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A citizen's right to interstate travel has long been recognized as a fundamental right, grounded upon the Privileges and Immunities Clause of Article IV, Section 2, of the United States Constitution. Edwards v. People of State of California, 314 U.S. 160, 173, 62 S.Ct. 164 (1941).

This principle encompasses the right of individuals to "migrate, resettle, find a new job, and start a new life." Shapiro v. Thompson, 394 U.S. 618, 629, 89 S.Ct 1322, 1329, 22 L.Ed.2d 600 (1969).

Edwards, Shapiro, and their progeny were concerned with the constitutionality of state statutes designed to discourage indigent people from relocating to their state of choice.

The Supreme Court consistently held the statutes to be unconstitutional, reasoning,

"...[t]he 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." Id.

The Court also held that the right of travel is "...a virtually unconditional personal right, guaranteed by the Constitution to us all." Id. at 643, 89 S.Ct. at 1336.

For the same reasons that a state cannot prohibit a person from moving to a particular area, it also cannot prohibit a person from moving from a particular area.

Strict Scrutiny

Court action that places restrictions on a citizen's fundamental rights requires application of the strict scrutiny test. Jones v. Helms, 452 U.S. 412 (1981); U.S. v. Carolene Products Co., 304 U.S. 144, 152, 58 S.Ct. 778 (1938).

Under strict scrutiny, the state must show that it has a compelling purpose for denying the fundamental right and that the remedy chosen is narrowly tailored to meet the stated purpose. Shapiro, 394 U.S. at 634, 89 S.Ct. at 1331.

Requiring a citizen to live in a specific locale, thereby restricting his or her fundamental right of travel, must be based on compelling state concerns. Hodgson v. Minnesota, 497 U.S. 417 (1990).

Parents also have a fundamental liberty interest in the care, custody, and management of their natural children, and due process must be provided when the state interferes with that relationship. Santosky v. Kramer, 455 U.S. 745 (1982).

(Ms. Gill is a member of the Supreme Court Committee on Appellate Rules, the Executive Council of the Judiciary Section, the Appellate Practice Subcommittee, and the Bill of Rights Committee of the Colorado Bar Association. She has published several articles about appellate practice and is a frequent speaker at seminars about appellate practice. Ms. Gill co-authored the 1999 publication, Colorado Law and Appellate Practice with Judge Leonard Plank, and also is the author of "Organization of the Appellate Court System" in Colorado Appellate Handbook (2000); "Cross-Appeals" in Colorado Appellate Handbook (2000)' "The Record on Appeal" in Colorado Appellate Handbook (2000); and "Motion Practice Appellate Courts" in Colorado Appellate Handbook (2000).)