Chapter 2: The Right of Interstate Travel

The right to travel sounds simple: people may freely move between states, whether temporarily or permanently.  But when they move to another state, must they be treated equally to those who are already citizens? Can a state restrict its rights and privileges to those who have resided in a state for a certain period, and thereby provide fewer rights to recent arrivals? This is a question that arose after the United States was hastily formed in 1776. At the time, people regarded themselves as citizens of a specific state; the Declaration of Independence did not immediately establish a national identity. State residents were disposed to regard their fellow residents more favorably than outsiders, and the democratic constitutions that the original states adopted gave them the power to discriminate against them. After all, out-of-staters had no representation in other states’ legislatures, and thus would be unprotected from laws that favored current residents.

Recognizing that this problem needed a national solution, the drafters of the Articles of Confederation addressed the right to travel in Article IV: “The better to secure and perpetuate mutual friendship and intercourse among the people of the different states, the free inhabitants of each of these states, paupers, vagabonds and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several states; and the people of each state shall have free ingress and regress to and from any other state, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions as the inhabitants thereof prospectively.”

This guarantee is the nation’s first equal protection clause. At a time when states could freely discriminate on the basis of race, color, sex, and religion, the 1777 constitution did not allow states to discriminate on the basis of prior residence in that state. This encouraged people to freely move among states to engage in “intercourse,” which at the time meant social or commercial interaction. However, the Articles did not establish a federal court system to enforce this right to equal treatment, leaving its implementation to state legislatures. Judicial review prior to the 1790s was extremely limited, and there are no reported state cases addressing the scope of this right.

The Constitution written in 1787 simplified this right to travel, providing in Article IV: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens of the several States.” This expanded the equal protection requirement of the first constitution by dropping the qualifications of the previous Article IV, extending constitutional protections to all privileges and immunities. More importantly, Article III established a federal judiciary that was empowered to enforce the new Constitution, and it explicitly allowed out-of-state litigants to move their cases to federal courts that presumably would be less influenced by a home-state bias.

So what were the “privileges and immunities” that were protected by the federal constitution? The first definitive interpretation from a Supreme Court justice came in a Circuit Court decision by the nephew of the United States’ first President. Could New Jersey limit the harvesting of oysters to in-state residents?

Justice Bushrod Washington:

The first section of the act of New Jersey declares, that, from and after the 1st of May, till the 1st of September in every year, no person shall rake on any oyster bed in this state, or gather any oysters on any banks or beds within the same, under a penalty of $10. . . . The sixth section enacts, that it shall not be lawful for any person, who is not, at the time, an actual inhabitant and resident of this state, to gather oysters in any of the rivers, bays, or waters in this state, on board of any vessel, not wholly owned by some person, inhabitant of, or actually residing in this state; and every person so offending, shall forfeit $10, and shall also forfeit the vessel employed in the commission of such offence, with all the oysters, rakes, &c. belonging to the same. The seventh section provides, that it shall be lawful for any person to seize and secure such vessel, and to give information to two justices of the county where such seizure shall be made, who are required to meet for the trial of the said case, and to determine the same; and in case of condemnation, to order the said vessel, &c. to be sold.

The first question then is, whether this act, or either section of it, is repugnant to the power granted to congress to regulate commerce? Commerce with foreign nations, and among the several states, can mean nothing more than intercourse with those nations, and among those states, for purposes of trade, be the object of the trade what it may; and this intercourse must include all the means by which it can be carried on, whether by the free navigation of the waters of the several states, or by a passage over land through the states, where such passage becomes necessary to the commercial intercourse between the states. It is this intercourse which congress is invested with the power of regulating, and with which no state has a right to interfere. But this power, which comprehends the use of, and passage over the navigable waters of the several states, does by no means impair the right of the state government to legislate upon all subjects of internal police within their territorial limits, which is not forbidden by the constitution of the United States, even although such legislation may indirectly and remotely affect commerce, provided it do not interfere with the regulations of congress upon the same subject. Such are inspection, quarantine, and health laws; laws regulating the internal commerce of the state; laws establishing and regulating turnpike roads, ferries, canals, and the like. . . .

2. The next question is, whether this act infringes that section of the constitution which declares that “the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states?” The inquiry is, what are the “privileges and immunities of citizens in the several states?” We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, 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 fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the 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 institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state; may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental: to which may be added, the elective franchise, as regulated and established by the 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, and the enjoyment of them by the citizens of each state, in every other state, was manifestly calculated (to use the expressions of the preamble of the corresponding provision in the old articles of confederation) “the better to secure and perpetuate mutual friendship and intercourse among the people of the different states of the Union.”

But we cannot accede to the proposition which was insisted on by the counsel, that, under this provision of the constitution, the citizens of the several states are permitted to participate in all the rights which belong exclusively to the citizens of any other particular state, merely upon the ground that they are enjoyed by those citizens; much less, that in regulating the use of the common property of the citizens of such state, the legislature is bound to extend to the citizens of all the other states the same advantages as are secured to their own citizens. A several fishery, either as the right to it respects running fish, or such as are stationary, such as oysters, clams, and the like, is as much the property of the individual to whom it belongs, as dry land, or land covered by water; and is equally protected by the laws of the state against the aggressions of others, whether citizens or strangers. Where those private rights do not exist to the exclusion of the common right, that of fishing belongs to all the citizens or subjects of the state. It is the property of all; to be enjoyed by them in subordination to the laws which regulate its use. They may be considered as tenants in common of this property; and they are so exclusively entitled to the use of it, that it cannot be enjoyed by others without the tacit consent, or the express permission of the sovereign who has the power to regulate its use. . . .

That this exclusive right of taking oysters in the waters of New Jersey has never been ceded by that state, in express terms, to the United States, is admitted by the counsel for the plaintiff; and having shown, as we think we have, that this right is a right of property, vested either in certain individuals, or in the state, for the use of the citizens thereof, it would, in our opinion, be going quite too far to construe the grant of privileges and immunities of citizens, as amounting to a grant of a cotenancy in the common property of the state, to the citizens of all the other states. Such a construction would, in many instances, be productive of the most serious public inconvenience and injury, particularly, in regard to those kinds of fish, which, by being exposed to too general use, may be exhausted. The oyster beds belonging to a state may be abundantly sufficient for the use of the citizens of that state, but might be totally exhausted and destroyed if the legislature could not so regulate the use of them as to exclude the citizens of the other states from taking them, except under such limitations and restrictions as the laws may prescribe.

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Corfield v. Coryell is illustrative of how the Supreme Court treated claims that states failed to respecting federally-granted rights before the Civil War. While Justice Washington recognized the right to travel, he held that it was subordinate to the state’s need to protect its citizens interests. This was a common justification given by federal courts that refused to overturn state laws that appeared to infringe on federal rights.

