*1 SAENZ, DIRECTOR, CALIFORNIA DEPARTMENT OF
SOCIAL SERVICES, et al. v. ROE et al.,
behalf themselves and all similarly
оthers situated No. 98-97. Argued 13, 1999 January 17, 1999 May Decided *2 Stevens, J., delivered the opinion of the Court, in which O’Connor, Scalia, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Rehn- quist, J.,G. filed a dissenting opinion, in which Thomas, J., joined, post, p. 511. Thomas, J., filed a dissenting opinion, in which Rehnquist, J.,C. joined, post, p. 521.
Theodore Garelis, Deputy Attorney General of California, argued the cause for petitioners. With him on the briefs *3 were Daniel E. Lungren, Attorney General, Charlton G. Holland III, Senior Assistant Attorney General, Frank S. Furtek, Supervising Deputy Attorney General, and Janie L. Daigle, Deputy Attorney General.
General Waxman argued the cause for the United States as amicus curiae in support of petitioners in part and respondents in part. With him on the brief were Assistant Attorney General Hunger, Deputy Solicitor Gen- eral Kneedler, Edward C.DuMont, Mark B. Stem, Kathleen Moriarty Mueller, and Peter J. Smith. cause respondents.
With him on the brief were David S. Schwartz, Daniel P. Tokaji, Evan H. Caminker, Laurence H. Tribe, Martha F. Davis, Karl Manheim, Steven R. Shapiro, Alan L. Schlosser, Richard Rothschild, Clare Pastore, and Jordan C. Budd.*
*Briefs of amici curiae urging reversal were filed for the Common wealth of Pennsylvania et al. by D. Michael Fisher, Attorney General, John G. III, Knorr Chief Deputy Attorney General, Betty D. Montgomery, Attorney General Ohio, of and Jeffrey S. Sutton, State Solicitor, and by the Attorneys General for their respective States as follows: Bill Pryor of Alabama, Robert A Butterworth of Florida, Thurbert E. Bhker of Geоrgia, Margery S. Bronster of Hawaii, J. Joseph Curran, Jr., of Maryland, Hubert H. Humphrey III of Minnesota, Joseph P. Mazurek of Montana, Frankie Sue Del Papa of Nevada, Philip T. McLaughlin of New Hampshire, Den nis C. Vacco of New York, Michael F. Easley North Carolina, Heidi of Heitkamp of North Dakota, Jeffrey B. Pine of Rhode Island, and Christine 0. Gregoire of Washington; for the Institute for by Justice Douglas W. Court. opinion delivered Stevens Justice maxi- limiting the a statute enacted 1992, California In residents. newly arrived available benefits welfare mum has family that to a payable amount limits scheme The amount months than less in resided residence. prior family’s by the State payable stat- whether are case presented questions not, if and, enacted was it when constitutional was ute enacted Security Act Social amendment whether determination. affects Congress 1—1 populated, most largest, only one California one is also Nation; States beautiful most has California States, other all Like generous. most by the authorized programs welfare several participated Federal by the funded partially Security Act Social level higher provide however, programs, Its Government. most those than needy citizens more serve benefits pro- those expensive most year one In States. other (AFDC), *4 Children Dependent with Families toAid grams, Assistance Temporary with replaced was which Governors’ Bolick; National for Mellor, Clint and H. Kmiec, William Pacific Crowley; for I. James and Ruda Richard by al. et Association Fetra; for and La J. Deborah and Browne L. Sharon by Foundation Legal Richard Popeo and J. Daniel by al. et Foundation Legal Washington Samp. A urging curiae amici Briefs Associ- Bar American Freedman; for A Henry Dodyk and M. Paul by Center Brennan Smith; for M. Paul and Anderson S. Philip by ation Neubome Burt by al. et Lawof University School York at New Justice for R. Louis by al. et USA Charities Catholic for Goldberg; Deborah and Ann by Poverty on Homelessness Center Law Cohen; National for Violence Domestic Serving Organizations Sixty-six Bushmiller; for E. Lust- S. Lawrence by Scientists Frietsche; Social for Susan Survivors Jr., Charles Hills, M. Roderick al. et Cohen William berg; Sims. S.
Needy (TANF), Families provided benefits for an average of 2,645,814persons per month at an annual cost to the State of $2.9 billion. In California the cash benefit for a family of two—a mother and one child—is $456 a month, but in the neighboring State of Arizona, for example, it only $275.
a relatively modest reduction in its vast welfare budget, the Legislature California enacted § 11450.03of the state Welfare and Institutions Code. That section sought to change the California AFDC program by limiting new residents, for the year first they live in Cali- fornia, to the they benefits would have received in the State of their prior residence.1 Because in 1992 a program state either had to conform to specifications federal or receive a waivеr from the Secretary of Health and Human Services in order to qualify for federal § reimbursement, 11450.03re- quired approval by the Secretary to take effect. In Octo- ber 1992,the Secretary issued a waiver purporting grant approval. such
On December 21, 1992, three California residents who were eligible for AFDC benefits filed an action in the East- ern District of California challenging the constitutionality 1California Welf. & Inst. Code §11450.03 Ann. (West 1999) Supp. provides: “(a) Notwithstanding the máximum aid payments specified in para- (1) graph (a) subdivision of Section 11450, families that have resided in this state for less than 12 months shall be paid an amount calculated in accordance with paragraph (a) subdivision of Section 11450, not to exceed the maximum aid payment that would have been received by that family from the state of prior residence. shall not become operative until the date of approval by the United States Secretary of Health and Human Services necessary to implement the provisions of this section so as to ensure the continued compliance of the state plan for the following: *5 Security Act (commenc- (Subchapter 4 ing with 601) Section of Chapter 7 of Title 42 of the United Code). States Security Act (Subchapter 19 (commencing with 1396) Section of Chapter 7 of Title 42 of the United Code).” States 494 Each §11450.03. in requirement residency durational the of California to recently moved had she that alleged
plaintiff family cir- escape abusive to order in relatives with live to living in Lou- after California to returned One cumstances. living Okla- in been had second the years, for seven isiana Each Colorado. came third the and weeks six for homa ensuing 12 the grant for monthly AFDC her alleged that § than 11450.03 under substantially lower be would months residents former Thus, the effect. were statute the if re- $341 and $190 receive would Oklahoma and Louisiana of Califor- Ml though even family three of a for spectively had who Colorado, of resident former $641;the was grant nia to opposed a month to $280 limited was child, one just two. family of a for grant of $504 California Ml a Court District The implementation enjoined preliminarily hearing, after and, statute that found Levi Judge District statute. makes levels benefit disparities substantial “produces exist living that costs different for accommodation no decisions our on primarily Relying states.”2 in different v. Wil- (1969), Zobel 618 U. S. 394 Thompson, v. Shapiro statute that (1982), concluded he 55S.U. liams, 457 migrate to residents newof decision penalty on “a placed existing with equal basis an on treated be State (ED 516, Supp. F. Anderson, v. Green residents.” was measure purpose view, if 1993). his In Cal. would State, into people poor migration deter pur- if even And reason. unconstitutional be had State funds, limited conserve only was pose saving should burden entire why the explain failed sum- Appeals Court The residents. new imposed rents market fair table official referred District any other than higher are costs housing California’s indicating 521, Anderson, Supp. F. Green See Massachusetts. except Greenstein, App. Robert Declaration 1993); also see (ED Cal. n. 91-94.
