Forum refusal to recognize restoration could also possibly be
challenged as an infringement of the right to interstate travel.
204In
Saenz v. Roe, the Court noted that the “right to travel” embraced “at
least three different components”:
[1] the right of a citizen of one State to enter and to leave
another State, [2] the right to be treated as a welcome visitor
rather than an unfriendly alien when temporarily present in
the second State, and [3], for those travelers who elect to
become permanent residents, the right to be treated like other
citizens of that State.
205The first travel right would not so much be at issue here, because
individuals would not be challenging infringement of their freedom of
state ingress and egress. The second right, to be “treated as a welcome
visitor,” which the Court located in Article IV’s Privileges and
Immunities Clause,
206could be implicated, such as when work or
school necessitates, but a challenge would face an uphill battle for
reasons discussed in the prior section.
207The success of a claim
sounding in the third travel right — to be treated equally when a
“permanent resident” — which the Court located in the Fourteenth
Amendment’s Privileges or Immunities Clause,
208would depend on a
reviewing court’s reading of Saenz.
209204 See supra note 21 and accompanying text. The right to travel can be limited by
state-imposed probation, parole, or other community supervision conditions. The population at issue here, however, mainly concerns persons who have satisfied their penal debt to society. See Smith v. Doe, 538 U.S. 84, 101-02 (2003) (noting that convicted individuals who have discharged their penal debt “are free to move where they wish and to live and work as other citizens, with no supervision”).
205 Saenz v. Roe, 526 U.S. 489, 500 (1999). 206 Id.
207 See supra Part II.B.
208 Saenz, 526 U.S. at 502-03 (citing U.S. CONST. amend. XIV, § 1).
209 Saenz reignited interest in the Privileges or Immunities Clause as a possible
basis for constitutional challenge, which had been moribund since the Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873). See generally Michael Kent Curtis, Historical Linguistics, Inkblots, and Life After Death: The Privileges or Immunities of Citizens of the United States, 78 N.C. L. REV. 1071 (2000) (exploring that historical background).
In Saenz, petitioners challenged a California law that restricted the
amount of welfare benefits they could receive during their first year of
California residency to an amount equivalent to that available in their
prior state residence.
210The Court, by a 7-2 vote, invalidated the
durational residency requirement, concluding that it violated a citizen’s
“right to be treated equally in her new state of residence.”
211The
requirement was impermissible, even if it only “incidentally” infringed
the right to travel to California
212and enjoyed fiscal justification in the
state.
213The Fourteenth Amendment’s Privileges and Immunities
Clause, the Court wrote, ensures the right of citizens, “rich or poor,” to
choose a state in which to reside, and states “do not have any right to
select their citizens.”
214According to the Saenz majority, “[t]he
Fourteenth Amendment, like the Constitution itself, was, as Justice
Cardozo put it, ‘framed upon the theory that the peoples of the several
states must sink or swim together, and that in the long run prosperity
and salvation are in union and not division.’”
215Saenz offers intriguing possibility based on its embrace of what I
have elsewhere called “constitutional collectivism.”
216Before Saenz,
the precept was most forcefully invoked in Edwards v. California,
217where the Court addressed yet another California law, one enacted in
the wake of the Depression making it a misdemeanor to bring into the
State “any indigent person who is not a resident of the State.”
218Framing the issue as whether the exclusionary law was within
California’s police power, the Court acknowledged the major
difficulties states faced as a result of the masses of itinerant poor then
moving about the land,
219but refused to condone California’s effort to
isolate itself.
Optimism was dashed, however, in McDonald v. City of Chicago, 561 U.S. 742 (2010), when the Court parried efforts to locate the Second Amendment right to bear arms there, instead relying on Fourteenth Amendment incorporation doctrine. Id. at 758.
210 Saenz, 526 U.S. at 493-94. 211 Id. at 505.
212 Id. at 504. 213 Id. at 506.
214 Id. at 510-11 (citing U.S. CONST. amend. XIV, § 1).
215 Id. at 511 (quoting Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 523 (1935)). 216 Wayne A. Logan, Constitutional Collectivism and Ex-Offender Residence Exclusion
Laws, 92 IOWA L. REV. 1, 3 (2006).
217 Edwards v. California, 314 U.S. 160 (1941).
218 Id. at 171 (quoting CAL. WELF. & INST. CODE § 2615 (1941)).
219 See id. at 173 (“The State asserts that the huge influx of migrants into California
in recent years has resulted in problems of health, morals, and especially finance, the proportions of which are staggering. It is not for us to say that this is not true.”);
Writing for the Court, Justice Byrnes, invoking Justice Cardozo’s
“sink or swim” precept, stated that while “[i]t is frequently the case that
a State might gain a momentary respite from the pressure of events by
the simple expedient of shutting its gates to the outside world,” the
Constitution does not permit it to do so.
220As a member of the federal
union, California was obligated to assist the needy — “the common
responsibility and concern of the whole nation.”
221The state’s refusal to
do so imposed an impermissible barrier on interstate commerce insofar
as the free interstate passage of all citizens, including the poor, affected
commerce.
222Furthermore, the law was problematic in political process
terms because it deprived non-resident indigents, the targets of the law,
“of the opportunity to exert political pressure upon the California
legislature in order to obtain a change in policy.”
223Helping promote the successful reentry of ex-offenders can certainly
be thought “the common responsibility and concern of the whole
nation.”
224At the same time, the disparate treatment of newcomers
would give rise to political process concerns (especially concerning
the right to vote) identified in Edwards.
225States do not typically wish
to appear hospitable to ex-offenders,
226who are also often poor or
have little resources, and it is not inconceivable that state refusal of
restoration recognition aligns with a desire to discourage their entry.
Nevertheless, a restoration recognition claim would prove difficult
to sustain. Refusing to recognize the restored status of a newcomer,
while discriminatory in its effect, would not likely be seen as
comparable to the overt discrimination embodied in the travel barriers
condemned by the Court in Saenz and Edwards.
227Moreover, as with
Logan, supra note 216, at 26.220 Edwards, 314 U.S. 160 at 173-74 (quoting Baldwin, 294 U.S. at 523).
221 Id. at 175; see also id. at 174-75 (“Recent years, and particularly the past decade,
have been marked by a growing recognition that in an industrial society the task of providing assistance to the needy has ceased to be local in character.”).
222 Id. at 175-76. 223 Id. at 174. 224 Id. at 175. 225 See id. at 174.
226 See Wayne A. Logan, Crime, Criminals, and Competitive Crime Control, 104
MICH. L. REV. 1733, 1733-35 (2006) (noting state desires to reduce crime and natural aversion for appearing too welcoming to potential criminal offenders); Doron Teichman, The Market for Criminal Justice: Federalism, Crime Control, and Jurisdictional Competition, 103 MICH. L. REV. 1831, 1831-33 (2005) (discussing how state criminal justice policies might serve to discourage entry of individuals with possible propensity to commit crimes).
227 For an intriguing argument that the Privileges or Immunities Clause was