Reuters reported late today:
“The U.S. House of Representatives on Friday passed legislation guaranteeing the right to cross state lines to have an abortion after several states banned the procedure following last month’s Supreme Court ruling.” It is therefore time to revisit the venerable judgments of the Supreme Court on the right to travel.
There is the classic precedent of the Supreme Court in 1931. And then there is the even older precedent cited by the classic precedent, namely the precedent of 1868.
The 1931 case is Edwards v. California. This year is important. It was the depths of the Great Depression. States push back the limits of their power to face the crisis of their time.
Specifically, California passed a measure to draw a state border against interstate travel. He didn’t want penniless people crossing the border of their state. It was the time of the famous migration of desperate people from the Dust Bowl of Oklahoma who struggled through thick and thin to get to California and survive there.
The challenge to this California law has been brought before the Supreme Court. The Court struck down California’s attempt to draw a California border against interstate travel.
Note that it was the Conservative Court that quickly defeated President Franklin Roosevelt’s New Deal legislation. It was not a left-liberal tribunal. Rather the opposite.
Let us quote the words of the Court of 1931. It said:
“The right to move freely from state to state is an incident of national citizenship protected by the privileges and immunities clause of the Fourteenth Amendment against state interference.”
He recited from an earlier case that “Mr. Justice Moody in Twining v. State of New Jersey, 211 US 78, 97, 29 S.Ct. 14, 18, 53 L.Ed. 97, stated that “the privileges and immunities of citizens of the United States” are those of national citizenship. »
The 1931 case further quoted this earlier opinion of Judge Moody:
“And he went on to say that one of those rights of national citizenship was ‘the right to move freely between states’.”
The 1931 Court made a concession: “Now it is evident that this right is not specifically granted by the Constitution.
However, the 1931 Court, 91 years ago, immediately cited an even older source, 155 years ago: an 1867 Supreme Court decision on the right to travel:
“Yet, before the Fourteenth Amendment, it was recognized as a fundamental right to the national character of our federal government. It was so decided in 1867 by Crandall v. Nevada. In this case, this Court struck down a Nevada tax “on anyone leaving the state” by common carrier.
Note that the case, like today’s controversies, is about state legislation unfavorable to people leaving the state.
The 1931 Court further invoked the 1867 ruling: “that the right to move freely throughout the country was a right of national citizenship”.
There will be a lot of debate on the application of the right to travel. To paraphrase Winston Churchill, this is not the beginning of the end on this issue. It’s not even the end of the beginning. But the Court’s expressions in 1931 and 1867 of the right to travel between states show how far back the precedents of the law are.