marily affirmed for the reasons by stated Judge. District Green v. (CA9 Anderson, 26 1994). F. 3d 95
petition for certiorari. 513 U. S. (1994). We were, however, unable to reach the merits because the Secretary’s approval §of 11450.03had been in- validated in a separate proceeding,3 and the State had ac- knowledged that the Act would not implemented without further action the Secretary. We vacated judgment and directed that the case be dismissed. Anderson v. Green, U. S. 557 curiam).4 (per § Accordingly, 11450.03 remained inoperative until Congress after enacted the Per- sonal Responsibility and Work Opportunity Reconciliation Act of 1996(PRWORA), 110 Stat. 2105.
replaced the AFDC program with TANF. The new statute expressly authorizes any State that receives a grant block under TANF to “apply to a family the rules (including amounts) benefit of the [TANF] program ... of another State if the family has moved to the State from the other State and has resided in the State for less than 12 months.” 110Stat. 2124, 42 §604(c)(1994 U. S. C. ed., Supp. II). With this federal statutory provision in effect, Califor nia no longer specific needed approval from the Secretary to implement §11450.03. Department California of Social Services therefore issued an “All County Letter” announc ing that the § enforcement of 11450.03 would commence on
April 1,1997. The All County Letter clarifies aspects certain of statute. Even if members eligible of an family had lived in California all of their lives, but left the State “on January 29th, intending to reside in another state, and returned April 15th,” their benefits are determined law of their State of residence from January 29 to April 15, assuming
3Beno v. Shalala, 30 F. (CA9 3d 1057 1994). 4February 1996, the Secretary 4granted waivers for certain changes in California’s welfare program, but she declined to authorize any distinction between old and new residents. App. to Pet. for Cert. 46-52. *7 Moreover, California’s.5 than lower was level that that the whether regardless applies benefits level lower and residence prior State the in welfare on family was moving California. for family’s motive of the regardless require- residency that explain also instructions The from recently arrived that to families inapplicable ment country. another
II in action filed respondents two April 1, On essentially the making California District Eastern Green,6 Anderson plaintiffs by the asserted claims same PRWORA’s constitutionality of challenging the also but inAs requirement. residency durational approval restraining temporary issued District Green, court action.7 a class as the case certified and order that States United Attorney General advised also drawn been had statute a federal constitutionality of file toor intervene not seek did she but question, into but permitted, Reasoning PRWORA that brief. an amicus residency re durational impose require, States not did existence concluded Judge Levi quirements, prior his analysis legal affect not did statute federal in Green. opinion certain make however, did, He did noted He contentions. factual
parties’ although that, indicating evidence plaintiffs’ challenge 1). 3, Attachment (Plaintiffs’ Exh. Record former ais respondents of the One juris of those In both of Columbia. District California moved in California. than substantially lower are levels benefit dictions of the stipulation On the re applicants TANF AFDC future “‘all present defined after or or TANF for AFDC apply will or applied who have cipients bene TANF AFDC California full denied bewill who 1,1997, and April consecutive twelve California not resided they have fits because Pet. App. for aid.’” application their preceding immediately months 20. for Cert. California benefit levels were the highest sixth in the Nation
in absolute terms,8 when housing costs are factored in, they rank 18th; that new residents coming from 43 States would higher face costs of living in California; and that welfare benefit levels actually have little, any, if impact on the resi- dential choices by poor made people. On the other hand, he noted that the availability of other programs such as home- less assistance and an additional food stamp allowance of $1 in stamps for every $3 in reduced welfarе par- benefits tially offset the disparity between the benefits for new and old residents. Notwithstanding those ameliorating facts, the State did not disagree *8 plaintiffs’ with contention that §11450.03would create significant disparities between new- comers and welfare recipients who have resided in the State year. over one
The State relied squarely on the undisputed fact that the statute would save some $10.9 million in annual welfare costs—an amount that is surely significant even though only a relatively part small of its annual expenditures of approximately $2.9 billion for the entire program. It con- tended that this cost saving was an appropriate exercise of budgetary authority as long as the residency requirement did penalize not the right to travel. The State reasoned payment that the of the same benefits that would have been received in the State prior of residency any eliminated po- tentially punitive aspects of the measure. Judge Levi concluded, however, that the relevant comparison was between new residents of California and the residents of their former States, but rather between the new residents longer term residents of California. He again therefore enjoined implementation of the statute.
deciding the merits, the Court of Appeals affirmed his issuance of a preliminary injunction. Roe v. Anderson, 134 (CA9 F. 3d 1998). 1400 It agreed with the
8Forty-four States and the District of Columbiа have lower benefit levels than Id., California. at 22, n. 10.
498 did PRWORA passage that view Court’s
District had respondents that analysis, constitutional not affect that merits, on the success a probability established §11450.03 if harm irreparable suffer might members class decision Although became operative. courts federal of other the views with is consistent Appeals be- certiorari we issue,9 granted addressed have Roe, 524 v. Anderson case. the importance cause affirm. (1998).10 nowWe U. S.
I—! HH the Con- text found is not “travel” The word one travel the “constitutional Yet stitution. our jurisprudence. embedded is firmly another” Indeed, (1966). U. S. Guest, 383 v. States United Thompson, inus Shapiro reminded Stewart as Justice is “assert- important is so (1969), the right U. S. as governmental well interference private against able guaran- right, personal unconditional a virtually ... action (concurring Id., at us all.” Constitution teed by opinion). *9 1998) two- (CA3 (finding 3d Houston, F. 179 157 v. 9See Maldonado on infringement unconstitutional residency requirement tier durational (CA9 1994), vacated 95 Green, F. 3d 26 travel); v. Anderson
the right Peters, Supp. 10 F. curiam); v. Hicks (1995) (per S. 557 513 U. unripe, as of dura- enforcement 1998) against injunction (ND (granting 1003 III. 2d 146 Supp. F. 998 Ferguson, v. residency requirement); tional Westenfelder right a penalty requirement 1998) residency (RI durational (holding review). courts Two state rational-basis surviving incapable travel N. W. 2d 504 v. Steffen, Mitchell See conclusion. the same reached have simi (1994) (striking down 1081 denied, U. S. 510 (Minn. 1993), cert. 198 Serv Human v. law); Department Sanchez in Minnesota lar provision two-tier (1998) down (striking 2d 1056 A. iсes, J. Super. N. 892, 485 N. W. 2dWis. County, 168 Milwaukee cf. Jones system); welfare general for applicant waiting period 60-day that a (holding 2d 21 unconstitutional). not therefore a penalty relief is not Eloise replaced Saenz L. Rita petitioner argued, this case was After Services. Social Department Director, California as Anderson In Shapiro, we reviewed the constitutionality of three statutory provisions that denied welfare assistance to resi- dents of Connecticut, District of Columbia, and Penn- sylvania, who had resided within those respective juris- dictions less year than one immediately preceding their applications for assistance. Without pausing to identify the specific source of right, began we by noting that the Court had long “recognized that the nature of our Federal Union and our concepts constitutional personal liberty unite to require that all citizens be free to travel throughout length and breadth of our land uninhibited statutes, rules, or regulations which unreasonably burden or restrict this movement.” Id., at 629. We squarely held that it was “constitutionally impermissible” for a State to enact dura- tional residency requirements for the purpose of inhibiting the migration by needy persons into the State.11 We further held that a classification that had the effect of imposing a penalty on the exercise right of the to travel violated the Equal Protection Clause “unless shown to be necessary to promote a compelling governmental interest,” id., at 634, and that no such showing had been made. case argues §11450.03 was not
