Edwards v. California/Concurrence Douglas
Mr. Justice DOUGLAS, concurring.

I express no view on whether or not the statute here in question runs afoul of Art. I, Sec. 8 of the Constitution granting to Congress the power 'to regulate Commerce with foreign Nations, and among the several States.' But I am of the opinion that the right of persons to move freely from State to State occupies a more protected position in our constitutional system than does the movement of cattle, fruit, steel and coal across state lines. While the opinion of the Court expresses no view on that issue, the right involved is so fundamental that I deem it appropriate to indicate the reach of the constitutional question which is present.

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. 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 only such as arise out of the nature and essential character of the national government, or are specifically granted or secured to all citizens or persons by the Constitution of the United States.' And he went on to state that one of those rights of national citizenship was 'the right to pass freely from state to state'. Id., 211 U.S. page 97, 29 S.Ct. pages 18, 19, 53 L.Ed. 97. Now it is apparent that this right is not specifically granted by the Constitution. 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, 6 Wall. 35, 39, 18 L.Ed. 745. In that case this Court struck down a Nevada tax 'upon every person leaving the State' by common carrier. Mr. Justice Miller writing for the Court held that the right to move freely throughout the nation was a right of national citizenship. That the right was implied did not make it any the less 'guaranteed' by the Constitution. Id., 6 Wall. page 47, 18 L.Ed. 745. To be sure, he emphasized that the Nevada statute would obstruct the right of a citizen to travel to the seat of his national government or its offices throughout the country. And see United States v. Wheeler, 254 U.S. 281, 299, 41 S.Ct. 133, 136, 65 L.Ed. 270. But there is not a shred of evidence in the record of the Crandall case that the persons there involved were en route on any such mission any more than it appears in this case that Duncan entered California to interview some federal agency. The point which Mr. Justice Miller made was merely in illustration of the damage and havoc which would ensue if the States had the power to prevent the free movement of citizens from one State to another. This is emphasized by his quotation from Chief Justice Taney's dissenting opinion in the Passenger Cases, 7 How. 283, 492, 12 L.Ed. 702: 'We are all citizens of the United States, and as members of the same community must have the right to pass and repass through every part of it without interruption, as freely as in our own States.' Hence the dictum in United States v. Wheeler, supra, 254 U.S. page 299, 41 S.Ct. page 136, 65 L.Ed. 270, which attempts to limit the Crandall case to a holding that the statute in question directly burdened 'the performance by the United States of its governmental functions' and limited the 'rights of the citizens growing out of such functions,' does not bear analysis.

So, when the Fourteenth Amendment was adopted in 1868 it had been squarely and authoritatively settled that the right to move freely from State to State was a right of national citizenship. As such it was protected by the privileges and immunities clause of the Fourteenth Amendment against state interference. Slaughter-House Cases, 16 Wall. 36, 74, 79, 21 L.Ed. 394. In the latter case Mr. Justice Miller recognized that it was so 'protected by implied guarantees' of the Constitution. Id., 16 Wall. page 79, 21 L.Ed. 394. That was also acknowledged in Twining v. State of New Jersey, supra. And Chief Justice Fuller in Williams v. Fears, 179 U.S. 270, 274, 21 S.Ct. 128, 129, 45 L.Ed. 186, stated: 'Undoubtedly the right of locomotion, the right to remove from one place to another according to inclination, is an attribute of personal liberty, and the right, ordinarily, of free transit from or through the territory of any state is a right secured by the 14th Amendment and by other provisions of the Constitution.'

In the face of this history I cannot accede to the suggestion (Helson v. Com. of Kentucky, 279 U.S. 245, 251, 49 S.Ct. 279, 281, 73 L.Ed. 683; Colgate v. Harvey, 296 U.S. 404, 444, 56 S.Ct. 252, 265, 80 L.Ed. 299, 102 A.L.R. 54) that the commerce clause is the appropriate explanation of Crandall v. Nevada, supra. Two of the Justices in that case expressly put the decision on the commerce clause; the others put it on the broader ground of rights of national citizenship, Mr. Justice Miller stating that 'we do not concede that the question before us is to be determined' by the commerce clause. Id., 6 Wall. page 43, 18 L.Ed. 745. On that broader ground it should continue to rest.

To be sure, there are expressions in the cases that this right of free movement of persons is an incident of state citizenship protected against discriminatory state action by Art. IV, Sec. 2 of the Constitution. Corfield v. Coryell, Fed.Cas.No.3,230, 4 Wash. C.C. 371, 381; Paul v. Virginia, 8 Wall, 168, 180, 19 L.Ed. 357; Ward v. Maryland, 12 Wall. 418, 430, 20 L.Ed. 449; United States v. Wheeler, supra, 254 U.S. pages 298, 299, 41 S.Ct. pages 135, 136, 65 L.Ed. 270. Under the dicta of those cases the statute in the instant case would not survive, since California is curtailing only the free movement of indigents who are non-residents of that State. But the thrust of the Crandall case is deeper. Mr. Justice Miller adverted to Corfield v. Coryell, Paul v. Virginia, and Ward v. Maryland, when he stated in the Slaughter-House Cases that the right protected by the Crandall case was a right of national citizenship arising from the 'implied guarantees' of the Constitution. 16 Wall. at pages 75-79, 21 L.Ed. 394. But his failure to classify that right as one of state citizenship protected solely by Art. IV, sec. 2, underscores his view that the free movement of persons throughout this nation was a right of national citizenship. It likewise emphasizes that Art. IV, Sec. 2, whatever its reach, is primarily concerned with the incidents of residence (the matter involved in United States v. Wheeler, supra) and the exercise of rights within a State, so that a citizen of one State is not in a 'condition of alienage when he is within or when he removes to another state.' Blake v. McClung, 172 U.S. 239, 256, 19 S.Ct. 165, 172, 43 L.Ed. 432. Furthermore, Art. IV, Sec. 2, cannot explain the Crandall decision. The statute in that case applied to citizens of Nevada as well as to citizens of other States. That is to say Nevada was not 'discriminating against citizens of other states in favor of its own.' Hague v. Committee for Industrial Organization, 307 U.S. 496, 511, 59 S.Ct. 954, 962, 83 L.Ed. 1423, and cases cited. Thus it is plain that the right of free ingress and egress rises to a higher constitutional dignity than that afforded by state citizenship.

The conclusion that the right of free movement is a right of national citizenship stands on firm historical ground. If a state tax on that movement, as in the Crandall case, is invalid, a fortiori a state statute which obstructs or in substance prevents that movement must fall. That result necessarily follows unless perchance a State can curtail the right of free movement of those who are poor or destitute. But to allow such an exception to be engrafted on the rights of national citizenship would be to contravene every conception of national unity. It would also introduce a caste system utterly incompatible with the spirit of our system of government. It would permit those who were stigmatized by a State as indigents, paupers, or vagabonds to be relegated to an inferior class of citizenship. It would prevent a citizen because he was poor from seeking new horizons in other States. It might thus withhold from large segments of our people that mobility which is basic to any guarantee of freedom of opportunity. The result would be a substantial dilution of the rights of national citizenship, a serious impairment of the principles of equality. Since the state statute here challenged involves such consequences, it runs afoul of the privileges and immunities clause of the Fourteenth Amendment.

Mr. Justice BLACK and Mr. Justice MURPHY join in this opinion. 

Notes