Fundamental Right To Intrastate Travel Essay
Fundamental Right To Intrastate Travel Essay
Fundamental Right To Intrastate Travel Essay
Kathryn E. Wilhelm*
INTRODUCTION
The majority of Americans will likely live a lifetime and never consider
whether they have an intrinsic, fundamental right to travel. They will go to
*
J.D. Candidate, Boston University School of Law, 2011; B.A., Michigan State
University, 2008. I am grateful to my friends and family, especially Jim and Tammy
Wilhelm, for their unqualified love and support. I also thank the editorial staff of the Boston
University Law Review for their thoughtful comments.
2461
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work and school, do their grocery shopping, and visit friends and family
without a second thought about their right to do so. It will not occur to them
that these activities might be restricted by the state or municipality in which
they live.
The right to travel is different from the right to free speech,1 to bear arms,2
and to equal protection under the law.3 These enumerated rights have become
culturally salient; nearly everyone confronts these rights daily and is reminded
that certain constitutional protections follow wherever they go. Even some
rights declared in Supreme Court cases have assumed this culturally relevant
status; anyone who has seen an episode of Law & Order knows that the
accused are entitled to a Miranda warning upon arrest.4 Many people who
have never set foot inside a courtroom, a police station, or a criminal procedure
class can recite a version of the Miranda warning.
The right to free movement differs because it seems so obvious that few
would expect it ever to be challenged.5 When most people get in a car or go
for a walk, they are unconcerned that the state could or would restrict this
behavior. Yet, one may value a right to free movement more highly when he
or she is confronted with its denial. A teenager may feel more strongly about
the recognition of this right if she were barred from volunteering at a
homeless shelter, attending concerts as a music critic, studying with other
students, meeting with friends at their homes or in coffee houses, . . .
auditioning for theater parts, attending ice hockey practice, practicing
astronomy, and dancing at an under-21 dance club after 10 PM.6 Teachers
1 See U.S. CONST. amend. I (Congress shall make no law . . . abridging the freedom of
speech . . . .).
2 See U.S. CONST. amend. II (A well regulated Militia, being necessary to the security of
a free State, the right of the people to keep and bear Arms, shall not be infringed.).
3 See U.S. CONST. amend. XIV, 1 (No State shall . . . deny to any person within its
interchangeably. While there may be some small semantic differences in their usage, both
terms essentially refer to ones right to travel without restriction within the boundaries of a
particular state. Not all courts and scholars follow this formulation. For example, one court
wrote:
While the terms are often used interchangeably, we do not use the right to travel locally
through public spaces and roadways synonymously with a right to freedom of
movement. To be sure, a right to freedom of movement could encompass a right to
localized travel, but it could also include interstate and international travel components.
Johnson v. City of Cincinnati, 310 F.3d 484, 495 (6th Cir. 2002). This Note will take up the
issue of terminology again below. See infra notes 60-62 and accompanying text.
6 Nunez v. City of San Diego, 114 F.3d 935, 939 (9th Cir. 1997) (providing examples of
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interest in intrastate travel rights may heighten if they were unable to work in
school district unless they established in-district residency within ninety days
of employment.7 If a man finds himself without a place to live, he may feel the
sting of the application of anti-vagrancy and homelessness ordinances
restricting where and when he may be in certain public places.8
The importance of a fundamental right to free movement becomes clear only
when an individual is actually confronted with the potential loss of the right. A
fundamental right is inalienable; it is implicit in the concept of ordered
liberty.9 When a government restricts such a right, courts apply strict scrutiny
in reviewing the law potentially at odds with the fundamental right.10 To
survive strict scrutiny, that law must meet a two-part test: first, it must be
justified by a compelling and legitimate state interest and, second, it must be
narrowly tailored to achieve that interest.11
The Supreme Court has never definitively declared that intrastate travel is a
right retained by the American people, let alone a right entitled to strict
scrutiny and the fundamental rights analysis.12 However, many courts have
attempted to articulate the state of the law with respect to the freedom of
movement. Despite or perhaps because of the wide array of opinions on
the issue, litigants are invoking the fundamental right to intrastate travel to
capitalize on the legal uncertainty and advance their cases. Because free
movement implicates many facets of day-to-day life, the argument for a right
or fundamental right arises in a broad assortment of substantive areas of the
law. From family law13 to the regulation of prostitution,14 and juvenile
the ways in which a juvenile curfew ordinance restricts the otherwise lawful activities of
minors).
7 E.g., Wardwell v. Bd. of Educ., 529 F.2d 625, 627-28 (6th Cir. 1976) (finding no
(evaluating an ordinance banning panhandling and finding that it violated the First
Amendment because peaceful begging qualifies as communicative activity).
9 Palko v. Connecticut, 302 U.S. 319, 324-25 (1937).
10 See, e.g., Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 357 (1977)
13 See, e.g., Watt v. Watt, 971 P.2d 608, 615-16 (Wyo. 1999) (The right of travel
enjoyed by a citizen carries with it the right of a custodial parent to have the children move
with that parent.).
14 See, e.g., City of New York v. Andrews, 719 N.Y.S.2d 442, 454 (Sup. Ct. 2000)
(holding that a law excluding certain individuals from Queens Plaza intrudes upon
defendants freedom to travel far more than is necessary to serve the legitimate
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curfew ordinances improperly burdened the juveniles right to travel freely because they
were not narrowly tailored and therefore could not survive strict scrutiny).
16 See, e.g., Pencak v. Concealed Weapon Licensing Bd., 872 F. Supp. 410, 414 (E.D.
Mich. 1994) (Plaintiff has cited no authority for the proposition that denial of a concealed
weapon . . . penalizes the right to travel.).
17 United States v. Guest, 383 U.S. 745, 757 (1966).
18 Johnson v. City of Cincinnati, 310 F.3d 484, 498 (6th Cir. 2002).
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19 See, e.g., Shapiro v. Thompson, 394 U.S. 618, 629 (1969) (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.).