enacted for the impermissible purpose of inhibiting migra- tion by needy persons and that, unlike legislation re- viewed in Shapiro, it does penalize to travel because new arrivals are not ineligible for benefits during year their first of residence. California submits that, in- 11“We do not doubt the one-year waiting-period device is well suited to discourage the influx poor families in need of assistance.... But the purpose of inhibiting migration by needy persons into the State is constitutionally impermissible.” S.,U. at 629. “Thus, the purpose of deterring the in-migration of indigents cannot serve justification for the classification created by the one-year waiting *10 period_ If a law has ‘no other purpose ... than to chill the assertion of constitutional rights by penalizing those who choose to exercise them, then it [is] patently unconstitutional.’ United States v. Jackson, 390 U. S. Id., at 631. (1968).” 581 scrutiny, stat- the strictest to the subjected being stead basis by a rational supported it is if upheld be should ute saving over $10 in interest legitimate the State’s that and United Although the test. that year satisfies a million the in proceedings in the participate to elect did States participated has it Appeals, Court District novel has advanced It Court. in curiae amicus as the States allows of PRWORA enactment that argument that choice-of-law-type рrovision” “specialized adopt a to constitu- level intermediate an subject to be “should residency durational that merely requiring review,” tional gov- important to an “substantially related be requirements appropriate about debate The objective.”12 ernmental relevance potential with together review, standard to useful bewill that us persuades statute, the federal re- which right on constitutional of the source on the focus rely. spondents
IV embraces cases in our discussed “right to travel” right of protects It components. different three least State, another leave to enter to State of one a citizen than rather visitor welcome a as treated right to be second present temporarily when unfriendly alien perma- to become elect who travelers those and, for State, other like treated right to residents, nent that State. including another, place one go from right It was was that route, en while borders state to cross (1941), S. 314 U. California, v. Edwards vindicated inter- free impeded the law state invalidated which right reaffirmed We indigent. passage of state (1966), afforded which S. U. Guest, States United freely “Tight travel protection other highway facilities to use Georgia and 8,10. Curiae Amicus States United Brief
instrumentalities of interstate commerce within the State ” Georgia.’ Id., at § 757. Given that imposed 11450.03 no obstacle respondents’ entry into California, we think the Statе is correct when argues that the statute does not directly impair the right exercise of the to free interstate movement. For the purposes of this case, therefore, we need not identify the source of particular right in the text of the right Constitution. The ingress “free and re- gress to and from” neighboring States, which expressly was mentioned in the text of the Articles of may Confederation,13 simply have been “conceivedfrom the beginning to be a nec- essary concomitant of the stronger Union the Constitution created.” Id., at 758. component second to travel is, however,
expressly protected by the text of the Constitution. The first sentence of Article provides: IV, §2,
“The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”
Thus, virtue person’s of a state citizenship, a citizen of one State who travels in other States, intending to return home the end of his journey, enjoy entitled to “Privi- leges and Immunities of Citizens in the several States” that he visits.14 provision This removes “from the citizens each State the disabilities alienage in the other States.” Paul Virginia, (1869) (“[Wjithout Wall. 168, 180 some
13“The 4th article, respecting the [sic] extending the rights of the Gitizens State, each throughout the United States ... is formed exactly upon the principles of the 4th article of the present Confederation.” 3 Records of the Federal Convention of 1787, (M. p. 112 1966). Farrand ed. Article IV of the Articles of Confederation provided that “the of each people State shall have free ingress and regress to and from any other State.” v. Coryell, (No. 6 F. (CCED Cas. 3,230) Corfield 1823) (Wash Pa. ington, J., circuit) (“fundamental” rights protected by the Privileges and Immunities Clause include “the right aof citizen of one state to pass or to through, reside in any state”). other each removing . . . provision them giving *12 States, and other the alienage in of disabilities Repub- the States, of those citizens with privilege of equality States; league of than a more little constituted have lie would exists”)* now which Union the constituted have not it would enter who nonresidents for protections important provides It Orbeck, v. Hicklin employment, obtain to whether a State v. Bol- services, Doe medical (1978), procure to 518 S.U. 437 in commer- engage (1973), to even or 200 179, U. S. ton, 410 (1948). S. 385 U. Witsell, 334 v. fishing, Toomer shrimp cial “does Clause but “absolute,” not are protections Those where States of other against citizens discrimination bar beyond discrimination for reason no substantial is there Id., States.” other of citizens they are fact mere requiring for reason substantial may abe There 396. at hunting for a resident than pay more nonresident Mont., Comm’n Game and Fish v. of Baldwin license, see uni- the state (1978), to enroll 371, 390-391 S. 436 U. (1973),but 445 S. Kline, U. versity, see Vlandis quali- for reason acceptable any identified not have cases our ‘citizen “the for Clause afforded protection fying the and there settle B’ to State into ventures A who State of S., U. J., Zobel, (O’Connor, a home.” establish dis- justifications Permissible judgment). concurring simply are nonresidents and residents between crimination right move exercise a nonresident’s inapplicable State. resident become another into aspect third this then, is case, in this at issue isWhat citizen newly arrived right of right to travel —the by other enjoyed immunities privileges same by the only protected That State. same status her also citizen, but state a status arrival’s new source additional That States.15 United citizen aas upon Clause modeled Amendment Fourteenth Framers Globe, Cong. IV. Article found Clause and Immunities” “Privileges (cid:127)the In Bingham). Rep. (statement of Sess., 1033-1034 1st Cong., 39th protection is plainly identified in the opening words of the Fourteenth Amendment: persons
“All born or naturalized in the United States, subject 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;...16
Despite fundamentally differing views concerning the cover-
age of the Privileges or Immunities Clause of the Fourteenth
Amendment, most notably expressed in the majority and dis-
senting opinions in the Slaughter-House Cases,
to restrict their citizenship
any
to
classes or persons. A
citizen of the United States
perfect
has a
constitutional
Dred Scott v. Sandford,
Y against discrimination involves case Because argu- State’s travel, interstate their completed have who only travel affects scheme welfare its ment solely concerned we Were point. “incidentally” beside *14 persuaded be might we migration, deterrence actual with in- a lesser constitutes benefits withholding of partial a that of all outright denial than travel right to cursion (1972). 339 330, S. U. Blumstein, v. Dunn See benefits. split Framers The discovery. own Nation’s our was “Federalism our idea genius .their was It sovereignty. atom pro federal, each one state one capacities, political two have would created Constitution resulting other. by incursion tected orders two establishing design, in form unprecedented system legal its privity, own its relationship, direct own its with each government, it and sustain who people obligations rights mutual set of own Thornton, S. 514 U. Limits, Inc. Term S.U it.” governed are concurring). J., (Kennedy, But since the right to travel embraces the citizen’s right to. be treated equally in her new State of residence, the dis- criminatory classification is itself a penalty.
that respondents and the members of the
class that they represent are citizens of California and that
their need for welfare benefits is unrelated to
length
time that they have resided in California. We thus have no
occasion to consider what weight might
given
to a citizen’s
length of residence if the bona fides of her claim to state
citizenship
questioned.
were
Moreover, because whatever
benefits they receive will be consumed
they
while
remain in
California, there is no danger that recognition of their claim
will encourage citizens of other States to establish residency
just
long enough to acquire some readily portable benefit,
such as a divorce or college
a.
education, that will be enjoyed
they
after
return to their original domicile.
g.,
See, e. Sosna
v. Iowa, 419 U. S.