After the Civil War, Congress proposed what became the Fourteenth Amendment in order to protect individual rights from infringement by the states. One of the provisions barred states from abridging “the privileges or immunities of citizens of the United States.” While the amendment was being considered by the states, the meaning of these words was addressed by the Supreme Court. In Crandall v. State of Nevada, 73 U.S. 35, 43-44 (1867), the Court struck down a Nevada law imposing a tax of $1 on all persons leaving the state by public transportation. Justice Samuel Miller justified the Court’s decision not by pointing to an enumerated right, but rather through references to the principles of the Constitution:

“The people of these United States constitute one nation. They have a government in which all of them are deeply interested. This government has necessarily a capital established by law, where its principal operations are conducted. . . . That government has a right to call to this point any or all of its citizens to aid in its service, as members of the Congress, of the courts, of the executive departments, and to fill all its other offices, and this right cannot be made to depend upon the pleasure of a state over whose territory they must pass to reach the point where these services must be rendered. The government also has its offices of secondary importance in all other parts of the country. On the seacoasts and on the rivers it has its ports of entry. In the interior it has its land offices, its revenue offices, and its subtreasuries. In all these it demands the services of its citizens and is entitled to bring them to those points from all quarters of the nation, and no power can exist in a state to obstruct this right that would not enable it to defeat the purposes for which the government was established. . . .

But if the government has these rights on her own account, the citizen also has correlative rights. He has the right to come to the seat of government to assert any claim he may have upon that government or to transact any business he may have with it. To seek its protection, to share its offices, to engage in administering its functions. He has a right to free access to its seaports, through which all the operations of foreign trade and commerce are conducted, to the subtreasuries, the land offices, the revenue offices, and the courts of justice in the several states, and this right is in its nature independent of the will of any state over whose soil he must pass in the exercise of it.”

The Court then cited McCulloch v. Maryland for the principle that state taxation cannot be permitted to infringe on the Constitution: “[I]f the state can tax a railroad passenger one dollar, it can tax him one thousand dollars. If one state can do this, so can every other state. And thus one or more states covering the only practicable routes of travel from the east to the west, or from the north to the south, may totally prevent or seriously burden all transportation of passengers from one part of the country to the other.” Id. at 45.

Although the Court did not denominate free passage across state lines as the “right to travel,” there is no doubt that this is what it meant in holding that the Nevada tax was unconstitutional: “We are all citizens of the United States, and as members of the same community must have the right to pass and repass through every part of it without interruption, as freely as in our own states. And a tax imposed by a state for entering its territories or harbors is inconsistent with the rights which belong to citizens of other states as members of the Union and with the objects which that Union was intended to attain. Such a power in the states could produce nothing but discord and mutual irritation, and they very clearly do not possess it.” Id. at 49, quoting the separate opinion of Justice Greer in the Passenger Cases, 48 U.S. 283, 492 (1848).

Subsequent decisions of the Court confirmed that the right of interstate travel is constitutionally protected, although the exact location of that right was rarely discussed. In United States v. Guest, 383 U.S. 745, 758 (1966), the Court summarized the holding of several cases beginning with Crandall v. Nevada: “freedom to travel throughout the United States has long been recognized as a basic right under the Constitution.”

The Court had already held that states could not tax interstate travel, but whether the Constitution imposed other limits on states’ treatment of new residents remained unclear until 1969. In that year, the Court consolidated several cases that established a one-year residency requirement for the receipt of welfare payments.

Justice William Brennan:

These three appeals were restored to the calendar for reargument. Each is an appeal from a decision of a three-judge District Court holding unconstitutional a State or District of Columbia statutory provision which denies welfare assistance to residents of the State or District who have not resided within their jurisdictions for at least one year immediately preceding their applications for such assistance. . . .

In No. 9, the Connecticut Welfare Department invoked § 17-2d of the Connecticut General Statutes to deny the application of appellee Vivian Marie Thompson for assistance under the program for Aid to Families with Dependent Children (AFDC). She was a 19-year-old unwed mother of one child and pregnant with her second child when she changed her residence in June, 1966, from Dorchester, Massachusetts, to Hartford, Connecticut, to live with her mother, a Hartford resident. She moved to her own apartment in Hartford in August, 1966, when her mother was no longer able to support her and her infant son. Because of her pregnancy, she was unable to work or enter a work training program. Her application for AFDC assistance, filed in August, was denied in November solely on the ground that, as required by § 17-2d she had not lived in the State for a year before her application was filed. . . .

In No. 33, there are four appellees. Three of them–appellees Harrell, Brown, and Legrant–applied for and were denied AFDC aid. The fourth, appellee Barley, applied for and was denied benefits under the program for Aid to the Permanently and Totally Disabled. The denial in each case was on the ground that the applicant had not resided in the District of Columbia for one year immediately preceding the filing of her application, as required by § 3-203 of the District of Columbia Code. . . .

In No. 34, there are two appellees, Smith and Foster, who were denied AFDC aid on the sole ground that they had not been residents of Pennsylvania for a year prior to their applications, as required by § 432(6) of the Pennsylvania Welfare Code. . . .

There is no dispute that the effect of the waiting period requirement in each case is to create two classes of needy resident families indistinguishable from each other except that one is composed of residents who have resided a year or more, and the second of residents who have resided less than a year, in the jurisdiction. On the basis of this sole difference, the first class is granted, and the second class is denied, welfare aid upon which may depend the ability of the families to obtain the very means to subsist–food, shelter, and other necessities of life. In each case, the District Court found that appellees met the test for residence in their jurisdictions, as well as all other eligibility requirements except the requirement of residence for a full year prior to their applications. On reargument, appellees’ central contention is that the statutory prohibition of benefits to residents of less than a year creates a classification which constitutes an invidious discrimination denying them equal protection of the laws. We agree. The interests which appellants assert are promoted by the classification either may not constitutionally be promoted by government or are not compelling governmental interests.

Primarily, appellants justify the waiting period requirement as a protective device to preserve the fiscal integrity of state public assistance programs. It is asserted that people who require welfare assistance during their first year of residence in a State are likely to become continuing burdens on state welfare programs. Therefore, the argument runs, if such people can be deterred from entering the jurisdiction by denying them welfare benefits during the first year, state programs to assist long-time residents will not be impaired by a substantial influx of indigent newcomers.

There is weighty evidence that exclusion from the jurisdiction of the poor who need or may need relief was the specific objective of these provisions. In the Congress, sponsors of federal legislation to eliminate all residence requirements have been consistently opposed by representatives of state and local welfare agencies who have stressed the fears of the States that elimination of the requirements would result in a heavy influx of individuals into States providing the most generous benefits. . . .

We do not doubt that the one-year waiting period device is well suited to discourage the influx of poor families in need of assistance. An indigent who desires to migrate, resettle, find a new job, and start a new life will doubtless hesitate if he knows that he must risk making the move without the possibility of falling back on state welfare assistance during his first year of residence, when his need may be most acute. But the purpose of inhibiting migration by needy persons into the State is constitutionally impermissible.

This Court long ago recognized that the nature of our Federal Union and our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement. That proposition was early stated by Chief Justice Taney in the Passenter Cases, 48 U. S. 492 (1849): “For all the great purposes for which the Federal government was formed, we are one people, with one common country. We are all citizens of the United States; and, as members of the same community, must have the right to pass and repass through every part of it without interruption, as freely as in our own States.”

We have no occasion to ascribe the source of this right to travel interstate to a particular constitutional provision. It suffices that, as Justice Stewart said for the Court in United States v. Guest, 383 U. S. 745, 757-758 (166): “The constitutional right to travel from one State to another . . . occupies a position fundamental to the concept of our Federal Union. It is a right that has been firmly established and repeatedly recognized. . . . [T]he right finds no explicit mention in the Constitution. The reason, it has been suggested, is that a right so elementary was conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created. In any event, freedom to travel throughout the United States has long been recognized as a basic right under the Constitution.”

