The Constitutional Right to Travel:

Are Some Forms of Transportation More Equal Than Others?

 

Timothy Baldwin

 

“A rich man can choose to drive a limousine; a poor man may have to walk.” [1]  So declared the Ninth Circuit in 1972, when walking was a common phenomenon in the United States. [2]  Today, the overwhelming majority of Americans travel in a motor vehicle. [3]  This Comment will examine the implications of the institutional preference for motor vehicles, and the categorical exclusion of other modes of transportation in many segments of the transportation system.  Interstate highways, for example, usually exclude all forms of traffic except motor vehicles. [4]  Many public roads have no sidewalks for pedestrians, and no special facilities to accommodate bicyclists. [5]  Few roads, particularly in suburban and rural communities, offer any form of public transportation. [6]

Without an automobile, many individuals in the U.S. are left without a means to reach their destination because they cannot drive. [7]   Many others cannot afford to use a motor vehicle.  In the year 2000, the average annual cost to use a motor vehicle was $7363. [8]  The poorest fifth of American families pay forty-two percent of their income for the purchase, operation, and maintenance of automobiles. [9]  A famous cartoon illustrates the problem well -- a driver of a motor vehicle turns to his passenger and says, “I hate driving . . . But I need a car to get to work.” [10]  Later that day, the driver sits at work in a cubicle.  He turns to a co-worker and says, “I hate my job, but I gotta make car payments.”[11]

 At face value, the governmental preference for motor vehicles does not create a cause of action based on a constitutional right. [12]  This Comment will explore the constitutional ramifications of reduced access for non-motor vehicle travel, and focus on ways in which the Constitution might provide relief non-motorized forms of transportation.

The major modes of transportation include private motor vehicles on highways (consisting of interstates and other roads), public transit (including buses and trains), bicycling, and walking. [13]  The ability to travel using these transportation modes is one of the basic building blocks of society. [14]  Roads, bridges, and other forms of transportation infrastructure are necessary for people to function in a modern community. [15]  Visits to a bank, school, or anywhere else utilize a form of transportation.  A community without transportation infrastructure becomes a community of inefficiency and chaos. [16]  Thomas Harris McDonald, the father of the American interstate road system, [17] once noted, “next to the education of the child, road building is the greatest public responsibility.” [18]

The preference for road building and motor vehicles dominates the American psyche [19] and receives support at the highest levels of U.S. government.  In 2001, President George W. Bush’s Press Secretary was asked whether Americans “may have to adopt limits on their lifestyles as part of a national energy strategy.” [20]  The Press Secretary responded, the President "believes . . . that it should be the goal of policy makers to protect the American way of life.  The American way of life is a blessed one and we have a bounty of resources in this country.  It's not the presence of SUVs that has caused the problem." [21]

The dominance of the automobile as a policy choice of federal and state governments is undeniable. [22]  And yet, remarkably, American courts do not protect an individual’s right to use a motor vehicle. [23]  Courts have guarded the right to move freely, but they have not protected a person’s ability to choose a method of transport. [24]

This Comment will explore the laws that affect an individual’s ability to choose a particular travel mode.  It will review the implications of legal rules that hinder the use of non-motorized transportation modes.  The Comment is divided into four parts.  Part I places the legal discussion in context by describing the current problems with the transportation system, and by providing an overview of the evolution of the American transportation system from its beginnings to its present state.  Part II reviews cases involving constitutional rights to interstate travel and intrastate travel. [25]  Legal developments in the right to travel between states, and within one state, will provide insight into rights that might be attached to travel by a particular mode.  Part III addresses the countervailing trends in the development of legal rights from the perspective of transportation modes.  While American courts have been quite unwilling to create a constitutional right to drive an automobile, the Supreme Court seems protective of a “freedom of movement” doctrine that protects an individual’s right to travel as a pedestrian. [26]  Part IV addresses the legal implications of the current transportation situation in the U.S.  The Comment concludes by arguing that a denial of access to the transportation system creates a cause of action under the federal equal protection doctrine of “total deprivation” laid out in San Antonio Independent School District v. Rodriquez. [27] 

 