20 Smith v. Turner (The Passenger Cases), 48 U.S. (7 How.) 283, 572-73 (1849) (holding
states may not tax a ship on the basis of the number of passengers in a particular designated
category on board).
21 Id. at 492 (opinion of Taney, J.).
22 United States v. Wheeler, 254 U.S. 281, 293 (1920). While Wheeler may seem to
establish the fundamental right to intrastate travel (through its use of the phrase to move at
will from place to place therein), the Supreme Court intended only to establish a
fundamental right to interstate travel, leaving the intrastate travel determination for another
day. See id. at 297-98 (limiting the essential holding to a finding that the Constitution
preserved the right of citizens of the States to reside peacefully in, and to have free ingress
into and egress from, the several States).
23 Id. at 293.
24 United States v. Guest, 383 U.S. 745, 757 (1966).
26 Id. at 638 (applying strict scrutiny to statutory provisions denying welfare aid based on
27
Id. at 643 (footnote omitted).
28
526 U.S. 489 (1999).
29 Id. at 500.
30 Id. at 492.
31 Id. ([Californias] 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 familys prior
residence.).
32 Id. at 500.
33 Id. at 502.
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itself, the Commerce Clause, the Equal Protection Clause, and each of the
Due Process Clauses.34
The extent to which courts have differed on the source (or sources) of such a
right is partially explained by the rights lack of textual basis in the
Constitution, and further explicable by the Supreme Court Justices divergent
views over the years.
In the influential 1941 decision of Edwards v. California,35 the Supreme
Court asserted that the right to travel originates in the Commerce Clause.36
The Commerce Clause empowers Congress [t]o regulate Commerce with
foreign Nations, and among the several States, and with the Indian Tribes.37
The Court stated that the statute at issue, which prohibit[ed] the transportation
of indigent persons across the California border, placed an intended and
immediate burden on interstate commerce.38
The Due Process Clause of the Fifth Amendment also is cited as a
constitutional source of the right to travel.39 In the 1960s, Justice Harlan
authored at least two Supreme Court opinions which located the constitutional
protection for the right to travel (at least partially) in due process.40 Because
the restriction of a citizens movement from state to state may infringe upon
34 Lutz v. City of York, 899 F.2d 255, 260-61 (3d Cir. 1990) (citations and internal
36 Id. at 172 (Article I, 8 of the Constitution delegates to the Congress the authority to
regulate interstate commerce. And it is settled beyond question that the transportation of
persons is commerce, within the meaning of that provision.). While the majority
approved interstate travel rights under the Commerce Clause, four Justices argued that, in
the alternative, the right is protected under the Privileges or Immunities Clause of the
Fourteenth Amendment. Id. at 178 (Douglas, J., concurring) (The right to move freely
from State to State is an incident of national citizenship protected by the privileges and [sic]
immunities clause of the Fourteenth Amendment against state interference.); id. at 183
(Jackson, J., concurring) (While instances of valid privileges or immunities must be but
few, I am convinced that this is one.).
37 U.S. CONST. art. I, 8, cl. 3.
39 See, e.g., Aptheker v. Secy of State, 378 U.S. 500, 505 (1964) (We hold . . . that 6
of the Control Act too broadly and indiscriminately restricts the right to travel and thereby
abridges the liberty guaranteed by the Fifth Amendment.); Kent v. Dulles, 357 U.S. 116,
125 (1958) (The right to travel is part of the liberty of which the citizen cannot be
deprived without due process of law under the Fifth Amendment.).
40 See Shapiro v. Thompson, 394 U.S. 618, 629 (1969) (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.); United States v. Guest, 383 U.S. 745, 769-70 (1965) (Harlan, J., concurring in
part and dissenting in part) (finding that the Due Process Clause is [o]ne other possible
source for the right to travel).
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that citizens liberty, the Supreme Court has held that such restrictions are
subject to the protections of the Fifth Amendments Due Process Clause.41
Alternatively, the Supreme Court has pointed to the Articles of
Confederation as a potential source for the right to interstate travel. In Zobel v.
Williams,42 Justice OConnors concurring opinion indicated that the Article
IV Privileges and Immunities Clause derives from Article IV of the Articles of
Confederation, a document which expressly recognized the right to interstate
travel.43 The Articles of Confederation state that 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 respectively.44 Justice
OConnor contended that the Framers intended to incorporate this provision by
implication in the Privileges and Immunities Clause when the Constitution
replaced the Articles of Confederation.45 After Justice OConnors concurring
opinion in Zobel, later decisions further relied on the Articles of Confederation
as a major source of the fundamental right to interstate travel.46
Recently, courts have relied on yet another constitutional provision as a
source of the right to interstate travel. The Saenz decision explained that the
Privileges or Immunities Clause of the Fourteenth Amendment is one source of
and protection for the fundamental right to interstate travel.47 The Clause
states that [n]o State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States.48 Justice Stevens
41 Kent, 357 U.S. at 125-27 (The right to travel is part of the liberty of which the
citizen cannot be deprived without due process of law under the Fifth Amendment.).
42 457 U.S. 55 (1982).
45 See Zobel, 457 U.S. at 79-80 (OConnor, J., concurring) (explaining that the drafters of
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. (footnote omitted)
(quoting U.S. v. Guest, 383 U.S. 745, 758 (1966))).
47 Saenz, 526 U.S. at 502-03.
48 U.S. CONST. amend. XIV, 1. The Privileges or Immunities Clause, located in the
Fourteenth Amendment, is not to be confused with the Privileges and Immunities Clause,
which is located in Article IV, Section 2. The Privileges and Immunities Clause states that
[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in
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cited the Privileges or Immunities Clause, explaining that the right of new
citizens of a state to enjoy the same benefits as other citizens of that state is
protected not only by the new arrivals status as a state citizen, but also by her
status as a citizen of the United States.49 In other words, citizenship of the
United States protects certain rights against infringement by the states; the
Saenz Court recognized the right to interstate travel as one of these component
privileges or immunities.50
50 For excellent discussions of the history and usage of both the Privileges or Immunities
Clause and the Privileges and Immunities Clause, see Richard L. Aynes, Ink Blot or Not:
The Meaning of Privileges and/or Immunities, 11 U. PA. J. CONST. L. 1295 (2009) (exploring
the use of the terms privileges and immunities throughout American history); Robert G.
