Amicus Curiae Brief — Saenz v. Roe

Supreme Court of the

October Term, 1998

.

ELOISE ANDERSON, Director, California Department

of Social Services; CALIFORNIA DEPARTMENT OF

SOCIAL SERVICES; PETE WILSON, Governor of the

State of California; and CRAIG L. BROWN, Director,

California Department of Finance,

Petitioners,

Vv.

BRENDA ROE and ANNA DOE, on behalf of

themselves and all others similarly situated,

Respondents.

-¢

On Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

7

BRIEF AMICUS CURIAE OF

THE INSTITUTE FOR JUSTICE

IN SUPPORT OF PETITIONERS

>

Wituiam H. Me ior Douctas W. Kmiec*

Cunt Bouick Distinguished Visiting

Institute for Justice Professor

1717 Pennsylvania Ave., Pepperdine University

NW School of Law

Suite 200 c/o Institute for Justice

Washington, DC 20006 1717 Pennsylvania Avenue,

(202) 955-1300 NW

Suite 200

Washington, DC 20006

(310) 456-4664

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

a

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTEREST OF AMICUS CURIAE

SUMMARY OF ARGUMENT

ARGUMENT

I.

THE RIGHT TO MIGRATE IS A PRIVILEGE

AND IMMUNITY GUARANTEED UNDER

ARTICLE IV AND THE FOURTEENTH

AMENDMENT

A. The need to return to first principles

B. The two aspects of privileges and immu-

nities: nondiscrimination and substantive

natural rights

The natural rights content of the Privileges

and Immunities Clause is both textual and

derived from relevant common law tradi-

As a matter of original understanding, citi-

zens may assert privileges and immunities

against their own State

Slaughter-House did not slaughter the natu-

ral rights protected by the Privileges and

Immunities Clause

THE IMPROVISED EQUAL PROTECTION

RIGHT TO TRAVEL RATIONALE IN SHAPIRO

v. THOMPSON IS NOT A FAITHFUL REPRE-

SENTATION OF THE RIGHT TO MIGRATE

UNDER THE TEXTUAL PRIVILEGES AND

IMMUNITIES CLAUSES, IS OVER-BROAD,

AND HAS FROVEN TO BE INCAPABLE OF

PRINCIPLED LIMITATION

10

D.

E.

CONCTASIIOIN oc iccctcevcéusededescedesenwives <¥ine 30

TABLE OF CONTENTS - Continued

Page

A welfare subsidy disguised as a travel

. MET rit oi 19

Shapiro's created travel right is over-broad

GRE WOT 0 oe ci ccccvcsetbanucguvaben 20

Shapiro is not capable of principled limita-

WIT 22

California's two-tiered welfare structure

ee @ pelos BOO os ocd weed cctedetascen 25

The Court should abandon Shapiro's consti-

tutionally problematic framework ......... 28

TABLE OF AUTHORITIES

Page

Unrrep Stare Supreme Court Cases

Attorney General of New York v. Soto-Lopez, 476 U.S.

i ecbebhbWsetewestoveresocectsoees 3, 7, 24, 25

Baldwin v. Fish and Game Comm'n of Montana, 436

rs hi ckbeutddscdeg basi dbsecicece 2

Bell v. Maryland, 378 U.S. 226 (1964) ................ 17

Dandridge v. Williams, 397 U.S. 471 (1969) ........ 19, 20

Dunn v. Blumstein, 405 U.S. 329 (1972) .............. 23

Hooper v. Bernalillo County Assessor, 472 U.S. 612

MMIC CUEE PSE EDECESE pee dbs codesvccedcseccoees 24

Lindsey v. Normet, 405 U.S. 56 (1972)................ 19

Lochner v. New York, 198 U.S. 45 (1905)............... 7

Lucas v. South Carolina Coastal Council, 505 U.S.

Ss 6 occ cucddehnetabesdboctcdoeecces 7

Memorial Hosp. v. Maricopa Commis 415 U.S. 250

CTEM Dien. ccccoccscuheuseveué tees 18, 21, 22

Michael H. v. Gerald D., 491 U.S. 110 (1989) ....6, 7, 11

Paul v. Virginia, 75 U.S. (8 Wall.) 168 (1869)...... 11, 12

San Antonio Sch. Dist. v. Rodriguez, 411 U.S. 1

PMS UURN aba EEAdeGeeedenbedececcsooccccocces 19

Scott v. Sandford, 60 U.S. (19 How.) 393 (1857)........ 4

Shapiro v. Thompson, 394 U.S. 618 (1969)......... passim

Slaughter-House Cases, 83 U.S. (16 Wall.) 36

I eta enn ns cin dn bbs 13, 14, 15, 16, 17

iv

TABLE OF AUTHORITIES -— Continued

Page

Supreme Court of New Hampshire v. Piper, 470 U.S.

FO (ROE occ cewvcccdacccstesvevecets tovnesves 2, 6, 7

United States v. Wheeler, 254 U.S. 194 (1920) ...5, 16, 17

Ward v. Maryland, 79 U.S. (12 Wall.) 430 (1871). ..12, 16

Zobel v. Williams, 457 U.S. 55 (1982)............. passim

Unirep States Court or Apreats Cases

Maldonado v. Houstoun, No. 97-1893, 1998 U.S.

App. LEXIS 21909 (3d Cir. Sept. 9, 1998).......... 10

Unrrep States District Court Cases

Corfield v. Coryell, 6 F. Cas. 546 (C.C.E.D. Pa. 1823) . .6, 13

Maldonado v. Houstoun, 177 F.R.D. 311 (E.D. Pa.

Bic ccncdddcbucehdeedebtasceced snundbeneeesesee 29

Stare Court Cases

Campbell v. Morris, 3 H. and McH. 535 (Md. 1797) ..... 8

Douglas v. Stephens, 1 Del. Ch. 465 (1821) ............ 8

Jones v. Milwaukee Co., 485 N.W.2d 21 (Wis. 1992) .... 28

Mitchell v. Steffen, 504 N.W.2d 198 (Minn. 1993) ..... 28

CONSTITUTIONAL PROVISIONS

iG. © 8 2 FS Pree 1, 3

Uc ee y 8 oS OE Pree ii passim

v

TABLE OF AUTHORITIES —- Continued

Page

Feperat Acts AND STATUTES

42 U.S.C. § 604(c) (Supp. 1997) ............ cc eeeeee 25

MISCELLANEOUS

Akhil Reed Amar, The Bill of Rights and the Four-

teenth Amendment, 100 Yale L.J. 1193 (1992) ....... 13

Chester James Antieau, Paul's Perverted Privileges

or the True Meaning of The Privileges and Immu-

nities Clause of Article Four, 9 Wm. & Mary L.

GR. SD adnve CS oxGe cub bcedddvccdnccss 7, 9, 10, 12

Articles of Confederation art. IV................ passim

Rebecca Blank, The Effect of Welfare and Wage Levels

on the Location Decisions of Female Headed House-

holds, 24 J. of Urban Econ. 186 (1986)............. 26

Clint Bolick, Unfinished Business: A Civil Rights

Strategy For America’s Third Century (1990) ........ 15

F.H. Buckley & Margaret F. Brinig, Welfare Mag-

nets: The Race for the Top, 5 Sup. Ct. Econ. Rev.

