Monday, January 27, 2020

“If Climate Change Gets Bad, We Can Move to a New State, Right?” Why the Right To Freedom of Movement Under the US Constitution Isn’t as Strong as You Need It to Be.


The Right to Freedom of Movement Between US States

**Note — I urge constitutional law scholars to write more on this question.
Recently, a number of articles have come out in the media discussing which states will be most and least affected by climate change and which cities, by consequence, will see an influx of Americans fleeing climate change. These articles rest on a common assumption held by many Americans about their basic right to move anywhere within the United States. But do we have such a right, really? And if tens of thousands of Californians or Texans need to move to the mid-West, will they be allowed to do so?
We all know that borders stop the freedom to move from one country to another. But the United States also has an internal system of borders…between sovereign states. Internationally, while goods and money can travel wherever they want in the world, people need passports and visas. Within your own country, though, you have the right, in principle, to go wherever you want. Or do you?
The right to Freedom of Movement inside your own country is enshrined in numerous places in international law. The right to move around within your own country is a founding principle of the Universal Declaration of Human Rights. But what about our own Constitution? Is there a right to Freedom of Movement under US law?

Is Freedom of Movement Protected Enough by the US Constitution? I’m Not Sure, and You Shouldn’t Be Either

Most Americans don’t think about the right to freedom of movement very much because, for the most part, US states haven’t restricted it very much. If you live in California, you can move to Texas at any time, either to visit, or to live. But in the past, there have been cases where states like California have placed restrictions on immigrants from other states. During the 1940s, California passed “anti-Okie” laws to discourage unemployed people from dust-bowl states from moving to California. These laws were swiftly declared unconstitutional. Problem solved, right?
Not really. The truth is that our Constitution doesn’t protect freedom of movement between states as much as it should. You probably can’t remember reading the words “freedom of movement” in the US Constitution because it isn’t written there. It’s inferred, which means that the US Supreme Court has kinda, sorta, made it up. If this doesn’t sound good to you, it shouldn’t.
According to the U.S. Supreme Court, freedom of movement within the United States is inferred under the privileges and immunities clause of the Constitution, which states, “the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states” and under the Commerce Clause, which gives Congress the power to “regulate commerce…among the several states.” If that sounds a little…indirect and unclear to you, it’s because it is.
In fact, there’s been a lot of debate, however, about exactly what the Privileges and Immunities clause means and how broad the commerce clause should be. Without plunging into a detailed discussion of the jurisprudence, let me just tell you that I wouldn’t say with 100% certainty that the U.S. Constitution protects our rights as Americans to move from one state to another. As the Legal Information Institute at Cornell Law School so charmingly puts it, the right to freedom of movement in the US is, “venerable for its longevity, but still lacking a clear doctrinal basis.” Ouch.

The US Supreme Court Will Be Critical in Protecting the Rights of Americans Displaced by Climate Change

It’s not hard to imagine unaffected states receiving thousands of displaced Americans following an Australia-style climate event. And it’s not that hard to imagine the residents of those states feeling overwhelmed and hostile to the new-comers, particularly if it seems likely many of those newcomers won’t be able to go back. While we’d all like to think Americans would pull together and support each other, we know that’s not going to happen, particularly if coastal and urban populations are forced to move into red-state areas. It’s not hard to imagine similar laws being passed to those used to restrict the movement of victims of the dust bowl in the 1930s. It’s not encouraging that the current “right” to move is based, at least partly, on the dreaded Commerce Clause, which reduces your individual rights to a commercial transaction between states.
If a flood comes to your town, your rights as an American to move across a state line will ultimately come down to the US Supreme Court. And it’s not hard to see the current Court coming to a different conclusion than Courts of the past. So next time you’re talking to a Presidential candidate about climate change, ask them about the US Supreme Court and your right to freedom of movement.

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