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Toward the Establishment of a Fundamental Right to Intrastate Travel

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Toward the Establishment of a Fundamental Right to Intrastate Travel FREEDOM OF MOVEMENT AT A STANDSTILL? TOWARD THE ESTABLISHMENT OF A FUNDAMENTAL RIGHT TO INTRASTATE TRAVEL Kathryn E. Wilhelm* INTRODUCTION ............................................................................................. 2461 I. THE RIGHT TO INTERSTATE TRAVEL ................................................. 2464 A. History & Precedent of the Right to Interstate Travel............... 2465 B. Constitutional Sources of the Interstate Travel Right ............... 2466 II. THE RIGHT TO INTRASTATE TRAVEL ................................................. 2469 A. Constitutional Sources of Intrastate Travel ............................... 2471 1. The Bill of Rights ................................................................ 2471 2. The Privileges or Immunities & Privileges and Immunities Clauses ............................................................. 2473 3. Other Constitutional Sources ............................................... 2473 B. Intrastate Travel Precedents .................................................... 2474 1. Supreme Court Decisions .................................................... 2474 2. Lower Federal Courts Approving the Right to Intrastate Travel ................................................................... 2477 3. Lower Federal Courts Rejecting the Right to Intrastate Travel..... .. ........................................................................... 2477 4. State Courts ......................................................................... 2478 III. SUBSTANTIVE CHALLENGES FOR THE ESTABLISHMENT OF A FUNDAMENTAL RIGHT ...................................................................... 2480 A. Juvenile Curfew Ordinances ..................................................... 2481 B. Sex Offender Restrictions .......................................................... 2484 C. Independent Cause of Action ..................................................... 2486 D. Employment Residency Requirements ....................................... 2487 E. Drug Exclusion Zones ............................................................... 2489 F. Custodial Battles ....................................................................... 2490 IV. THE FUTURE OF THE RIGHT TO INTRASTATE TRAVEL ....................... 2492 APPENDIX ..................................................................................................... 2495 INTRODUCTION The majority of Americans will likely live a lifetime and never consider whether they have an intrinsic, fundamental right to travel. They will go to * J.D. Candidate, Boston University School of Law, 2011; B.A., Michigan State University, 2008. I am grateful to my friends and family, especially Jim and Tammy Wilhelm, for their unqualified love and support. I also thank the editorial staff of the Boston University Law Review for their thoughtful comments. 2461 2462 BOSTON UNIVERSITY LAW REVIEW [Vol. 90: 2461 work and school, do their grocery shopping, and visit friends and family without a second thought about their right to do so. It will not occur to them that these activities might be restricted by the state or municipality in which they live. The right to travel is different from the right to free speech,1 to bear arms,2 and to equal protection under the law.3 These enumerated rights have become culturally salient; nearly everyone confronts these rights daily and is reminded that certain constitutional protections follow wherever they go. Even some rights declared in Supreme Court cases have assumed this culturally relevant status; anyone who has seen an episode of Law & Order knows that the accused are entitled to a Miranda warning upon arrest.4 Many people who have never set foot inside a courtroom, a police station, or a criminal procedure class can recite a version of the Miranda warning. The right to free movement differs because it seems so obvious that few would expect it ever to be challenged.5 When most people get in a car or go for a walk, they are unconcerned that the state could or would restrict this behavior. Yet, one may value a right to free movement more highly when he or she is confronted with its denial. A teenager may feel more strongly about the recognition of this right if she were barred from “volunteering at a homeless shelter, attending concerts as a music critic, studying with other students, meeting with friends at their homes or in coffee houses, . auditioning for theater parts, attending ice hockey practice, practicing astronomy, and dancing at an under-21 dance club” after 10 PM.6 Teachers’ 1 See U.S. CONST. amend. I (“Congress shall make no law . abridging the freedom of speech . .”). 