# Amicus Curiae Brief — Saenz v. Roe

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0210%3A16

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1999
- **Citation:** 526 U.S. 489

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0210%3A16. Public record. Not legal advice.