Natelson, The Original Meaning of the Privileges and Immunities Clause, 43 GA. L. REV.
1117 (2009) (explaining the history and meaning of the Privileges and Immunities Clause
and detailing the Constitutional Conventions choice to omit the right to travel); Nicole I.
Hyland, Note, On the Road Again: How Much Mileage Is Left on the Privileges or
Immunities Clause and How Far Will It Travel?, 70 FORDHAM L. REV. 187 (2001)
(describing the Saenz decisions effect on the right to travel through its revival of the
Privileges or Immunities Clause).
51 400 U.S. 112 (1970).
53 See Meml Hosp. v. Maricopa County, 415 U.S. 250, 255-56 (1974) (refusing to draw
a constitutional distinction between interstate and intrastate travel because the distinction
would be inconsequential to the courts holding). Compare King v. New Rochelle Mun.
Hous. Auth., 442 F.2d 646, 648 (2d Cir. 1971) (holding the two rights are constitutionally
on the same footing), with Wardwell v. Bd. of Educ., 529 F.2d 625, 627 (1976) (refusing to
apply Shapiro to intrastate travel, thus implying the two cannot be treated as constitutionally
the same).
54 See, e.g., King, 442 F.2d at 648; Gregory B. Hartch, Comment, Wrong Turns: A
Critique of the Supreme Courts Right to Travel Cases, 21 WM. MITCHELL L. REV. 457, 470
2470 BOSTON UNIVERSITY LAW REVIEW [Vol. 90: 2461
of the right to interstate travel will apply to intrastate travel as well.55 In fact,
for those who suggest that the right to intrastate travel is inseparable from the
right to interstate travel, the sources of the rights likely overlap.56
However, some courts have rejected the theory that the rights to interstate
and intrastate travel are so closely intertwined. For example, in Eldridge v.
Bouchard,57 a district court held that [h]aving a fundamental right of interstate
travel does not necessitate recognizing a fundamental right of intrastate travel.
In fact, it is entirely consistent to recognize the right of interstate travel without
recognizing the right of intrastate travel.58 The Eldridge court explained that
the right of interstate travel is rooted in the Privileges and Immunities Clause, a
Clause that creates no protections that bind a state against its own citizens.59
Thus, under the Eldridge interpretation, a state would not violate the Privileges
and Immunities Clause by restricting its citizens ability to move freely within
its own borders. By interpreting the two rights as conceptually and
constitutionally distinct, the Eldridge court may have foreclosed one avenue
for the establishment of a fundamental right to intrastate travel.
To make matters worse, courts and scholars routinely use inexact
vocabulary in referring to intrastate travel rights.60 While referring largely to
(1995) (explaining that no court has offered a convincing explanation for why the right to
travel should be confined to interstate travel, and suggesting that common sense dictates
that they should be treated similarly).
55 One exception is the Commerce Clause, which has been used to support a right to
interstate travel. See supra notes 35-38 and accompanying text. Article I of the
Constitution authorizes only congressional legislative activity. See U.S. CONST. art. I, 1
(All legislative Powers herein granted shall be vested in a Congress of the United States . .
. .). In contrast, the argument for a fundamental right to intrastate travel mainly involves
state or municipal legislation. Thus, despite the recent burgeoning of jurisprudential use of
the Commerce Clause in matters seemingly limited to purely in-state activity, see, e.g.,
Gonzales v. Raich, 545 U.S. 1, 17 (2005), the Commerce Clause is neither a likely nor
viable source for the establishment of a right to free movement.
56 See, e.g., State v. Burnett, 755 N.E.2d 857, 865 (Ohio 2001) ([T]he right to travel
within a state is no less fundamental than the right to travel between the states.).
57 645 F. Supp. 749 (W.D. Va. 1986).
58 Id. at 754.
59 Id. (Because the Privileges and Immunities Clause protections do not extend to a
states own citizens, then there is no parallel requirement that a court recognize a new
fundamental right of intrastate travel.).
60 Several Notes and Comments attempt to sort out the ambiguous language applied to
intrastate travel rights. See, e.g., Benjamin C. Sasse, Note, Curfew Laws, Freedom of
Movement, and the Rights of Juveniles, 50 CASE W. RES. L. REV. 681, 698-710 (2000)
(discussing how imprecise phrasing, and not a doctrinal disagreement, caused the circuit
court split regarding existence and scope of the fundamental right to travel on public fora);
Andrew M. Schnitzel, Comment, Balancing Police Action Against an Underdeveloped
Fundamental Right: Is There a Right to Travel Freely on Public Fora?, 114 PENN. ST. L.
REV. 667, 672-74 (2009) (arguing that while it may seem a circuit split exists regarding the
right to intrastate travel, the jurisprudence resulting from the jumble of case law is too
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varied and inconsistent to be considered a single body of law). The efforts undertaken in
these works are beyond the scope of this Note.
61 See Schnitzel, supra note 60, at 671.
62 Bulles v. Hershman, No. Civ.A. 07-2889, 2009 WL 435337, at *6 n.8 (E.D. Pa. Feb.
19, 2009).
63 Formaro v. Polk County, 773 N.W.2d 834, 839 (Iowa 2009) (citing Aptheker v. Secy
of State, 378 U.S. 500, 520 (1964) (Douglas, J., concurring) (Like the right of assembly
and the right of association, [freedom of movement] often makes all other rights meaningful
knowing, studying, arguing, exploring, conversing, observing and even thinking. Once
the right to travel is curtailed, all other rights suffer . . . .)).
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being present on streets, sidewalks, or public places . . . between the hours of 11:00 p.m.
and 6:00 a.m. Id. at 181.
