Saenz v. Roe (1999)

Saenz v. Roe (1999)

526 U.S. 489

California, which had the sixth highest welfare benefit levels in the country, sought to amend its Aid to Families with Dependent Children (AFDC) program in 1992 by limiting new residents, for the first year they live in the state, to the benefits they would have received in the state of their prior residence. Because of legal challenges discussed in the case, this provision remained inoperative until after Congress enacted the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), which replaced AFDC with Temporary Assistance to Needy Families (TANF). PRWORA expressly authorized any state receiving a TANF grant to pay the benefit amount of another state’s TANF program to residents who have lived in the state for less than twelve months. When California announced that it would rely on PRWORA and begin to enforce its 1992 enactment, respondents filed this class action, challenging the constitutionality of its durational residency requirement and PRWORA’s approval of that requirement. The U.S. District Court for the Eastern District of California issued a preliminary injunction, the Ninth Circuit affirmed the injunction, and the United States Supreme Court granted certiorari.

Opinion of the Court: Stevens, Breyer, Ginsburg, Kennedy, O’Connor, Scalia.

Dissenting opinions: Rehnquist, Thomas; Thomas, Rehnquist.

JUSTICE STEVENS delivered the opinion of the Court.

In 1992, California enacted a statute limiting the maximum welfare benefits available to newly arrived residents. The scheme limits the amount payable to a family that has resided in the State for less than 12 months to the amount payable by the State of the family’s prior residence. The questions presented by this case are whether the 1992 statute was constitutional when it was enacted and, if not, whether an amendment to the Social Security Act enacted by Congress in 1996 affects that determination.

California is not only one of the largest, most populated, and most beautiful States in the Nation; it is also one of the most generous. Like all other States, California has participated in several welfare programs authorized by the Social Security Act and partially funded by the Federal Government. Its programs, however, provide a higher level of benefits and serve more needy citizens than those of most other States. In one year the most expensive of those programs, Aid to Families with Dependent Children (AFDC), which was replaced in 1996 with Temporary Assistance to Needy Families (TANF), provided benefits for an average of 2,645,814 persons per month at an annual cost to the State of $2.9 billion. In California the cash benefit for a family of two—a mother and one child—is $456 a month, but in the neighboring State of Arizona, for example, it is only $275.

In 1992, in order to make a relatively modest reduction in its vast welfare budget, the California Legislature enacted §11450.03 of the state Welfare and Institutions Code. That section sought to change the California AFDC program by limiting new residents, for the first year they live in California, to the benefits they would have received in the State of their prior residence. Because in 1992 a state program either had to conform to federal specifications or receive a waiver from the Secretary of Health and Human Services in order to qualify for federal reimbursement, §11450.03 required approval by the Secretary to take effect. In October 1992, the Secretary issued a waiver purporting to grant such approval.

On December 21, 1992, three California residents who were eligible for AFDC benefits filed an action in the Eastern District of California challenging the constitutionality of the durational residency requirement in §11450.03. . . . The District Court issued a temporary restraining order and, after a hearing, preliminarily enjoined implementation of the statute. . . . Relying primarily on our decisions in Shapiro v. Thompson, 394 U.S. 618 (1969), and Zobel v. Williams, 457 U.S. 55 (1982), [the district court judge] concluded that the statute placed “a penalty on the decision of new residents to migrate to the State and be treated on an equal basis with existing residents.” The Court of Appeals summarily affirmed, [and w]e granted the State’s petition for certiorari. We were, however, unable to reach the merits because the Secretary’s approval of § 11450.03 had been invalidated in a separate proceeding, and the State had acknowledged that the Act would not be implemented without further action by the Secretary. . . . Accordingly, §11450.03 remained inoperative until after Congress enacted the Personal Responsibility and Work Opportunity Reconciliation Act of 1996.

PRWORA replaced the AFDC program with TANF. The new statute expressly authorizes any State that receives a block grant under TANF to “apply to a family the rules (including benefit amounts) of the [TANF] program . . . of another State if the family has moved to the State from the other State and has resided in the State for less than 12 months.” With this federal statutory provision in effect, California no longer needed specific approval from the Secretary to implement §11450.03. The California Department of Social Services therefore issued an “All County Letter” announcing that the enforcement of §11450.03 would commence on April 1, 1997.

