized.… Although there have been recurring differences in emphasis within the Court as to the source of the constitutional right to travel, there is no need to canvas those differences further. All have agreed that the right exists.…We reaffirm it now."

Guest involved the power of Congress to protect interstate travel, a power easily inferable from the commerce clause. When the warren court expanded the reach of the right to travel as a limit on the states, the Court selected still another constitutional weapon: the equal protection clause. shapiro v. thompson (1969) established the modern pattern. The Court invalidated state laws limiting welfare benefits to persons who had been residents for a year. Such a durational residence requirement impaired the right to travel, which was a fundamental interest; accordingly, the states must justify the impairment by showing its necessity as a means for achieving a compelling state interest. The justifications offered in Shapiro failed this strict scrutiny standard of review.

In two decisions following Shapiro, the Court refined its analytical style for cases implicating the right to travel interstate. Both opinions were written by Justice thurgood marshall. dunn v. blumstein (1972) held unconstitutional a state law limiting voting to persons with one year of residence in the state and three months in the county. Justice Marshall elaborated on Shapiro: That opinion had emphasized the illegitimacy of a state's purpose to deter interstate migration, but had not insisted on a showing that any welfare applicants had, in fact, been deterred from migrating. Strict judicial scrutiny was required, irrespective of any such showing, whenever a state law penalized interstate migration, and here the durational residence qualifications for voting amounted to a penalty. Failing the test of strict scrutiny, they must be invalidated. A year later, in Marston v. Lewis (1973) and Burns v. Fortson (1973), the Court upheld fifty-day residence qualifications for voting, remarking that "the 50-day registration period approaches the outer constitutional limits in this area."

The "penalty" analysis was fully developed in Memorial Hospital v. Maricopa County (1974), when the Court struck down a one-year county residence qualification for an indigent to receive free nonemergency hospital or health care. Denial to new residents of "a basic necessity of life" amounted to a "penalty" on interstate migration and medical care was as much a necessity as welfare subsistence. This analysis allowed Justice Marshall to distinguish Starns v. Malkerson (1971), in which the Court had summarily affirmed a lower court's decision upholding a one-year durational requirement for receiving state higher education at reduced tuition rates.

Beyond elucidating the sort of penalty on interstate travel that would require strict judicial scrutiny, the Dunn and Memorial Hospital opinions also emphasized the right to migrate to another state for the purpose of settling there, as differentiated from the right merely to travel. Commentators have made much of this distinction, but little turns on it in practice, and any serious effort to reduce the right to travel to a right of migration would turn away from the right's historical sources in national citizenship.

By 1975, the right to travel's doctrinal state was cluttered with furniture. The stage direction for the next event might read: "Enter Justice william h. rehnquist, bearing an axe." sosna v. iowa (1975) confronted the Court with a one-year residence qualification for access to the state's divorce court. Writing for the majority, Justice Rehnquist (the only dissenter in Memorial Hospital) not only concluded that the limitation was valid; he reached that conclusion without discussing "penalties" or even the equal protection clause. Indeed, the only doctrinal reference in his whole treatment of the merits of the case was a summary rejection of a marginal argument addressed to the short-lived doctrine of irrebuttable presumptions.

Doctrinal demolition seems to have been Justice Rehnquist's aim; throughout his opinion he referred abstractly to "the constitutional issue," without saying what the issue was, and he concluded by saying that the one-year qualification was "consistent with the provisions of the United States Constitution." Distinguishing Shapiro and the other recent precedents, he remarked that the states' interests in those cases had touched nothing more than budgetary or record-keeping considerations. In Sosna, the state was concerned to protect the interests of defendant spouses and possible minor children, and also to make its divorce decrees safe from collateral attack. Thus the state might "quite reasonably" choose not to be a divorce mill. Predictably, the Sosna dissenters were led by Justice Marshall, who expressed his dismay over the dismantling of the only theory yet constructed to explain the modern right to travel decisions. What had happened to strict scrutiny, to the notion of penalties on interstate travel, to the link between the right to travel and the equal protection clause? The majority's silence on all these questions persisted for seven years.