Bee Sn cnndesenesdsncécnegt abechécdcesocccaces 27

Cong. Globe, 35th Cong., 2nd Sess. (1858)............ 10

Cong. Globe, 39th Cong., Ist Sess. (1865)............. 14

Cong. Globe, 42nd Cong., Ist Sess. (1871) ............ 28

Michael Kent Curtis, No State Shall Abridge: The

Fourteenth Amendment and the Bill of Rights

Ga AG oes pvptin deus 00 pene didn cvinenb nce epee ote. 14

3 M. Farrand, Records of the Federal Convention of

SE Men oddconeusevkshecbsactevaseseccscocose 5

vi

TABLE OF AUTHORITIES — Continued

Page

The Federalist No. 80 (Alexander Hamilton) (Clin-

com Gonstier OO. BOGE cae ssc cnccdicecdéveceotewsaes 9

Edward M. Gramlich & Deborah S. Laren, Migra-

tion and Income Redistribution Responsibilities, 19

J. of Hum. Res. 489 (1984).................55040055 26

Douglas W. Kmiec and Stephen B. Presser, The

American Constitutional Order (1998)............... 15

Philip B. Kurland, The Privileges or In.munities

Clause “Its Hour Come Round at Last”?, 1972

Ci.. GF. Ge GA Mi owh cena censdcdncdeeddddeseceses 14

Thomas R. McCoy, Recent Equal Protection Deci-

sions — Fundamental Right to Travel or “New-

comers” as a Suspect Class, 28 Vand. L. Rev. 987

CRETE o cccccvdvvéddcuub ccivddelddcuteedudebtcde 21, 22

Walter F. Murphy, Slaughter-House, Civil Rights,

and the Limits on Constitutional Change, 32 Amer.

C, OG Be, Fis o nativusendeddc css th <acedeses 04 13

William E. Nelson, The Fourteenth Amendment:

From Political Principle to Judicial Doctrine (1988) .... 13

Paul Peterson, Devolution’s Price, 14 Yale J. on Reg.

RES CRI nc kedbd cdnccednd ccksdcd ease cnaibaes von 26

Paul Peterson, The Price of Federalism (1995) ......... 25

Paul Peterson, Welfare Magnets (1990) ............... 26

David A. J. Richards, Conscience and the Constitu-

tion: History, Theory, and Law of the Reconstruc-

GS GED 0c chododtuvendotadtationne 13

vii

TABLE OF AUTHORITIES - Continued

3J Story, Commentaries on the Constitution of

the United States, (photo. reprint 1991) (Boston,

Hilliard, Gray & Co. 1833)... .. 0... 6.66 c cece nnee

Clarence Thomas, The Higher Law Background of the

ivi or Immunities Clause of the Fourteenth

A ment, 12 Harv. J. L. & Pub. Pol’y 63 (1989) ....

Laurence H. Tribe, American Constitutional Law (2d

Gy a's oo bu Noweadadvoteiestotedcbccedivces

Todd Zubler, The Right to Migrate and = gtd

: Time for Shapiro v. Thompson to Take a

Hike, 31 Val. U. L. Rev 893 (1997) ..............

Page

1

INTEREST OF AMICUS CURIAE!

The Institute for Justice is a nonprofit, public interest

legal center committed to defending the essential founda-

tions of a free society and securing greater protection for

individual liberty. The Institute has a particular interest

in securing the natural rights and liberties of citizens of

the United States and removing unlawful barriers to the

pursuit of an economic livelihood. Counsel of record for

the Institute’s brief is Professor Douglas W. Kmiec, a

leading scholar of constitutional law, who previously

served as Principal Deputy and Assistant Attorney Gen-

eral of the United States, Office of Legal Counsel, U.S.

Department of Justice during the years 1985-89.

SUMMARY OF ARGUMENT

The California statute should be sustained, and the

Ninth Circuit decision reversed. The Court’s rationale in

Shapiro v. Thompson, 394 U.S. 618 (1969), has no basis in

constitutional text or history and should be discarded.

There is a fundamental right to migrate. It is secured by

the Privileges and Immunities Clauses of Article IV and

the Fourteenth Amendment. This fundamental right is

one of the general, natural rights promised to all citizens

of the United States. The existing privileges and immu-

nities jurisprudence of this Court depends upon a careful

1 In conformity with Supreme Court Rule 37, the Institute

for Justice has obtained the consent of the parties to the filing of

this brief and letters of consent have been filed with the Clerk.

The Institute also states that counsel for a party did not author

this brief in whole or part; and that no persons or entities other

than amicus, its members, and its counsel made a monetary

contribution to the preparation and submission of the brief.

2

judicial identification of “those ‘privileges’ and ‘immu-

nities’ bearing on the vitality of the Nation as a single

entity.” Supreme Court of New Hampshire v. Piper, 470 U.S.

274, 279 (1985) (citing Baldwin v. Fish and Game Comm'n of

Montana, 436 U.S. 371, 383 (1978)). That jurisprudence is

necessarily supplemented by this Court’s modern recog-

nition that the discernment of broad constitutional lan-

guage like that in Article IV and the Fourteenth

Amendment requires reference to the traditions and his-

tory of the Nation most frequently identifiable in the

common law.

Under the rule of law of our Constitution, the Justices

of this Court are neither free to create fundamental rights

at will, as the Court did in Shapiro, nor disregard textual

fundamental rights like those encompassed in the Bill of

Rights or those additional privileges and immunities pro-

tected by Article IV, such as the right to migrate to a new

state to pursue a lawful occupation. Should this Court

decide to reverse the Ninth Circuit, as we believe the

Constitution as written warrants, care must be taken not

to disregard either aspect of the Court’s Article III duty.

Respondents’ claim that they possess a fundamental

right to increased welfare benefits solely as a result of

migration is premised upon over-broad constitutional

improvisation. It has mooring in neither constitutional

text nor common law tradition, and should be rejected.

California has ample rational basis to sustain its welfare

structure premised upon the empirical studies of so-

called “welfare magnetism.” Such welfare-induced

migration threatens to undermine the welfare system

through either an inundation of new claimants over-

whelming state resources or a defensive lowering of ben-

efits resulting in a “race to the bottom” adversely

affecting all potential claimants. California is attempting

3

to avoid these consequences with a two-tier welfare

structure that maintains a new resident's prior assistance

level for one year and increases it to the usually higher

California levels thereafter. Whether or not the two-tier

structure is the best policy choice, it surely is a reasonable

one for California to pursue.

ARGUMENT

I. THE RIGHT TO MIGRATE IS A PRIVILEGE AND

IMMUNITY GUARANTEED UNDER ARTICLE IV

AND THE FOURTEENTH AMENDMENT.