(1975);
Vlandis v. Kline,
The classifications challenged in this case—and there are many defined entirely (a) —are period of residency (b) California and the location of the prior residences of the disfavored class members. The favored class of bene- ficiaries includes all eligible California citizens who have resided there for at least year, one plus those new arrivals who last resided in another country or in a pro- vides benefits at least generous as California’s. Thus, within the broad category of citizens who resided in Cali- fornia for less year, than a there are many who are treated like lifetime residents. And within the broad subeategory of new arrivals who are treated less favorably, there are many smaller classes whose benefit levels are determined by law of the States from whence they came. To justify § 11450.03, California must explain therefore not only why it is sound fiscal policy to against discriminate those who have *15 been citizens for less than a year, but why also it permissi- is ble to apply such a variety of rules within that class. to purpose by a justified be may not classifications These for California to migrating applicants welfare
deter to assume reasonable is although it First, reasons. three pur- the for move to motivated may be persons some that evidence empirical benefits, the higher obtaining of pose account into takes Judge, which District by the reviewed num- the that California, indicates living in of high cost enough large surely not quite is small— persons such of ber Sec- motive.18 such no had who those on a burden justify legis- that the Court represented has ond, California even Third, reason.19 any such for enacted not was lation Thompson, v. Shapiro held squarely we were, as it if unequivocally would purpose a (1969), such S.U. impermissible. any desire Disavowing for justification entirely fiscal advanced instead has
nia § will 11450.03 of enforcement The scheme. multitiered its The year. a million $10.9 approximately save purpose legitimate saving ais such whether not question dis- end that accomplish may the State whether but across- evenhanded, An chosen. has means criminatory every per month cents about of reduction the-board nega- our But result. same produce beneficiary would weakness on rest not does question answer tive on It rests justification. fiscal purported State's Amend- Fourteenth Citizenship Clause fact “That residence: citizenship with equates expressly ment de- for, allow not does for, provide not does Clause Zobel, of residence.” length citizenship based grees of does Clause clear equally isIt 69. S., at 457 U. similarly situated 45 subclasses hierarchy tolerate 21-26. 18App. however, that concluded, Appeals Court District poor people migration deter was to § 11450.03 purpose “apparent 1998). (CA9 1400, 1404 3dF. Anderson, 134 Roe California.” *16 citizens based on the location of their prior residence.20 § Thus 11450.03is doubly vulnerable: Neither the duration
of respondents’ California residence, nor the identity of their prior States of residence, has any relevance to their need for benefits. Nor do those factors bear any relationship to the State’s interest in making equitable allocation of the funds to be distributed among its needy citizens. As in Shapiro, we reject any contributory rationale for the denial of benefits to new residents:
“But we need not rest on the particular facts of these
cases. Appellants’ reasoning would logically permit the
State to bar new residents from
parks,
schools,
and li-
braries or deprive them police
protection.
fire
Indeed it
permit
would
the State to apportion all bene-
fits and services according to
past
tax contributions
of its citizens.”
< question that remains is whether congressional ap- proval of durational residency requirements in the 1996 amendment to the Social Security Act somehow resuscitates § constitutionality of 11450.03. question That is readily answered, for we have consistently held that Congress may not authorize the States to violate the Fourteenth Amend- ment.21 Moreover, protection afforded to citizen
20See Cohen, Discrimination Against New State Citizens: An Update,
11 Const.
73, 79
Comm.
(1994) (“[Jjust as it would violate the Constitution
to deny these new arrivals
state citizenship,
it would violate the Con
stitution to concede their citizenship in name only while treating them as
if they were still citizens of other states”).
21“‘Congress is
power
without
to enlist state cooperation in a joint
federal-state program by legislation which authorizes the States to violate
the Equal Protection Clause.’ Shapiro v. Thompson, 394 U.
S.
(1969).” Townsend v. Swank,
“Section command enforce to indeed power broad gress enjoyment all persons secure ‘to amendment pro equal rights civil equality perfect or invasion....’ denial laws against tection Congress’ (1880). 339,346 U. S. Virginia, 100 parte Ex meas adopting ‘is limited however, 5,§ under power §5 Amendment; guarantees enforce ures dilute abrogate, restrict, no power Congress grants Morgan, U. S. 384 v. Katzenback guarantees.’ these deference we give Although (1966). 10 n. 651, 641, neither classifiсations, decisions congressional denies lawa can validate a State nor Congress Amendment. Fourteenth guaranteed the rights (1977); 199, 210 S.U. Goldfarb, v. g., e. See, Califano Mississippi (1968).” S.U. Rhodes, v. Williams 718, 732-733 Hogan, S.U. Women iv. Un (1982).
The Solicitor General does not unequivocally defend the constitutionality §of 11450.03. But he has argued that two features of may PRWORA provide justification sufficient for state durational requirements to warrant further in- quiry before finally passing on the section’s validity, or perhaps that it only invalid insofar as applies to new arrivals who were not on welfare they before arrived in California.22
He points first out that because the TANF program gives the States broader discretion than did AFDC, there will significant differences among the States which may pro- vide new incentives for welfare recipients to change their residences. He does not, *18 persuade however, us that the disparities under the program new will necessarily be any greater than the differences under AFDC, which included such examples as the disparity between California’s monthly benefit of $673 for a family of four with Mississippi’s bene- fit of $144 for a comparable family. Moreover, we are not convinced that a policy of eliminating incentives to move to California provides a permissible more justification for classifying California citizens than a policy of imposing spe- cial burdens on new arrivals to deter them from moving into the State. Nоr is the discriminatory impact §11450.03 abated repeatedly characterizing it as “a special- sort of ized choice-of-law rule.”23 California law alone discrimi- nates among its own citizens on the basis of their prior residence. The Solicitor General suggests also that we should recog- nize the congressional concern addressed in legislative the history of PRWORA that the might “States engage in a 'race
to the bottom’ in setting benefit levels in their TANF
*19 22Brief for United States as Amicus Curiae 29, n. 10. 23Id., 9; at see also id., at 8,14,15,20, 22,23,24, 27, 28,28-29. why that concern to see difficult isit Again, programs.”24 The AFDC. under than TANF under any greater should the indicates District by the reviewed evidence spread if discriminatory policy, the resulting from savings only a have would program, entire throughout the equitably one as Indeed, levels. impact on benefit miniscule logi- it would concern, interpreted apparently legislators sufficiently levels benefit reduce States cally prompt spec- But recipients.”25 benefit emigration encourage “to basis no provides eventuality unlikely such about ulation §11450.03. upholding for suggests General acceptable Solicitor Finally, the limited had if California might be discrimination who those newof subcategories disfavored any time at residence prior State in their aid received had sug- California. arrival their year before within impose would It reasons: three least ironic gestion members neediest burdens severe most savings reduce significantly it would classes; disfavored claimed making State’s thus obtain, would effect confine would and, it tenable; less even justification correctly charac- General Solicitor what statute people poor discouraging purpose invidious “the terizes State.”26 settling generally [*] [*] [*] poor, have rich States, whether United Citizens they wherein “of be right choose (“States 104-651, 1387 p. 24 No. Rep. R.H. Id., See 8. by the so doing from deterred should benefits higher pay want bordering from recipients numbers large attract they will fear States”). Perspec States’ See 16. Curiae 25 Amicus as States United for Brief Finance, on Committee Senate before Hearing Reform: Welfare tive
'
(1995).