Thus, the purpose of deterring the in-migration of indigents cannot serve as justification for the classification created by the one-year waiting period, since that purpose is constitutionally impermissible. 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. 570, 581 (1968).

Alternatively, appellants argue that, even if it is impermissible for a State to attempt to deter the entry of all indigents, the challenged classification may be justified as a permissible state attempt to discourage those indigents who would enter the State solely to obtain larger benefits. We observe first that none of the statutes before us is tailored to serve that objective. Rather, the class of barred newcomers is all-inclusive, lumping the great majority who come to the State for other purposes with those who come for the sole purpose of collecting higher benefits. In actual operation, therefore, the three statutes enact what, in effect, are nonrebuttable presumptions that every applicant for assistance in his first year of residence came to the jurisdiction solely to obtain higher benefits. Nothing whatever in any of these records supplies any basis in fact for such a presumption.

More fundamentally, a State may no more try to fence out those indigents who seek higher welfare benefits than it may try to fence out indigents generally. Implicit in any such distinction is the notion that indigents who enter a State with the hope of securing higher welfare benefits are somehow less deserving than indigents who do not take this consideration into account. But we do not perceive why a mother who is seeking to make a new life for herself and her children should be regarded as less deserving because she considers, among others factors, the level of a State’s public assistance. Surely such a mother is no less deserving than a mother who moves into a particular State in order to take advantage of its better educational facilities.

Appellants argue further that the challenged classification may be sustained as an attempt to distinguish between new and old residents on the basis of the contribution they have made to the community through the payment of taxes. . . . Appellants’ reasoning would logically permit the State to bar new residents from schools, parks, and libraries or deprive them of police and fire protection. Indeed, it would permit the State to apportion all benefits and services according to the past tax contributions of its citizens. The Equal Protection Clause prohibits such an apportionment of state services.

We recognize that a State has a valid interest in preserving the fiscal integrity of its programs. It may legitimately attempt to limit its expenditures, whether for public assistance, public education, or any other program. But a State may not accomplish such a purpose by invidious distinctions between classes of its citizens. It could not, for example, reduce expenditures for education by barring indigent children from its schools. Similarly, in the cases before us, appellants must do more than show that denying welfare benefits to new residents saves money. The saving of welfare costs cannot justify an otherwise invidious classification. . . .

Appellants next advance as justification certain administrative and related governmental objectives allegedly served by the waiting period requirement. They argue that the requirement (1) facilitates the planning of the welfare budget; (2) provides an objective test of residency; (3) minimizes the opportunity for recipients fraudulently to receive payments from more than one Jurisdiction, and (4) encourages early entry of new residents into the labor force.

At the outset, we reject appellants’ argument that a mere showing of a rational relationship between the waiting period and these four admittedly permissible state objectives will suffice to justify the classification. The waiting period provision denies welfare benefits to otherwise eligible applicants solely because they have recently moved into the jurisdiction. But in moving from State to State or to the District of Columbia appellees were exercising a constitutional right, and any classification which serves to penalize the exercise of that right, unless shown to be necessary to promote a compelling governmental interest, is unconstitutional.

The argument that the waiting period requirement facilitates budget predictability is wholly unfounded. The records in all three cases are utterly devoid of evidence that either State or the District of Columbia, in fact, uses the one-year requirement as a means to predict the number of people who will require assistance in the budget year. . . .

Similarly, there is no need for a State to use the one-year waiting period as a safeguard against fraudulent receipt of benefits; far less drastic means are available, and are employed, to minimize that hazard. Of course, a State has a valid interest in preventing fraud by any applicant, whether a newcomer or a long-time resident. It is not denied, however, that the investigations now conducted entail inquiries into facts relevant to that subject. In addition, cooperation among state welfare departments is common. . . .

Pennsylvania suggests that the one-year waiting period is justified as a means of encouraging new residents to join the labor force promptly. But this logic would also require a similar waiting period for long-term residents of the State. A state purpose to encourage employment provides no rational basis for imposing a one-year waiting period restriction on new residents only.

We conclude therefore that appellants in these cases do not use and have no need to use the one-year requirement for the governmental purposes suggested. Thus, even under traditional equal protection tests, a classification of welfare applicants according to whether they have lived in the State for one year would seem irrational and unconstitutional. But, of course, the traditional criteria do not apply in these cases. Since the classification here touches on the fundamental right of interstate movement, its constitutionality must be judged by the stricter standard of whether it promotes a compelling state interest. Under this standard, the waiting period requirement clearly violates the Equal Protection Clause.

The waiting period requirement in the District of Columbia Code involved in No. 33 is also unconstitutional, even though it was adopted by Congress as an exercise of federal power. In terms of federal power, the discrimination created by the one-year requirement violates the Due Process Clause of the Fifth Amendment. “[W]hile the Fifth Amendment contains no equal protection clause, it does forbid discrimination that is ‘so unjustifiable as to be violative of due process.'” Schneider v. Rusk, 377 U. S. 163, 168 (1964); Bolling v. Sharpe, 347 U. S. 497 (1954). For the reasons we have stated in invalidating the Pennsylvania and Connecticut provisions, the District of Columbia provision is also invalid–the Due Process Clause of the Fifth Amendment prohibits Congress from denying public assistance to poor persons otherwise eligible solely on the ground that they have not been residents of the District of Columbia for one year at the time their applications are filed.

Justice John Harlan, dissenting:

These three cases present two separate but related questions for decision. The first, arising from the District of Columbia appeal, is whether Congress may condition the right to receive Aid to Families with Dependent Children (AFDC) and Aid to the Permanently and Totally Disabled in the District of Columbia upon the recipient’s having resided in the District for the preceding year. The second, presented in the Pennsylvania and Connecticut appeals, is whether a State may, with the approval of Congress, impose the same conditions with respect to eligibility for AFDC assistance.  In each instance, the welfare residence requirements are alleged to be unconstitutional on two grounds: first, because they impose an undue burden upon the constitutional right of welfare applicants to travel interstate; second, because they deny to persons who have recently moved interstate and would otherwise be eligible for welfare assistance the equal protection of the laws assured by the Fourteenth Amendment (in the state cases) or the analogous protection afforded by the Fifth Amendment (in the District of Columbia case). Since the Court basically relies upon the equal protection ground, I shall discuss it first.

In upholding the equal protection argument, the Court has applied an equal protection doctrine of relatively recent vintage: the rule that statutory classifications which either are based upon certain “suspect” criteria or affect “fundamental rights” will be held to deny equal protection unless justified by a “compelling” governmental interest.

The “compelling interest” doctrine, which today is articulated more explicitly than ever before, constitutes an increasingly significant exception to the long-established rule that a statute does not deny equal protection if it is rationally related to a legitimate governmental objective. The “compelling interest” doctrine has two branches. The branch which requires that classifications based upon “suspect” criteria be supported by a compelling interest apparently had its genesis in cases involving racial classifications, which have, at least since Korematsu v. United States, 323 U. S. 214, 216 (1944), been regarded as inherently “suspect.” The criterion of “wealth” apparently was added to the list of “suspects” as an alternative justification for the rationale in Harper v. Virginia Board of Elections, 383 U. S. 663, 668 (1966), in which Virginia’s poll tax was struck down. The criterion of political allegiance may have been added in Williams v. Rhodes, 393 U. S. 23 (1968). Today the list apparently has been further enlarged to include classifications based upon recent interstate movement, and perhaps those based upon the exercise of any constitutional right, for the Court states: “The waiting period provision denies welfare benefits to otherwise eligible applicants solely because they have recently moved into the jurisdiction. But, in moving . . . , appellees were exercising a constitutional right, and any classification which serves to penalize the exercise of that right, unless shown to be necessary to promote a compelling governmental interest, is unconstitutional.”