Article IV, Section 2 of the Constitution provides that

the “Citizens of each State shall be entitled to all Privi-

leges and Immunities of Citizens in the several States.” In

Shapiro v. Thompson, 394 U.S. 618 (1969), the Supreme

Court declined to locate the right to migrate, including

the right to travel, in any particular clause of the Consti-

tution. However, as Justice O’Connor first observed in

Zobel v. Williams, 457 U.S. 55 (1982), and later reaffirmed

in Attorney General of New York v. Soto-Lopez, 476 U.S. 898

(1986), where she was joined by Chief Justice Rehnquist

and Justice Stevens:

the Privileges and Immunities Clause of Art. IV,

§ 2, of the Constitution supplies the relevant

basis for analysis in evaluating claims . . . where

the principal allegation is that the state scheme

impermissibly distinguishes between state resi-

dents, allegedly imposing a relative burden on

those who have more recently exercised their

right to establish residence in the State.

Id. at 920 (O’Connor, J., dissenting).

A. The need to return to first principles.

To answer the question accepted for review in this

case, it is necessary to return to first principles — that is,

4

to a position consistent with the text and history of the

Constitution. As discussed more fully in section II of this

brief, Shapiro's lack of textual analysis and sweeping

equal protection theory is an unjustified invitation to

federal courts to displace rational legislative choices

made by state and local governments that do not truly

implicate express or historically implied fundamental

rights. The confusion spawned by Shapiro is well-illus-

trated by Soto-Lopez, itself, where, as one commentator

put it, “the right to migrate doctrine [was left] in disar-

ray.” Todd Zubler, The Right to Migrate and Welfare Reform:

‘Time for Shapiro v. Thompson to Take A Hike, 31 Val. U. L.

Rev. 893, 906 (1997). Indeed, the inherent flaw of the

Shapiro rationale was identified in that case by Justice

Harlan, whose dissenting opinion observed that because

“[v]irtually every state statute affects important rights,”

the equal protection theory employed by the majority

“creates an exception which threatens to swallow the

standard equal protection rule.” Shapiro, 394 U.S. at 661

(Harlan, J., dissenting). Shapiro’s rationale must be re-

examined and re-anchored on textual constitutional

ground, or it will continue to mislead lower courts and

unnecessarily constrain state authority.

Again, as Justice O’Connor so well illustrated in

Zobel, the Article IV Privileges and Immunities Clause

has “enjoyed a long association with the rights to travel

and migrate interstate.” Zobel, 457 U.S. at 79 (O’Connor,

J., concurring). The Clause derives from Article IV of the

Articles of Confederation, which expressly recognized a

right of “free ingress and regress to and from any other

State” as well as the “privileges and immunities of free

citizens in the several States.” The drafter of the subse-

quent constitutional Article IV, Charles Pinckney,

observed to the convention that the Article was “formed

5

exactly upon the principles of the 4th article of the pre-

sent Confederation.” 3 M. Farrand, Records of the Federal

Convention of 1787 112 (1934). And the identity of purpose

of the two provisions, notwithstanding the folding of the

ingress and regress right into the more general privileges

and immunities language, has never been doubted.”

B. The two aspects of privileges and immunities:

nondiscrimination and substantive natural

rights.

It is important to emphasize that the historical mean-

ing of the Privileges and Immunities Clause was twofold:

securing movement (ingress and regress) or migration

(settlement in a new state) and also more profoundly, “to

secure the free inhabitants of each of these states . . . all

privileges and immunities of free Citizens in the several

States”* (that is, the natural rights of citizenship “in the

several States,” which as an historical matter was syn-

onymous with the later usage “in the United States”).

Contrary to the implications of Shapiro, the right to

migrate has no genesis in the Equal Protection Clause;

rather, it is a descendant of Article IV Privileges and

Immunities and now the Fourteenth Amendment as well.

Insofar as Shapiro overlooked this Court's Article IV juris-

prudence, it created two errors. First, it set the Court on

2 For example, Chief Justice White in United States v.

Wheeler, 254 U.S. 281, 294 (1920) held that “the text of Article IV,

Section 2, of the Constitution, makes manifest that it was drawn

with reference to the corresponding clause of the Articles of

Confederation and was intended to perpetuate its limitations;

and ... that view has been so conclusively settled as to leave no

room for controversy.”

3 Articles of Confederation art IV.

6

an interpretative voyage unable to sustain in a principled

way any distinction between new and old resicents

drawn by the States, whether or not these distinctions

were intended to affect migration or had that effect. Sec-

ond, and of a more insidious nature, Shapiro cast doubt on

this Court's ability to protect those vital, but unenume-

rated, fundamental rights that can be traced “to the most

specific level at which a relevant tradition protecting, or

denying protection to, the asserted right can be identi-

fied.” Michael H. v. Gerald D., 491 U.S. 110, 127-28 n.6

(1989).

The claim that California's two-tier welfare benefit

structure offends an historically relevant tradition pro-

tecting the unenumerated right to migrate is untenable.

To be sure, distinctions among classes of residents in

terms of common law-grounded privileges and immu-

nities, such as the right to acquire and possess property

or the right of every citizen “to pass through, or to reside

in any other state, for purposes of trade, agriculture,

professional pursuits, or . . . to institute and maintain

actions of any kind in the courts of the state... . ” Corfield

v. Coryell, 6 F. Cas. 546 (C.C.E.D. Pa. 1823), certainly invite

heightened scrutiny like that employed by this Court in

Supreme Court of New Hampshire v. Piper. Thus, for exam-

ple, any attempt by California to prevent Nevada plum-

bers from migrating into the Golden State to practice

their occupation would trigger heightened scrutiny. But

the statute at issue here implicates no such concerns that

can be grounded in history or tradition.

The Court is invited in this case to locate the right to

migrate in constitutional text rather than leave it, as

Justice O’Connor aptly put in her Soto-Lopez dissent,

“free-floating.” We urge the Court to follow the original

textual meaning of the Privileges and Immunities Clauses

——— — ——————— —————

7

in their entirety. See Soto-Lopez, 476 U.S. at 918. The

unspoken assumption of both Article IV and Fourteenth

Amendment Privileges and Immunities is that they have

substantive content in addition to their promise that a

receiving state shall not exclude altogether or invidiously

discriminate against incoming residents with regard to

state-granted rights and privileges. Legal historian

Chester James Antieau writes, for example, “At the time

the Articles of Confederation were adopted the over-

whelming majority of Americans accepted the doctrine of

natural rights. All men possessed certain basic, funda-

mental rights which the government could not deny.”

Chester James Antieau, Paul’s Perverted Privileges or the

True Meaning of The Privileges and Immunities Clause of

Article Four, 9 Wm. & Mary L. Rev. 1, 4 (1967). In unex-

amined ways, however, perhaps because of the unprin-

cipled example of Shapiro and its unacknowledged

forebear, Lochner v. New York, 198 U.S. 45 (1905), the

Court’s recent Article IV case law has been casually dis-

missive of natural rights in the historical record. See

Piper, 470 U.S. at 281 n.10 (1985) (in dicta and without

explanation describing our natural rights as “discarded”).

C. The natural rights content of the Privileges and

Immunities Clause is both textual and derived

from relevant common law tradition.

