Right to Travel

Author:Kenneth L. Karst

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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 This clause, which superseded the Articles of Confederation provision guaranteeing "free ingress and egress" from one state to another, had been interpreted early in the nineteenth century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.)

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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...

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