This Note argues that the interests of nonmunicipal federal citizens in being able freely to migrate about the nation are not adequately accounted for in a due process analysis which sanctions regulations with any, even a debatable, relation to the public welfare.
More adaptable and appropriate are the constitutional safeguards designed to protect the interests of nonmunicipal federal citizens: the privileges and immunities clause, the right of interstate travel, and the commerce clause. This Note concludes that GCOs should be measured against these safeguards and not the standards of the due process clause. When so reviewed, GCOs are found wanting. Indeed, this Note argues that the problem with GCOs is not simply that they offend a collection of constitutional protections, but that they offend the idea that underlies those constitutional protections. That underlying idea is national unity -- the idea that the nation is and must be a cohesive, harmonious unit, that the states must sink or swim together, that the health of the national union cannot be taxed by myopic and self-interested local regulation.
Keith R. Denny,
That Old Due Process Magic: Growth Control and the Federal Constitution,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol88/iss5/8