Natural rights are identifiable and enforceable. For

example, in the due process context in Michael H., and the

Court’s prescribed antecedent inquiry into background

principles of state property law in recent application of

the Taking Clause’s protections, see Lucas v. South Caro-

lina Coastal Council, 505 U.S. 1003 (1992), the Court has

located natural rights in the identification of “relevant

8

traditions” of the state common law. Such close examina-

tion of history and practice is an apt model for the

description of natural rights shielded as a privilege or

immunity. The Court’s approach for identifying such

privileges and immunities is consistent with venerable

originalist sources. In 1797, Judge Chase opined that one

of the privileges and immunities of citizens of the several

States was the right “to acquire and hold real property in

any of the states.” Campbell v. Morris, 3 H. and McH. 535,

553 (Md. 1797). Again, in 1821, Article [TV was construed

in the Delaware Chancery Court where Justice Ridgely

stated: “The words ‘privileges and immunities’ compre-

hend all the rights, and all the methods of protecting

those rights, which belong to a person in a state of civil

society, subject to be sure, to some restrictions, but to

such only as the welfare of society and the general good

require.” Douglas v. Stephens, 1 Del. Ch. 465, 469 (1821). In

the same case, Chief Justice Johns observed that “[t]he

privileges and immunities secured to all citizens of the

United States are such only as belong to the citizens of

the several States; which includes the whole United

States, and must be understood to mean, such privileges

as should be common in the Union.” Id. at 477. This

coincides well with Joseph Story, who wrote in his

famous Commentaries, “The intention of this clause was

to confer on them, if one may so say, a general citizen-

ship; and to communicate all the privileges and immu-

nities, which the citizens of the same state would be

entitled to under the like circumstances.” 3 Joseph Story,

Commentaries on the Constitution of the United States, sec-

tion 1800 at 674-75 (photo. reprint 1991) (Boston, Hilliard,

Gray & Co. 1833). Hamilton made plain that he, too,

understood the words “privileges and immunities of the

citizens of the several States” as the equivalent of not just

9

those privileges simply granted by a second state to a

citizen migrating from another, but the privileges and

immunities of United States citizens. The Federalist No.

80 (Alexander Hamilton) (Clinton Rossiter ed. 1961).

While Chief Justice Roger Taney grievously would

later find African-Americans to be incapable of citizen-

ship and misconstrued the Due Process Clause in the

catastrophic decision of Scott v. Sandford, 60 U.S. (19

How.) 393 (1857), even he recognized:

if persons of the African race are citizens of a

State, and of the United States, they would be

entitled to all of these privileges and immunities

in every State, and the State could not restrict

them; for they would hold these privileges and

immunities under the paramount authority of

the Federal Government, and its courts would

be bound to maintain and enforce them, the

Constitution and laws of the State to the con-

trary notwithstanding.

Id. at 423. Justice Curtis’ view in Scott was much the

same: “Nowhere else in the Constitution is there anything

concerning a general citizenship; but here, privileges and

immunities to be enjoyed throughout the United States,

under and by force of the national compact, are granted

and secured.” Id. at 580.

Later, the “[u]tterances of our national leaders in

both the United States Senate and the House of Represen-

tatives during the mid-nineteenth century provide irrefu-

table evidence that legislators were in complete

agreement with the judiciary that the privileges and

immunities to be protected by Article Four were the

basic, fundamental, natural rights of men.” Antieau,

supra, at 15. In the 35th Congress, for example, Congress-

man Bingham, who would later play a pivotal role in the

drafting of the Fourteenth Amendment, stated that the

10

privileges and immunities secured by Article IV were

“those rights, common to all men [which] no man or state

may rightfully take away.” Cong. Globe, 35th Cong., 2nd

Sess. 984 (1858).

D. As a matter of original understanding, citizens

may assert privileges and immunities against

their own State.

It is sometimes claimed that Article IV provides no

protection to a citizen from his own State. See, e.g., Mal-

donado v. Houstoun, No. 97-1893, 1998 U.S. App. LEXIS

21909 (3d Cir. Sept. 9, 1998) n.9 (dismissing an Article IV

and Fourteenth Amendment claim on this basis). Histori-

cally, of course, this doubt was part of the impetus for the

Fourteenth Amendment. Yet, even before that Amend-

ment, legal historians record that it was the “assumption

throughout [the] years p’evious to 1868, entertained by

jurists, legislators and scholars [|] that proper constitu-

tional law would not permit a state to strip its own

citizens of their natural rig hts, and that the Privileges and

Immunities Clause of Article Four would equally protect

citizens from other states if they were ever exposed to the

denial of such rights.” Antieau, supra at 21. A similar

point was raised and answered by Justice O’Connor in

Zobel when she urged that the Court put the Shapiro

travel right on a textual footing. She wrote: “It could be

argued that Alaska’s scheme does not trigger the Privi-

leges and Immunities Clause because it discriminates

among classes of residents, rather than between residents

and nonresidents.” 457 U.S. at 75. But the timing of the

discrimination, continued Justice O’Connor, “does not

11

insulate Alaska’s scheme from scrutiny under the Privi-

leges and Immunities Clause.” Id.‘

Some of the confusion over whether Article IV is

both a substantive guarantee capable of assertion against

one’s own State as well as a nondiscrimination principle

is traceable to the Court's decision in Paul v. Virginia, 75

U.S. (8 Wall.) 168 (1869), where Justice Field emphasized

the nondiscrimination side of Article IV. Field wrote: “the

privileges and immunities secured to citizens of each

State in the several States, by the provision in question,

are those privileges and immunities which are common to

the citizens in the latter States under their constitution

and laws by virtue of their being citizens.” Id. at 180. It is

error, however, to see this statement as foreclosing the

fundamental rights protection of the Privileges and

Immunities Clause. In context, it does not. Indeed, in

light of the interpretative method applied by the modern

Court in Michael H. already alluded to, it can fairly be

read to mean merely that the content of protected privi-

leges and immunities are likely best identified out of the

common law of the States — that is, to use Field’s some-

what infelicitous phrasing, rights “common to the citi-

zens in the latter States.” Id. Reading Field’s statement as

merely a principle of nondiscrimination disregards the

dual purposes of the Clause as set out above, and also

leads to the absurd consequence that “if a person from

* Justice O'Connor did note that the Clause might not be

offended by an age-based discrimination applied evenhandedly

to old and new residents. Zobel, 457 U.S. at 75-76 n.6. This, of

course, is true, but only because there is no textual or

historically common law right implicated by such age

differentiation. It is not merely because old resident and new

resident under the Justice’s hypothetical would be treated alike.

12

New York, for example, went to Mississippi and was

totally denied freedom of speech, assembly, movement,

petition, press, access to the courts, and even the writ of

habeas corpus, it would all be constitutional so long as

the citizens of Mississippi had regularly been denied the

same rights!” Antieau, supra at 22. Of course, no state

could infringe the express Bill of Rights, but only because

the judiciary has reasoned that these textual rights were

intended to be incorporated against the States through

the Fourteenth Amendment. It would be formalistic in

the extreme for the Court not to maintain the same treat-

ment for unenumerated privileges and immunities due

all citizens of the United States like the right to acquire

and possess property, pursue a lawful occupation, and

migrate.