Sess., 9
1st
Cong.,
104th
n. 11.
Curiae
Amicus
States
United
Brief
reside.” U. S. Const.,
§
Arndt. 14, 1. The States, however,
do not
any
have
right to select their citizens.27 The Four-
teenth Amendment, like Constitution itself, was, as Jus-
tice
put
Cardozo
it,
upon
“framed
theory
that the peoples
of the several states must sink or swim together, and that in
the long run prosperity and salvation are in union and not
division.” Baldwin v. G. A. F. Seelig, Inc.,
The judgment of the Court of Appeals is affirmed.
It is so ordered. Ghief Justice Rehnquist, with whom Justice Thomas joins, dissenting.
The Court today breathes new life into the previously dor-
mant Privileges or Immunities Clause of the Fourteenth
Amendment—a Clause
upon
relied
by this Court in only one
other decision, Colgate v. Harvey, 296 U. S.
(1935),
over-
ruled
years
five
later Madden v. Kentucky,
The right to travel clearly embraces
go
place
one
to another,
prohibits
States from impeding 27As Justice Jackson observed: “[I]t is a privilege of citizenship of the
United States, protected from state abridgment,
to enter any State of
the Union, either for temporary sojourn or for the establishment of per
manent residence therein and for gaining resultant citizenship thereof
If
national citizenship means less than this, it means nothing.” Edwards
*20
California,
512 Ed- in law state citizens. of passage interstate
free
prohibited
which
(1941),
160
S.U.
314
California,
v.
wards
California, was
into
person
indigent
any
of
transport
the
rightly
Court
the
and
migration
or
travel
to
harrier
classic
history,
country’s
this
of
most
Indeed, for
down.
struck
right
the
of
“component”
first
the
calls
today
Court
the
what
As
right.
this
of
entirety
the
was
500,
ante, at
travel,
to
Passenger
in
dissent
his
stated
Taney
Justice
Chief
(1849):
Cases, How.
mem-
as
and,
States;
United
all
are
“We
to
right
have
must
community,
same
bers
inter-
it without
part
every
through
repass
and
pass
im-
a tax
And
own States.
our
inas
freely
as
ruption,
harbours
territories
its
entering
a State
posed
citi-
to
belong
which
the rights
with
is inconsistent
with
Union, and
members
States
other
zens
attain.
to
intended
was
Union
which
objects
but
nothing
produce
could
Statеs
a power
Such
do
clearly
very
they
and
irritation,
mutual
discord
Id., at
492.
it.”
not possess
(1868); Williams
35, 44
Nevada,
6 Wall.
v.
also Crandall
See
Hospital
v.
Memorial
(1900);
270, Fears, U. S.
(Rehn
280-288
County,
U. S.
Maricopa
cases). The
discussing
(collecting
dissenting)
J.,
quist,
Ann.
Code
Inst. & Welf.
Cal.
because
holds
wisely
respond
obstacle
no
1999) imposes
11450,03 (West Supp.
§
upon
infringe
not
does
statute
California,
into
entry
ents’
traditional
Thus,
ante, at
501:
See
travel.
the right
issue
is simply
travel
right
conception
case.
to travel
aligning
with
difficulty
no
have
also
I
Im-
Privileges
afforded
the protections
with
enter
who
nonresidents
§2,
IV,
of Article
Clause
munities
of [their]
end
at
home
return
“intending
States
other
other
visitors
Nonresident
ante,
501.
See
journey.”
*21
States should not
subject
to discrimination solely be-
cause they live out of State. See Paul v. Virginia, 8 Wall.
(1869);
Hicklin v. Orbeck,437 U.
(1978).
S. Like the
traditional right-to-travel guarantees discussed above, how-
ever, this Clause has no application here, because respond-
ents expressed a desire to stay in California and become
citizens of that State. Respondents therefore plainly fall
outside
protections
§2.
Article IV,
Finally, agree
I
with
proposition
that a “citizen of the
United States can, of his own volition, become a citizen of
any State of the
Union
a bona
residence
fide
therein, with
rights
same
as other citizens of that State.” Slaughter-
House Cases,
see the right to become a citizen of an- other State is a necessary “component” of right to travel, or why the Court tries to marry separate these and distinct rights. person A is no longer “traveling” in any sense of the word when he finishes his journey to a State which he plans to make his home. Indeed, under the logic, Court’s protections of the Privileges or Immunities Glause rec- ognized in this ease come into play only when an individ- ual stops traveling with the intent to remain and become a citizen of a new State. The right to travel and the right to become a citizen are distinct, their relationship is not recip- rocal, and one is not a “component” of the other. Indeed, the same dicta from the Slaughter-House quoted Cases Court actually treat right to become a citizen and right to travel as separate rights distinct under the Privileges or Immunities Clause of the Fourteenth Amend- ment. See id., at 79-80.1 At most, restrictions on an indi-
1The Court’s decision in the Slaughter-House Cases only confirms my
view that state infringement on the right
to travel
is limited to the kind
of barrier established in Edwards v. California,
to be found if those we have been considering are excluded, we venture
calculus
his
indirectly affect
citizen
to become
vidual’s
first
travel
right to
his
exercise
deciding whether
relationship is
uncertain
attenuated
such
but
place,
*22
other.
the
into
right
folding one
for
ground
no
years,
past
the
in
has,
Court
the
doubt
No
equal state
to
right
thе
with
travel
right to
conflated
require
residence
durational
striking down
citizenship in
Shapiro
g.,e.
See,
here.
challenged
one
to the
similar
ments
1-year resi
(striking down
(1969)
618
S.U.
394
Thompson,
v.
Blum
benefit);
v.
Dunn
any welfare
receiving
before
dence
1-year residence
(striking
(1972)
down
330
U. S.
stein,
elections); Mari-
state
in
vote
right to
receiving the
before
1-year
(striking down
280-283
atS.,U.
County,
copa
nonemer-
to
receiving entitlement
before
county residence
care).
cases
These
emergency
hospitalization
gency
right-to-
prior
Court’s
from
departure
sharp
a
marked
prohib
itself
travel
was
themof
none
in
because
cases
travel
scope ...
ultimate
(“Whatever its
254-255
at
id.,
See
ited.
in
sense
only a limited
in
involved
was
travel
right to
dissenting).
(Harlan, J.,
671-672
at
supra,
Shapiro,
Shapiro”);
held
cases
in these
Instead,
bene-
medical
or certain
votes,
benefits,
welfare
of
provision
its
government,
Federal
to
existence
their
own
which
some
suggest
to
laws.
Constitution, or its
character,
its
National
v.
of
case
in
described
well
is
these
of
“One
great-
this
citizen
of the
right
to
said
is
(1868)].
