The House Bill Friday For Travel Between States For Abortion Recalls Venerable Supreme Court Precedent

Reuters reported late today:

“The U.S. House of Representatives on Friday passed legislation to safeguard the right to travel across state lines to seek an abortion after several states banned the procedure in the wake of last month’s Supreme Court ruling.” This makes it time to review venerable Supreme Court cases on the right to travel.

There is the classic Supreme Court precedent in 1931. And then there is the even earlier precedent cited by the classic precedent, namely, the 1868 precedent.

The 1931 case is Edwards v. California. That year is important. It was the depths of the Great Depression. States were stretching the limits of their power to deal with the crisis of their times.

Specifically, California passed a measure to draw a state boundary against travel between states. It did not want penniless people crossing their state line. It was the time of the famous migration of desperate people from the dust bowl in Oklahoma who struggled against all odds to get to, and survive in, California.

The challenge to that California law went to the Supreme Court. The Court struck down California’s attempt to draw a California boundary against travel between states.

Note that this was the conservative Court that soon frustrated President Franklin Roosevelt’s New Deal legislation. This was no left-liberal Court. Quite the opposite.

Let the 1931 Court’s words be quoted. It said:

“The right to move freely from State to State is an incident of national citizenship protected by the privileges and immunities clause of the Fourteenth Amendment against state interference.”

It recited from a prior case that “Mr. Justice Moody in Twining v. State of New Jersey, 211 U.S. 78, 97, 29 S.Ct. 14, 18, 53 L.Ed. 97, stated, ‘Privileges and immunities of citizens of the United States” are those of national citizenship.’”

The 1931 case further quoted that prior opinion of Justice Moody:

“And he went on to state that one of those rights of national citizenship was ‘the right to pass freely from state to state’.”

The 1931 Court did make a concession: “Now it is apparent that this right is not specifically granted by the Constitution.

However, the 1931 Court, 91 years ago, immediately cited an even earlier source, 155 years ago: an 1867 Supreme Court decision on the right to travel:

“Yet before the Fourteenth Amendment it was recognized as a right fundamental to the national character of our Federal government. It was so decided in 1867 by Crandall v. Nevada. In that case this Court struck down a Nevada tax ‘upon every person leaving the State’ by common carrier.’

Note that the case, like controversies today, address state legislation adverse to persons leaving the state.

The 1931 Court further invoked the 1867 decision:”that the right to move freely throughout the nation was a right of national citizenship.”

There will be plenty of debate on the application of the right to travel. To paraphrase Winston Churchill, it is not the beginning of the end on this issue. It is not even the end of the beginning. But, the Court’s expressions in 1931 and 1867 of the right to travel between states shows how far back go the precedents for the right.