These fundamental natural rights are not the prod-

ucts of judicial whim. As the Court has held, the charac-

ter and scope of such rights are to be determined largely

in relation to the whole tradition and history of the

common law in the States, themselves. Indeed, two years

after Paul v. Virginia, the Court decided Ward v. Maryland,

79 U.S. (12 Wall.) 418 (1871), in which the Court defined

the privileges and immunities of Article IV as those

anchored in “the common law.” Elaborating, the Court

stated in Ward that the Clause “plainly and unmistakably

secures and protects the right of a citizen of one State to

pass into any other State of the Union for the purpose of

engaging in lawful commerce, trade, or business, without

molestation; to acquire personal property; [and] to take

and hold real estate... .” Id. at 430.

13

E. Slaughter-House did not slaughter the natural

rights protected by the Privileges and immu-

nities Clause.

The standard teaching at this point may be to say that

this history of natural rights protection is all well and

good, but the Court’s 5-4 decision in the Slaughter-House

Cases, 83 U.S. (16 Wall.) 36 (1871) nullifies privileges and

immunities altogether. This is an over-reading of Slaugh-

ter-House, but a common and deceiving one. It is deceiv-

ing because, at worst, Justice Miller's majority opinion

limiting the Privileges or Immunities Clause that had

been inserted into the Fourteenth Amendment leaves

Article IV unaffected. That this is true is apparent from

Justice Field’s dissent in Slaughter-House in which he ref-

erences and approves the list of privileges in Corfield v.

Coryell. Justice Field, the author of the ambiguous Pau!

opinion just a few years earlier, writes unambiguously on

this occasion: “The privileges and immunities designated

are those which of right belong to the citizens of all free

governments.” Id. at 97 (Field, J., dissenting) (emphasis in

the original). There is nothing ambiguous about that.

Volumes could, and have been written, criticizing the

crabbed and ahistorical opinion written by the narrow

majority in Slaughter-House.5 As one author noted, “The

history of abuses that led to the Amendment received

5 See, e.g., David A. J. Richards, Conscience and the

Constitution: History, Theory, and Law of the Reconstruction

Amendments 204-17 (1993); Akhil Reed Amar, The Bill of Rights

and the Fourteenth Amendment, 100 Yale L.J. 1193, 1257-59 (1992);

William E. Nelson, The Fourteenth Amendment: From Political

Principle to Judicial Doctrine 156-64 (1988); Walter F. Murphy,

Slaughter-House, Civil Rights, and the Limits on Constitutional

Change, 32 Amer. J. of Juris. 1, 1-8 (1987).

14

superficial and cursory attention at best,” while the

Amendment's legislative history “received no attention at

all.” Michael Kent Curtis, No State Shall Abridge: The

Fourteenth Amendment and the Bill of Rights 173, 175 (1986).

It is not necessary to recount here how the Court in

Slaughter-House disregarded the debates over the Freed-

men’s Bureau Bill, the companion 1866 Civil Rights Act,

and the Fourteenth Amendment. It is enough to observe

how all this legislation was to make true in fact what was

already written in Article IV that “citizens of each State

shall be entitled to all the privileges and immunities of

citizens in the several States.” Cong. Globe, 39th Cong., Ist

Sess., App. 67 (1865) (Representative Garfield). It was the

intent of the Fourteenth Amendment Privileges or Immu-

nities Clause not to create new rights, but to protect

preexisting rights from state interference and to give

express legislative power to the Congress to enforce the

privileges of all free citizens that must exist in every State

pursuant to Article IV. Cong. Globe, 39th Cong., Ist Sess.

1034 (1865) (Representative Bingham). The Amendment,

said Bingham, “is a direct, affirmative delegation of

power to Congress to carry out the principles of all these

guarantees, a power not found in the Constitution.” Id. at

2766. Not everyone agreed with Bingham, of course, that

Congress lacked original power to enforce Article IV, but

the Fourteenth Amendment would eliminate all doubt

and would make it express. The Amendment did, but

Justice Miller in Slaughter-House substituted his view for

that democratically chosen.

Whether or not it is too late in the day to reconsider

Slaughter-House is a matter of some debate.® Perhaps, as

6 See, e.g., Philip B. Kurland, The Privileges or Immunities

Clause “Its Hour Come Round at Last”?, 1972 Wash. U. L.Q. 405;

15

Justice Thomas has suggested in scholarly writing, see

Clarence Thomas, The Higher Law Background of the Privi-

leges or Immunities Clause of the Fourteenth Amendment, 12

Harv. J.L. & Pub. Pol’y 63, 68 (1989) (the rights protected

by the Privileges or Immunities Clause are fundamental

to the American regime and the best protection against

the “willfulness of both run-amok majorities and run-

amok judges.” Id. at 63-64), this debate is now an unnec-

essary one. The debate is only unnecessary, however, if

one correctly perceives - as we believe Justice Thomas

does - that the rights of national citizenship in Article IV,

including the right to migrate, are unaffected by the

Slaughter-House decision and are binding upon one’s own

State. See generally Douglas W. Kmiec & Stephen B.

Presser, The American Constitutional Order 1079-1116

(1998). In this regard, we also owe much to Justice O’Con-

nor for confirming in Zobel the continued life of these

unenumerated, but common law-grounded privileges by

making explicit reference to the post-Slaughter-House case

law that reveals the substantive and nondiscriminatory

character of Article iV. Justice O’Connor noted, for exam-

ple, that “in United States v. Wheeler, 254 U.S. 281, 297-98

(1920), the Court found that the Clause fused two distinct

concepts: (1) ‘the right of citizens of the States to reside

peacefully in, and to have free ingress into and egress

from’ their own States, and (2) the right to exercise the

same [substantive] privileges in other States.” Zobel, 457

U.S. at 80.

Wheeler involved the validity of a federal indictment

brought against private individuals for seizing and hold-

ing persons residing in Arizona and transporting them by

Clint Bolick, Unfinished Business: A Civil Rights Strategy for

America’s Third Century 76 (1990).

16

rail to New Mexico. The indictment was quashed for lack

of federal power to address private, rather than state,

action. In reaching this result, the Chief Justice pursued a

“wide field of inquiry common to all the contentions”

and answered each with the principles associated with

the constitutional doctrine of the Privileges and Immu-

nities Clauses in both Article IV and the Fourteenth

Amendment. Wheeler, 254 U.S. at 293. Such principles,

said the Wheeler Court, are “so well founded and so

conclusively sustained by authority as to be indisputa-

ble.” Id.

And what are these undisputed principles? Wheeler,

notwithstanding the interruption of Slaughter-House,

relies upon the pre-Slaughter-House opinion of Ward v.

Maryland, 79 U.S. (12 Wall.) 418 (1871), where it is estab-

lished that the words privileges and immunities

[bleyond doubt . . . are words of very compre-

hensive meaning, but it will be sufficient to say

that the clause plainly and unmistakably secures

and protects the right of a citizen of one State to

pass into any other State of the Union for the

purpose of engaging in lawful commerce, trade

or business without molestation; to acquire per-

sonal property; to take and hold real estate; to

maintain actions in the courts of the State; and

to be exempt from any higher taxes or excises

than are imposed by the State upon its own

citizens.

