The Supreme Court of the United States’s decision in Dobbs v. Jackson Women’s Health Organization throws a legal shadow over a wide range of rights, including migrants’ ability to move around the United States. If Roe v. Wade, the Court’s 1972 decision recognizing a constitutional right to abortion, could be overturned despite popular support, it would be foolish to imagine that anything else is off-limits. Just like abortion, the Constitution doesn’t explicitly mention the right to travel. And for undocumented migrants, the historical record provides plenty of reason to worry.
Writing for the Court’s six conservative members last month, Justice Samuel Alito stated that abortion isn’t constitutionally protected because it isn’t referenced in the Constitution and isn’t “rooted” in U.S. history. His allies on the Court tried hard to convince us that their opinion reversing a half-century-old legal principle affects abortion and nothing else. But judicial decisions don’t work the way the conservative majority wants us to think they do. Legal reasoning builds by analogy, comparing the circumstances of one case against the facts of another. Nothing stays within a neat box. Besides, Justice Clarence Thomas put his colleagues’ claim to rest when he openly urged them to “reconsider” the Court’s decisions allowing married couples to access contraceptives, all adults to engage in consensual sex, and same-sex couples to marry.
A state can’t bar people from going to another state to get an abortion, Justice Brett Kavanaugh wrote in a separate opinion agreeing with Alito, “based on the constitutional right to travel.” But despite Kavanaugh’s claim to certainty that the Constitution protects interstate travel, “travel” isn’t mentioned in the Constitution. As the Supreme Court wrote in 1966, the right to travel “finds no explicit mention in the Constitution.” If Roe could be overturned because the right to an abortion isn’t mentioned in the Constitution despite being arguably implied, why should we assume that the right to travel isn’t under similar threat?
Just like the right to abortion that Dobbs erased, decades of Supreme Court opinions say that the right to travel exists implicitly in the Constitution. However, who has the right to travel is another matter. Writing in 1941, Justice William Douglas explained, “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.”
For migrants, that’s troubling logic. Like Justice Douglas suggested, the Supreme Court has usually grounded interstate travel in a particular vision of national citizenship. In the words of Justice Roger Taney, “we are one people, with one common country. We are all citizens of the United States.” Justice Taney is best known for writing the Supreme Court’s disgraced 1857 decision in Dred Scott v. Sanford declaring Black people unfit for U.S. citizenship. To Taney, “we” didn’t include all of us. But to Justice Thomas and his longtime ally on the Court, the late Chief Justice William Rehnquist, that was no reason not to quote with approval Taney’s celebration of citizenship in 1999. To them, the right to travel is a feature of citizenship.
If citizenship is the basis for the freedom to move about the country, as Supreme Court Justices from Taney to Thomas have said, migrants should worry. Today, the formal language of immigration law makes clear, migrants are the “aliens” against whom citizens are contrasted.
History won’t necessarily help migrants either. The majority’s opinion in Dobbs emphasized the historical record, and since before the U.S. split from the United Kingdom, cities and counties limited who could take up residence in their communities. Later, states and local governments enacted laws blocking people deemed undesirable outsiders from even coming into town. Often these laws targeted people who were poor, had been convicted of a crime, or who were suspected of carrying a contagious disease.
But as is usually true in the U.S., race and immigration status were also part of the white supremacist, settler-colonial mix. Tired of poor, Spanish-speaking people entering Colorado during tough economic times, in 1936 the state’s governor, Ed Johnson, a Democrat who dominated Colorado politics for decades in the first half of the twentieth century, sent National Guard troops to the New Mexico border to block “aliens and indigent persons.” Johnson was certainly happy for troops to stop Mexican citizens, but mostly they preyed on New Mexicans who were interested in working on Colorado farms. While Justice Taney’s comments about citizenship are a reminder that U.S. citizenship doesn’t include all of us, Governor Johnson’s example is a reminder that for some of us U.S. citizenship isn’t enough.
Threats to the right to travel aren’t a thing of the past. It will probably take years for the boundaries that the majority erected around abortion to fall, but right-wing politicians like Texas Gov. Greg Abbott have already started pushing for even more restrictions on autonomy beyond abortion. This month, Abbott authorized state police and National Guard troops to arrest migrants and return them to the border. The Supreme Court is clear that it’s up to the federal government to enforce immigration law, but Abbott’s executive order is equally clear that Texas wants to test the boundaries of that generations-old practice too.
Abbott is now setting up courts to decide whether Texas can stop migrants from moving around the state and throughout the country. And when these attempts reach the courts, their lawyers will find a lot of inspiration in the Dobbs Court’s reasoning that should scare migrants and worry anyone who values unimpeded movement within the U.S.