Travel, right to Summary

  • Last updated on November 11, 2022

Citizens’ right to move into, out of, among, and within states, foreign nations, and lesser political and geographic entities.

The right to travel has been long recognized in Anglo-American law. An article of England’s Magna Carta (1215) recognized the right to foreign travel. The Articles of Confederation expressly guaranteed “free ingress and egress” from one state to another because the nation’s founders recognized that freedom of interstate movement follows from the recognition of nationhood. However, although the right to travel was an implicit right during the founding and settling of the American colonies and the westward expansion, it was not explicitly stated in the U.S. Constitution.

Nineteenth Century

The modern right to travel has its roots in the Supreme Court’s interpretation of the commerce clauseCommerce clause of the Constitution in the nineteenth century. In Crandall v. Nevada[case]Crandall v. Nevada[Crandall v. Nevada] (1868), the Court invalidated a law that taxed the owner of for-hire vehicles for each passenger whom he transported out of state. It ruled that the right to travel from state to state came with national citizenship. The Court noted that the federal government was formed so that those living in the United States could be one people in one common country, with members of this one community having the right to pass through every part of it without interference.

For much of U.S. history, issues surrounding the right to travel were linked to the enslavement of African Americans. SlaveryBefore the Civil War, slave owners claimed the right to travel with their slaves to states and territories where slavery was prohibited while still retaining full property rights to their slaves. In 1857 this right was upheld by the Court in Scott v. Sandford. In the Slaughterhouse Cases[case]Slaughterhouse Cases[Slaughterhouse Cases] (1873), the right to travel, as a right of national citizenship, was strengthened by its protection under the privileges or immunities clause of the Fourteenth Amendment.

The Twentieth Century

In Edwards v. California[case]Edwards v. California[Edwards v. California] (1941), the Court invalidated, as a violation of the commerce clause, a state law that prohibited individuals from bringing into the state any indigent who was not a resident of the state. The Court significantly expanded the right to travel in Shapiro v. Thompson[case]Shapiro v. Thompson[Shapiro v. Thompson] (1969) by viewing it as a fundamental rightFundamental rights under the equal protection clause of the Fourteenth Amendment. (A fundamental right is any right that the Court has stated is guaranteed explicitly by, or implicitly from, the Constitution.) The Court ruled that the right to travel prohibits a state from setting durational residency requirements that must be met before new arrivals can receive welfare payments. Durational residency requirements require persons to show that in addition to being a bona fide resident of a state, they have resided in the location for a specific period of time. The Court reasoned that the nature of the federal union and the guarantee of personal liberty gave each citizen the right to travel throughout the United States without unreasonable restrictions.

In later cases, the Court struck down other durational residency requirements as violations of the fundamental right to travel. In Memorial Hospital v. Maricopa County [case]Memorial Hospital v. Maricopa County[Memorial Hospital v. Maricopa County](1974), the Court invalidated laws requiring new arrivals to meet durational residency requirements before receiving basic medical services. The Court noted that medical services are a basic necessity of life; their denial to a new resident who is indigent, when they are available to other residents who are similarly situated as to the objectives of the law, effectively penalizes a person’s right to travel.

In 1999 the Court affirmed the right to travel. In Saenz v. Roe[case]Saenz v. Roe[Saenz v. Roe] (1999), the Court invalidated a section of a federal law, the Personal Responsibility and Work Opportunity ActPersonal Responsibility and Work Opportunity Act of 1996, that expressly authorized any state, for one year, to pay new arrivals benefits based on the amount they received in the state from which they came. The Court noted that the right to travel embraces three different components: the right to enter and leave another state; the right to be treated as a welcome visitor while temporally present in another state, and for those residents who elect to become permanent residents, the right to be treated like other citizens of that state.

