New York v. O'Neill/Dissent Douglas

Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.

The right to free ingress and egress within the country and even beyond the borders is a basic constitutional right, though it is not contained in haec verba in the Constitution. It had been included in the Articles of Confederation, Article IV of which provided in part:

'The better to secure and perpetuate mutual friendship and     intercourse among the people of the different States in this      Union, the free inhabitants of each of these States, paupers,      vagabonds and fugitives from justice excepted, shall be      entitled to all the privileges and immunities of free      citizens in the several States; and the people of each State      shall have free ingress and regress to and from any other      State *  *  * .'

As Chafee, Three Human Rights in the Constitution (1956), p. 185, states, the failure to make specific provision for this right in the Constitution must have been on the assumption that it was already included. For it is impossible to think that a right so deeply cherished in the Colonies was rejected outright. 'The Convention carefully prevented states from passing tariff laws; surely it did not want state immigration laws.' Chafee, op. cit., supra, at 185. The Constitution was designed 'to secure the freest intercourse between the citizens of the different States,' said Chief Justice Taney in Smith v. Turner (The Passenger Cases), 7 How. 283, 492, 12 L.Ed. 702. And he added: 'For all the great purposes for which the Federal government was formed, we are one people, with one common country. We are all citizens of the United States; and, as members of the same community, must have the right to pass and repass through every part of it without interruption, as freely as in our own States.' Id., 492. This right of free ingress and egress is one 'arising out of the nature and essential character of the federal government.' Duncan v. State of Missouri, 152 U.S. 377, 382, 14 S.Ct. 570, 572, 38 L.Ed. 485; Twining v. State of New Jersey, 211 U.S. 78, 97, 29 S.Ct. 14, 18, 53 L.Ed. 97. As stated by the Court in Williams v. Fears, 179 U.S. 270, 274, 21 S.Ct. 128, 129, 45 L.Ed. 186:

'Undoubtedly the right of locomotion, the right to remove     from one place to another according to inclination, is an      attribute of personal liberty, and the right, ordinarily, of      free transit from or through the territory of any state is a      right secured by the 14th Amendment and by other provisions      of the Constitution.'

It has often been called a right or privilege of national citizenship, Crandall v. State of Nevada, 6 Wall. 35, 44, 49, 18 L.Ed. 744; Ward v. State of Maryland, 12 Wall. 418, 430, 20 L.Ed. 449; Slaughter House Cases, 16 Wall. 36, 79, 21 L.Ed. 394; Twining v. State of New Jersey, supra, 211 U.S. at page 97, 29 S.Ct. at page 18; Edwards v. People of State of California, 314 U.S. 160, 178-181, 183, 62 S.Ct. 164, 169-170, 171, 86 L.Ed. 119 (concurring opinions). As such, it is protected against state action by the Privileges and Immunities Clause of the Fourteenth Amendment. Slaughter House Cases, supra, 16 Wall. at pages 74-79; In re Kemmler, 136 U.S. 436, 448, 10 S.Ct. 930, 34 L.Ed. 519.

It has at times been considered under the protective care of the Commerce Clause subject to control by Congress but free from stoppage or impairment by the States. Edwards v. California, supra.

In Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204, we held that this right to travel was a part of the citizen's 'liberty' within the meaning of the Due Process Clause of the Fifth Amendment.

'Freedom of movement across frontiers in either direction,     and inside frontiers as well, was a part of our heritage. Travel abroad, like travel within the country, may be     necessary for a livelihood. It may be as close to the heart     of the individual as the choice of what he eats, or wears, or      reads. Freedom of movement is basic in our scheme of values.'     Id., 357 U.S. at page 126, 78 S.Ct. at page 1118.

Whatever may be the sources of this right of free movement the right to go to any State or stay home as one chooses-it is an incident of national citizenship and occupies a high place in our constitutional values.

This right of national citizenship has been qualified. One qualification was made by the Extradition Clause of Art. IV, § 2, of the Constitution:

'A person charged in any State with Treason, Felony, or other     Crime, who shall flee from Justice, and be found in another      State, shall on Demand of the executive Authority of the      State from which he fled, be delivered up, to be removed to      the State having Jurisdiction of the Crime.'

But that limitation on the right of free movement applies only when the citizen is a fugitive from the law.

Yet O'Neill is not a fugitive from justice. He carries no criminal taint. He is wanted as a witness in New York. But there is no provision of the Constitution which provides for the extradition of witnesses by the States. That power is today judicially created. But I find no authority on the part of the States to enlarge and expand the power of extradition specifically restricted by the Constitution to criminals. As stated in People ex rel. Corkran v. Hyatt, 172 N.Y. 176, 182, 64 N.E. 825, 826, 60 L.R.A. 774, affirmed 188 U.S. 691, 23 S.Ct. 456, 47 L.Ed. 657, ' * *  * no person can or should be extradited from one state to another unless the case falls within the constitutional provision, *  *  * power which independent nations have to surrender criminals to other nations as a matter of favor or comity is not possessed by the states.' We allow today only what a constitutional amendment could achieve. We in effect amend Art. IV, § 2, by construction to add 'witnesses' to the group now embraced in Art. IV, § 2.