67 See id. at 186.
Clause protects new citizens abilities to travel to and live in other states).
75 Hyland, supra note 50, at 249-53.
76 Alternatively, the lack of precedent could work in the opposite direction, making
courts hesitant to create new rules on the basis of a traditionally obscure and rarely used
clause.
77 Commonwealth v. Weston W., 913 N.E.2d 832, 836 (Mass. 2009). It is important to
note that this case was decided under the Massachusetts Declaration of Rights, rather than
the U.S. Constitution. Id. at 840.
78 Id. at 835.
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right to move about in public.79 The court rooted this right in the Declaration
of Rights, Massachusettss state constitution, but the same rationale can be
applied to the U.S. Constitution. Neither the Declaration of Rights nor the
U.S. Constitution contains explicit language authorizing the right to intrastate
travel, but both documents contain rights that are arguably meaningless
without a citizens ability to move freely. Commonwealth v. Weston W.
contains the proposition that [i]nherent in the right to life, liberty, and
happiness is the right to move freely and peacefully in public without
interference by police.80 This argument could easily be applied by analogy to
federal constitutional protections.
79
Id. at 841.
80
Id. at 840.
81 Kent v. Dulles, 357 U.S. 116 (1958).
82 Id. at 125-26 (tracing the right to travels Anglo-Saxon history to the Magna Carta).
83 Id. at 126.
84 Aptheker v. Secy of State, 378 U.S. 500, 519-20 (1964) (Douglas, J., concurring)
(explaining that the Constitution affords this right to all citizens, though they may use it at
times for mischievous purposes, because it is part of the price we pay for this free
society).
85 Id.
and [l]oafers or loiterers.87 Justice Douglas wrote again, this time for the
majority of the Court, stating:
These unwritten amenities have been in part responsible for giving our
people the feeling of independence and self-confidence, the feeling of
creativity. These amenities have dignified the right of dissent and have
honored the right to be nonconformists and the right to defy
submissiveness. They have encouraged lives of high spirits rather than
hushed, suffocating silence.88
Justice Douglass declaration indicates an elevated level of importance for the
right to move about freely. Several courts and scholars have understood that
implicit in this dicta is a fundamental right to intrastate travel.89
A short time after Papachristou, Justice Marshall authored a dissenting
opinion further supporting a fundamental right to free movement.90 The
opinion argued that the freedom to leave ones house and move about at will
is of the very essence of a scheme of ordered liberty.91 These precedents
thus lend at least some support for the claim that the Supreme Court already
has sanctioned the fundamentality of the right to free movement.
Nevertheless, other Supreme Court dicta arguably cut in the opposite
direction, countering the fundamentality of the right to intrastate travel. The
Supreme Courts decision in Bray v. Alexandria Womens Health Clinic92
provides fodder for critics of the fundamental right to intrastate travel. In
Bray, a group of abortion clinics and abortion rights activists sought a
permanent injunction against anti-abortion demonstrators, hoping to prevent
them from protesting in the vicinity of clinics providing abortions or abortion-
related counseling services.93 The plaintiffs argued that the defendants
87 Id. at 164 (overturning the defendants convictions and holding a city vagrancy
89 See, e.g., City of Chicago v. Morales, 527 U.S. 41, 105 (1999) (Thomas, J., dissenting)
(That case . . . contains some dicta that can be read to support the fundamental right [to free
movement.]); Waters v. Barry, 711 F. Supp. 1125, 1134 (D.D.C. 1989) (citing
Papachristou in declaring a fundamental right to free movement); Tona Trollinger, The
Juvenile Curfew: Unconstitutional Imprisonment, 4 WM. & MARY BILL RTS. J. 949, 983-84
(1996); Jamie Michael Charles, Note, Americas Lost Cause: The Unconstitutionality of
Criminalizing Our Countrys Homeless Population, 18 B.U. PUB. INT. L.J. 315, 332 & n.164
(2009).
90 Bykofsky v. Borough of Middletown, 429 U.S. 964, 964-65 (1976) (Marshall, J.,
nonemergency juvenile curfew interferes with the freedom to leave ones house and that a
law that significantly intrudes on this freedom was unlikely to survive constitutional
scrutiny).
92 506 U.S. 263 (1993).
93 Id. at 266.
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94 Id. at 266-67. The plaintiffs sought injunctive relief under clause 1 of 42 U.S.C.
1985(3) which prohibits conspiracies to interfere with civil rights. Id. at 267.
95 Id. at 277 (explaining that an injunction would only restrict the demonstrators
movement within a single state, i.e., in the immediate vicinity of the abortion clinics).
96 310 F.3d 484 (6th Cir. 2002).
99 Id. at 255-56.
100 See, e.g., City of Chicago v. Morales, 527 U.S. 41, 105 n.5 (Thomas, J., dissenting)
support for a generalized right to free movement was only dicta in cases that involved
travel across borders, not mere locomotion.).
102 Id.
103 Id. (citing Maricopa County, 415 U.S. at 255 ([E]ven a bona fide residence
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requirement would burden the right to travel if travel meant merely movement. (emphasis
added))).
104 King v. New Rochelle Mun. Hous. Auth., 442 F.2d 646, 648 (2d Cir. 1971).
105 Lutz v. City of York, 899 F.2d 255, 261 (3d Cir. 1990) (indicating the existence of a
assume without deciding that the right to move about freely is a fundamental right.). The
court was reluctant to go further because the case concerned the constitutionality of a
juvenile curfew ordinance, and the judges were unsure how the interplay of differential
treatment of minors and this fundamental right would affect the analysis. Id. For further
discussion of the complications implicit in deciding juvenile curfew cases, see infra Part
III.A.
107 See, e.g., Callaway v. Samson, 193 F. Supp. 2d 783, 784 (D.N.J. 2002) (holding
unconstitutional a durational residency requirement because it violated the due process right
to intrastate travel and could not survive intermediate scrutiny); Hawk v. Fenner, 396 F.
Supp. 1, 4 (D.S.D. 1975) (The constitutional right to travel includes not only interstate but
intrastate travel as well.).