It
35Wall.
to
come
Constitution,
‘to
itsof
guarantees
implied
country, protected
govern-
upon
may have
he
claim
any
to assert
government
seat
protection,
its
it,
seek
to
with
have
may
he
any business
ment,
transact
has
He
functions.
administering its
offices,
engage
its
share
foreign
operations
all
which
through
seaports,
its
access
free
right
cоurts
offices, and
subtreasuries,
land
conducted,
are
commerce
Chief
language
quoting
And
States.’
several
in the
justice
purposes
great
all
for
‘that
said
case,
it
another
Taney in
Justice
with
people,
one
established,
arewe
was
which,
government
Federal
is, as
States;’
United
all
arewe
country,
common
one
Crandall
court
supported
are
rights
their
citizens, that
such
omitted).
(footnote
Wall.,
Nevada.”
fits to new citizens for a limited time impermissibly “penal
ized” them under the Equal Protection Clause of the Four
teenth Amendment for having exercised
their
to travel.
See Maricopa County, supra, at 257. The Court thus set
tled for deciding what restrictions amounted to “depriva
tions of very important benefits and rights” that operated
to indirectly “penalize” the right to travel. See Attorney
General
Y.v. Soto-Lopez,
of K
476 U. S.
898, 907
(plu
rality opinion). In other eases, the Court recognized that
laws dividing new and old residents had little to do with the
right to travel and merely triggered an inquiry into whether
the resulting classification rationally furthered
legitimate
government purpose. See Zobel v. Williams,
today tries to clear much of the underbrush created by these prior right-to-travel eases, abandoning its effort to define what residence requirements deprive indi- viduals of “important rights and benefits” “penalize” or the right to travel. See ante, at 504-507. Under its new ana- lytical framework, a State, outside certain ill-defined cir- cumstances, cannot classify its by the length of their residence in State without offending the Privi- leges or Immunities Clause of the Fourteenth Amendment. The Court thus departs from Shapiro and its progeny, and, while paying lipserviee to right the to travel, the Court does
2As Chief Justice Burger aptly stated in Zobel: "In reality, right to travel analysis refers to little more than particular a application of equal protection analysis. Right to travel cases have examined, in equal pro tection terms, state distinctions between newcomers and longer term residents.” S.,U. at n. 6. all. at is involved travel to right the how explain to little demonstrates, see clearly analysis Court’s the Instead, right respondents’ only about case this 504-507, ante, at being a California privileges the enjoy all immediately to good- test ability to State’s to relation citizen fall come thus has Court The right. this assertion faith Shapiro, analysis disavowing the effectively circle secured rights to right travel segregating Privi- under a citizen become to right IV Article residence testing the then Clause, Immunities leges mis- its all For right. latter against here requirement into citizen a to become right fold tо efforts placed orig- its to essentially returned has Court travel, the to right to travel. right understanding of inal II state a become right tomb its unearthing from In resi- new equally treated citizen assure need State’s a ignores however, the dence, receive residence fide bona a establish who only persons State. residents current provided benefits analysis core, Court’s dicta Slaughter-House “be- citizen’s States United condition specifically enjoy the *24 and Union” any state a citizen come estab- on State” other as rights “same 80 Wall., at 16 therein.” residence a “bond lishment fide travel redefining the added). when Even (emphasis carefully “always has Court progeny, its Shapiro requirements, residence fide bona between distinguished non- residents between to differentiate seek which durational, such requirements, residence residents, which requirements, residence point fixed date, and fixed time differently based residents established treat supra, Soto-Lopez, State.” into migrated they eases). (citing 3n.
Thus, the Court has consistently recognized that while
new citizens must have the same opportunity to enjoy the
privileges of being a citizen of a State, the States retain
ability to use bona fide residence requirements to ferret
out those who intend to take the privileges and run. As
explained
in Martinez Bynum,
While physical presence element of a bona fide resi dence easy police, the subjective intent element is not. It is simply unworkable and futile to require States to in quire into each new resident’s subjective intent to remain. Hence, States employ objective criteria such as durational residence requirements to test a new resident’s resolve remain before these new citizens can enjoy certain in-state benefits. Recognizing practical appeal of such criteria, this Court has repeatedly sanctioned the State’s use of du- rational residence requirements before new residents receive in-state tuition rates at state universities. Starns v. Malk erson, 401 U. S. (1971), summarily aff’g 326 F. Supp. (Minn. 1970) (upholding 1-year requirement residence for in state tuition); Sturgis v. Washington, 414 U. S. 1057, sum marily aff’g (WD F. Supp. 1973) Wash. (same). The Court has declared: “The State can establish such reasonable criteria for in-state status as to make virtually certain that *25 students who are not, in fact, bona fide residents of the State, cannot purposes, educational for solely there come have but Kline, 412 v. Vlandis rates.” in-state advantage of take in same done has (1973). Court The 441, 453-464 S. U. to eligibility for requirement residence 1-year a upholding S.U. Iowa, 419 v. Sosna see courts, state in divorce a obtain registra party political upholding (1975), in and 393, 406-409 residency durational ato amounted that restrictions tion Rosario elections, see primary in voting for requirement (1973). 752, 760-762 S.U. Rockefeller, v. require can States If benefits, the educational to right exercising the before year pri- vote to right marriage, a terminate to States enjoy, then state other all that mary elections there Indeed, benefits. welfare for same surely do may re- residence 1-year between difference material no is given benefits welfare of level to applied quirement the level to applied requirement same and State, by a out pay- welfare university. The state aat subsidies tuition of pro- subsidies cash are rates tuition in-state here ment standard California’s people, of class limited to a vided subsidies both make system education higher living and were requirements residence Durational attractive. quite edu- higher provision regulate to used when upheld given be should deference same subsidies, cation Williams, Dandridge See payments. of welfare case em- does (“[T]he Constitution U. S. charged with officials state second-guess to this Court power public welfare allocating limited responsibility difficult recipients”). potential myriad among the funds States recognizes today resi- to claim individual’s anof fides bona determine It issue. avoid tries then 505,but ante, dence, see bene- welfare need respondents’ because asserts resided they have time length unrelated fits might weight what consider occasion “no has California, fides bona if residence length a citizen’s given *26 her claim to state citizenship questioned.” were See ibid. But I do not understand how the absence of a link between need and length of residency bears on the State’s ability objectively test respondents’ resolve to stay in California. There is no link between the need for an education or for a divorce and the length of residence, yet States may use length of residence as objective an yardstick to channel their benefits to those whose intent to stay legitimate. is greater has a need require a durational residence for welfare benefits than for college eligibility. The impact of large number of new residents who immediately seek welfare payments will have a far greater impact on a State’s operating budget than the im- pact of new residents seeking to attend a state university. In the ease of the welfаre recipients, a modest durational residence requirement to allow for the completion of an an- legislative nual budget cycle gives the State time to decide how to finance the increased obligations.