Id. at 430. Plainly, Wheeler does indeed acknowledge what

Justice O’Connor’s reasoning in Zobel implies; namely,

that the Privileges and Immunities Clause contains two

elements — one substantive and one non-discriminatory.

The Wheeler opinion even has a more congenial under-

standing of Slaughter-House. Unlike the modern casebook

characterization of Slaughter-House, which reads the

17

majority opinion in light of the fiery dissents as having

created a previously unknown and insupportable state /

federal distinction between the two guarantees of privi-

leges and immunities, with the federal privileges being

almost meaningless, Wheeler explains that Slaughter-House

was largely making the point that the source of privileges

and immunities was not the federal government, but the

fundamental rights of all free citizens embodied in speci-

fic applications of the common law of the States. This is a

point later reaffirmed by Justices Goldberg and Douglas

in Bell v. Maryland, 378 U.S. 226, 255 (1964) (purpose of

the Fourteenth Amendment was to protect “the rights

and guarantees of the good old common law”). Most

importantly, in deciding that Article IV reaches depriva-

tions of privileges and immunities by states, rather than

by private individuals, the Wheeler Court makes clear that

were a State to enact provisions “incompatible with its

existence as a free government and destructive of the

fundamental rights of its citizens, . . . the existence of

federal power to determine the repugnancy of such action

to the Constitution . . . are not disputed.” Wheeler, 254

U.S. at 299 (emphasis added).

In the remaining portions of this brief, we make it

plain that California has not transgressed any privilege or

immunity by declining to immediately increase the wel-

fare benefits of newcomers to her State beyond the level

they received from their prior States. We are confident

that the Court will reach the same conclusion. However,

it bears emphasis that this result follows not because

there are no privileges and immunities, but importantly

and more modestly, because a claim for an increased level

of public assistance from one’s newly adopted State can-

not be said to be a fundamental right derived from the

18

text of the Constitution or long-settled common law tra-

ditions. Shapiro’s rationale to the contrary is mistaken and

presently leads to a confusing body of precedent

described aptly as a “doctrinal mess.” See, e.g., Zubler,

supra at 893. The escape from this mess can be found in

faithfulness to constitutional text and history, not whole-

sale abandonment of the privileges and immunities that

made that history a possibility.

Il. THE IMPROVISED EQUAL PROTECTION RIGHT

TO TRAVEL RATIONALE IN SHAPIRO V.

THOMPSON IS NOT A FAITHFUL REPRESENTA-

TION OF THE RIGHT TO MIGRATE UNDER THE

TEXTUAL PRIVILEGES AND IMMUNITIES

CLAUSES, IS OVER-BROAD, AND HAS PROVEN

TO BE INCAPABLE OF PRINCIPLED LIMITA-

TION.

When Shapiro was decided, the Court failed to prop-

erly measure the claimed right to travel under the exis-

ting Privileges and Immunities Clauses, or for that

matter, any other part of the Constitution. (“We have no

occasion,” wrote Justice Brennan, “to ascribe the source

of this right to travel interstate to a particular constitu-

tional provision.” Shapiro, 394 U.S. at 630.) Instead, the

Court fashioned a new equal protection right, nominally

premised upon travel, but actually covertly requiring

some level of mandated welfare assistance. In Memorial

Hosp. v. Maricopa County, 415 U.S. 250, 261 (1973), the

Court, itself, described the Shapiro-created right to travel

as ensuring new residents “the same right to vital gov-

ernment benefits and privileges in the States to which

they migrate as are enjoyed by other residents.”

19

A. A welfare subsidy disguised as a travel right.

While the Shapiro-created right may at first blush

sound similar to the dual nondiscrimination and substan-

tive natural right purposes of the Privileges and Immu-

nities Clauses, closer examination reveals it to be a subtle

counterfeit. Neither in history, text, nor common law

tradition can one find a right to “vital government bene-

fits.” There is no constitutionally-imposed welfare sub-

sidy guarantee. Without a grounding in constitutional

text or historical tradition delimiting such right, it is

impossible to predict where it will turn up or to what it

will relate.

The Constitution and the traditions of this Nation

preserve many rights that are fundamental in nature and

that cannot be abridged. While the right to migrate to

another state to pursue one’s chosen profession is one of

these rights, a constitutionally-mandated entitlement to

higher welfare benefits in one’s new State of residence is

not among them. The importance of a well-conceived

welfare policy, as a matter of both private charity and

modern federal and state legislative judgment, cannot be

questioned. Yet, whether new residents of a State are

entitled to an increase in benefits over the level of their

prior State as is claimed in this case is a question to be

resolved in legislative chambers, not in courts.

On three separate occasions, the Court has stated that

citizens cannot demand, on the basis of constitutional text

or history, financial subsidies. In Dandridge v. Williams,

397 U.S. 471 (1970), Lindsey v. Normet, 405 U.S. 56 (1972),

and San Antonio Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973),

the Court held that housing, welfare, and education were

no. fundamental rights. Most directly, in Dandridge, the

Court stated that even though the administration of wel-

fare benefits involve “the most basic economic needs”

20

there is no basis for applying heightened scrutiny under

the Constitution to benefit level decision-making. Dan-

dridge, 397 U.S. at 485.

This lack of a constitutional origin for welfare claims

does not render the federal government heartless or

uncaring of the less fortunate. Rather, it makes the provi-

sion of assistance a matter entrusted to the people

through their elected representatives and therefore does

not affect the freedoms guaranteed by the Bill of Rights or

the Fourteenth Amendment. See Dandridge, 397 U.S. at

487 (“The 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.”).

B. Shapiro’s created right to travel is over-broad

and unworkable.

In dissent in Shapiro, Justice Harlan quickly saw the

flaw in the Court’s newly created welfare-right to travel:

“Virtually every state statute affects important rights.

. and to extend the ‘compelling interest’ rule to all

cases in which such rights are affected would go far

toward making this Court a ‘super legislature.’ ” Shapiro,

394 U.S. at 661 (Harlan, J., dissenting). The difficulty was

compounded because Shapiro did not define what type of

restriction would constitute a “penalty” on its new-found

right. In Shapiro, the Court, without apparent recognition

of contradiction, both asserted that a temporary depriva-

tion of one of the “necessities of life” constituted a pen-

alty and that some undefined durational residency

requirements “may not be penalties upon the exercise of

the constitutional right of interstate travel.” Id. at 627, 638

n.21.

21

In an attempt to tame its creation, the Court in Mar-

icopa sought to distinguish necessities from non-necessi-

ties. In that case, the Court asserted a distinction between

education (a non-necessity) from non-emergency medical

care (a necessity). See 415 U.S. at 260 n.15. While the

distinction as a matter of enlightened personal philoso-

phy may be unexceptional, it is nonetheless a non-consti-

tutional one. These narrowing efforts again illustrate that

in application the new right has had less to do with travel

or migration than with the judiciary’s imposition of its

conception of what levels of basic necessity must be

provided by the legislative departments of government,

whether the people of the State consent or not.