108 Waters v. Barry, 711 F. Supp. 1125, 1134 (D.D.C. 1989).
109 Id. (One has the right to move about . . . because the right to move about if even
4. State Courts
Some states have a long-established tradition of recognizing the right to
intrastate travel, applying heightened scrutiny when the right is infringed upon.
North Carolina, for example, has protected the fundamental right to intrastate
travel under both the state constitution and the Fourteenth Amendment to the
U.S. Constitution since the early 1970s.119 One of the earliest North Carolina
110 See Wright v. City of Jackson, 506 F.2d 900, 903-04 (5th Cir. 1975).
111 Id. at 902-03.
112 Id. at 904 (holding that the municipal employee residence requirement rationally
114 Wardwell v. Bd. of Educ., 529 F.2d 625, 627 (6th Cir. 1976).
115 Id. at 628 (applying rational basis to a continuing requirement affecting only intrastate
travel).
116 Johnson v. Cincinnati, 310 F.3d 484, 494 (6th Cir. 2002) (holding that the rational
basis test does not govern every impairment of an asserted right to intrastate travel).
117 Id. at 495.
118 See, e.g., Eddleman v. Center Township, 723 F. Supp. 85, 89 n.8 (S.D. Ind. 1989)
(Because the U.S. Constitution does not deem intrastate travel to be a fundamental right,
classifications on this basis can only be subjected to low-level scrutiny under federal equal
protection analysis.).
119 See Standley v. Town of Woodfin, 661 S.E.2d 728, 730 (N.C. 2008) ([T]his Court
has recognized a right to intrastate travel, stating that the right to travel upon the public
streets of a city is a part of every individuals liberty, protected by the Due Process Clause
of the Fourteenth Amendment to the United States Constitution and by . . . the Constitution
of North Carolina. (quoting State v. Dobbins, 178 S.E.2d 449, 456 (N.C. 1971))).
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cases held that the right to travel on the public streets is a fundamental
segment of liberty and as such its absolute prohibition requires substantially
more justification than would otherwise be required for ordinary state
action.120 Likewise, in Treacy v. Municipality of Anchorage, the Alaska
Supreme Court affirmed as fairly obvious that the right to intrastate travel is
fundamental.121 The court wrote: There is no question that the rights at issue
in this case the rights to move about, to privacy, to speak are
fundamental.122 The Treacy opinion briefly summarizes federal case law
before concluding that under the U.S. Constitution the right to intrastate travel
is fundamental, although the court did not address its scope.123
The Ohio Supreme Court has also examined the existence of the right under
federal constitutional history and precedent.124 The court concluded that
[h]istorically, it is beyond contention that being able to travel innocently
throughout the country has been an aspect of our national freedom.125
Because the right is so rooted in the collective understanding of how the nation
operates, the court alleged that recognizing a right of intrastate travel is hardly
groundbreaking.126
Several states recently took steps to establish the fundamentality of the right
to intrastate travel. Montana affirmatively established free movement rights in
2009.127 In examining a custodial matter pursuant to a divorce, the court first
looked at the federal cases establishing a fundamental right to interstate
travel.128 Montanas high court summed up its opinion by declaring [i]t is
difficult to conceive that the right to travel protected by the United States
Constitution does not include a right to freely travel within each of the
states.129 The Montana Supreme Court thus relied heavily on the correlation
between interstate and intrastate travel in recognizing the existence of a
fundamental right to free movement.
Massachusetts is one of the most recent states to weigh in on the recognition
of a fundamental right to intrastate travel.130 In response to a 2009 challenge to
a juvenile curfew statute, the Massachusetts Supreme Judicial Court held for
the first time that the right to intrastate travel is fundamental under the states
124 State v. Burnett, 755 N.E.2d 857, 864 (Ohio 2001) (Precedent of the United States
Supreme Court and federal courts of appeals, and our own precedent cause us to conclude
that such a constitutional right of travel within a state exists.).
125 Id. at 865.
126 Id.
130 See Commonwealth v. Weston W., 913 N.E.2d 832, 838-40 (Mass. 2009).
2480 BOSTON UNIVERSITY LAW REVIEW [Vol. 90: 2461
131
Id. at 836 (We conclude that the Lowell ordinance implicates, and the Declaration of
Rights protects, a fundamental right of free movement.).
132 Id. at 836 n.2 (We therefore do not consider the defendants claims under the United
States Constitution.).
133 Id. at 845-46. Courts in many other states have considered the question of the
existence and fundamentality of the right to free movement or intrastate travel. For a table
illustrating the geographic and substantive diversity of cases approving a right to intrastate
travel, see infra Appendix.
2010] FREEDOM OF MOVEMENT 2481
have curfews on teenage youth, including 78 of the 92 cities with a population greater than
180,000. Tony Favro, Youth Curfews Popular with American Cities but Effectiveness and
Legality are Questioned, CITY MAYORS SOCIETY (July 21, 2009), http://www.citymayors.
com/society/usa-youth-curfews.html.
137 DALLAS, TEX., MUN. CODE ch. 31, art. 1, 31-33, available at http://www.amlegal.
2482 BOSTON UNIVERSITY LAW REVIEW [Vol. 90: 2461
Many affected minors appealed their convictions for violations of the curfews
on the basis of constitutional rights with somewhat limited success.138
Challengers to juvenile curfew ordinances often assert that the government has
infringed upon a fundamental right to free movement as the basis for their
appeals.
At least one complication arises when the right to intrastate travel forms the
crux of a challenge to juvenile curfew laws: the involvement of minors in the
fundamental rights analysis. Assuming a challenger establishes a fundamental
right, should it apply in the same way to minors? While minors often face
restrictions on their rights, minority status does not strip a child of his or her
constitutional rights, nor does it automatically relegate the child to some lesser
position with respect to the Constitution.139 As the Supreme Court once said:
Constitutional rights do not mature and come into being magically only when
one attains the state-defined age of majority.140 On the other hand, the
Supreme Court has made it clear that the government has a substantial interest
in the protection of minors, an interest that must weigh against any
fundamental right.141 Minors constitutional rights must be evaluated with
sensitivity and flexibility because of their peculiar vulnerability and their
inability to make critical decisions in an informed, mature manner, among
other reasons.142 Thus, there is some uncertainty about the extent to which the
fundamental rights methodology applies to youths and their rights to intrastate
travel in juvenile curfew cases.