2 See U.S. CONST. amend. II (“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”). 3 See U.S. CONST. amend. XIV, § 1 (“No State shall . deny to any person within its jurisdiction the equal protection of the laws.”). 4 Miranda v. Arizona, 384 U.S. 436, 478-79 (1965) (holding that an individual taken into custody or deprived of his freedom in a significant way and subjected to questioning is entitled to warnings of his “right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning”). 5 Throughout this Note, the right to “intrastate travel” and “free movement” will be used interchangeably. While there may be some small semantic differences in their usage, both terms essentially refer to one’s right to travel without restriction within the boundaries of a particular state. Not all courts and scholars follow this formulation. For example, one court wrote: While the terms are often used interchangeably, we do not use the right to travel locally through public spaces and roadways synonymously with a right to freedom of movement. To be sure, a right to freedom of movement could encompass a right to localized travel, but it could also include interstate and international travel components. Johnson v. City of Cincinnati, 310 F.3d 484, 495 (6th Cir. 2002). This Note will take up the issue of terminology again below. See infra notes 60-62 and accompanying text. 6 Nunez v. City of San Diego, 114 F.3d 935, 939 (9th Cir. 1997) (providing examples of 2010] FREEDOM OF MOVEMENT 2463 interest in intrastate travel rights may heighten if they were unable to work in school district unless they established in-district residency within ninety days of employment.7 If a man finds himself without a place to live, he may feel the sting of the application of anti-vagrancy and homelessness ordinances restricting where and when he may be in certain public places.8 The importance of a fundamental right to free movement becomes clear only when an individual is actually confronted with the potential loss of the right. A fundamental right is inalienable; it is “implicit in the concept of ordered liberty.”9 When a government restricts such a right, courts apply strict scrutiny in reviewing the law potentially at odds with the fundamental right.10 To survive strict scrutiny, that law must meet a two-part test: first, it must be justified by a compelling and legitimate state interest and, second, it must be narrowly tailored to achieve that interest.11 The Supreme Court has never definitively declared that intrastate travel is a right retained by the American people, let alone a right entitled to strict scrutiny and the fundamental rights analysis.12 However, many courts have attempted to articulate the state of the law with respect to the freedom of movement. Despite – or perhaps because of – the wide array of opinions on the issue, litigants are invoking the fundamental right to intrastate travel to capitalize on the legal uncertainty and advance their cases. Because free movement implicates many facets of day-to-day life, the argument for a right or fundamental right arises in a broad assortment of substantive areas of the law. From family law13 to the regulation of prostitution,14 and juvenile the ways in which a juvenile curfew ordinance restricts the otherwise lawful activities of minors). 7 E.g., Wardwell v. Bd. of Educ., 529 F.2d 625, 627-28 (6th Cir. 1976) (finding no fundamental right to intrastate travel and subjecting a residency restriction on schoolteacher applicants to rational basis review). 8 See, e.g., Benefit v. City of Cambridge, 679 N.E.2d 184, 186-87 (Mass. 1997) (evaluating an ordinance banning panhandling and finding that it violated the First Amendment because peaceful begging qualifies as “communicative activity”). 9 Palko v. Connecticut, 302 U.S. 319, 324-25 (1937). 10 See, e.g., Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 357 (1977) (“Unquestionably we have held that a government practice or statute which restricts fundamental rights or which contains suspect classifications is to be subjected to strict scrutiny and can be justified only if it furthers a compelling government purpose and, even then, only if no less restrictive alternative is available.” (internal quotation marks omitted)). 11 E.g., id. 12 See infra Part II. 13 See, e.g., Watt v. Watt, 971 P.2d 608, 615-16 (Wyo. 1999) (“The right of travel enjoyed by a citizen carries with it the right of a custodial parent to have the children move with that parent.”). 14 See, e.g., City of New York v. Andrews, 719 N.Y.S.2d 442, 454 (Sup. Ct. 2000) (holding that a law excluding certain individuals from
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