tries to distinguish education and divorce bene- fits contending that the payment welfare here will be con- sumed in California, while a college education or a divorce produces benefits that “portable” are and can be enjoyed after individuals return to original their domicile. Ibid. But “you this can’t take it you” with distinction is more apparent than real, and offers guidance little to lower courts who must apply this rationale in the future. Welfare pay- ments are a form of insurance, giving impoverished indi- viduals and their families the means to meet the demands of daily life they while receive the necessary training, educa- tion, and time to look for a job. The cash itself will no doubt be spent in California, but the benefits from receiving this income and having the opportunity to become employed or employable will stick with welfare recipients if they stay in California go back to their true domicile. Similarly, tuition subsidies are “consumed” in-state but the recipient takes the benefits of a college education with him wherever investment much subsidy thus welfare A goes. he attend- their subsidy, and tuition aisas capital human importantly, More “portable.”3 just as are benefits ant *27 drawn line demonstrates economics social foray into requires and metaphysical, borders Court by the benefits animating certain policies plumb to courts lower “porta- their hence and “essence” their define to welfare like years almost recognized wisely Court this As bility.” philosophi- even social, economic, “[t]he intractable ago, pro- assistance welfare public by presented problems cal Dandridge, Court.” this business not grams are 487. supra, at believe therefore I State’s exercise permissible ais challenged here
ment residents its for provided services “assur[e] that to power 328. S., at 461 U. Martinez, by only residents.” enjoyed are pe- same is the § 11450.03 established period 1-year The require- The Sosa. in Stams approved this riod in- benefits; all recipients welfare deprive not does ment recipient’s aon whatsoever no effect has limitation deed, eligibility; of welfare period 5-year full enjoy the ability to accom- training, and employment, range of full enjoy the to advantage of full take toor services; supportive panying Petition- for Brief See Medicaid. under benefits care health resi- new preclude not does period waiting This 7-8,27. ers what to them merely limits but payments, cash all from dents Moreover, residence. prior their they received resulting any pinch ante, at see recognizes, the Court as mitigated period 1-year during limitation this increase assistance homeless such programs other permissi- thus period 1-year stamp allowance. food with subsistence needs resident’s new bly balances claim of their fides bona ensure need State’s residence. divorce. applies analysis The same Finally, Congress’ express approval in § 604(c) U. S. C.
of durational residence requirements for welfare recipients like the one established California only goes to show the reasonableness of § a law like 11450.03. The National Leg-
islature, where people from Mississippi as well as California are represented, has recognized the need protect state resources in a time of experimentation and welfare reform. As States like California revamp their total pack- welfare ages, see Brief for Petitioners they 5-6, should have the au- thority and flexibility to ensure that their new programs are exploited. Congress has decided that it good makes wel- fare policy give the States power. California has rea- sonably exercised it through an objective, narrowly tailored residence requirement. I see nothing in the Constitution *28 that prevent should the enforcement of requirement. that Justice Thomas, with whom The Chief Justice joins, dissenting. joinI The Chief Justice’s dissent. I write separately to address the majority’s conclusionthat California has violated “the right of the newly arrived citizen to the same privileges and immunities enjoyed by other citizens of the same State.” Ante, at 502. In my view, the majority attributes a meaning to Privileges or Immunities Clause that likely was un- intended when the Fourteenth Amendment was enacted and ratified.
The Privileges or Immunities Clause of the Fourteenth provides Amendment “[n]o that State shall make or en- force any law which shall abridge the privileges or im- munities of citizens of the United States.” U. S. Const., § Arndt. 14, 1. Unlike the Equal Protection and Due Process
Clauses, which have assumed near-talismanic status in modern constitutional law, the Court all but read the Privi- leges or Immunities Clause out of the Constitution in the Slaughter-House Cases, 16 (1873). Wall. 36 There, the Court held that the State of Louisiana had not abridged a partial granting by Clause or Immunities Privileges the Id., company. to one business slaughtering the monopoly or Privileges the that reasoned Court The 66. 59-63, at the “as a protection intended not was Clause Immunities own his power legislative the against aof citizen immunities or “privileges the Rather Id., at 74. State.” were Amendment Fourteenth the guaranteed citizens” States United the citizen ato “belonging those limited the specify declined Court Id., at 75. such.” category, latter into fell that immunities or privileges that (stating id., See did. few clear made it but protec- establishment civil every “nearly including instituted,” is government organized which tion not protected are fundamental,” are which rights “those Clause). I majority, Unlike American in least At Clause.1 meaning оriginal stem appears approximation) close (or its law, phrase Clause conclusion beyond little agree scholars Legal Harrison, See, g.,e. 1873. meant said Court what mean does J.L. Yale Clause, 101 Immunities Privileges Reconstructing Currie, The D. provision); antidiscrimination (Clause (1992) Crosskey, 2 W. (same); 341-351 Supreme Constitution 1089- States United History Constitution *29 Politics Bill Amendments eight first incorporates (Clause (1958) 1095 (Clause protects (1986) 100 Abridge Shall Curtis, No M. Rights); fundamental other as well Rights Bill included rights (Clause (1987) 46-71 Constitution Court’s Supreme Siegan, B. rights); Ackerman, Constitu rights); natural conception Lockean guarantees (same); (1989) 453, 521-536 J.L. Law, Yale 99 Politics/Constitutional tional delegation “was (Clause (1980) Distrust Democracy and Ely, J. rights certain protect decision-makers constitutional future directions way gives specific any inor ... lists neither document 1997) (Clause (2d ed. Judiciary Government Berger, R. finding”); Civil listed rights respect with discrimination race forbids (Clause of America Tempting Bork, The 1866);R. ofAct Rights obliterated been had ifas treated should inscrutable blot). ink from the 1606 Charter of Virginia, which provided that “all and every Persons being our Subjects, which shall dwell and inhabit within every any the said several Colo- nies . . . shall HAVE and enjoy all Liberties, Franchises, and Immunities ... as if they had been abiding and born, within this our Realme of England” 7 Federal and State Constitutions, Colonial Charters and Other Organic Laws (F. Thorpe ed. 1909). Other colonial charters con- tained similar guarantees.2 Years later, as tensions be- tween England and the American Colonies increased, colonists adopted resolutions reasserting their entitlement the privileges or immunities of English citizenship.3
2See 1620 Charter of New England, in 3 Thorpe, at 1839 (guaranteeing “[liberties, and ffranchizes, and Immunities of free Denizens and naturall Subjects”); 1622 Charter of Connecticut, reprinted in 1 id, at 553 (guaran teeing "[liberties and Immunities of free and natural Subjects”); 1629 Charter of the Massachusetts Bay Colony, in 3 id, at 1857 (guaranteeing the “liberties and Immunities of free and naturall subjects”); 1632 Charter of Maine, in 3 id, at 1635 (guaranteeing “[l]iberties[,] Francheses and Immunityes of or belonging to any of the naturall borne subjects”); 1632 Charter of Maryland, in id,3 at 1682 (guaranteeing “Privileges, Fran chises and Liberties”); 1663 Charter of Carolina, in 5 id., at 2747 (holding “liberties, franchises, and privileges” inviolate); 1663 Charter of the Rhode Island and Providence Plantations, id,6 at 3220 (guaranteeing “lib- ertyes and immunityes of ffree and naturall subjects”); 1732 Charter of Georgia, id, in 2 at 773 (guaranteeing “liberties, franchises and immunities of free denizens and natural bom subjects”). 