In zobel v. williams (1982) an 8–1 Supreme Court struck down an Alaska law that would have distributed much of the state's vast oil revenues to its adult residents, apportioning distributions on the basis of length of residence in the state. For the Court, Chief Justice warren e. burger rested decision on the equal protection clause, remarking that "right to travel analysis" was "little more than a particular application of equal protection analysis." The state's purpose to reward citizens for past contributions was ruled out by shapiro v. thompson; to uphold Alaska's law would invite apportionment of all manner of taxes and benefits according to length of residence, a result that was "clearly impermissible." Concurring, Justice sandra day o'connor rejected the equal protection ground, but argued that requiring nonresidents settling in the state "to accept a status inferior to that of old-timers" would impose one of the "disabilities of alienage" prohibited by the privileges and immunities clause of Article IV. In a separate concurrence, Justice william j. brennan returned to the origins of the right to travel; even if no specific provision of the Constitution were available, he found that right's "unmistakable essence in that document that transformed a loose confederation of States into one Nation."

William Cohen has suggested a sensible rule of thumb for the durational residence decisions: Equality of treatment for newcomers is required, but durational residence requirements are permitted as tests for residents' intention to remain in the state, that is, tests for state citizenship. Until the Court accepts this view, constitutional doctrine concerning the right to interstate travel remains where it was in the mid-1960s: "All are agreed that the right exists," but it has itself become a rootless wanderer.

The right to international travel is quite another matter. Its doctrinal location is clear: the Fifth Amendment's due process clause. Congressional power to regulate this liberty is wide-ranging. zemel v. rusk (1966) sustained the government's refusal to issue a passport valid for travel to Cuba, and califano v. aznavorian (1978) upheld the withholding of social security benefits during months when beneficiaries are out of the country. In the latter case, the Court remarked that "indirect" congressional burdens on the right of international travel should not be tested by the strictness attending penalties on interstate travel, but were valid unless they were "wholly irrational." Direct restrictions on travel, such as the denial of a passport, are undoubtedly to be tested against a somewhat higher—but as yet unspecified—level of judicial scrutiny. And when Congress regulates foreign travel in a way that discriminates against the exercise of first amendment freedoms, strict scrutiny is called for. Thus aptheker v. secretary of state (1964) held unconstitutional the denial of passports to members of the Communist party.

The decisions recognizing a right to travel abroad have been concerned with travel itself, and not with a more limited right to migrate. The reasoning of those decisions is readily extended to congressional regulation of interstate travel. The commerce clause unquestionably empowers Congress to control the interstate movement of persons, but, like all the powers of Congress, that clause is subject to the provisions of the bill of rights. Congress obviously could not constitutionally forbid members of the Communist party to travel interstate. First Amendment considerations aside, the liberty protected by the Fifth Amendment's due process clause bars Congress from any arbitrary restrictions on interstate travel. The point has practical importance, for the broad sweep of the commerce power has made the prohibition of interstate movement one of the favorite regulatory techniques of Congress. Almost certainly the extremely permissive standard of the Aznavorian decision (upholding restrictions unless they are "wholly irrational") would apply to "indirect" congressional regulations of interstate travel. A direct prohibition, however, very likely would encounter a judiciary ready to insist on a more substantial justification.

The notion that the freedom to travel is a liberty protected by the guarantee of due process need not be limited to congressional restrictions on travel. The Fourteenth Amendment's due process clause surely is equally capable of absorbing the right to travel as a limitation on the states. The main barrier to recognizing the right to travel as an aspect of substantive due process, no doubt, is the Supreme Court's reluctance to contribute further to the development of substantive due process as a vehicle for active judicial intervention in legislative policymaking.

For a season, then, the right of interstate travel is left without certain doctrinal underpinnings. Its capacity to survive on its own, cut off from the usual doctrinal supports, indicates that it draws nourishment from something else. The something else is our strong sense that we are not only a collection of states but a nation.

Kenneth L. Karst
(1986)

Bibliography

Baker, Stewart A. 1975 A Strict Scrutiny of the Right to Travel. UCLA Law Review 22:1129–1160.

Barrett, Edward L., Jr. 1976 Judicial Supervision of Legislative Classification—A More Modest Role for Equal Protection? Brigham Young University Law Review 1976:89–130.

Black, Charles L., Jr. 1969 Structure and Relationship in Constitutional Law. Pages 27–30. Baton Rouge: Louisiana State University Press.

Cohen, William 1984 Equal Treatment for Newcomers: The Core Meaning of National and State Citizenship. Constitutional Commentary 1:9–19.