Amendment 14 — Residency Requirements And Interstate Travel

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Fourteenth Amendment , Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Challenges to durational residency requirements have traditionally been made under the Equal Protection Clause of the Fourteenth Amendment . In 1999, however, the Court approved a doctrinal shift, so that state laws that distinguished between their own citizens, based on how long they had been in the state, would be evaluated instead under the Privileges or Immunities Clause of the Fourteenth Amendment .[1](https://www.law.cornell.edu/constitution-conan/amendment-14/residency-requirements-and-interstate-travel#fn1amd14 " Saenz v. Roe, 526 U.S. 489, 502–03 (1999). ") The Court did not, however, question the continuing efficacy of the earlier cases.

A durational residency requirement creates two classes of persons: those who have been within the state for the prescribed period and those who have not.[2](https://www.law.cornell.edu/constitution-conan/amendment-14/residency-requirements-and-interstate-travel#fn2amd14 " Dunn v. Blumstein, 405 U.S. 330, 334 (1972). Because the right to travel is implicated by state distinctions between residents and nonresidents, the relevant constitutional provision is the Privileges and Immunities Clause, Article IV, § 2, cl. 1. ") But persons who have moved recently, at least from state to state,[3](https://www.law.cornell.edu/constitution-conan/amendment-14/residency-requirements-and-interstate-travel#fn3amd14 " Intrastate travel is protected to the extent that the classification fails to meet equal protection standards in some respect. Compare Hadnott v. Amos, 320 F. Supp. 107 (M.D. Ala. 1970) (three-judge court), aff’d. per curiam, 405 U.S. 1035 (1972), with Arlington County Bd. v. Richards, 434 U.S. 5 (1977). The same principle applies in the Commerce Clause cases, in which discrimination may run against in-state as well as out-of-state concerns. Cf. Dean Milk Co. v. City of Madison, 340 U.S. 349 (1951). ") have exercised a right protected by the Constitution, and the durational residency classification either deters the exercise of that right or penalizes those who have exercised it.[4](https://www.law.cornell.edu/constitution-conan/amendment-14/residency-requirements-and-interstate-travel#fn4amd14 " Shapiro v. Thompson, 394 U.S. 618, 629–31, 638 (1969); Dunn v. Blumstein, 405 U.S. 330, 338–42 (1972); Memorial Hosp. v. Maricopa County, 415 U.S. 250 (1974); Jones v. Helms, 452 U.S. 412, 420–21 (1981). See also Oregon v. Mitchell, 400 U.S. 112, 236–39 (1970) (Brennan, White, and Marshall, JJ.), and id. at 285–92 (Stewart and Blackmun, JJ., and Burger, C.J.). ") Any such classification is invalid “unless shown to be necessary to promote a compelling governmental interest.” [5](https://www.law.cornell.edu/constitution-conan/amendment-14/residency-requirements-and-interstate-travel#fn5amd14 " Shapiro v. Thompson, 394 U.S. 618, 634 (1969) (emphasis by Court); Graham v. Richardson, 403 U.S. 365, 375–76 (1971). ") The constitutional right to travel has long been recognized,[6](https://www.law.cornell.edu/constitution-conan/amendment-14/residency-requirements-and-interstate-travel#fn6amd14 " Crandall v. Nevada, 73 U.S. (6 Wall.) 35 (1868); Edwards v. California, 314 U.S. 160 (1941) (both cases in context of direct restrictions on travel). The source of the right to travel and the reasons for reliance on the Equal Protection Clause are questions puzzled over and unresolved by the Court. United States v. Guest, 383 U.S. 745, 758, 759 (1966), and id. at 763–64 (Harlan, J., concurring and dissenting), id. at 777 n.3 (Brennan, J., concurring and dissenting); Shapiro v. Thompson, 394 U.S. 618, 629–31 (1969), and id. at 671 ((Harlan, J., dissenting); San Antonio Sch. Dist. v. Rodriguez, 411 U.S. 1, 31–32 (1973); Jones v. Helms, 452 U.S. 412, 417–19 (1981); Zobel v. Williams, 457 U.S. 55, 60 & n.6 (1982), and id. at 66–68 (Brennan, J., concurring), 78–81 (O’Connor, J., concurring). ") but it is only relatively recently that the strict standard of equal protection review has been applied to nullify durational residency requirements.