I think that this branch of the “compelling interest” doctrine is sound when applied to racial classifications, for, historically, the Equal Protection Clause was largely a product of the desire to eradicate legal distinctions founded upon race. However, I believe that the more recent extensions have been unwise. . . . [W]hen, as in Williams v. Rhodes and the present case, a classification is based upon the exercise of rights guaranteed against state infringement by the Federal Constitution, then there is no need for any resort to the Equal Protection Clause; in such instances, this Court may properly and straightforwardly invalidate any undue burden upon those rights under the Fourteenth Amendment’s Due Process Clause.

The second branch of the “compelling interest” principle is even more troublesome. For it has been held that a statutory classification is subject to the “compelling interest” test if the result of the classification may be to affect a “fundamental right,” regardless of the basis of the classification. This rule was foreshadowed in Skinner v. Oklahoma, 316 U. S. 535, 541 (1942), in which an Oklahoma statute providing for compulsory sterilization of “habitual criminals” was held subject to “strict scrutiny” mainly because it affected “one of the basic civil rights.” After a long hiatus, the principle reemerged in Reynolds v. Sims, 377 U. S. 533, 561-562 (1964), in which state apportionment statutes were subjected to an unusually stringent test because “any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.” . . . It has reappeared today in the Court’s cryptic suggestion that the “compelling interest” test is applicable merely because the result of the classification may be to deny the appellees “food, shelter, and other necessities of life,” as well as in the Court’s statement that, “[s]ince the classification here touches on the fundamental right of interstate movement, its constitutionality must be judged by the stricter standard of whether it promotes a compelling state interest.”

I think this branch of the “compelling interest” doctrine particularly unfortunate and unnecessary. It is unfortunate because it creates an exception which threatens to swallow the standard equal protection rule. Virtually every state statute affects important rights. . . . [T]o extend the “compelling interest” rule to all cases in which such rights are affected would go far toward making this Court a “super-legislature.” This branch of the doctrine is also unnecessary. When the right affected is one assured by the Federal Constitution, any infringement can be dealt with under the Due Process Clause. But when a statute affects only matters not mentioned in the Federal Constitution and is not arbitrary or irrational, I must reiterate that I know of nothing which entitles this Court to pick out particular human activities, characterize them as “fundamental,” and give them added protection under an unusually stringent equal protection test.

. . . The next issue, which I think requires fuller analysis than that deemed necessary by the Court under its equal protection rationale, is whether a one-year welfare residence requirement amounts to an undue burden upon the right of interstate travel. Four considerations are relevant: First, what is the constitutional source and nature of the right to travel which is relied upon? Second, what is the extent of the interference with that right? Third, what governmental interests are served by welfare residence requirements? Fourth, how should the balance of the competing considerations be struck?

The initial problem is to identify the source of the right to travel asserted by the appellees. . . .  Opinions of this Court and of individual Justices have suggested four provisions of the Constitution as possible sources of a right to travel enforceable against the federal or state governments: the Commerce Clause; the Privileges and Immunities Clause of Art. IV, § 2; the Privileges and Immunities Clause of the Fourteenth Amendment;  and the Due Process Clause of the Fifth Amendment. The Commerce Clause can be of no assistance to these appellees, since that clause grants plenary power to Congress, and Congress either enacted or approved all of the residence requirements here challenged. The Privileges and Immunities Clause of Art. IV, § 2 is irrelevant, for it appears settled that this clause neither limits federal power nor prevents a State from distinguishing among its own citizens, but simply “prevents a State from discriminating against citizens of other States in favor of its own.” Hague v. CIO, 307 U. S. 496, 511 (1939) (opinion of Roberts, J.). Since Congress enacted the District of Columbia residence statute, and since the Pennsylvania and Connecticut appellees were residents and therefore citizens of those States when they sought welfare, the clause can have no application in any of these cases.

The Privileges and Immunities Clause of the Fourteenth Amendment provides that: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” . . . The view of the Privileges and Immunities Clause which has most often been adopted by the Court and by individual Justices is that it extends only to those “privileges and immunities” which “arise or grow out of the relationship of United States citizens to the national government.” Hague v. CIO, 307 U. S. 496, 520 (1939). On the authority of Crandall v. Nevada, 6 Wall. 35 (1868), those privileges and immunities have repeatedly been said to include the right to travel from State to State, presumably for the reason assigned in Crandall: that state restrictions on travel might interfere with intercourse between the Federal Government and its citizens. This kind of objection to state welfare residence requirements would seem necessarily to vanish in the face of congressional authorization, for, except in those instances when its authority is limited by a constitutional provision binding upon it (as the Fourteenth Amendment is not), Congress has full power to define the relationship between citizens and the Federal Government.

Some Justices, notably the dissenters in the Slaughter-House Cases, 83 U. S. 111, 124 (1873) (Field, Bradley, and Swayne, JJ., dissenting) . . .  have gone further and intimated that the Fourteenth Amendment right to travel interstate is a concomitant of federal citizenship which stems from sources even more basic than the need to protect citizens in their relations with the Federal Government. The Slaughter-House dissenters suggested that the privileges and immunities of national citizenship, including freedom to travel, were those natural rights “which of right belong to the citizens of all free governments,” However, since such rights are “the rights of citizens of any free government,” 83 U. S. at 114 (Bradley, J.), it would appear that they must be immune from national, as well as state, abridgment. To the extent that they may be validly limited by Congress, there would seem to be no reason why they may not be similarly abridged by States acting with congressional approval. . . .

The last possible source of a right to travel is one which does operate against the Federal Government: the Due Process Clause of the Fifth Amendment. It is now settled that freedom to travel is an element of the “liberty” secured by that clause. In Kent v. Dulles, 357 U. S. 116, 125-126 (1958), the Court said: “The right to travel is a part of the ‘liberty’ of which the citizen cannot be deprived without due process of law under the Fifth Amendment. . . . Freedom of movement across frontiers . . . and inside frontiers as well, was a part of our heritage. . . .”

Finally, in United States v. Guest, 383 U. S. 745 (1966), the Court again had occasion to consider the right of interstate travel. Without specifying the source of that right, the Court said: “The constitutional right to travel from one State to another . . . occupies a position fundamental to the concept of our Federal Union. It is a right that has been firmly established and repeatedly recognized. . . . [The] right finds no explicit mention in the Constitution. The reason, it has been suggested, is that a right so elementary was conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created. In any event, freedom to travel throughout the United States has long been recognized as a basic right under the Constitution.” 383 U. S. at 757-758. I therefore conclude that the right to travel interstate is a “fundamental” right which, for present purposes, should be regarded as having its source in the Due Process Clause of the Fifth Amendment.

The next questions are: (1) To what extent does a one-year residence condition upon welfare eligibility interfere with this right to travel?, and (2) What are the governmental interests supporting such a condition? The consequence of the residence requirements is that persons who contemplate interstate changes of residence, and who believe that they otherwise would qualify for welfare payments, must take into account the fact that such assistance will not be available for a year after arrival. The number or proportion of persons who are actually deterred from changing residence by the existence of these provisions is unknown. If one accepts evidence put forward by the appellees, to the effect that there would be only a minuscule increase in the number of welfare applicants were existing residence requirements to be done away with, it follows that the requirements do not deter an appreciable number of persons from moving interstate.