In application, individual courts have addressed the question of the
appropriate level of scrutiny using a variety of rationales. In Ramos v.
Vernon,143 the Second Circuit applied intermediate scrutiny to the challenge of
a juvenile curfew.144 In a jurisdiction that had recognized a fundamental right
to intrastate travel, the court assumed that strict scrutiny would have applied to
com/dallas_tx/ (choose Frames; then expand menu to select Volume II, Chapter 31,
Article 1, Section 31-33). This curfew was enacted in 1991 and challenged in Qutb v.
Strauss, 11 F.3d 488, 490 (5th Cir. 1993). The Dallas ordinance has been used as a model
by some cities wishing to enact curfews because the Fifth Circuit upheld its constitutionality
after applying strict scrutiny. See Qutb, 11 F.3d at 492-94.
138 For a discussion of litigation surrounding juvenile curfew ordinances, see Gregory Z.
Chen, Note, Youth Curfews and the Trilogy of Parent, Child, and State Relations, 72 N.Y.U.
L. REV. 131, 149-59 (1997).
139 See, e.g., Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 74 (1976)
(Minors, as well as adults, are protected by the Constitution and possess constitutional
rights.); Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 511 (1969)
(Students in school as well as out of school are persons under our Constitution. They are
possessed of fundamental rights which the State must respect . . . .).
140 Danforth, 428 U.S. at 74.
141 See, e.g., Bellotti v. Baird, 443 U.S. 622, 634 (1979).
142 Id.
145 Id.
146 Id. The Ramos court also clarified its position that the right at issue in the case was
narrower than an adults right to free movement because the minors challenging the
statute asserted a right to move about freely with parental consent. Id. at 176 n.3.
147 Id. at 180.
148 Commonwealth v. Weston W., 913 N.E.2d 832, 836 (Mass. 2009).
152 See Waters v. Barry, 711 F. Supp. 1125, 1139 (D.D.C. 1989) (overturning a juvenile
curfew because it bore little relation to the nature of the problem after evidence indicated
that the curfews were ineffective measures of crime prevention and simply not so closely
2484 BOSTON UNIVERSITY LAW REVIEW [Vol. 90: 2461
related to the protection of minors, or to curing the citys problems with drugs and violence,
as to justify the infringement of constitutional interests).
153 Brian Privor, Dusk Til Dawn: Childrens Rights and the Effectiveness of Juvenile
156 Id. at 837 (explaining that the rule mandates that no sex offender may reside within a
[Formaro] claims that the statute effectively prohibits him from traveling to any
location where he may fall asleep within the 2000-foot zone, bars him from
participating in overnight political assemblies, overnight religious assemblies, or any
2010] FREEDOM OF MOVEMENT 2485
other overnight lawful assembly, including family gatherings, and prevents him from
accessing medical care by criminalizing any effort to receive medical services
involving the use of anesthetic or overnight stays in area hospitals, all of which fall
within 2000 feet of a protected location.
Id.
159 Id. at 840.
160 Doe v. Miller, 405 F.3d 700, 713 (8th Cir. 2005) (The Iowa residency restriction
does not prevent a sex offender from entering or leaving any part of the State, including
areas within 2000 feet of a school or child care facility, and it does not erect any actual
barrier to intrastate movement.). The court analogized this type of residency restriction to
employment residency requirements that have been upheld as not violative of intrastate
travel rights. Id.; see also infra Part III.D.
161 650 S.E.2d 618 (N.C. Ct. App. 2007).
162 Id. at 620-21 ([Plaintiff] also argues that the ordinance denies him his constitutional
freedom to intrastate travel as recognized in Williams v. Fears . . . (finding that the right,
ordinarily, of free transit from or through the territory of any state is a right secured by the
14th Amendment). (citation omitted)).
163 Id. at 621 (quoting Johnson v. City of Cincinnati, 310 F.3d 484, 498 (6th Cir. 2002)).
164 Id.
165 See, e.g., Bulles v. Hershman, No. Civ.A. 07-2889, 2009 WL 435337, at *2-3 (E.D.
Pa. Feb. 19, 2009) (finding that the plaintiff lacked standing to challenge an ordinance
restricting the residence of sex offenders because the plaintiffs restriction was imposed as a
condition of probation).
2486 BOSTON UNIVERSITY LAW REVIEW [Vol. 90: 2461
offenders actual crime, his or her likelihood of recidivism, and other factors
specific to the person.166 In particular, one court found that the plaintiff
challenging a sex offender residency restriction lacked standing because his
residency was restricted by the terms of his probation, not by the citys
ordinance.167
When considering residency restrictions and requirements, some courts have
charged that [e]ven a bona fide residence requirement would burden the right
to travel, if travel meant merely movement. But, in Shapiro, the Court
explained that [t]he residence requirement and the one-year waiting-period
requirement are distinct and independent prerequisites for assistance and only
the latter was held to be unconstitutional.168 In itself, nothing about this
reasoning is faulty, or even particularly troubling. In fact, a residency
restriction does infringe upon free movement, and that infringement matters if
citizens, including admittedly unpopular sex offender citizens, are entitled to a
fundamental right to move freely.
That does not, however, mean that the residency restriction is invalid.
Instead, it only suggests that such a restriction should be subject to strict
scrutiny. Such a restriction sets off red flags because it implicates a
fundamental right; it causes us to examine the statute with a critical eye. If and
when a state can articulate a compelling interest in the restriction and
demonstrate that the restriction is narrowly tailored, a court may uphold the
legislation and citizens can rest assured that the state is justified in its actions.