Most important, in Saenz, the Court returned to the Slaughterhouse Cases to say that the rights of newly arrived citizens are protected by their status as both state and U.S. citizens, which are plainly identified in the Fourteenth Amendment privileges and immunities clause. The Court emphasized that because the right to travel embraces a citizen’s right to be treated equally in his or her new state of residence, a discriminatory classification is itself a penalty. The Court drew upon Zobel v. Williams[case]Zobel v. Williams[Zobel v. Williams] (1982) to say that the Fourteenth Amendment expressly equates citizenship with residence and does not tolerate a hierarchy of subclasses of similarly situated citizens based on the location of their prior residences.

Permitted Durational Residency Requirements

State durational residency requirements are permitted if a compelling government interest has been demonstrated. In Dunn v. Blumstein[case]Dunn v. Blumstein[Dunn v. Blumstein] (1972), the Court found long durational residency requirements before permitting voting unconstitutional because such requirements interfered with the fundamental right to vote and penalized the fundamental right to travel. A state can require voters to be bona fide residents for a period of time before permitting them to vote, usually no more than fifty days. In Sosna v. Iowa[case]Sosna v. Iowa[Sosna v. Iowa] (1975), the Court did not view a one-year residency requirement before a new resident could get a divorce as a denial of the right of travel. The Court noted that unlike the welfare recipients in Shapiro, the voters in Dunn, or the indigent patients in Maricopa, the new arrivals in Sosna were not irretrievably foreclosed by Iowa’s one-year waiting period from getting a divorce. In Vlandis v. Kline[case]Vlandis v. Kline[Vlandis v. Kline] (1973), the Court found a compelling government interest in allowing one-year residency requirements before students could receive reduced tuition at state universities. However, in Supreme Court of New Hampshire v. Piper[case]Supreme Court of New Hampshire v. Piper[Supreme Court of New Hampshire v. Piper] (1985), the Court outlawed a one-year residency requirement before lawyers could be admitted to practice in a state. In the 1990’s scholars have attempted, without success, to apply the right to travel to tightened airline security, to limits on intrastate travel from police enforcement tactics, and to movement among the states to secure abortions.

The government may seek to restrict citizens from traveling between the United States and specified foreign nations, if the restrictions are not based on the beliefs of the citizens seeking to travel. In Aptheker v. Secretary of State[case]Aptheker v. Secretary of State[Aptheker v. Secretary of State] (1964), the Court invalidated a section of the Subversive Activities Control Act of 1950 that made it unlawful for any “knowing” member of a communist organization to use a passport. However, government efforts to restrict travel to and from nations for reasons of foreign relations and national security, for the most part, have not been successful.

Further Reading
  • Aleinikoff, Thomas Alexander. Semblances of Sovereignty: The Constitution, the State, and American Citizenship. Cambridge, Mass.: Harvard University Press, 2002.
  • Cohen, William. “Equal Treatment for Newcomers: The Core Meaning of National and State Citizenship.” Constitutional Commentary 1 (1984): 9-19.
  • Fried, Charles. Saying What the Law Is: The Constitution in the Supreme Court. Cambridge, Mass.: Harvard University Press, 2004.
  • Kahn, Ronald. The Supreme Court and Constitutional Theory, 1953-1993. Lawrence: University Press of Kansas, 1994.
  • Labb, Ronald M., and Jonathan Lurie. The Slaughterhouse Cases: Regulation, Reconstruction, and the Fourteenth Amendment. Lawrence: University Press of Kansas, 2003.
  • Poppe, Matthew. “Defining the Scope of the Equal Protection Clause with Respect to Welfare Waiting Periods.” University of Chicago Law Review 61 (1994): 291-323.
  • Porter, Andrew C. “Toward a Constitutional Right to Intrastate Travel.” Northwestern University Law Review 86 (1992): 820-857.

Aptheker v. Secretary of State

Commerce, regulation of

Edwards v. California

Fourteenth Amendment

Privileges and immunities

Shapiro v. Thompson

Slaughterhouse Cases

Categories: History