American University Law Review
December, 1999
ARTICLE
Free Movement: A Federalist ReinterpretationJide Nzelibe*
INTRODUCTION
On May 17, 1999, the U.S. Supreme Court decided Saenz v. Roe. Superficially, the case appears to have broken no new ground other than as a belated attempt to revive the Privileges and Immunities Clause of the Fourteenth Amendment in the context of the right to travel. Upon closer examination, however, we glean a more subtle development: the Supreme Court�s attempt at closure to one of the modern constitutional sagas�a constitutional home for the so called �right to travel.� Over the past fifty years, the Court has canvassed the bailiwick of constitutional law in search of a meaningful underpinning for the right to travel. When an oblique non-textual doctrine based upon the general notion of political unity fizzled, the Court sought refuge under due process or equal protection analysis.
In addition to, or in spite of, these two vastly different jurisprudential doctrines, the Court has suggested that the right to travel is inherent in the concept of national citizenship and is independent of the Fourteenth Amendment, the Privileges and Immunities Clause of Article IV (�The Comity Clause�), the Privileges and Immunities Clause of the Fourteenth Amendment, and the Commerce Clause. Now, the right to travel�the ubiquitous right in search of a sure constitutional footing�has found a new home in a long-dormant clause of the Fourteenth Amendment. Despite its insecure origins, the right to travel has never been seriously questioned. Its implications may have been debated, but the right has almost always been taken for granted. Unlike abortion or other due process privacy right issues, there appears to be no important political group that has campaigned for or against this widely embraced �right.� The irony, however, in the popular capitulation to this new �right� is that although the discussion of interstate travel and migration has always been mired in the language of personal rights and discrimination, the policy rationale for the �right� has usually been put forth as a means of promoting the federal union. How then did a rights-based perspective of constitutional theory come to supplant the federalist origins of the limitations of states to restrict interstate travel?
This Article attempts to dispel the notion that the limitation on a state�s power to restrict interstate travel and migration is based upon a notion of a personal right to travel. Instead, this limitation, like the dormant Commerce Clause, is traceable to an idea of conserving the political and economic union against provincial state interests. Viewed from this perspective, the constitutional value that protects free interstate movement is one grounded purely in our federalist structure and is not traceable to the spirit of specific provisions in the Bill of Rights. As set forth below, the original cases that explored the limitation on state power implicitly endorsed such a restrictive notion of free interstate movement. The early introduction of individual �rights� terminology, however, hampered its development as a doctrine. Indeed, subsequent decisions continue to recognize that the policy basis of the right is encapsulated in a federalist promotion norm.
Interestingly, as the modern right to travel has evolved, it has rarely done so as a stand-alone right, and it is most often used to buttress other constitutional interests or rights. Stripped of those other constitutional interests, there seems hardly any special solicitude for personal protection against state power embodied in a �right to travel.� Instead of a right to travel, a more apt description of this constitutional principle would be a �free movement doctrine.� This term properly captures the essence of the principle as one that promotes the political and economic union by limiting interstate conflict, and not as the fountain of an individual right to travel.
* The author just completed a clerkship with Judge Stephen F. Williams, U.S. Court of Appeals for the D.C. Circuit; J.D., Yale Law School, 1998.
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