166
See, e.g., Fullmer v. Mich. Dept of State Police, 207 F. Supp. 2d 650, 662 (E.D.
Mich. 2002) (invalidating Michigans sex offender registry as violative of the Due Process
Clause because it did not provide affected individuals with an opportunity to be heard on
whether, and to what extent, public notification of sex offenders registry information is
necessary to protect the public); see also Cafeteria & Rest. Workers Union, Local 473 v.
McElroy, 367 U.S. 886, 895 (1961) (The very nature of due process negates any concept of
inflexible procedures universally applicable to every imaginable situation. (citing FCC v.
WJR, The Goodwill Station, Inc., 337 U.S. 265, 275-76 (1949))).
167 Bulles, 2009 WL 435337, at *3 (stating that because the restriction on residency was
imposed by the Pennsylvania Board of Probation and Parole, the court could not redress the
harm alleged by Bulles by invalidating the ordinance).
168 See Meml Hosp. v. Maricopa County, 415 U.S. 250, 255 (1974) (second alteration in
176 Id. at 498-504 (finding that the statute advanced compelling state interests such as
promoting identity with the community among police and firemen and deterring crime
through the presence of off-duty police in the municipality).
177 Wright, 506 F.2d at 901.
178 Id.
180 Id. at 902 (quoting Ector v. City of Torrance, 514 P.2d 433, 436 (Cal. 1973)).
181 Id. at 901-02.
182 Id. at 903-04.
183 Wardwell v. Bd. Of Educ., 529 F.2d 625, 626 (6th Cir. 1976).
emplo_stand.asp (last visited Apr. 9, 2010) ([A]t least fifty (50) percent of the total
employee worker hours in each trade shall be by bona-fide Boston Residents.);
Requirements, PHILADELPHIA POLICE DEPARTMENT, http://www.phillypolice.com/careers/req
uirements (last visited Sept. 3, 2010) (Each non-resident hired for the position of Police
Officer is required to establish residency within the City of Philadelphia no later than six (6)
months after completion of the probationary period.); Residency Requirement, CITY OF
MADISON, http://www.cityofmadison.com/Employment/residencyRequirement.cfm (last
visited Apr. 9, 2010) (Some City positions require that employees be residents of the City
of Madison.).
187 For example, Krzewinski, Wright, and Wardwell were decided in 1972, 1975, and
1976, respectively.
188 See, e.g., Lima v. State, 909 N.E.2d 616, 618-21 (Ohio 2009) (rejecting two
restrictions and holding that the state has the authority to enact such a ban).
189 Johnson v. City of Cincinnati, 310 F.3d 484, 487-88 (6th Cir. 2002).
193 City of Cincinnati v. Johnson, 539 U.S. 915 (2003); Ohio v. Burnett, 535 U.S. 1034
(2002).
194 Nichole Stelle Garnett, Relocating Disorder, 91 VA. L. REV. 1076, 1097 (2005).
2490 BOSTON UNIVERSITY LAW REVIEW [Vol. 90: 2461
parolees right to travel, stating that [the appellant] committed crimes, and the
punishment for these crimes includes stripping him of control over where he
shall live . . . . Some choice was restored to [him] when he was paroled, but
[he] received no more than statutes and binding regulations gave him.195 The
case holds that a parolee has no right to travel that supersedes the conditions of
his parole.196 There is thus some constitutional uncertainty as to the interaction
between a convicted persons potential fundamental right to free movement
and the States interest in controlling his or her whereabouts or residence.197
F. Custodial Battles
An unexpected area in which the constitutional right to intrastate travel
arises is in the context of custody orders in divorce proceedings. Some divorce
decrees attempt to limit the extent to which the custodial parent may relocate
his or her residence. One Wyoming case provides a fairly representative
example. In Watt v. Watt,198 a divorce decree awarded the plaintiff primary
custody of the parties three children but stated that should she move more than
fifty miles away, custody would automatically shift from the plaintiff to her
ex-husband, the defendant.199 The plaintiff wanted to move to Laramie,
Wyoming to pursue a graduate degree in pharmacy, so she sought approval
from the court to move more than fifty miles away.200 Her childrens father
subsequently filed for a change in custody, which the trial court granted.201 On
appeal, the Supreme Court of Wyoming held that the trial judges conditioning
custody upon the plaintiffs residence infringed upon her right to travel.202
Wyomings high court gave a detailed history of intrastate travel rights under
the U.S. and Wyoming Constitutions before concluding that a fundamental
right to intrastate travel existed.203 The court wrote:
The right to travel freely throughout the state is a necessary and
fundamental aspect of our emancipated society, and it is retained by the
citizens. It indeed would be incongruent to identify a fundamental right
to travel protected by the Constitution of the United States with respect to
195
Alonzo v. Rozanski, 808 F.2d 637, 638 (7th Cir. 1986).
196
Id.
197 However, there is a meaningful distinction between a person convicted, registered as
a sex offender, but released from custody, and a parolee who is still subject to the controls
of the state. Further discussion on this point is beyond the scope of this Note.
198 971 P.2d 608 (Wyo. 1999).
200 Id.
201 Id.
202 Id. at 615 (The constitutional question posed is whether the rights of a parent and the
duty of the courts to adjudicate custody serve as a premise for restricting or inhibiting the
freedom to travel of a citizen of the State of Wyoming and of the United States of America.
We hold this to be impossible.).
203 Id.
2010] FREEDOM OF MOVEMENT 2491
interstate travel, and yet to conclude that the right to travel intrastate is
inhibited.204
The opinion then explains that a custodial parents right to free movement
includes the right to have her children move with her, and that no court may
infringe upon that right absent clear evidence . . . demonstrat[ing] another
substantial and material change of circumstance and establish[ing] the
detrimental effect of the move upon the children.205
The Watt decision is also interesting because of the source the court
identifies as the basis of the fundamental right to free movement. Like many
other courts, the Wyoming Supreme Court did not provide one concrete
constitutional source.206 One portion of the decision suggested that the right to
free movement is an unenumerated right retained by the citizens under the
Constitution of the State of Wyoming.207 However, the Court also indicated
that the right to intrastate travel is a component or tagalong right to the
fundamental interstate travel right.208 Thus, despite settling the question of the
existence of the right to intrastate travel in Wyoming, the decision does not
pinpoint the source or sources of that right.
