33. Reviving a Lost Clause
The right to travel and the forgotten promise of the 14th Amendment
In our last post, we explored the troubled but enduring legacy of the Fourteenth Amendment, an amendment born in the wreckage of war, ratified under military occupation, and yet now central to our understanding of citizenship, equality, and rights.
But not all parts of the Fourteenth Amendment were equally embraced.
For over a century, one clause sat nearly dormant, gathering dust in the footnotes of legal treatises: the Privileges or Immunities Clause. In 1873, just five years after the amendment’s ratification, the Supreme Court’s decision in The Slaughter-House Cases gutted the clause, interpreting it so narrowly that it became functionally useless. The Court held it protected only a narrow band of national rights—things like access to federal ports or protection abroad.
And for decades, that was that.
But then something surprising happened. The Court began to rediscover the clause—not as a sweeping source of economic liberty, as some originalists hoped—but as a tool to protect one quiet but essential idea: the right to travel.
Why the Right to Travel Matters
Most of us don’t think twice about crossing state lines. You can move from Texas to Vermont, or from Florida to California, and expect to be treated fairly by your new state. But states haven’t always made that easy.
In the second half of the 20th century, a series of Supreme Court cases struck down durational residency requirements—laws that said, for example, you had to live in a state for a year before you could vote, get welfare benefits, or even file for divorce.
At stake in these cases was a bigger question: Do all citizens of the United States have equal status when they cross state lines? Or can states treat newcomers like second-class citizens?
Key Cases: The Quiet Revival of a Forgotten Clause
1. Saenz v. Roe (1999) – The Clause Returns
California had a law giving new residents lower welfare benefits than those who had lived in the state for over a year. The Supreme Court struck it down, not under Equal Protection, but under the long-neglected Privileges or Immunities Clause. Justice Stevens wrote:
“The right to travel embraces the right of a citizen of one State to enter and to leave another State ... and, for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State.”
This was a quiet revolution: the first time in over a century the Court used the Privileges or Immunities Clause to strike down a law.
2. Shapiro v. Thompson (1969) – Welfare and Mobility
States had required new residents to live there for at least a year before getting welfare. The Court ruled this violated Equal Protection, because it punished people for moving, especially low-income people. The Court emphasized that the right to travel is fundamental, and states can’t create policies that discourage it.
3. Dunn v. Blumstein (1972) – Voting and Residency
Tennessee required one year of residency before voting. The Court struck it down, saying that voting is a fundamental right, and any law that burdens it must pass strict scrutiny, meaning the state must prove it has a very good reason. It didn’t.
4. Sosna v. Iowa (1975) – A Narrow Limit
Not every residency rule was struck down. In Sosna, the Court upheld a one-year residency requirement to file for divorce, reasoning that states have a legitimate interest in regulating family law. This case showed the limits of the doctrine, when the right at stake isn’t “fundamental,” the state has more leeway.
Why This Matters Today
These cases may seem technical, but their stakes are real. As housing costs, climate change, and political polarization fuel increased migration across states, questions of who counts as a “real” resident will only grow sharper.
We’re already seeing new versions of these tensions:
Can a state deny in-state tuition or voting access to newcomers?
Can benefits or rights be scaled based on how long you’ve lived somewhere?
How should the law treat people who are semi-mobile (gig workers, remote employees, climate migrants)?
The right to travel, and the principle of national citizenship, is once again under pressure.
And here’s the twist: the Privileges or Immunities Clause, once cast aside, is one of our strongest tools for fighting back.
A Clause Worth Rethinking
Originalists scholars want to revive the Privileges or Immunities Clause as a way to protect economic liberties (like the right to pursue a profession or challenge occupational licensing laws). Other scholars are wary of how that might restrict government regulation.
But cases like Saenz show a different possibility: a modest, citizenship-based reading of the clause that ensures equal treatment across state lines and basic fairness in mobility.
In a country as divided and mobile as ours, that’s not just a legal issue. It’s a constitutional lifeline.
Doctrinal breakdown:
Privileges or Immunities Clause defines fundamental national citizenship rights, like the right to travel.
Equal Protection Clause is used to strike down laws that unfairly burden those rights.
Courts apply strict scrutiny under Equal Protection when a fundamental right (like travel) is involved.
So:
Privileges or Immunities = What rights matter
Equal Protection = How hard the Court looks at laws burdening them