et revelabitur quasi aqua iudicium et iustitia quasi torrens fortis


Cite as: 113 Harv. L. Rev. 110



Laurence H. Tribe

To paraphrase Tolstoy, all routine decisions are alike, but every pe-culiar decision is peculiar in its own way. Some seemingly odd deci-sions are best understood as inaugurating new lines of doctrinal devel-opment. In this spirit, some saw the Supreme Courts sudden revival of the Fourteenth Amendments Privileges or Immunities Clause in Saenz v. Roe as heralding a shining new era of fundamental rights predicated on the constitutional clause that ought to have been the ba-sis for such a jurisprudence for more than a century a century char-acterized by misguided efforts to ground such rights in the concept of due pro-cess. As this essay suggests, however, Saenz is unlikely to sig-nal such a development. Other seemingly "strange" judicial rulings are best understood as shedding new light on old fault lines and contradic-tions in the doctrinal and theoretical landscape on which they are situ-ated; what makes them peculiar is less what they portend than what they expose. This essay argues that Saenz is peculiar in just this way. By examining why the decision seems at first not to fit the contempo-rary judicial landscape, and then exploring the contours of the doc-trines that the decision does seem to echo, I hope to reveal, or at least highlight, some inconsistencies in the current Supreme Courts willing-ness to employ a certain methodological approach I call it "struc-tural inference" in the process of constitutional interpretation.

Revealing these inconsistencies requires that one first accept a few assumptions, all of which are grounded in the rich choreography of popular sovereignty and self-government that the Constitution in part creates and in part presupposes, and that will serve as our backdrop in this investigation. Thus, we assume that states enjoy a unique role as repositories of popular sovereignty, according to which they partake of sovereign authority and satisfy the constitutional command of republi-can government. But it is clear that states cannot fulfill that role un-less at least three conditions obtain: first, that they are more than just territorially based departments of an omnipotent central authority; second, that they can restrict to their own citizens certain privileges of political participation (such as voting) and certain benefits of member-ship in the political communities they define (such as public welfare and free public education); and third, that states lack the authority to determine the identity of the electorate to which they are politically ac-countable, or the identity of the collection of persons (whether enfran-chised or not) whom they must treat equally, as full-fledged members citizens, in the constitutional sense of their respective communi-ties. This last condition follows inexorably from a conception of America deeply ingrained in our nations history and psyche: that our Constitution established a government of the people, by the people, and for the people. Unless that conception is to become "a promise to the ear to be broken to the hope, a teasing illusion like a munificent bequest in a paupers will," the governing units of our constitutional system must lack the power to pick and choose the people to whom they are answerable.

We further assume that, except for those well-defined privileges that a state may limit to its own citizens, states must treat visitors from sister states on a plane of equality with their own residents. Fi-nally, and perhaps most importantly, we assume that notions of self-government, including freedom from external domination, extend not only to the separate states subject to a basic set of federal restric-tions on how the states may behave vis--vis the citizens of their sister states and vis--vis their own citizens but also to their citizens. That is, we will take for granted that a large part of what it means to be a citizen of a constitutional republic and not a mere subject of some other kind of governing entity is the capacity and opportunity to gov-ern oneself not in the trivial (and self-defeating) sense of license to do whatever one pleases, but in the deeper sense of power and author-ity to define the overarching ends to which one will be committed and to pursue those ends by any means consistent with regulations rea-sonably and democratically established.

In what follows, we develop a number of implications of these core citizenship principles, including implications for freedom of inter-state migration. We begin in Parts I and II by juxtaposing Saenz with its factually similar but analytically different predecessor, Shapiro v. Thompson, in order to explore the mystery of why the former seemed so easy and the latter so difficult despite the fact that the ideological leaning of the Court deciding each case suggests just the opposite. We attempt in Part III to explain that mystery by examining an important facet of the interpretive philosophy of the Rehnquist Court, and by exploring how that Courts chosen method varies with the per-ceived character of the right being claimed. As we shall see, certain rights freedom of interstate movement and migration may be the paradigmatic case partake simultaneously of personal self-government and of the system of definitions and relationships that de-scribe the form of state and federal self-government that the original Constitution as modified by the Fourteenth Amendment brought about. We seek in this endeavor to tease out the Supreme Courts un-articulated assumption that some modes of extrapolation and interpre-tation that are suitable (indeed, often indispensable) in the latter of these contexts are much too undisciplined and indeterminate when ap-plied in the former. A review of the decisional trajectory leading to Saenz brings this tacit assumption to the surface, revealing as well in Part IV how the reconceptualization of the right to travel in cases like Zobel v. Williams proved crucial both to the survival of that right and to the Saenz Courts ability to arrive at its decision with relative ease. We consider in Part V the problems plaguing the Courts inter-pretive assumption as a working premise for the development of con-stitutional doctrine, and offer in Part VI a final illustration of that as-sumption through a comparison of recent decisions involving issues of gay rights. Finally, in Part VII, we indulge the predictions that Saenz represents a rebirth of privileges or immunities, offering a glimpse of what shape such a revival might take.