This right of freedom of movement even of the innocent may not be absolute. Perhaps a State could stop a migrant at its borders for health inspection. There may be other narrow and limited qualifications to this right of free ingress and egress which a State may impose. But I know of no power on the part of a State to pick a citizen up and forcibly remove him from its boundaries where there is no basis of extradition. Blackmer v. United States, 284 U.S. 421, 52 S.Ct. 19, 76 L.Ed. 371, is of no help here. There the United States was requiring a citizen, resident abroad, to return to this country to testify and penalizing him for his refusal. This was his home, to which he was rooted and where his loyalties lay. The obligation was exacted by the Federal Government as a requirement of national citizenship. Congress has stated this responsibility in an Act, 62 Stat. 755, 18 U.S.C. § 1073, 18 U.S.C.A. § 1073, which, inter alia, makes it a federal crime for a person to move in interstate commerce 'to avoid giving testimony' in certain criminal proceedings. And Congress has made explicit provision concerning the State to which the witness may be removed. I can understand how this regulation of national citizenship can be made by Congress which speaks with authority in the federal field of interstate commerce. I fail to see how a State can regulate any of the incidents of national citizenship. I see no greater power on the part of a State to snatch a law-abiding citizen from his abode and send him to another State than to stop him at the border, as was done in Edwards v. People of State of California, supra, because it does not like the cut of his jib. State action was precluded in Edwards v. People of State of California, supra, even though Congress had not acted. It is ever more obviously precluded where Congress has acted.

Reciprocal and uniform laws, like interstate compacts, doubtless serve many useful purposes. But a State does not increase its sovereign powers by making an agreement with another State. Whether the right of ingress and egress be bottomed on the Privileges and Immunities Clause of the Fourteenth Amendment, the Commerce Clause, Const. art. 1, § 8, cl. 3, or a basic 'liberty' inherent in national citizenship, I know of no way in which a State may take it from a citizen. To say that there is no interference here because O'Neill will be free to return to Florida later is to trifle with a basic human right. The Court's argument neables the States through reciprocal laws to generate power that they lack acting separately. It speaks of the importance of encouraging 'resourcefulness of relationships between States on matters as to which there is no grant of power to Congress and as to which the range of authority restricted within an individual State is inadequate.' Yet if the power is inadequate for either Florida or New York acting separately (as I am sure it is), I fail to see how it can be made adequate by the pooling of their inadequacies. To make it such is indeed a saltatorial achievement. The fact that a resident of a State can be compelled to testify in that State is no ground for compelling him 'to leave his State and go to some other State to testify viva voce.' In re Allen, 49 Pa.Dist. & Co.R. 631, 640. His right to go or stay is an incident of national citizenship, qualified only by an appropriate exercise of federal power.

The power of extradition was an expression of a 'policy of mutual support, in bringing offenders to justice', Commonwealth of Kentucky v. Dennison, 24 How. 66, 100, 16 L.Ed. 717; and to substitute a system of law, superior to state authority, for the system of comity prevailing among sovereign nations. Innes v. Tobin, 240 U.S. 127, 130-131, 36 S.Ct. 290, 291, 60 L.Ed. 562. The Federal Act governing witnesses who are fugitives is an assertion by Congress of control over our nationals. Any policy of providing compulsory delivery of witnesses from one State to another is in other words a federal policy. If we allow the States to exercise that power as they like, we might as well permit them to sanction compulsory delivery of citizens from one State into another for purposes of being sued. See Commonwealth of Massachusetts v. Klaus, 145 App.Div. 798, 130 N.Y.S. 713, 722 (dissenting opinion). If it took Art. IV, § 2, of the Constitution to provide for the compulsory delivery of a person charged with a crime from one State to another, and a Federal Act to require the delivery of witnesses over state lines, it would seem to follow a fortiori that further constitutional provisions would be required to authorize one State to provide for the compulsory delivery of an innocent person to another State. See In re Allen, supra.

This is not giving the Constitution a niggardly construction. I urge a liberal construction which will respect the civil rights of the citizens. This right of people to choose such State as they like for their abode, to remain unmolested in their dwellings, and to be protected against being whisked away to another State has been, until today, zealously guarded. Until now, it has been part and parcel of the cherished freedom of movement protected by the Constitution.

I would affirm the judgment entered by a unanimous vote of the Florida Supreme Court.