Moreover, Shapiro can be fairly read to mandate,

under heightened scrutiny, a compelling state interest for

any refusal not to deliver welfare benefits at a level at

least as high as the most generous State. See Thomas R.

McCoy, Recent Equal Protection Decisions —- Fundamental

Right to Travel or “Newcomers” as a Suspect Class, 28 Vand.

L. Rev. 987, 999 (1975). As Professor McCoy observes, the

Shapiro rule

would seem to apply any time a state or political

subdivision of state offers lower quality schools

than those available in some other state, has less

garbage collection than that available in some

other state, provides more limited water and

sewer service than that available in some other

state, contains lower quality roads than those

provided in some other state, or charges higher

state university tuition than that charged for a

comparable education in some other state. Trav-

elers from those other states will suffer a loss in

benefits of residence in the new state as com-

pared with those available in the old and thus

22

experience precisely the same sort of disincen-

tive to travel as that experienced by the plain-

tiffs in Shapiro.

Id. at 999-1000. If Professor McCoy is correct, Justice

Harlan in his Shapiro dissent understated his concern

about the Court becoming a “super-legislature”; the

Court would have become the ultimate legislature.

C. Shapiro is not capable of principled limitation.

Justice Marshall's attempt in Maricopa to limit the

effective sweep of Shapiro to a judicial conception of

“basic necessities” illustrates that principled limitation of

this constitutionally-ungrounded doctrine is unavailing.

Every state, as a matter of legislative policy, is motivated

to address the basic necessities of its citizens. Neverthe-

less, States do so in different ways, through different

programs, and at different benefit levels to meet the

specific economic conditions of each state. State A, for

example, might set a qualifying income for general wel-

fare assistance as any citizen making less than $15,000

annually in light of housing, food, and other subsidies

available; but State B, reflecting a state policy to provide

consolidated welfare assistance without additional pro-

grams, may allow general welfare assistance to any citi-

zen with an income less than $10,000 a year. Were a

citizen making $11,000 per year in state A to move to

state B, his income would exceed the eligibility threshold

and thus disqualify him for general welfare. Has he then

suffered a penalty with regard to travel-related basic

necessities even as no other citizen in state B would

qualify at his income level? Since the logical answer is no,

Justice Marshall’s attempt in Maricopa to salvage Shapiro

is unsuccessful. It merely shifts the judicial ipse dixit from

whether a one-year wait as in Shapiro is severe, to a

23

judicial weighing of different qualifying incomes or a

judicial assessment of what is and is not a basic necessity

or to similar judicially unmanageable comparisons.

The Court's other cases attempting to apply the new-

found travel right in Shapiro are no less troubled, and are

largely explainable, if at all, by non-migration related

reasons.” The Court has also tried to avoid the Shapiro

difficulty by simply not using it. Thus, in Zobel v. Wil-

liams, the Court invalidated Alaska’s plan for distributing

oil windfall revenues based on the length of residency

within the State by purportedly applying rational basis

review. Certainly, this suggests some recognition on the

Court's part that there was a problem with the newly

formed travel right created in Shapiro, which would have

mandated strict scrutiny. Unfortunately, the Court none-

theless went ahead and employed heightened rational

basis review anyway to do-in the statute. This left consti-

tutional commentators in total confusion, though they

wrote the decision off as idiosyncratic.* Of course, it was

? In Dunn v. Blumstein, 405 U.S. 330 (1972), the Court held

that invalidating a residency requirement for voting depends

more upon the fundamental nature of the representative-

reinforcing functions of the franchise than intended or actual

deterrence on the newly minted right to travel. Indeed, the

opinion in Dunn confusingly divorces the protection of a

supposed travel right from any consideration of a legislative

intent to deter migration or whether State law actually has that

effect. The elimination of all assessment of a given legislative

choice’s deterrent effect on migration, however, reveals that

what was at issue in Dunn was not migration, but the

fundamental right to vote.

§ See, e.g., Laurence H. Tribe, American Constitutional Law

Section 16-2 (2d ed. 1988) (opining that the decision is “more the

result of dissatisfaction with the existing tools of equal

protection analysis for dealing with [discrimination against

24

in Zobel, where Justice O'Connor suggested re-connecting

the right to travel or migrate to the Constitution. Justice

O’Connor concurred in the Zobel judgment, but did not

have an opportunity to explore at length the history of

the Privileges and Immunities Clauses, and specifically to

inquire whether Alaska’s allocation of « «nique windfall

could meaningfully be said to fit witcin the textual or

long established common law right to migrate. Rather,

assuming the authentic right to migrate to be implicated,

Justice O’Connor proceeded to apply heightened review

and inquired whether Alaska had substantially demon-

strated non-residents to be a peculiar source of evil to be

addressed. See Zobel, 457 U.S. at 77-78.

It is highly questionable whether the Alaska program

in Zobel infringed any historically-grounded right to

migrate under the Privileges and Immunities Clauses.

Arguably, Justice O’Connor’s important effort was

focused on the greater problem: the re-attachment of the

right to migrate to constitutional text. The particular

application was thus unimportant, or perhaps, explain-

able on transitional or corrective stare decisis grounds.

That Justice O’Connor shared some of this ambivalence,

perhaps, is revealed by her dissenting opinion in Attorney

General of New York v. Soto-Lopez, 476 U.S. 898 (1986). Soto-

Lopez invalidated a civil service employment preference

for veterans who had lived in New York at the time they

entered the service. The Court struck a similar New Mex-

ico preference the year before, again awkwardly using a

type of heightened rational basis review otherwise

unknown to the Court’s work. Hooper v. Bernalillo County

Assessor, 472 U.S. 612 (1985). Soto-Lopez left the Shapiro

newcomers] than of any overall shift in the Court's scrutiny of

how well various purposes fit legislatively chosen means.”).

25

right to travel in shambles, with a plurality feebly trying

to revive it. Chief Justice Burger and Justice White con-

curred on rational basis grounds, with Justices O’Connor,

Rehnquist, and Stevens pointing out the obvious: New

York’s statute had an easily identifiable rational basis -

an expression of gratitude to state citizens who were

doing the State’s part to pick up the hardship of national

military service —- and the right to migrate contained in

the Privileges and Immunities Clause of Article IV was

not implicated. See Soto-Lopez, 476 U.S. at 920-25.

D. California’s two-tier welfare structure has a

rational basis.

California has an ample rational basis for its two-tier

benefit structure, and as suggested throughout, the tex-

tually-based and tradition-informed Privileges and

Immunities Clause right to migrate is not infringed.

Moreover, the rationality of this policy is reinforced by

the fact that Congress expressly authorized California’s

two-tier welfare structure in the Personal Responsibility

and Work Opportunity Act of 1996 (PWORA). See 42

U.S.C. § 604(c) (Supp. 1997).

