Thompson v. Shapiro: Residence Requirements and the Right to Life
Thomp son v. Shapiro: Residence Requirements and the Right to Life
0 Part of the Constitutional Law Commons , Fourteenth Amendment Commons, and the Supreme
Follow this and additional works at: https://scholarship.law.stjohns.edu/tcl Court of the United States Commons Recommended Citation (2016) "Thomps on v. Shapiro: Residence Requirements and the Right to Life," Th e Catholic Lawyer: Vol. 15 : No. 3 , Article 11. Available at: https://scholarship.law.stjohns.edu/tcl/vol15/iss3/11
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THOMPSON V. SHAPIRO:
RESIDENCE REQUIREMENTS
AND THE RIGHT TO LIFE*
The most fundamental of all rights is the right to life. To
Jefferson and the framers of the Constitution . . . the right to
life meant the right not to be deprived of life. The right to life
was to them in very truth a "natural"right. For it was a life that
God gave and nature supported1.
The recent pronouncement of the Supreme Court in Thompson v.
Shapiro2 invalidating the durational residence requirement for state and
federal welfare assistance removes a basic infringement on the
constitutional rights of welfare recipients. In a long-awaited and broadly-written
opinion, Mr. Justice Brennan, writing for a 6-3 majority, ruled that a
one-year residence requirement constituted an invidious discrimination,
denying welfare recipients the equal protection of the laws by depriving
them of "the ability . . . to obtain the very means to subsist-food,
shelter, and [the] other necessities of life."' 3
Historically, residence tests originated
with the localism
of the
Elizabethan Poor Laws 4 and the concomitant notion of settlement,5
i.e., the idea that each individual belonged to a certain place which was
obligated to support him in his time of need. 6 Under this system, before
liability could be affixed for support, the indigent had to establish a
This paper was prepared by the St. Thomas More Institute for Legal Research.
settlement in the particular locality which
was to be made liable. 7 The concept of
residence thus became fused with the idea
of relief for the poor long before our
present public assistance laws.
Perhaps because of their very antiquity,
the constitutionality of settlement
provisions was never seriously questioned. In
fact, prior to 1966, the residence
requirements imposed by various state welfare
programs received only two constitutional
challenges. In the first, Rutland v.
Mendon,s a Massachusetts court declared that
the legislature possessed sufficient authority
to enact a statute establishing a three-year
residence period as a prerequisite to the
achievement of settlement status by a
pauper. In the second case, People ex rel.
Heydenreich v. Lyons,9 decided in 1940,
the Illinois Supreme Court upheld a state
statute requiring applicants for assistance
to have resided in a city for the three years
immediately preceding the date of
application. The court, pointing out that the equal
protection clause of the fourteenth
amendment merely requires that a classification
be based upon a real and substantial
distinction having a rational relation to the
subject of the legislation, 10 concluded that
no fundamental rights were impaired by the
statute in question. Thus, it was not until
7 The Settlement Act of 1662, 13 & 14 Car. 2,
c.12, provided that any person "likely to be
chargeable" to the parish, who was not in
residence for forty days, could be returned to
his place of settlement. Additionally, the
preamble of the Act declared: "By reason of some
defect in the law, poor people are not restrained
from going from one parish to another."
8 18 Mass. (1 Pick.) 154 (1822).
9 374 I11. 557, 30 N.E.2d 46 (1940).
10 Carrington v. Rash, 380 U.S. 89, 93 (1965).
See also McLaughlin v. Florida, 379 U.S. 184
(1964).
the recent wave of welfare cases that the
constitutionality of residence requirements
was put to a true test and found wanting. 1
The opinion of the Supreme Court in
Thompson is founded upon the twin pillars
of equal protection and the right to travel.
However, it is not entirely certain whether
the majority opinion rests primarily upon
the interference with what is today
considered to be a "fundamental" right-the right
to travel freely. 12
The Right to Travel
While its specific source is somewhat
questionable,
the fundamental right to
freely travel is today clearly conceded."3
Although the Articles of Confederation
provided that "the people of each State
shall have free ingress and regress to and
11Prior to the Supreme Court decision in
Thompson v. Shapiro, 394 U.S. 618 (1969),
there had been several federal district court
decisions invalidating residency tests. See, e.g.,
Harrell v. Tobriner, 279 F. Supp. 22 (D.D.C.
1967); Smith v. Reynolds, 277 F. Supp. 64
(E.D. Pa. 1967); Green v. Dep't of Public
Welfare, 270 F. Supp. 173 (D. Del. 1967);
Thompson v. Shapiro, 270 F. Supp. 331 (D.
Conn. 1967); accord, Robinson v. Ott, 284 F.
Supp. 735 (D. Mass. 1968); Ramos v. Health
& Social Services Bd., 276 F. Supp. 474 (D. Wis.
1967). Contra, Waggoner (...truncated)