Fourteenth Amendment, Section 1:
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; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The doctrine of the
right to travel actually encompasses three separate rights, of which two have been notable for the uncertainty of their textual support. The first is the right of a citizen to move freely between states, a right venerable for its longevity, but still lacking a clear doctrinal basis.1 The second, expressly addressed by the first sentence of Article IV, provides a citizen of one state who is temporarily visiting another state the
Privileges and Immunities of a citizen of the latter state.2 The third is the right of a new arrival to a state, who establishes citizenship in that state, to enjoy the same rights and benefits as other state citizens. This right is most often invoked in challenges to durational residency requirements, which require that persons reside in a state for a specified period of time before taking advantage of the benefits of that state’s citizenship.
Durational Residency Requirements
Challenges to durational residency requirements have traditionally been made under the Equal Protection Clause of the Fourteenth Amendment. In 1999, however, the Court approved a doctrinal shift, so that state laws that distinguished between their own citizens, based on how long they had been in the state, would be evaluated instead under the Privileges or Immunities Clause of the Fourteenth Amendment.3 The Court did not, however, question the continuing efficacy of the earlier cases.
A durational residency requirement creates two classes of persons: those who have been within the state for the prescribed period and those who have not.4 But persons who have moved recently, at least from state to state,5 have exercised a right protected by the Constitution, and the durational residency classification either deters the exercise of that right or penalizes those who have exercised it.6 Any such classification is invalid
unless shown to be necessary to promote a compelling governmental interest.7 The constitutional right to travel has long been recognized,8 but it is only relatively recently that the strict standard of equal protection review has been applied to nullify durational residency requirements.
Thus, in Shapiro v. Thompson,9 durational residency requirements conditioning eligibility for welfare assistance on one year’s residence in the state10 were voided. If the purpose of the requirements was to inhibit migration by needy persons into the state or to bar the entry of those who came from low-paying states to higher-paying ones in order to collect greater benefits, the Court said, the purpose was impermissible.11 If, on the other hand, the purpose was to serve certain administrative and related governmental objectives—the facilitation of the planning of budgets, the provision of an objective test of residency, minimization of opportunity for fraud, and encouragement of early entry of new residents into the labor force—then the requirements were rationally related to the purpose but they were not compelling enough to justify a classification that infringed a fundamental interest.12 In Dunn v. Blumstein,13 where the durational residency requirements denied the franchise to newcomers, such administrative justifications were found constitutionally insufficient to justify the classification.14 The Privileges or Immunities Clause of the Fourteenth Amendment was the basis for striking down a California law that limited welfare benefits for California citizens who had resided in the state for less than a year to the level of benefits that they would have received in the state of their prior residence.15
However, a state one-year durational residency requirement for the initiation of a divorce proceeding was sustained in Sosna v. Iowa.16 Although it is not clear what the precise basis of the ruling is, it appears that the Court found that the state’s interest in requiring that those who seek a divorce from its courts be genuinely attached to the state and its desire to insulate divorce decrees from the likelihood of collateral attack justified the requirement.17 Similarly, durational residency requirements for lower in-state tuition at public colleges have been held constitutionally justifiable, again, however, without a clear statement of reason.18 More recently, the Court has attempted to clarify these cases by distinguishing situations where a state citizen is likely to
consume benefits within a state’s borders (such as the provision of welfare) from those where citizens of other states are likely to establish residency just long enough to acquire some portable benefit, and then return to their original domicile to enjoy them (such as obtaining a divorce decree or paying the in-state tuition rate for a college education).19
A state scheme for returning to its residents a portion of the income earned from the vast oil deposits discovered within Alaska foundered upon the formula for allocating the dividends; that is, each adult resident received one unit of return for each year of residency subsequent to 1959, the first year of Alaska’s statehood. The law thus created fixed, permanent distinctions between an ever-increasing number of classes of bona fide residents based on how long they had been in the state. The differences between the durational residency cases previously decided did not alter the bearing of the right to travel principle upon the distribution scheme, but the Court’s decision went off on the absence of any permissible purpose underlying the apportionment classification and it thus failed even the rational basis test.20
Still unresolved are issues such as durational residency requirements for occupational licenses and other purposes.21 But this line of cases does not apply to state residency requirements themselves, as distinguished from durational provisions,22 and the cases do not inhibit the states when, having reasons for doing so, they bar travel by certain persons.23