. . . On April 1, 1997, the two respondents filed this action in the Eastern District of California making essentially the same claims asserted by the plaintiffs in [the 1992 litigation] but also challenging the constitutionality of PRWORA’s approval of the durational residency requirement. The District Court [again] issued a temporary restraining order and certified the case as a class action. Reasoning that PRWORA permitted, but did not require, States to impose durational residency requirements, [the district court judge] concluded that the existence of the federal statute did not affect the legal analysis in his prior opinion. . . . He therefore again enjoined the implementation of the statute. Without finally deciding the merits, the Court of Appeals affirmed his issuance of a preliminary injunction. [W]e granted certiorari because of the importance of the case. We now affirm.

The word “travel” is not found in the text of the Constitution. Yet the “constitutional right to travel from one State to another” is firmly embedded in our jurisprudence. Indeed, as Justice Stewart reminded us in Shapiro v. Thompson [(1969)], the right is so important that it is “assertable against private interference as well as governmental action . . . a virtually unconditional personal right, guaranteed by the Constitution to us all.”

In Shapiro, we reviewed the constitutionality of three statutory provisions that denied welfare assistance to residents of Connecticut, the District of Columbia, and Pennsylvania, who had resided within those respective jurisdictions less than one year immediately preceding their applications for assistance. Without pausing to identify the specific source of the right, we began by noting that the Court had long “recognized that the nature of our Federal Union and our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement.” We squarely held that it was “constitutionally impermissible” for a State to enact durational residency requirements for the purpose of inhibiting the migration by needy persons into the State. We further held that a classification that had the effect of imposing a penalty on the exercise of the right to travel violated the Equal Protection Clause “unless shown to be necessary to promote a compelling governmental interest,” and that no such showing had been made.

In this case California argues that §11450.03 was not enacted for the impermissible purpose of inhibiting migration by needy persons and that, unlike the legislation reviewed in Shapiro, it does not penalize the right to travel because new arrivals are not ineligible for benefits during their first year of residence. California submits that, instead of being subjected to the strictest scrutiny, the statute should be upheld if it is supported by a rational basis and that the State’s legitimate interest in saving over $10 million a year satisfies that test. Although the United States did not elect to participate in the proceedings in the District Court or the Court of Appeals, it has participated as amicus curiae in this Court. It has advanced the novel argument that the enactment of PRWORA allows the States to adopt a “specialized choice-of-law-type provision” that “should be subject to an intermediate level of constitutional review,” merely requiring that durational residency requirements be “substantially related to an important governmental objective.” The debate about the appropriate standard of review, together with the potential relevance of the federal statute, persuades us that it will be useful to focus on the source of the constitutional right on which respondents rely.

The “right to travel” discussed in our cases embraces at least three different components. It protects the right of a citizen of one State to enter and to leave another State, the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and, for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State. It was the right to go from one place to another, including the right to cross state borders while en route, that was vindicated in Edwards v. California (1941), which invalidated a state law that impeded the free interstate passage of the indigent. . . . Given that §11450.03 imposed no obstacle to respondents’ entry into California, we think the State is correct when it argues that the statute does not directly impair the exercise of the right to free interstate movement. . . .

The second component of the right to travel is, however, expressly protected by the text of the Constitution. The first sentence of Article IV, § 2, provides: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” Thus, by virtue of a person’s state citizenship, a citizen of one State who travels in other States, intending to return home at the end of his journey, is entitled to enjoy the “Privileges and Immunities of Citizens in the several States” that he visits. . . . Those protections are not “absolute,” but the Clause “does bar discrimination against citizens of other States where there is no substantial reason for the discrimination beyond the mere fact that they are citizens of other States.” There may be a substantial reason for requiring the nonresident to pay more than the resident for a hunting license, see Baldwin v. Fish and Game Commission of Montana (1978), or to enroll in the state university, see Vlandis v. Kline (1973), but our cases have not identified any acceptable reason for qualifying the protection afforded by the Clause for “the ‘citizen of State A who ventures into State B’ to settle there and establish a home.” Permissible justifications for discrimination between residents and nonresidents are simply inapplicable to a nonresident’s exercise of the right to move into another State and become a resident of that State.