Other courts have also weighed in on residency restrictions imposed by
child custody arrangements, albeit in the tangential context of interstate travel.
These cases are nonetheless relevant to the intrastate travel debate because they
demonstrate the states treatment of the relationship between fundamental
travel rights and the goal of protecting the best interests of the child. For
example, Minnesota eschews a balancing test of the parents constitutional
rights (such as the right to travel and the right to rear ones child) by making
the best interests of the child paramount.209 In contrast, Colorado and New
Mexico apply equal weight to all of the rights implicated when balancing the
competing interests.210
204 Id.
205 Id. at 615-16.
206 See id. at 615 (discussing potential sources of a right to intrastate travel in the U.S.
Constitution, in the Constitution of the State of Wyoming, and as derived from an interstate
travel right).
207 See id. (The enumeration in this constitution, of certain rights shall not be construed
to deny, impair, or disparage others retained by the people. (quoting WYO. CONST. art. III,
36)). The opinion further explains that the right to intrastate travel is a necessary and
fundamental aspect of our emancipated society, and it is retained by the citizens. Id.
208 Id.
209 LaChapelle v. Mitten, 607 N.W.2d 151, 162-64 (Minn. Ct. App. 2000) ([T]he trial
court did not restrict Mittens right to remain in Michigan; the court only required [the
child] to be returned to Minnesota. Any burden on Mittens right to travel arises from her
desire to remain [the child]s sole physical custodian.).
210 In re Marriage of Ciesluk, 113 P.3d 135, 146 (Colo. 2005); Jaramillo v. Jaramillo,
211 See, e.g., Watt, 971 P.2d at 616 (applying a standard which required a substantial and
material change of circumstance and that the move produce a detrimental effect on the
child).
212 See supra Part III.A.
213 See, e.g., Standley v. Town of Woodfin, 661 S.E.2d 728, 730 (N.C. 2008) (finding a
fundamental right to intrastate travel in both the U.S. and North Carolina Constitutions).
214 14 U.S. 304 (1816).
judgments, and harmonize them into uniformity.216 The fact that some
jurisdictions have decided that the U.S. Constitution endows citizens with the
fundamental right to intrastate travel, while other jurisdictions leave their
citizens without such protection, is inimical to the Constitution.
Second, challengers of statutes and ordinances are increasingly invoking
fundamental rights language.217 These free movement challenges are gaining
momentum, particularly in state supreme courts. In the last few years alone,
several states have affirmatively recognized a fundamental right to free
movement or intrastate travel in the context of challenges to juvenile curfews,
drug exclusion zones, and custodial restrictions.218 If the number of challenges
does indeed increase, state and federal trial and intermediate appellate courts
will be faced with increased pressure to decide one way or the other about
the existence of the fundamental right to intrastate travel. There are only two
possible results from such pressure: first, increased diversity in opinions
among the jurisdictions, or second, a clear trend in one direction or the other
about the existence of the right. For the reasons discussed in the preceding
paragraphs, increased diversity should be settled by the only court with the
authority to do so. If a clear trend emerges about the state of the law, a
Supreme Court decision confirming the trend may be necessary to bring the
outliers into conformity. In either case, the highest court in the land is called to
action.
Third, several Supreme Court opinions hint at the existence of the
fundamental right to intrastate travel, without explicitly confirming such a
right.219 Taken as a whole, the Court has used far more language indicating
that it supports a fundamental right to free movement than language to the
contrary. This tendency, in conjunction with the recent wave of litigation
raising intrastate travel issues, suggests that it is the appropriate time for the
Court to settle the issue by granting certiorari in one of the pending challenges
rooted in the fundamental right to free movement.
Fourth, it is not clear that recognizing this fundamental right would be
especially disruptive to existing bodies of law. Though this change would
subject ordinances and statutes restricting free movement to strict scrutiny,
many or even most of the laws and regulations would likely survive the
heightened level of judicial review. Strict scrutiny merely guarantees that
states do not unreasonably or unfairly restrict citizens from exercising their
fundamental rights.
Finally, opponents of the fundamental right to intrastate travel have not yet
articulated a reasonable distinction between the right to interstate travel, which
is fundamental, and the right to intrastate travel. It remains unclear how one
can exercise the right to interstate travel without moving freely within a state.
The Montana Supreme Court articulated this point best when it questioned the
rationality of this distinction: It is difficult to conceive that the right to travel
protected by the United States Constitution does not include a right to freely
travel within each of the states.220
Ultimately, the need for the Supreme Court to rule on the existence of a
fundamental right to intrastate travel is less about establishing new protections
for citizens than it is about the need for consistency and clarity in this area of
the law. The confusion resulting from inconsistent vocabulary impacts too
many substantive areas of law and too many state and federal jurisdictions.
Absent the establishment of an outer boundary for what is and is not
fundamental, United States citizens are subject to differing levels of protection
despite being covered by a single Constitution.
APPENDIX
The following non-exhaustive table demonstrates the geographical and
political diversity of states that have confirmed the right to intrastate travel
under either the states constitution or the U.S. Constitution. In addition to the
states listed, several states have not yet weighed in on the matter.221 Other
states have entertained arguments about freedom of movement but have neither
confirmed nor denied the existence of the right to intrastate travel.222 This
table also illustrates the diversity of substantive contexts in which litigants
have persuaded courts that a right to intrastate travel does exist.
221 For example, as of August 1, 2010, Westlaw searches for Alabama and Arizona cases
Souders cites several state and federal constitutional provisions in support of his contention,
we find nothing in them to substantiate the general proposition that there is a constitutional
impediment against enjoining a person from frequenting a public place, where the
circumstances are appropriate.).
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