Shapiro v. Thompson

In his dissenting opinion, Chief Justice Warren disagreed with the majority regarding Congress' powers over and intentions for the waiting period requirement. He believed that Congress did have the power to authorize states to impose minimal residence requirements, and that it had "constitutionally exercised" that power for over 30 years. He wrote also that any restrictions on an individual's right to travel created by the requirement were not substantial enough to outweigh the governmental justifications for the requirement. Finally, he noted that the majority opinion addressed only the "top of the iceberg." There were many other areas where states apply residency requirements, he said, such as voting eligibility and attendance at state-supported universities. He felt the majority decision ignored its implications for these areas.

Justice Harlan also strongly dissented. He disagreed with the majority's reasoning mainly because it was based on an "unwise" expansion of an

equal protection doctrine of relatively recent vintage: the rule that statutory classifications which either are based upon certain "suspect" criteria or affect "fundamental rights" will be held to deny equal protection unless justified by a "compelling" government interest.

The majority, he wrote, had reached a wrong conclusion using this reasoning because they had simply deemed the appellants' list of governmental objectives either unlawful or not "compelling." Secondly, he was concerned with the "fundamental right" branch of this doctrine.

Virtually every state statute affects important rights . . . [and] . . . I know of nothing which entitles this Court to pick out particular human activities, characterize them as "fundamental," and give them added protection under an unusually stringent equal protection test.

He proceeded with an analysis in which he weighed the two competing interests: the individual's right to travel against the governmental interests served by the waiting period. He concluded that the residence requirements placed only "indirect and . . . insubstantial" restrictions on travel and the governmental purposes they served were "legitimate and real." Thus, he reasoned, the requirements were constitutional.