What is at issue in this case, then, is this third aspect of the right to travel—the right of the newly arrived citizen to the same privileges and immunities enjoyed by other citizens of the same State. That right is protected not only by the new arrival’s status as a state citizen, but also by her status as a citizen of the United States. That additional source of protection is plainly identified in the opening words of the Fourteenth Amendment: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;. . . . ” Despite fundamentally differing views concerning the coverage of the Privileges or Immunities Clause of the Fourteenth Amendment, most notably expressed in the majority and dissenting opinions in the Slaughter-House Cases (1873), it has always been common ground that this Clause protects the third component of the right to travel. Writing for the majority in the Slaughter-House Cases, Justice Miller explained that one of the privileges conferred by this Clause “is that a citizen of the United States can, of his own volition, 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.” Justice Bradley, in dissent, used even stronger language to make the same point: “The states have not now, if they ever had, any power to restrict their citizenship to any classes or persons. A citizen of the United States has a perfect constitutional right to go to and reside in any State he chooses, and to claim citizenship therein, and an equality of rights with every other citizen; and the whole power of the nation is pledged to sustain him in that right. He is not bound to cringe to any superior, or to pray for any act of grace, as a means of enjoying all the rights and privileges enjoyed by other citizens.” That newly arrived citizens “have two political capacities, one state and one federal,” adds special force to their claim that they have the same rights as others who share their citizenship. Neither mere rationality nor some intermediate standard of review should be used to judge the constitutionality of a state rule that discriminates against some of its citizens because they have been domiciled in the State for less than a year. The appropriate standard may be more categorical than that articulated in Shapiro, but it is surely no less strict.

Because this case involves discrimination against citizens who have completed their interstate travel, the State’s argument that its welfare scheme affects the right to travel only “incidentally” is beside the point. Were we concerned solely with actual deterrence to migration, we might be persuaded that a partial withholding of benefits constitutes a lesser incursion on the right to travel than an outright denial of all benefits. But since the right to travel embraces the citizen’s right to be treated equally in her new State of residence, the discriminatory classification is itself a penalty. . . .

The classifications challenged in this case—and there are many—are defined entirely by (a) the period of residency in California and (b) the location of the prior residences of the disfavored class members. The favored class of beneficiaries includes all eligible California citizens who have resided there for at least one year, plus those new arrivals who last resided in another country or in a State that provides benefits at least as generous as California’s. Thus, within the broad category of citizens who resided in California for less than a year, there are many who are treated like lifetime residents. And within the broad subcategory of new arrivals who are treated less favorably, there are many smaller classes whose benefit levels are determined by the law of the States from whence they came. To justify §11450.03, California must therefore explain not only why it is sound fiscal policy to discriminate against those who have been citizens for less than a year, but also why it is permissible to apply such a variety of rules within that class. . . .

Disavowing any desire to fence out the indigent, California has instead advanced an entirely fiscal justification for its multi-tiered scheme. The enforcement of §11450.03 will save the State approximately $10.9 million a year. The question is not whether such saving is a legitimate purpose but whether the State may accomplish that end by the discriminatory means it has chosen. An evenhanded, across-the-board reduction of about 72 cents per month for every beneficiary would produce the same result. But our negative answer to the question does not rest on the weakness of the State’s purported fiscal justification. It rests on the fact that the Citizenship Clause of the Fourteenth Amendment expressly equates citizenship with residence: “That Clause does not provide for, and does not allow for, degrees of citizenship based on length of residence.” It is equally clear that the Clause does not tolerate a hierarchy of 45 subclasses of similarly situated citizens based on the location of their prior residence. Thus §11450.03 is doubly vulnerable: Neither the duration of respondents’ California residence, nor the identity of their prior States of residence, has any relevance to their need for benefits. Nor do those factors bear any relationship to the State’s interest in making an equitable allocation of the funds to be distributed among its needy citizens. . . . In short, the State’s legitimate interest in saving money provides no justification for its decision to discriminate among equally eligible citizens.

