Is the 14th Amendment's Privileges or Immunities Clause coming back — after lying moribund for 126 years? That's what the Supreme Court seemed to say last week in an opinion that could reverberate for years—and that would be good.
The question in Saenz v. Roe, No. 98-97, was whether California, pursuant to federal authority, could limit welfare payments to new residents for a year, paying the rate provided by their former states of residence, not the higher California rate. The rule was not meant to inhibit travel, the state said, which would be constitutionally impermissible, but to save money.
Sleeping Beauty awakens
No dice, said the court. But the big news is how it said it: by pointing to the long-dormant Privileges or Immunities Clause, which a bitterly divided court eviscerated in 1873 in the infamous Slaughterhouse Cases. As Chief Justice William H. Rehnquist observed in dissent, joined by Justice Clarence Thomas, in more than 130 years the court has relied on the clause only once — in a 1935 case it overruled five years later.
Writing for the majority, Justice John Paul Stevens invoked the "right to travel." Indeed, he went back to Slaughterhouse itself:
Despite "fundamentally differing views concerning the coverage of the Privileges or Immunities Clause," it has always been "common ground" that a citizen of the United States can travel to and become "a citizen of any State of the Union by a bona fide residence therein, with the same rights as other citizens of that State."
Far from allowing discrimination among citizens in order to save money, Justice Stevens concluded, the 14th Amendment's Citizenship Clause "expressly equates citizenship with residency" and thus doesn't allow for "degrees of citizenship based on length of residency." California's program is therefore unconstitutional.
Justice Thomas, in a separate dissent joined by Justice Rehnquist, would also like to revisit the Privileges or Immunities Clause — "in an appropriate case." That makes nine justices, which is really big news. Yet absent analysis of the historical underpinnings of the clause and consideration of whether it "should displace, rather than augment, portions of our equal protection and substantive due process jurisprudence," Justice Thomas fears the majority has raised the specter that the clause "will become yet another convenient tool for inventing new rights."
That fear is not unwarranted, of course. Yet Justice Thomas adds, correctly, that "the demise of the Privileges or Immunities Clause has contributed in no small part to the current disarray of our Fourteenth Amendment jurisprudence." Indeed, had the majority done the historical homework Justice Thomas recommends, it would have discovered that the Privileges or Immunities Clause, not the Due Process or Equal Protection Clauses, was meant to be the principal source of substantive rights under the 14th Amendment. It's no accident, therefore, that reliance over the years on due process and equal protection alone has led to our current disarray.
But why is Saenz not "an appropriate case"? Justice Thomas points to original understanding: When the clause was adopted, "people understood that 'privileges or immunities of citizens' were fundamental rights, rather than every public benefit established by positive law."
Fair enough. But for all its purported reliance on the Privileges or Immunities Clause and the implicit right to travel, the majority argument is really simpler. As the Rehnquist dissent suggests, it turns merely on the 14th Amendment's Citizenship and Equal Protection Clauses. Yet that will do. The former "expressly equates" citizenship with residency. The latter ensures equal protection of the laws to "any person" within a state's jurisdiction.
We still have to distinguish residents from people simply passing through. But once we do, welfare measures are enacted, by and large, by and for the citizens of a state — as defined, constitutionally, by residency.
The difficulty, of course, is this: Whereas welfare rights, if at all legitimate, are derived from the social contract, the Citizenship Clause enables people who were not party to that contract to later reap its benefits—by simply moving. Understandably, that appears to gall the dissenters. And it helps explain why Justice Rehnquist focuses on the practical difficulty of policing "bona fide resident." But the ultimate problem for the dissenters, if it is one, lies in the Constitution. And now that this decision has come down, states will have to think twice about their gold-plated welfare programs, in all their variations.