Against this indirect impact on the right to travel must be set the interests of the States, and of Congress with respect to the District of Columbia, in imposing residence conditions. There appear to be four such interests. First, it is evident that a primary concern of Congress and the Pennsylvania and Connecticut Legislatures was to deny welfare benefits to persons who moved into the jurisdiction primarily in order to collect those benefits. This seems to me an entirely legitimate objective. A legislature is certainly not obliged to furnish welfare assistance to every inhabitant of the jurisdiction, and it is entirely rational to deny benefits to those who enter primarily in order to receive them, since this will make more funds available for those whom the legislature deems more worthy of subsidy.

A second possible purpose of residence requirements is the prevention of fraud. A residence requirement provides an objective and workable means of determining that an applicant intends to remain indefinitely within the jurisdiction. It therefore may aid in eliminating fraudulent collection of benefits by nonresidents and persons already receiving assistance in other States. There can be no doubt that prevention of fraud is a valid legislative goal. Third, the requirement of a fixed period of residence may help in predicting the budgetary amount which will be needed for public assistance in the future. While none of the appellant jurisdictions appears to keep data sufficient to permit the making of detailed budgetary predictions in consequence of the requirement, it is probable that, in the event of a very large increase or decrease in the number of indigent newcomers, the waiting period would give the legislature time to make needed adjustments in the welfare laws. Obviously, this is a proper objective. Fourth, the residence requirements conceivably may have been predicated upon a legislative desire to restrict welfare payments financed in part by state tax funds to persons who have recently made some contribution to the State’s economy, through having been employed, having paid taxes, or having spent money in the State. This too would appear to be a legitimate purpose.

The next question is the decisive one: whether the governmental interests served by residence requirements outweigh the burden imposed upon the right to travel. In my view, a number of considerations militate in favor of constitutionality. First, as just shown, four separate, legitimate governmental interests are furthered by residence requirements. Second, the impact of the requirements upon the freedom of individuals to travel interstate is indirect and, according to evidence put forward by the appellees themselves, insubstantial. . . .

Taking all of these competing considerations into account, I believe that the balance definitely favors constitutionality. In reaching that conclusion, I do not minimize the importance of the right to travel interstate. However, the impact of residence conditions upon that right is indirect and apparently quite insubstantial. On the other hand, the governmental purposes served by the requirements are legitimate and real, and the residence requirements are clearly suited to their accomplishment. . . .

I conclude with the following observations. Today’s decision, it seems to me, reflects to an unusual degree the current notion that this Court possesses a peculiar wisdom all its own whose capacity to lead this Nation out of its present troubles is contained only by the limits of judicial ingenuity in contriving new constitutional principles to meet each problem as it arises. For anyone who, like myself, believes that it is an essential function of this Court to maintain the constitutional divisions between state and federal authority and among the three branches of the Federal Government, today’s decision is a step in the wrong direction. This resurgence of the expansive view of “equal protection” carries the seeds of more judicial interference with the state and federal legislative process, much more indeed than does the judicial application of “due process” according to traditional concepts, about which some members of this Court have expressed fears as to its potentialities for setting us judges “at large.” I consider it particularly unfortunate that this judicial roadblock to the powers of Congress in this field should occur at the very threshold of the current discussions regarding the “federalizing” of these aspects of welfare relief.

******

If states cannot impose restrictions on recent arrivals who apply for welfare, can they charge higher state college tuition to those who have recently moved from other states? Shortly after Shapiro v. Thompson was decided, two Minnesota students brought such a challenge before a three-judge district court. In Starns v. Malkerson, 326 F. Supp. 234 (D. Minn. 1970), two college students challenged the University of Minnesota’s practice of charging higher tuition for recent arrivals, arguing that Shapiro required that strict scrutiny be applied since the tuition differential interfered with the right of interstate travel. The court found that there was no evidence that this policy inhibited enrollment, which meant there was no infringement of a fundamental right. The court also held that the denial of in-state tuition did not cause hardship similar to that caused to an indigent person who was denied welfare. The Supreme Court summarily affirmed but did not write an opinion. 401 U.S. 985 (1971). Since then, states have been permitted to charge higher tuition to out-of-state residents as long as they permit them to challenge their classification as non-residents.

In 1996, Congress passed the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), which replaced the welfare program Aid to Families with Dependent Children (AFDC) with Temporary Assistance to Needy Families (TANF). TANF gave states greater control over how they provided public assistance, which included allowing them to limit the assistance paid to people who had recently moved to the state. California did so, and faced a challenge based upon the right to interstate travel.

Justice John Paul Stevens:

In 1992, California enacted a statute limiting the maximum welfare benefits available to newly arrived residents. The scheme limits the amount payable to a family that has resided in the State for less than 12 months to the amount payable by the State of the family’s prior residence. The questions presented by this case are whether the 1992 statute was constitutional when it was enacted and, if not, whether an amendment to the Social Security Act enacted by Congress in 1996 affects that determination. . . .

In 1992, in order to make a relatively modest reduction in its vast welfare budget, the California Legislature . . . sought to change the California AFDC program by limiting new residents, for the first year they live in California, to the benefits they would have received in the State of their prior residence. Because in 1992 a state program either had to conform to federal specifications or receive a waiver from the Secretary of Health and Human Services in order to qualify for federal reimbursement, § 11450.03 required approval by the Secretary to take effect. In October 1992, the Secretary issued a waiver purporting to grant such approval.

On December 21, 1992, three California residents who were eligible for AFDC benefits filed an action in the Eastern District of California challenging the constitutionality of the durational residency requirement in § 11450.03. Each plaintiff alleged that she had recently moved to California to live with relatives in order to escape abusive family circumstances. One returned to California after living in Louisiana for seven years, the second had been living in Oklahoma for six weeks and the third came from Colorado. Each alleged that her monthly AFDC grant for the ensuing 12 months would be substantially lower under § 11450.03 than if the statute were not in effect. Thus, the former residents of Louisiana and Oklahoma would receive $190 and $341 respectively for a family of three even though the full California grant was $641; the former resident of Colorado, who had just one child, was limited to $280 a month as opposed to the full California grant of $504 for a family of two.

The District Court issued a temporary restraining order and, after a hearing, preliminarily enjoined implementation of the statute. . . . The Court of Appeals summarily affirmed.

We granted the State’s petition for certiorari. 513 U. S. 922 (1994). We were, however, unable to reach the merits because the Secretary’s approval of § 11450.03 had been invalidated in a separate proceeding. . . , Accordingly, § 11450.03 remained inoperative until after Congress enacted the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), 110 Stat. 2105.

PRWORA replaced the AFDC program with TANF. The new statute expressly authorizes any State that receives a block grant under TANF to “apply to a family the rules (including benefit amounts) 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.” With this federal statutory provision in effect, California no longer needed specific approval from the Secretary to implement § 11450.03. The California Department of Social Services therefore issued an “All County Letter” announcing that the enforcement of § 11450.03 would commence on April 1, 1997.

On April 1, 1997, the two respondents filed this action in the Eastern District of California making essentially the same claims asserted by the plaintiffs in Anderson v. Green, but also challenging the constitutionality of PRWORA’s approval of the durational residency requirement. As in Green, the District Court issued a temporary restraining order and certified the case as a class action. . .