The question that remains is whether congressional approval of durational residency requirements in the 1996 amendment to the Social Security Act somehow resuscitates the constitutionality of §11450.03. That question is readily answered, for we have consistently held that Congress may not authorize the States to violate the Fourteenth Amendment. Moreover, the protection afforded to the citizen by the Citizenship Clause of that Amendment is a limitation on the powers of the National Government as well as the States.

Article I of the Constitution grants Congress broad power to legislate in certain areas. Those legislative powers are, however, limited not only by the scope of the Framers’ affirmative delegation, but also by the principle “that they may not be exercised in a way that violates other specific provisions of the Constitution. For example, Congress is granted broad power to ‘lay and collect Taxes,’ but the taxing power, broad as it is, may not be invoked in such a way as to violate the privilege against self-incrimination.” Congress has no affirmative power to authorize the States to violate the Fourteenth Amendment and is implicitly prohibited from passing legislation that purports to validate any such violation.

“Section 5 of the Fourteenth Amendment gives Congress broad power indeed to enforce the command of the amendment and ‘to secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion. . . . ‘ Ex parte Virginia (1880). Congress’ power under §5, however, ‘is limited to adopting measures to enforce the guarantees of the Amendment; §5 grants Congress no power to restrict, abrogate, or dilute these guarantees.’ Katzenbach v. Morgan (1966). Although we give deference to congressional decisions and classifications, neither Congress nor a State can validate a law that denies the rights guaranteed by the Fourteenth Amendment. . . . (Mississippi Univ. for Women v. Hogan, 1982)

The judgment of the Court of Appeals is affirmed.

CHIEF JUSTICE REHNQUIST, with whom JUSTICE THOMAS joins, dissenting.

The Court today breathes new life into the previously dormant Privileges or Immunities Clause of the Fourteenth Amendment—a Clause relied upon by this Court in only one other decision, Colgate v. Harvey (1935), overruled five years later by Madden v. Kentucky (1940). It uses this Clause to strike down what I believe is a reasonable measure falling under the head of a “good-faith residency requirement.” Because I do not think any provision of the Constitution—and surely not a provision relied upon for only the second time since its enactment 130 years ago—requires this result, I dissent.

Much of the Court’s opinion is unremarkable and sound. The right to travel clearly embraces the right to go from one place to another, and prohibits States from impeding the free interstate passage of citizens. . . .

I also have no difficulty with aligning the right to travel with the protections afforded by the Privileges and Immunities Clause of Article IV, §2, to nonresidents who enter other States “intending to return home at the end of [their] journey.” . . . Finally, I agree with the proposition that a “citizen of the United States can, of his own volition, 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.” Slaughter-House Cases (1873). But I cannot see how the right to become a citizen of another State is a necessary “component” of the right to travel, or why the Court tries to marry these separate and distinct rights. A person is no longer “traveling” in any sense of the word when he finishes his journey to a State which he plans to make his home. Indeed, under the Court’s logic, the protections of the Privileges or Immunities Clause recognized in this case come into play only when an individual stops traveling with the intent to remain and become a citizen of a new State. The right to travel and the right to become a citizen are distinct, their relationship is not reciprocal, and one is not a “component” of the other. Indeed, the same dicta from the Slaughter-House Cases quoted by the Court actually treats the right to become a citizen and the right to travel as separate and distinct rights under the Privileges or Immunities Clause of the Fourteenth Amendment. At most, restrictions on an individual’s right to become a citizen indirectly affect his calculus in deciding whether to exercise his right to travel in the first place, but such an attenuated and uncertain relationship is no ground for folding one right into the other.

No doubt the Court has, in the past 30 years, essentially conflated the right to travel with the right to equal state citizenship in striking down durational residence requirements similar to the one challenged here. . . . . The Court today tries to clear much of the underbrush created by these prior right-to-travel cases, abandoning its effort to define what residence requirements deprive individuals of “important rights and benefits” or “penalize” the right to travel. Under its new analytical framework, a State, outside certain ill-defined circumstances, cannot classify its citizens by the length of their residence in the State without offending the Privileges or Immunities Clause of the Fourteenth Amendment. The Court thus departs from Shapiro and its progeny, and, while paying lip service to the right to travel, the Court does little to explain how the right to travel is involved at all. Instead, as the Court’s analysis clearly demonstrates, this case is only about respondents’ right to immediately enjoy all the privileges of being a California citizen in relation to that State’s ability to test the good-faith assertion of this right. The Court has thus come full circle by effectively disavowing the analysis of Shapiro, segregating the right to travel and the rights secured by Article IV from the right to become a citizen under the Privileges or Immunities Clause, and then testing the residence requirement here against this latter right. For all its misplaced efforts to fold the right to become a citizen into the right to travel, the Court has essentially returned to its original understanding of the right to travel.