PART I

A. The Transportation Problem

Transportation access directly affects many public policy issues.  Excessive use of motor vehicles damages the environment, reduces public health, and negatively influences land use patterns and the supply of affordable housing. [28]  Transportation access also has important consequences for homeland security because it ensures freedom of movement for security personnel responding to crises [29] and for individuals trying to flee disasters. [30]

The transportation problem in the U.S. will only worsen in the future.  The interstate highway system, as planned by the Federal Highway Administration, is largely built; [31] today, fewer opportunities exist to build new roads or widen existing ones.  With the overall number of people and automobiles rising, [32] more Americans will be forced onto a stagnant supply of transportation infrastructure. [33]  As these conditions worsen, conflicts over land use and transportation modes will become more frequent. [34]  Interest groups will fight over scarcer resources. [35]  Under these conditions, alternative transportation users will likely find it difficult to counteract the majoritarian tendencies of the motoring public.

One need look no further than New Orleans after Hurricane Katrina to understand the importance of access to transportation.  On August 29, 2005, Hurricane Katrina decimated New Orleans. [36]  Much of the city was built below sea level, and the hurricane destroyed nearby levees and flooded the city. [37] Leading up to and after the hurricane, public officials tried unsuccessfully to organize a massive evacuation effort, in part by encouraging residents to flee the city. [38]  But many people, mostly African American, [39] were simply too poor to leave New Orleans by car. [40]  They needed a bus or another form of transportation to escape. [41]

The dilemma facing the poor in New Orleans during Hurricane Katrina symbolizes the larger transportation problem facing the poor in the U.S.  They often bear the brunt of the nation’s transportation problems.  During the 1950s, the first major decade of interstate highway construction in the U.S., over 350,000 homes were raised, and new highways were often placed in poor communities. [42]  Today, even though most individuals live near road networks, ninety percent of former welfare recipients do not have access to a car. [43]  Less than half of all jobs in the U.S. are accessible by public transportation. [44]  Poorer individuals like welfare recipients, most of whom cannot or can only barely afford a car, are shut out from half of all jobs in the country. [45]  Compounding the problem, most cities do not provide public transportation during the second and third shift jobs that tend to be available to the poor. [46] Unable to afford a car and without any method of commuting to work, many welfare recipients are unable to find jobs. [47]

On the other side of the coin, Americans above the poverty level [48] own more cars than they used to, and are driving longer distances. [49]  They have the ability to devote substantial resources to automotive travel and can take advantage of the car-centric transportation system. [50]

American courts generally consider restrictions on forms of travel lawful under a state’s discretion to exercise its police power. [51]  If a state deems it unsafe for a person to use a motor vehicle, the state is within its power to revoke his or her driver’s license. [52]  This general authorization of a state’s police power, however, does not contemplate an increasingly likely scenario -- what if a person does not own a car, and cannot afford a car?  Further, what if there are no forms of public transportation available for that person?  If a state, through its police power, can restrict an individual’s use of a motor vehicle, they can presumably restrict others forms of transportation, such as walking and bicycling. [53]   If a state uses its police power to restrict bicycling and walking, a person without a motor vehicle may not be able to reach a job or other important destinations.

In many cases, units of government do not need to pass regulations that explicitly restrict alternative forms of travel.  The design of the facility will be enough to deter usage by non-motorized transportation such that it becomes practically impossible to travel other than by motor vehicle.  Even if a road remains legally open to bicyclists and pedestrians, it may be very unsafe if it is not designed for them. [54]  Further compounding the problem, roads that fit civil engineering guidelines [55] are often perceived as unsafe by alternative transportation users. [56] 

The “Green Book,” published by the American Association of State and Highway Transportation Officials (AASHTO), is the pre-eminent civil engineering manual in the U.S. for designing roads. [57]  First published in 1956, it contains guidance on everything from the appropriate width of a roadway to the proper placement of a drainage grates.[58]  Until 2001, the stated mission of the AASHTO Green Book was “to provide operational efficiency, comfort, safety, and convenience for the motorist." [59]  As noted by one commentator, “the needs of pedestrians and bicyclists [in the Green Book], and the effects of roadway projects on the environment and communities[,] are secondary.” [60]