Without finally deciding the merits, the Court of Appeals affirmed his issuance of a preliminary injunction. . . . We now affirm.

The word “travel” is not found in the text of the Constitution. Yet the “constitutional right to travel from one State to another” is firmly embedded in our jurisprudence. United States v. Guest, 383 U. S. 745, 747 (1966). Indeed, as Justice Stewart reminded us in Shapiro v. Thompson, 394 U. S. 618, 643 (1969), the right is so important that it is “assertable against private interference as well as governmental action . . . a virtually unconditional personal right, guaranteed by the Constitution to us all.”

In Shapiro, we reviewed the constitutionality of three statutory provisions that denied welfare assistance to residents of Connecticut, the District of Columbia, and Pennsylvania, who had resided within those respective jurisdictions less than one year immediately preceding their applications for assistance. . . . We squarely held that it was “constitutionally impermissible” for a State to enact durational residency requirements for the purpose of inhibiting the migration by needy persons into the State. We further held that a classification that had the effect of imposing a penalty on the exercise of the right to travel violated the Equal Protection Clause “unless shown to be necessary to promote a compelling governmental interest,” and that no such showing had been made.

In this case California argues that § 11450.03 was not enacted for the impermissible purpose of inhibiting migration by needy persons and that, unlike the legislation reviewed in Shapiro, it does not penalize the right to travel because new arrivals are not ineligible for benefits during their first year of residence. California submits that, instead of being subjected to the strictest scrutiny, the statute should be upheld if it is supported by a rational basis and that the State’s legitimate interest in saving over $10 million a year satisfies that test. Although the United States did not elect to participate in the proceedings in the District Court or the Court of Appeals, it has participated as amicus curiae in this Court. It has advanced the novel argument that the enactment of PRWORA allows the States to adopt a “specialized choice-of-Iaw-type provision” that “should be subject to an intermediate level of constitutional review,” merely requiring that durational residency requirements be “substantially related to an important governmental objective.” The debate about the appropriate standard of review, together with the potential relevance of the federal statute, persuades us that it will be useful to focus on the source of the constitutional right on which respondents rely.

The “right to travel” discussed in our cases embraces at least three different components. It protects the right of a citizen of one State to enter and to leave another State, the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and, for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State.

It was the right to go from one place to another, including the right to cross state borders while en route, that was vindicated in Edwards v. California, 314 U. S. 160 (1941), which invalidated a state law that impeded the free interstate passage of the indigent. We reaffirmed that right in United States v. Guest, 383 U. S. 745, 757 (1966), which afforded protection to the “‘right to travel freely to and from the State of Georgia and to use highway facilities and other instrumentalities of interstate commerce within the State of Georgia.'” Given that § 11450.03 imposed no obstacle to respondents’ entry into California, we think the State is correct when it argues that the statute does not directly impair the exercise of the right to free interstate movement. For the purposes of this case, therefore, we need not identify the source of that particular right in the text of the Constitution. The right of “free ingress and regress to and from” neighboring States, which was expressly mentioned in the text of the Articles of Confederation, may simply have been “conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created.” Id., at 758.

The second component of the right to travel is, however, expressly protected by the text of the Constitution. The first sentence of Article IV; § 2, provides: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” Thus, by virtue of a person’s state citizenship, a citizen of one State who travels in other States, intending to return home at the end of his journey, is entitled to enjoy the “Privileges and Immunities of Citizens in the several States” that he visits. This provision removes “from the citizens of each State the disabilities of alienage in the other States.” Paul v. Virginia, 8 Wall. 168, 180 (1869). It provides important protections for nonresidents who enter a State whether to obtain employment, Hicklin v. Orbeck, 437 U. S. 518 (1978), to procure medical services, Doe v. Bolton, 410 U. S. 179, 200 (1973), or even to engage in commercial shrimp fishing, Toomer v. Witsell, 334 U. S. 385 (1948). Those protections are not “absolute,” but the Clause “does bar discrimination against citizens of other States where there is no substantial reason for the discrimination beyond the mere fact that they are citizens of other States.” Id., at 396. There may be a substantial reason for requiring the nonresident to pay more than the resident for a hunting license, see Baldwin v. Fish and Game Comm’n of Mont., 436 U. S. 371. 390-391 (1978), or to enroll in the state university, see Vlandis v. Kline, 412 U. S. 441, 445 (1973), but our cases have not identified any acceptable reason for qualifying the protection afforded by the Clause for “the ‘citizen of State A who ventures into State B’ to settle there and establish a home.” Permissible justifications for discrimination between residents and nonresidents are simply inapplicable to a nonresident’s exercise of the right to move into another State and become a resident of that State.

What is at issue in this case, then, is this third aspect of the right to travel–the right of the newly arrived citizen to the same privileges and immunities enjoyed by other citizens of the same State. That right is protected not only by the new arrival’s status as a state citizen, but also by her status as a citizen of the United States. That additional source of protection is plainly identified in the opening words of the Fourteenth Amendment: “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. . . .” 

Despite fundamentally differing views concerning the coverage of the Privileges or Immunities Clause of the Fourteenth Amendment, most notably expressed in the majority and dissenting opinions in the Slaughter-House Cases, 16 Wall. 36 (1873), it has always been common ground that this Clause protects the third component of the right to travel. Writing for the majority in the Slaughter-House Cases, Justice Miller explained that one of the privileges conferred by this Clause “is that a citizen of the United States can, of his own volition, become a citizen of any State of the Union by a bona fide residence therein, with the same rights as other citizens of that State.” Id., at 80. . . .

That newly arrived citizens “have two political capacities, one state and one federal,” adds special force to their claim that they have the same rights as others who share their citizenship. Neither mere rationality nor some intermediate standard of review should be used to judge the constitutionality of a state rule that discriminates against some of its citizens because they have been domiciled in the State for less than a year. The appropriate standard may be more categorical than that articulated in Shapiro,  but it is surely no less strict.

Because this case involves discrimination against citizens who have completed their interstate travel, the State’s argument that its welfare scheme affects the right to travel only “incidentally” is beside the point. Were we concerned solely with actual deterrence to migration, we might be persuaded that a partial withholding of benefits constitutes a lesser incursion on the right to travel than an outright denial of all benefits. But since the right to travel embraces the citizen’s right to be treated equally in her new State of residence, the discriminatory classification is itself a penalty.

It is undisputed 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 the length of time that they have resided in California. We thus have no occasion to consider what weight might be given to a citizen’s length of residence if the bona fides of her claim to state citizenship were questioned. Moreover, because whatever benefits they receive will be consumed while they remain in California, there is no danger that recognition of their claim will encourage citizens of other States to establish residency for just long enough to acquire some readily portable benefit, such as a divorce or a college education, that will be enjoyed after they return to their original domicile.

The classifications challenged in this case–and there are many-are defined entirely by (a) the period of residency in California and (b) the location of the prior residences of the disfavored class members. The favored class of beneficiaries includes all eligible California citizens who have resided there for at least one year, plus those new arrivals who last resided in another country or in a State that provides benefits at least as generous as California’s. Thus, within the broad category of citizens who resided in California for less than a year, there are many who are treated like lifetime residents. And within the broad subcategory of new arrivals who are treated less favorably, there are many smaller classes whose benefit levels are determined by the law of the States from whence they came. To justify § 11450.03, California must therefore explain not only why it is sound fiscal policy to discriminate against those who have been citizens for less than a year, but also why it is permissible to apply such a variety of rules within that class.