In unearthing from its tomb the right to become a state citizen and to be treated equally in the new State of residence, however, the Court ignores a State’s need to assure that only persons who establish a bona-fide residence receive the benefits provided to current residents of the State. . . . While the physical presence element of a bona-fide residence is easy to police, the subjective intent element is not. It is simply unworkable and futile to require States to inquire into each new resident’s subjective intent to remain. Hence, States employ objective criteria such as durational residence requirements to test a new resident’s resolve to remain before these new citizens can enjoy certain in-state benefits. Recognizing the practical appeal of such criteria, this Court has repeatedly sanctioned the State’s use of durational residence requirements before new residents receive in-state tuition rates at state universities. The Court has declared: “The State can establish such reasonable criteria for in-state status as to make virtually certain that students who are not, in fact, bona-fide residents of the State, but have come there solely for educational purposes, cannot take advantage of the in-state rates.” The Court has done the same in upholding a 1-year residence requirement for eligibility to obtain a divorce in state courts, and in upholding political party registration restrictions that amounted to a durational residency requirement for voting in primary elections.

If States can require individuals to reside in-state for a year before exercising the right to educational benefits, the right to terminate a marriage, or the right to vote in primary elections that all other state citizens enjoy, then States may surely do the same for welfare benefits. Indeed, there is no material difference between a 1-year residence requirement applied to the level of welfare benefits given out by a State, and the same requirement applied to the level of tuition subsidies at a state university. The welfare payment here and in-state tuition rates are cash subsidies provided to a limited class of people, and California’s standard of living and higher education system make both subsidies quite attractive. Durational residence requirements were upheld when used to regulate the provision of higher education subsidies, and the same deference should be given in the case of welfare payments. . . .

The Court today recognizes that States retain the ability to determine the bona fides of an individual’s claim to residence, but then tries to avoid the issue. It asserts that because respondents’ need for welfare benefits is unrelated to the length of time they have resided in California, it has “no occasion to consider what weight might be given to a citizen’s length of residence if the bona fides of her claim to state citizenship were questioned.” But I do not understand how the absence of a link between need and length of residency bears on the State’s ability to objectively test respondents’ resolve to stay in California. There is no link between the need for an education or for a divorce and the length of residence, and yet States may use length of residence as an objective yardstick to channel their benefits to those whose intent to stay is legitimate.

The Court tries to distinguish education and divorce benefits by contending that the welfare payment here will be consumed in California, while a college education or a divorce produces benefits that are “portable” and can be enjoyed after individuals return to their original domicile. But this “you can’t take it with you” distinction is more apparent than real, and offers little guidance to lower courts who must apply this rationale in the future. Welfare payments are a form of insurance, giving impoverished individuals and their families the means to meet the demands of daily life while they receive the necessary training, education, and time to look for a job. The cash itself will no doubt be spent in California, but the benefits from receiving this income and having the opportunity to become employed or employable will stick with the welfare recipient if they stay in California or go back to their true domicile. Similarly, tuition subsidies are “consumed” in-state but the recipient takes the benefits of a college education with him wherever he goes. A welfare subsidy is thus as much an investment in human capital as is a tuition subsidy, and their attendant benefits are just as “portable.” More importantly, this foray into social economics demonstrates that the line drawn by the Court borders on the metaphysical, and requires lower courts to plumb the policies animating certain benefits like welfare to define their “essence” and hence their “portability.” . . .