Available safety data strongly suggests that many roads are not safe for non-motorized forms of transportation. [61]  Roughly 5000 pedestrians and bicyclists are killed on the public roadways each year, [62] but only 1.9% of available federal safety funds are spent on bicycle and pedestrian safety annually. [63]  By contrast, bicyclists and pedestrians account for over 13% of all fatalities that occur on roadways. [64]

The poor in the U.S. are left in a quandary.  They cannot afford a car, and the state may curtail their ability to use other transportation modes, sometimes intentionally. [65]  Even if their rights to use other modes are not curtailed, a strong probability exists that they do not think they have safe facilities nearby to bicycle or walk. [66]  Nor do they likely have reasonable access to public transportation if they live anywhere outside of a large city. [67]

Compounding the problem is the fact that many public transportation users are minorities.  “Nationally, public transportation users are disproportionately minorities with low to moderate incomes.” [68]  Minorities are hit hardest in cities, where “[A]frican Americans and Latinos together comprise 54 percent of public transportation users . . . [nationally] just 7 percent of white households do not own a car, compared with 24 percent of African American households, 17 percent of Latino households, and 13 percent of Asian American households.” [69]  Minority populations are hit harder when public transportation is not available. [70]  Sidewalks and other engineering solutions create a safe environment for alternative transportation.  In many cases, if safe facilities existed, it would be possible to travel by non-motorized transportation:

According to the 1995 Nationwide Personal Transportation Survey, 25% of all trips are made within a mile of the home, 40% of all trips are within two miles of the home, and 50% of the working population commutes five miles or less to work - all distances easily traveled by bike. Yet more than 82% of trips five miles or less are made by personal motor vehicle. [71]    

      

Despite the high cost of motor vehicles, [72] public transportation programs frequently come under attack. [73]   Motor vehicles themselves, however, are highly subsidized in the U.S.  In 2002, local governments spent $27.9 billion on local roads (non-interstate roads), where most pedestrian and bicycle travel occurs. [74]  Roadway user charges covered only $3.1 billion of the $27.9 billion tab.[75]  Nationally, including bond financing, taxes and fees on motor vehicle usage account for only 70% of all roadway expenditures; fuel taxes would need to rise 45% to cover all roadway costs.[76]

Non-motorized transportation infrastructure and programs do not always require large sums of public funding.  In the context of new land development, governments can use exactions to make roadways more bicycle and pedestrian friendly.[77]  Additionally, bicycle and pedestrian friendly design elements do not necessarily increase the cost of a roadway project.[78]  In the context of public transportation, removing people from cars and putting them onto buses, trains, and boats mitigates hidden societal costs.[79]  Some have argued that public transportation costs are offset by reduced expenditures in other government sectors.[80]

In the final analysis, travel in the U.S. is largely wedded to motor vehicle use, even if American courts refuse to protect motorized travel as an individual right. [81]  But how did we get to this point in the first place?  Automobiles, after all, were not produced in any quantity until the turn of the twentieth century. [82]  Examining the development of transportation infrastructure in the U.S. will lend insight into the so-called constitutional rights to interstate travel, intrastate travel, and freedom of movement.   

 

B. A Short History of the Early Development of the American Transportation Infrastructure

 

            In the early days of the American republic, zoning laws did not exist. [83]  There was no large railway system, and residential and commercial uses tended to be in close proximity to each other. [84]  “Until the mid-1800s, the practical distance for commuting was limited to the range of a horse and coach.” [85]

As the industrial revolution grew in the 1800s, however, wealthy citizens began moving out of the downtown core in urban areas. [86]  Factories required large numbers of workers, and large numbers of workers required massive amounts of housing in cities. [87]  In New York City, for example, the population grew from 696,115 in 1850 to 3,437,202 by 1900. [88]  The advent of the railroad enabled wealthier individuals to live farther away from the center of urban cities. [89]  For example, in the mid to late 1800s, many of Chicago’s elite moved to Riverside, nine miles away from downtown Chicago. [90]  Each house in the neighborhood sat within ten minutes walking distance from the train.[91]  Eventually, Riverside developed into one of the first “suburbs,” as commercial development sprung up to serve the new community. [92]  This is one of the first examples of “sprawl” that now dominates American land use. [93]