3 Seee.g., Massachusetts Resolves, in Prologue to Revolution: Sources and Documents on the Stamp Act (E. Crisis 56 Morgan 1959) ed. (“Resolved, That there are certain essential Rights of the British Consti tution of Government, which are founded in the Law of God and Nature, and are the common Rights of Therefore, . . . Mankind — Resolved that no Man can justly take the Properly of another without his Consent... this inherent Right, together with all other essential Rights, Liberties, Privileges and Immunities оf the People of Great Britain have been fully confirmed to them by Magna Charla”); The Virginia Resolves, id., at 47-48 (“[Tjhe Colonists aforesaid are declared entitled to all Liberties, Privi leges, and Immunities of Denizens and natural Subjects, to all Intents and Purposes, as if they had been abiding and bom within the Realm *30 of England”)’, 1774 Statement of Violation of Rights, 1 Journals of the maintained they that assertions repeated colonists’ The “born persons of immunities and privileges, rights, the persons born” “natural and England” of realm the within “privi- terms the founding, the of time the at that, suggests un- were counterparts) (and their “immunities” and leges” liberties and rights fundamental those to refer derstood broadly, more and, citizens English enjoyed specifically Conti- Second of Presumably members persons. by all they em- when terms these understood so Congress nental guaran- which Confederation, of Articles in them ployed States, these of each of inhabitants free “the that teed shall excepted, justice from fugitives and vagabonds paupers, citizens free of immunities and privileges all entitled be Constitution, whieh IV. Art. States.” several in guaran- similarly Confederation, of Articles superceded all entitled shall of each “[t]he Citizens that tees States.” several Citizens of Immunities and Privileges 1. cl. §2, IV, Art. Cor opinion landmark Washington’s Bushrod Justice 1825), (CCED Pa. 3,230) (No. F. Cas. Coryell, field citizen Coifield, In understanding. historical this refleets pro Jersey law a New challenged Pennsylvania inhabitant “actual was whо any person hibited New from oysters harvesting Jersey from of New resident” sitting Washington, Justice 550. Id., Jersey waters. Jersey New argument rejected Justice, Circuit Clause. Immunities Privileges IV’s Article violated law that, ... proposition to the accede cannot “we reasoned, He constitution, provision under rights all participate permitted are states several these settled first ancestors, who (“[0]ur Congress Continental country, mother emigration their time at the colonies, were natural-born free immunities liberties, and rights, all entitled such [t]hat . . . Resolved . . . England realm within subjects, those any lost forfeited, surrendered means no they by emigration rights”). *31 which belong exclusively to the citizens of any par other ticular state, merely upon ground they are en
joyed by those citizens.” Id., at 552. Instead, Washington concluded:
“We feel no hesitation in confining these expressions to those privileges and immunities which are, in their na- ture, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. What these funda- mental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Pro- tection by the government; the enjoyment of life and liberty, with the right to acquire possess property of every kind, and pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for general good of the whole. The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to insti- tute and maintain actions any kind in the courts the state; . . . and an exemption higher taxes impositions than paid are by the other citizens of state;... the elective franchise, as regulated and estab- lished laws or constitution of the state in which it is to be exercised. These, and many others which might be mentioned, are, strictly speaking, privileges and immunities.” Id., at 551-552. Washington rejected the proposition that the Privileges and Immunities guaranteed Clause equal access to all public (such benefits as the right to oysters harvest in public wa-
ters) that a State chooses to make available. Instead, he “privi- terms conception the colonial-era endorsed encom- IV Article concluding “immunities,” leges” *32 all belong that rights only passed fundamental 552. Id., at States.4 the United in indisputably in opinion Corfield Washington’s Justice Four the enacted who Congress Members the fluenced debate gathered Congress When Amendment. teenth not if frequently, Members Amendment, Fourteenth the that arguing Corfield, course, appealed matter aas fundamen the to guarantee necessary was Amendment the his opinion. in identified Washington Justice that rights tal Immunities or Privileges the Reconstructing Harrison, See Mem ato (referring (1992) 1385, 1418 J.L. Yale 101 Clause, one just For Corfield”). from quotation “obligatory ber’s to the Amendment the introducing speech example, Im or Privileges explained Howard Senator Senate, Cong. length Corfield.5 quoting Clause munities Furthermore, (1866). 2765 Sess., 1st Cong., 39th Globe, that notion refuted Congress no Member that appears meaning undergirded analysis Corfield Washington’s Clause.6 Immunities or Privileges and scholars of legal century, a number 4 19th of the half first During protected Clause conclusion Washington's endorsed courts state Morris, & McH. 3 H. v. Campbell See, e. g., rights. only fundamental rights); personal property J.) (Clause protects (Chase, 1797) (Md. “abso (Clause (1821) protects 465, 470 Ch. Del. Stephens, Douglass on Kent, Commentaries have”); 2 J. nature bymen “all rights” lute were, which [rights] to those (Clause “confined (1836) 71-72 Law American Antieau, Perverted Paul’s fundamental”). generally See nature, their Clause Immunities Privileges of the Meaning True or Privileges sources). (collecting 1,18-21 Rev. L. Mary&Wm. Four, 9 Article “undertaken had Supreme that, while observed He also immunities,” privileges of the extent nature either to define bewill probably of what intimation “some gave opinion Washington’s (1866). Sess., 2765 1st Cong., Globe, 39th Cong. judiciary.” opinion Congress 1866, Members Act Rights Civil debates During generally See legislation. support invoked repeatedly Corfield also sponsor, Act’s 46-56. Constitution, at Court’s Supreme Siegan, That Members of the 39th Congress appear to have en- dorsed the wisdom of Justice Washington’s opinion does not, standing provide alone, dispositive insight into their understanding of the Fourteenth Amendment’s Privileges or Immunities Clause. Nevertheless, repeated their refer- ences to the Corjield decision, combined with what ap- pears to be the historical understanding of the Clause’s operative terms, supports the inference that, at the time the Fourteenth Amendment was adopted, people understood that “privileges or immunities of citizens” were fundamen- tal rights, rather than every public benefit established positive law. Accordingly, the majority’s conclusion—that a State violates the Privileges or Immunities Clause when it *33 against “discriminates” citizens who have been domiciled in the State for less than year a in the distribution of welfare appears contrary to the benefits— original understanding and is dubious at best. As The ChieF points out, ante, at 511, it comes Justice quite a surprise that the majority relies on the Privileges or Immunities Clause at all in this case. That is because, as I have explained supra, at 521-522, the Slaughter-House Cases sapped the Clause any of meaning. Although the ma- jority appears to breathe new life into the Clause today, it fails to address its historical underpinnings place its
our constitutionаl jurisprudence. Because I believe that demise of the Privileges or Immunities Clause has contrib- uted in no part small to current disarray of our Four- Senator Trumbull, quoting from Corfield, explained that legislation protected the “fundamental rights belonging to every man as a free man, and which under the Constitution as it now exists we have protect every man in.” Cong. Globe, supra, at 476. The Civil Rights Act is widely regarded as the precursor to the Fourteenth Amendment. See, g., e. J. tenBroek, Equal Under (rev. Law 201 1965) (“The ed. one point upon which historians of the Fourteenth Amendment agree, and, indeed, which the evidence places beyond cavil, is that the Fourteenth Amend- ment was designed place the constitutionality of the Freedmen’s Bureau and civil rights bills, particularly the latter, beyond doubt”). reeval- open I would jurisprudence, Amendment teenth invoking Before ease. appropriate meaning in uating its what understand endeavor should we however, Clause, thought Amendment Fourteenth Framers should the Clause whether consider also should We meant. protec- equal of our portions augment, than rather displace, major- jurisprudence. process due substantive tion raises questions important these consider ity’s failure become will Clause Immunities Privileges or specter limited rights, inventing new tool convenient yet another time happen who those “predilections by the solely Cleveland, East Moore Court.” Members to be (1977). S. 481 U. dissent. respectfully I