Finally, Congress’ express approval of durational residence requirements for welfare recipients like the one established by California only goes to show the reasonableness of a law like §11450.03. The National Legislature, where people from Mississippi as well as California are represented, has recognized the need to protect state resources in a time of experimentation and welfare reform. As States like California revamp their total welfare packages, they should have the authority and flexibility to ensure that their new programs are not exploited. Congress has decided that it makes good welfare policy to give the States this power. California has reasonably exercised it through an objective, narrowly tailored residence requirement. I see nothing in the Constitution that should prevent the enforcement of that requirement.

JUSTICE THOMAS, with whom the CHIEF JUSTICE joins, dissenting.

I join The Chief Justice’s dissent. I write separately to address the majority’s conclusion that California has violated “the right of the newly arrived citizen to the same privileges and immunities enjoyed by other citizens of the same State.” In my view, the majority attributes a meaning to the Privileges or Immunities Clause that likely was unintended when the Fourteenth Amendment was enacted and ratified. . . .

Unlike the majority, I would look to history to ascertain the original meaning of the Clause. At least in American law, the phrase (or its close approximation) appears to stem from the 1606 Charter of Virginia, which provided that “all and every Persons being our Subjects, which shall dwell and inhabit within every or any of the said several Colonies . . . shall HAVE and enjoy all Liberties, Franchises, and Immunities . . . as if they had been abiding and born, within this our Realme of England.” Other colonial charters contained similar guarantees. Years later, as tensions between England and the American Colonies increased, the colonists adopted resolutions reasserting their entitlement to the privileges or immunities of English citizenship.

The colonists’ repeated assertions that they maintained the rights, privileges and immunities of persons “born within the realm of England” and “natural born” persons suggests that, at the time of the founding, the terms “privileges” and “immunities” (and their counterparts) were understood to refer to those fundamental rights and liberties specifically enjoyed by English citizens, and more broadly, by all persons. . . . Justice Bushrod Washington’s landmark opinion in Corfield v. Coryell (1825), reflects this historical understanding. In Corfield, a citizen of Pennsylvania challenged a New Jersey law that prohibited any person who was not an “actual inhabitant and resident” of New Jersey from harvesting oysters from New Jersey waters. Justice Washington, sitting as Circuit Justice, . . . rejected the proposition that the Privileges and Immunities Clause guaranteed equal access to all public benefits (such as the right to harvest oysters in public waters) that a State chooses to make available. Instead, he endorsed the colonial-era conception of the terms “privileges” and “immunities,” concluding that Article IV encompassed only fundamental rights that belong to all citizens of the United States.

Justice Washington’s opinion in Corfield indisputably influenced the Members of Congress who enacted the Fourteenth Amendment. When Congress gathered to debate the Fourteenth Amendment, members frequently, if not as a matter of course, appealed to Corfield, arguing that the Amendment was necessary to guarantee the fundamental rights that Justice Washington identified in his opinion. . . .

That Members of the 39th Congress appear to have endorsed the wisdom of Justice Washington’s opinion does not, standing alone, provide dispositive insight into their understanding of the Fourteenth Amendment’s Privileges or Immunities Clause. Nevertheless, their repeated references to the Corfield decision, combined with what appears to be the historical understanding of the Clause’s operative terms, supports the inference that, at the time the Fourteenth Amendment was adopted, people understood that “privileges or immunities of citizens” were fundamental rights, rather than every public benefit established by positive law. Accordingly, the majority’s conclusion—that a State violates the Privileges or Immunities Clause when it “discriminates” against citizens who have been domiciled in the State for less than a year in the distribution of welfare benefit—appears contrary to the original understanding and is dubious at best.

. . . Although the majority appears to breathe new life into the Clause today, it fails to address its historical underpinnings or its place in our constitutional jurisprudence. Because I believe that the demise of the Privileges or Immunities Clause has contributed in no small part to the current disarray of our Fourteenth Amendment jurisprudence, I would be open to reevaluating its meaning in an appropriate case. Before invoking the Clause, however, we should endeavor to understand what the framers of the Fourteenth Amendment thought that it meant. We should also consider whether the Clause should displace, rather than augment, portions of our equal protection and substantive due process jurisprudence. The majority’s failure to consider these important questions raises the specter that the Privileges or Immunities Clause will become yet another convenient tool for inventing new rights, limited solely by the “predilections of those who happen at the time to be Members of this Court.”

I respectfully dissent.