Empirical evidence suggests that States ought not be

denied the ability to experiment with different welfare

levels. Imposing uniformity borne of Shapiro’s specious

travel right may cause a “race to the bottom” where each

State defensively preserves existing welfare resources by

lowering benefits. Since 1970 and the Court's decision in

Shapiro the year before, general welfare benefits have

declined steadily to a post-war nadir of $349 in 1993. See

Paul E. Peterson, The Price of Federalism 110 (1995). This is

not to assert a direct, but-for causal relationship between

Shapiro and the observable decline, but it is to suggest

that no reasonable state welfare administrator can afford

26

to avoid making this rational inquiry. At a minimum, an

administrator desirous of conducting a well-managed

program with limited fiscal resources will need to keep a

reasonable eye on the number of people capable of being

effectively assisted. This is particularly true since statis-

tics show that after five years a high benefit level state

will have a poverty rate approximately one percentage

point higher than a similar state with low welfare bene-

fits. See Paul Peterson, Devolution’s Price, 14 Yale J. on

Reg. 111 (1996). In a state as populous as California, this

translates into thousands of additional welfare recipients.

Additionally, studies have shown that for every $100

difference in the welfare benefit levels of neighboring

states, the high benefit level state would be effectively

forced to reduce its benefit level for residents by $30 to

hold expenditures constant. See id. at 117. Overall, the

statistics reveal that high welfare levels like California’s,

which at present are the fifth highest in the Nation, are

“magnetic” in that they both dissuade the poor from

leaving a state and attract additional poor into a state.’

Opponents of two-tier residency requirements

attempt to assail the rationale of a two-tier benefit struc-

ture as “exclusionary.” But this pejorative label adds

nothing but atmosphere, and it certainly obscures the

prudence implicit in a State seeking to apportion benefits

in a manner cognizant of limited budgets and an existing

* See Paul Peterson, Welfare Magnets 20 (1990); Rebecca

Blank, The Effect of Welfare and Wage Levels on the Location

Decisions of Female Headed Households, 24 J. of Urban Econ. 186

(1986); see also Edward Gramlich & Deborah S. Laren, Migration

and Income Redistribution Responsibilities, 19 J. of Hum. Res. 489

(1984).

27

population already reliant upon its assistance. It is no

more irrational for a State to mitigate the growth of its

welfare budget than it is to mitigate provable environ-

mental harms by reasonable land use decisions, coor-

dinating growth (due in part to interstate migration) with

existing physical resources. Both are local decisions, and

absent infringement of a textual property right or one

identified by an antecedent inquiry into a State’s common

law of property, entitled to the deference of this Court.

Without the ability to structure benefit levels in tiers to

moderate demand burdens on the existing system, States

are likely to reduce benefits across the board.” Indeed,

the empirical work dealing with welfare benefit levels

suggests that “ithout a two-tier residency structure,

States would be tempted to pursue greater denials of

benefits to all residents which “might deter migrants who

are moving to another job in the new state.” F.H. Buckley

and Margaret F. Brinig, Welfare Magnets: The Race for the

Top, 5 Sup. Ct. Econ. Rev. 141, 176-77 (1997). In this sense,

California’s two-tier structure is not only rational, but it

is also the very means by which a burden on the genuine

right to migrate is preserved — that is a right exercised in

pursuit of “the liberty . . . to work in an honest calling

and contribute by your own toil in some sort to the

support of yourself, to the support of your fellowmen,

© As a recent study observed: “[i]t is disingenuous to claim

that devolution [of welfare responsibilities in the federal

system] will result in a competition to cut benefits, and then to

deny states the power to cure the problem through reasonable

residency standards.” F.H. Buckley and Margaret F. Brinig,

Welfare Magnets: The Race for the Top, 5 Sup. Ct. Econ. Rev. 141,

176 (1997) (expressly approving of the California two-tier plan

and even suggesting that Congress give some thought to

mandating it).

28

and to be secure in the enjoyment of the fruits of your

toil.” Cong. Globe, 42d Cong., 1st Sess., App. 86 (1871)

(Representative Bingham).

The Equal Protection Clause is designed to reach

invidious classifications. It is not intended as a universal

substitute for the enforcement of other fundamental con-

stitutional guarantees. Whether or not a given classifica-

tion offends a fundamental right depends entirely upon

the definition of that right as outlined in the traditions

and customs of the Nation. In this instance, history

reveals the right to migrate to engage in commerce, trade,

or business predates the Constitution; but the right

asserted here by respondents — to receive a higher level of

welfare benefits from one’s new State of residence — is by

no means a right rooted in our Nation’s history or tradi-

tion.

E. The Court should abandon Shapiro's constitu-

tionally problematic framework.

For the reasons advanced by petitioners, the Court

could uphold the California statute in this case while

plausibly avoiding the practical difficulties and the

infringement on democratic State authority occasioned by

Shapiro. This has been the lot of the lower courts, and it

has avoided some, but not all, of the absurdities invited

by Shapiro."

The Court, however, should not follow this path. In

doing so, it would be treating only the symptom of the

1! Compare Jones v. Milwaukee County, 485 N.W.2d 21 (Wis.

1992) (uphoiding a sixty day denial of all welfare assistance as

not a penalty because it is so much less than one year) with

Mitchell v. Steffen, 504 N.W.2d 198 (Minn. 1993) (invalidating a

lower welfare level for the first six months as a penalty).

29

constitutional virus implanted by Shapiro. As one lower

federal court observed:

Many scholars have criticized the Supreme

Court's right to travel jurisprudence . . . adv-

ancing many cogent reasons as to why Shapiro v.

Thompson [citation omitted], the leading case in

this area, should be overruled or at least sub-

stantially modified. [citing authorities]... .

Many scholars criticize the Shapiro Court for

issuing a decision that was an exercise in judi-

cial policymaking rather than textual interpreta-

tion of the Constitution. Further, many scholars

claim that the right to travel jurisprudence is

unsettled and fractured because the Shapiro

Court failed to base the right to travel on a

specific textual provision of the Constitution.

This Court would tend to agree with this propo-

sition. The Supreme Court's failure to ground

the right to travel in a particular provision of

the Constitution has led to an unreasoned appli-

cation of this doctrine because the lower federal

courts must apply this right to travel jurispru-

dence without fully considering the purposes

behind the right to travel within its proper tex-

tual context.

Maldonado v. Houstoun, 177 F.R.D. 311, 323 n.11 (E.D. Pa.

1997). Seldom is such an explicit judicial S.0.S. given. We

respectfully suggest that while rescue in this case might

be accomplished by the puny raft of legalistic distinction,

both the need of lower courts for more explicit guidance

and respect for text, history, and State authority demand

a refreshed constitutional! vessel.

30

CONCLUSION

For the foregoing reasons, amicus Institute for Justice

respectfully requests that the decision of the Ninth Cir-

cuit be reversed, and in doing so, that this Court clarify

the constitutional foundation of the right to migrate to

make it clear that this right is grounded in the Privileges

and Immunities Clauses of the Constitution.

Respectfully submitted,

WiiuiaM H. MELtor Douctas W. Kmaisc*

Cunt Bouck Distinguished Visiting

Institute for Justice Professor

1717 Pennsylvania Ave., Pepperdine University

NW School of Law

Suite 200 c/o Institute for Justice

Washington, DC 20006 1717 Pennsylvania Avenue,

(202) 955-1300 NW

Suite 200

Washington, DC 20006

(310) 456-4664

*Counsel of Record