Thus, in Shapiro v. Thompson,[7](https://www.law.cornell.edu/constitution-conan/amendment-14/residency-requirements-and-interstate-travel#fn7amd14 " 394 U.S. 618 (1969). ") durational residency requirements conditioning eligibility for welfare assistance on one year’s residence in the state[8](https://www.law.cornell.edu/constitution-conan/amendment-14/residency-requirements-and-interstate-travel#fn8amd14 " The durational residency provision established by Congress for the District of Columbia was also voided. 394 U.S. at 641–42. ") were voided. If the purpose of the requirements was to inhibit migration by needy persons into the state or to bar the entry of those who came from low-paying states to higher-paying ones in order to collect greater benefits, the Court said, the purpose was impermissible.[9](https://www.law.cornell.edu/constitution-conan/amendment-14/residency-requirements-and-interstate-travel#fn9amd14 " 394 U.S. at 627–33. Gaddis v. Wyman, 304 F. Supp. 717 (N.D.N.Y. 1969), aff’d sub nom. Wyman v. Bowens, 397 U.S. 49 (1970), struck down a provision construed so as to bar only persons who came into the state solely to obtain welfare assistance. ") If, on the other hand, the purpose was to serve certain administrative and related governmental objectives—the facilitation of the planning of budgets, the provision of an objective test of residency, minimization of opportunity for fraud, and encouragement of early entry of new residents into the labor force—then the requirements were rationally related to the purpose but they were not compelling enough to justify a classification that infringed a fundamental interest.[10](https://www.law.cornell.edu/constitution-conan/amendment-14/residency-requirements-and-interstate-travel#fn10amd14 " 394 U.S. at 633–38. Shapiro was reaffirmed in Graham v. Richardson, 403 U.S. 365 (1971) (striking down durational residency requirements for aliens applying for welfare assistance), and in Memorial Hosp. v. Maricopa County, 415 U.S. 250 (1974) (voiding requirement of one year’s residency in county as condition to indigent’s receiving nonemergency hospitalization or medical care at county’s expense). When Connecticut and New York reinstituted the requirements, pleading a financial emergency as the compelling state interest, they were summarily rebuffed. Rivera v. Dunn, 329 F. Supp. 554 (D. Conn. 1971), aff’d per curiam, 404 U.S. 1054 (1972); Lopez v. Wyman, Civ. No.

(W.D.N.Y. 1971), aff’d per curiam, 404 U.S. 1055 (1972). The source of the funds, state or federal, is irrelevant to application of the principle. Pease v. Hansen, 404 U.S. 70 (1971). ")

1971-308

(W.D.N.Y. 1971), aff’d per curiam, 404 U.S. 1055 (1972) . The source of the funds, state or federal, is irrelevant to application of the principle. Pease v. Hansen, 404 U.S. 70 (1971). In Dunn v. Blumstein,[11](https://www.law.cornell.edu/constitution-conan/amendment-14/residency-requirements-and-interstate-travel#fn11amd14 " 405 U.S. 330 (1972). But see Marston v. Lewis, 410 U.S. 679 (1973), and Burns v. Fortson, 410 U.S. 686 (1973). Durational residency requirements of five and seven years respectively for candidates for elective office were sustained in Kanapaux v. Ellisor, 419 U.S. 891 (1974), and Sununu v. Stark, 420 U.S. 958 (1975). ") where the durational residency requirements denied the franchise to newcomers, such administrative justifications were found constitutionally insufficient to justify the classification.[12](https://www.law.cornell.edu/constitution-conan/amendment-14/residency-requirements-and-interstate-travel#fn12amd14 " For additional discussion of durational residence as a qualification to vote, see . ") The Privileges or Immunities Clause of the Fourteenth Amendment was the basis for striking down a California law that limited welfare benefits for California citizens who had resided in the state for less than a year to the level of benefits that they would have received in the state of their prior residence.[13](https://www.law.cornell.edu/constitution-conan/amendment-14/residency-requirements-and-interstate-travel#fn13amd14 " Saenz v. Roe, 526 U.S. 489, 505 (1999). ")

However, a state one-year durational residency requirement for the initiation of a divorce proceeding was sustained in Sosna v. Iowa.[14](https://www.law.cornell.edu/constitution-conan/amendment-14/residency-requirements-and-interstate-travel#fn14amd14 " 419 U.S. 393 (1975). Justices Thurgood Marshall and William Brennan dissented on the merits. Id. at 418. ") Although it is not clear what the precise basis of the ruling is, it appears that the Court found that the state’s interest in requiring that those who seek a divorce from its courts be genuinely attached to the state and its desire to insulate divorce decrees from the likelihood of collateral attack justified the requirement.[15](https://www.law.cornell.edu/constitution-conan/amendment-14/residency-requirements-and-interstate-travel#fn15amd14 " 419 U.S. at 409. But the Court also indicated that the plaintiff was not absolutely barred from the state courts, but merely required to wait for access (which was true in the prior cases as well and there held immaterial), and that possibly the state interests in marriage and divorce were more exclusive and thus more immune from federal constitutional attack than were the matters at issue in the previous cases. The Court also did not indicate whether it was using strict or traditional scrutiny. ") Similarly, durational residency requirements for lower in-state tuition at public colleges have been held constitutionally justifiable, again, however, without a clear statement of reason.[16](https://www.law.cornell.edu/constitution-conan/amendment-14/residency-requirements-and-interstate-travel#fn16amd14 " Starns v. Malkerson, 326 F. Supp. 234