These classifications may not be justified by a purpose to deter welfare applicants from migrating to California for three reasons. First, although it is reasonable to assume that some persons may be motivated to move for the purpose of obtaining higher benefits, the empirical evidence reviewed by the District Judge, which takes into account the high cost of living in California, indicates that the number of such persons is quite small-surely not large enough to justify a burden on those who had no such motive. Second, California has represented to the Court that the legislation was not enacted for any such reason. Third, even if it were, as we squarely held in Shapiro v. Thompson, 394 U. S. 618 (1969), such a purpose would be unequivocally impermissible.

Disavowing any desire to fence out the indigent, California has instead advanced an entirely fiscal justification for its multitiered scheme. The enforcement of § 11450.03 will save the State approximately $10.9 million a year. The question is not whether such saving is a legitimate purpose but whether the State may accomplish that end by the discriminatory means it has chosen. An evenhanded, across-the-board reduction of about 72 cents per month for every beneficiary would produce the same result. But our negative answer to the question does not rest on the weakness of the State’s purported fiscal justification. It rests on the fact that the Citizenship Clause of the Fourteenth Amendment expressly equates citizenship with residence: “That Clause does not provide for, and does not allow for, degrees of citizenship based on length of residence.” Zobel, 457 U. S., at 69. It is equally clear that the Clause does not tolerate a hierarchy of 45 subclasses of similarly situated citizens based on the location of their prior residence. Thus § 11450.03 is 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 an 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 schools, parks, and libraries or deprive them of police and fire protection. Indeed it would permit the State to apportion all benefits and services according to the past tax contributions of its citizens.” 394 U. S., at 632-633. . . . 

The question that remains is whether congressional approval of durational residency requirements in the 1996 amendment to the Social Security Act somehow resuscitates the constitutionality of § 11450.03. That question is readily answered, for we have consistently held that Congress may not authorize the States to violate the Fourteenth Amendment. Moreover, the protection afforded to the citizen by the Citizenship Clause of that Amendment is a limitation on the powers of the National Government as well as the States.

Chief Justice Rehnquist, joined by Justice Thomas, dissenting:

The Court today breathes new life into the previously dormant Privileges or Immunities Clause of the Fourteenth Amendment–a Clause relied upon by this Court in only one other decision, Colgate v. Harvey, 296 U. S. 404 (1935), overruled five years later by Madden v. Kentucky, 309 U. S. 83 (1940). It uses this Clause to strike down what I believe is a reasonable measure falling under the head of a “good faith residency requirement.” Because I do not think any provision of the Constitution–and surely not a provision relied upon for only the second time since its enactment 130 years ago–requires this result, I dissent. . . .

I cannot see how the right to become a citizen of another State is a necessary “component” of the right to travel, or why the Court tries to marry these separate and distinct rights. A person 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 Court’s logic, the protections of the Privileges or Immunities Clause recognized in this case come into play only when an individual 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 reciprocal, and one is not a “component” of the other. Indeed, the same dicta from the Slaughter-House Cases quoted by the Court actually treat the right to become a citizen and the right to travel as separate and distinct rights under the Privileges or Immunities Clause of the Fourteenth Amendment. . . .

No doubt the Court has, in the past 30 years, essentially conflated the right to travel with the right to equal state citizenship in striking down durational residence requirements similar to the one challenged here. See, e. g., Shapiro v. Thompson, 394 U. S. 618 (1969) (striking down 1-year residence before receiving any welfare benefit); Dunn v. Blumstein, 405 U. S. 330 (1972) (striking down 1-year residence before receiving the right to vote in state elections); Maricopa County, 415 U. S., at 280-283 (striking down 1-year county residence before receiving entitlement to nonemergency hospitalization or emergency care). These cases marked a sharp departure from the Court’s prior right-to travel cases because in none of them was travel itself prohibited.

Instead, the Court in these cases held that restricting the provision of welfare benefits, votes, or certain medical benefits to new citizens for a limited time impermissibly “penalized” them under the Equal Protection Clause of the Fourteenth Amendment for having exercised their right to travel. The Court thus settled for deciding what restrictions amounted to “deprivations of very important benefits and rights” that operated to indirectly “penalize” the right to travel.  In other cases, 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 a legitimate government purpose. See Zobel v. Williams, 457 U. S. 55, 60 n. 6 (1982); Hooper v. Bernalillo County Assessor, 472 U. S. 612, 618 (1985).

While Zobel and Hooper reached the wrong result in my view, they at least put the Court on the proper track in identifying exactly what interests it was protecting; namely, the right of individuals not to be subject to unjustifiable classifications as opposed to infringements on the right to travel.

The Court today tries to clear much of the underbrush created by these prior right-to-travel cases, abandoning its effort to define what residence requirements deprive individuals of “important rights and benefits” or “penalize” the right to travel. Under its new analytical framework, a State, outside certain ill-defined circumstances, cannot classify its citizens by the length of their residence in the State without offending the Privileges or Immunities Clause of the Fourteenth Amendment. The Court thus departs from Shapiro and its progeny, and, while paying lip service to the right to travel, the Court does little to explain how the right to travel is involved at all. Instead, as the Court’s analysis clearly demonstrates, this case is only about respondents’ right to immediately enjoy all the privileges of being a California citizen in relation to that State’s ability to test the good faith assertion of this right. The Court has thus come full circle by effectively disavowing the analysis of Shapiro, segregating the right to travel and the rights secured by Article IV from the right to become a citizen under the Privileges or Immunities Clause, and then testing the residence requirement here against this latter right. For all its misplaced efforts to fold the right to become a citizen into the right to travel, the Court has essentially returned to its original understanding of the right to travel.

In unearthing from its tomb the right to become a state citizen and to be treated equally in the new State of residence, however, the Court ignores a State’s need to assure that only persons who establish a bona fide residence receive the benefits provided to current residents of the State. The Slaughter-House dicta at the core of the Court’s analysis specifically condition a United States citizen’s right to “become a citizen of any state of the Union” and to enjoy the “same rights as other citizens of that State” on the establishment of a “bona fide residence therein.” 16 Wall., at 80 (emphasis added). Even when redefining the right to travel in Shapiro and its progeny, the Court has “always carefully distinguished between bona fide residence requirements, which seek to differentiate between residents and nonresidents, and residence requirements, such as durational, fixed date, and fixed point residence requirements, which treat established residents differently based on the time they migrated into the State.” 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 the ability to use bona fide residence requirements to ferret out those who intend to take the privileges and run. . . .

While the physical presence element of a bona fide residence is easy to police, the subjective intent element is not. It is simply unworkable and futile to require States to inquire 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 to remain before these new citizens can enjoy certain in-state benefits. Recognizing the practical appeal of such criteria, this Court has repeatedly sanctioned the State’s use of durational residence requirements before new residents receive in-state tuition rates at state universities. Starns v. Malkerson, 401 U. S. 985 (1971), summarily aff’g 326 F. Supp. 234 (Minn. 1970) (upholding 1-year residence requirement for instate tuition). The Court has declared: “The State can establish such reasonable criteria for in-state status as to make virtually certain that students who are not, in fact, bona fide residents of the State, but have come there solely for educational purposes, cannot take advantage of the in-state rates.” Vlandis v. Kline, 412 U. S. 441, 453-454 (1973). The Court has done the same in upholding a 1-year residence requirement for eligibility to obtain a divorce in state courts, see Sosna v. Iowa, 419 U. S. 393, 406-409 (1975), and in upholding political party registration restrictions that amounted to a durational residency requirement for voting in primary elections.

