Shapiro v. Thompson/Concurrence Stewart

by Potter Stewart

Mr. Justice STEWART, concurring.

In joining the opinion of the Court, I add a word in response to the dissent of my Brother HARLAN, who, I think, has quite misapprehended what the Court's opinion says.

The Court today does not 'pick out particular human activities, characterize them as 'fundamental,' and give them added protection * * *.' To the contrary, the Court simply recognizes, as it must, an established constitutional right, and gives to that right no less protection than the Constitution itself demands.

'The constitutional right to travel from one State to another * * * has been firmly established and repeatedly recognized.' United States v. Guest, 383 U.S. 745, 757, 86 S.Ct. 1170, 1178, 16 L.Ed.2d 239. This constitutional right, which, of course, includes the right of 'entering and abiding in any state in the Union,' Truax v. Raich, 239 U.S. 33, 39, 36 S.Ct. 7, 9, 60 L.Ed. 131, is not a mere conditional liberty subject to regulation and control under conventional due process or equal protection standards. ^[1] '(T)he right to travel freely from State to State finds constitutional protection that is quite independent of the Fourteenth Amendment.' United States v. Guest, supra, at 760, 86 S.Ct. at 1179, n. 17. ^[2] As we made clear in Guest, it is a right broadly assertable against private interference as well as governmental action. ^[3] Like the right of association, NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488, it is a virtually unconditional personal right, ^[4] guaranteed by the Constitution to us all.

It follows, as the Court says, that 'the purpose of deterring the in-migration of indigents cannot serve as justification for the classification created by the one-year waiting period, since that purpose is constitutionally impermissible.' And it further follows, as the Court says, that any other purposes offered in support of a law that so clearly impinges upon the constitutional right of interstate travel must be shown to reflect a compelling governmental interest. This is necessarily true whether the impinging law be a classification statute to be tested against the Equal Protection Clause, or a state of federal regulatory law, to be tested against the Due Process Clause of the Fourteenth or Fifth Amendment. As Mr. Justice Harlan wrote for the Court more than a decade ago, '(T)o justify the deterrent effect * * * on the free exercise * * * of their constitutionally protected right * * * a '* * * subordinating interest of the State must be compelling." NAACP v. Alabama, supra, at 463, 78 S.Ct. at 1172.

The Court today, therefore, is not 'contriving new constitutional principles.' It is deciding these cases under the aegis of established constitutional law. ^[5]

Notes

1  By contrast, the 'right' of international travel has been considered to be no more than an aspect of the 'liberty' protected by the Due Process Clause of the Fifth Amendment. Kent v. Dulles, 357 U.S. 116, 125, 78 S.Ct. 1113, 1118, 2 L.Ed.2d 1204; Aptheker v. Secretary of State, 378 U.S. 500, 505-506, 84 S.Ct. 1659, 1663, 12 L.Ed.2d 992. As such, this 'right,' the Court has held, can be regulated within the bounds of due process. Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271, 14 L.Ed.2d 179.

2  The constitutional right of interstate travel was fully recognized long before adoption of the Fourteenth Amendment. See the statement of Chief Justice Taney in the Passenger Cases. 7 How. 283, 492, 12 L.Ed. 702:

'For all the great purposes for which the Federal government was formed, we are one people, with one common country. We are all citizens of the United States; and, as members of the same community, must have the right to pass and repass through every part of it without interruption, as freely as in our own States.'

3  Mr. Justice Harlan was alone in dissenting from this square holding in Guest. Supra, at 762, 86 S.Ct., at 1180.

4  The extent of emergency governmental power temporarily to prevent or control interstate travel, e.g., to a disaster area, need not be considered in these cases.

5  It is to be remembered that the Court today affirms the judgment of three different federal district courts, and that at least four other federal courts have reached the same result. See ante, at 622, n. 1.