If States can require individuals to reside in-state for a year before exercising the right to educational benefits, the right to terminate a marriage, or the right to vote in primary elections that all other state citizens enjoy, then States may surely do the same for welfare benefits. Indeed, there is no material difference between a 1-year residence requirement applied to the level of welfare benefits given out by a State, and the same requirement applied to the level of tuition subsidies at a state university. The welfare payment here and in-state tuition rates are cash subsidies provided to a limited class of people, and California’s standard of living and higher education system make both subsidies quite attractive. Durational residence requirements were upheld when used to regulate the provision of higher education subsidies, and the same deference should be given in the case of welfare payments. See Dandridge v. Williams, 397 U. S. 471, 487 (1970) (“[T]he Constitution does not empower this Court to second-guess state officials charged with the difficult responsibility of allocating limited public welfare funds among the myriad of potential recipients”).

The Court today recognizes that States retain the ability to determine the bona fides of an individual’s claim to residence, but then tries to avoid the issue. It asserts that because respondents’ need for welfare benefits is unrelated to the length of time they have resided in California, it has “no occasion to consider what weight might be given to a citizen’s length of residence if the bona fides of her claim to state citizenship were questioned.” But I do not understand how the absence of a link between need and length of residency bears on the State’s ability to 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, and yet States may use length of residence as an objective yardstick to channel their benefits to those whose intent to stay is legitimate. . . .

The Court tries to distinguish education and divorce benefits by contending that the welfare payment here will be consumed in California, while a college education or a divorce produces benefits that are “portable” and can be enjoyed after individuals return to their original domicile. But this “you can’t take it with you” distinction is more apparent than real, and offers little guidance to lower courts who must apply this rationale in the future. Welfare payments are a form of insurance, giving impoverished individuals and their families the means to meet the demands of daily life while they receive the necessary training, education, 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 the welfare recipients if they stay in California or 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 he goes. A welfare subsidy is thus as much an investment in human capital as is a tuition subsidy, and their attendant benefits are just as “portable.” More importantly, this foray into social economics demonstrates that the line drawn by the Court borders on the metaphysical, and requires lower courts to plumb the policies animating certain benefits like welfare to define their “essence” and hence their “portability.” As this Court wisely recognized almost 30 years ago, “[t]he intractable economic, social, and even philosophical problems presented by public welfare assistance programs are not the business of this Court.” Dandridge, 397 U.S., at 487.

I therefore believe that the durational residence requirement challenged here is a permissible exercise of the State’s power to “assur[e] that services provided for its residents are enjoyed only by residents.” Martinez, 461 U. S., at 328. The 1-year period established in § 11450.03 is the same period this Court approved in Starns and Sosa. The requirement does not deprive welfare recipients of all benefits; indeed, the limitation has no effect whatsoever on a recipient’s ability to enjoy the full 5-year period of welfare eligibility; to enjoy the full range of employment, training, and accompanying supportive services; or to take full advantage of health care benefits under Medicaid. This waiting period does not preclude new residents from all cash payments, but merely limits them to what they received in their prior State of residence. Moreover, as the Court recognizes, any pinch resulting from this limitation during the 1-year period is mitigated by other programs such as homeless assistance and an increase in food stamp allowance. The 1-year period thus permissibly balances the new resident’s needs for subsistence with the State’s need to ensure the bona fides of their claim to residence.

Justice Clarence Thomas, joined by Chief Justice Rehnquist, dissenting:

I write separately to address the majority’s conclusion that California has violated “the right of the newly arrived citizen to the same privileges and immunities enjoyed by other citizens of the same State.” In my view, the majority attributes a meaning to the Privileges or Immunities Clause that likely was unintended when the Fourteenth Amendment was enacted and ratified. . . .

Unlike the majority, I would look to history to ascertain the original meaning of the Clause. At least in American law, the phrase (or its close approximation) appears to stem from the 1606 Charter of Virginia, which provided that “all and every the Persons being our Subjects, which shall dwell and inhabit within every or any of the said several Colonies . . .  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 3788 (F. Thorpe ed. 1909). Other colonial charters contained similar guarantees. Years later, as tensions between England and the American Colonies increased, the colonists adopted resolutions reasserting their entitlement to the privileges or immunities of English citizenship.

Justice Bushrod Washington’s landmark opinion in Corfield v. Coryell, 6 F. Cas. 546 (No. 3,230) (CCED Pa. 1825), reflects this historical understanding. In Corfield, a citizen of Pennsylvania challenged a New Jersey law that prohibited any person who was not an “actual inhabitant and resident” of New Jersey from harvesting oysters from New Jersey waters. Id., at 550. Justice Washington, sitting as Circuit Justice, rejected the argument that the New Jersey law violated Article IV’s Privileges and Immunities Clause. He reasoned, “we cannot accede to the proposition … that, under this provision of the constitution, the citizens of the several states are permitted to participate in all the rights which belong exclusively to the citizens of any other particular state, merely upon the ground that they are enjoyed 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 nature, 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. . . .”

Washington rejected the proposition that the Privileges and Immunities Clause guaranteed equal access to all public benefits (such as the right to harvest oysters in public waters) that a State chooses to make available. Instead, he endorsed the colonial-era conception of the terms “privileges” and “immunities,” concluding that Article IV encompassed only fundamental rights that belong to all citizens of the United States.

Justice Washington’s opinion in Corfield indisputably influenced the Members of Congress who enacted the Fourteenth Amendment. When Congress gathered to debate the Fourteenth Amendment, Members frequently, if not as a matter of course, appealed to Cor field, arguing that the Amendment was necessary to guarantee the fundamental rights that Justice Washington identified in his opinion.  For just one example, in a speech introducing the Amendment to the Senate, Senator Howard explained the Privileges or Immunities Clause by quoting at length from Corfield. Furthermore, it appears that no Member of Congress refuted the notion that Washington’s analysis in Corfield undergirded the meaning of the Privileges or Immunities Clause.

That Members of the 39th Congress appear to have endorsed the wisdom of Justice Washington’s opinion does not, standing alone, provide dispositive insight into their understanding of the Fourteenth Amendment’s Privileges or Immunities Clause. Nevertheless, their repeated references to the Corfield decision, combined with what appears 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 fundamental rights, rather than every public benefit established by positive law. Accordingly, the majority’s conclusion-that a State violates the Privileges or Immunities Clause when it “discriminates” against citizens who have been domiciled in the State for less than a year in the distribution of welfare benefits-appears contrary to the original understanding and is dubious at best.

. . . Because I believe that the demise of the Privileges or Immunities Clause has contributed in no small part to the current disarray of our Fourteenth Amendment jurisprudence, I would be open to reevaluating its meaning in an appropriate case. Before invoking the Clause, however, we should endeavor to understand what the Framers of the Fourteenth Amendment thought that it meant. We should also consider whether the Clause should displace, rather than augment, portions of our equal protection and substantive due process jurisprudence. The majority’s failure to consider these important questions raises the specter that the Privileges or Immunities Clause will become yet another convenient tool for inventing new rights, limited solely by the “predilections of those who happen at the time to be Members of this Court.” Moore v. East Cleveland, 431 U. S. 494, 502 (1977).