Sprawl is the “[h]aphazard growth or extension outward, especially that resulting from real estate development on the outskirts of a city.” [94]  With the advent of sprawl, available jobs move away from the center of cities to suburbs, making it more difficult for urban dwellers to find employment. [95]  Sprawl also has significant environmental and infrastructural costs, [96] and a severe impact on the public health of residents living within sprawl areas. [97]

Between 1890 and 1915, before sprawl was a common occurrence, the electric streetcar and the motor vehicle came into wide use. [98]  In the early years of the automotive industry, streetcar companies did not receive large tax subsidies, while private automobile manufacturers benefited from massive public expenditures in the form of road building. [99]   Another form of transportation, the bicycle, also came into wide use around this time. [100]  Bicyclists needed smooth surfaces to operate, and Albert Pope, the inventor of the modern bicycle, founded the “Good Roads” movement: [101]

By 1900, more than 300 companies were producing over a million bicycles a year. Pope did not stop with manufacturing but turned his attention to road conditions bicyclists had to endure. "American roads are among the worst in the civilized world, and always have been," he wrote in a pamphlet entitled Highway Improvement. "I hope to live to see the time when all over our land, our cities, towns, and villages shall be connected by as good roads as can be found." Pope organized riders into an early lobbying group, The League of American Wheelmen, financed courses in road engineering at the Massachusetts Institute of Technology, and built a short stretch of macadam road in Boston to give people an idea how wonderful a smooth pavement could be. He helped persuade the Commonwealth government of Massachusetts to create a highway commission. By the turn of the century, the "Good Roads" movement was sweeping the country. The League of American Wheelmen became the first highway lobby group that served as a model for others to follow. Through its own publication, Good Roads, the League supported "good roads" associations across the country; it supported good roads conventions and argued ceaselessly before state legislatures for road improvements. [102]

 

As bicycling grew into a phenomenon in America, states and municipalities and governments began enacting and enforcing safety laws. [103]  Many municipalities banned bicycles altogether because they scared horses. [104]  State supreme courts almost uniformly upheld these bans until the late 1880s. [105]  The legal trend soon changed around the turn of the century, however, and many courts afforded bicyclists legal rights. [106]

The early bicycle rulings show that bicyclists were not only legally allowed to use roads in the United States, but that they were expected to. [107]   If bicyclists were not allowed to use the roads, they would have been totally restricted from riding because they were banned from riding on sidewalks. [108]  Faced with such a harsh result, it is not surprising that state courts shied away from a total denial of bicycle use throughout the transportation system.

While bicycling was reaching the peak of its popularity, the automobile began its steady ascent to the prominence it has enjoyed since the 1950s. [109]  The automobile lobby initially joined with Albert Pope’s “Good Roads” movement. [110]  In 1893, the League of American Wheelmen and Pope had convinced President Grover Cleveland’s staff to create a new “Office of Road Inquiry,” in hopes of educating the public about the benefits of paved roads. [111]   Around this time, there were about three million miles of roads in America, but only three hundred fifty-thousand miles of them had any kind of smooth surface. [112]

Before paved streets become prevalent throughout the country, most Americans traveled by foot, horse, water, or railroad; [113] and after the 1860s, many Americans also bicycled. [114]  The automobile industry benefited from the “Good Roads” lobbying efforts to pave roads, and automobile registrations grew from 8,000 in 1900 to 469,000 by 1910. [115]   By 1914, the “Office of Road Inquiry,” originally intended to pave roads for bicyclists, became the Bureau of Independent Roads. [116]  By 1916, 3.5 million automobiles were in existence, [117] and the federal government began appropriating large sums of funding for road building, although World War I initially impeded construction efforts. [118]  By 1930, the Federal Bureau of Public Roads had spent $750 million dollars and created the imprint of the national highway system that would follow decades later. [119]

The years 1900 to 1920 were also the golden age of streetcars in the United States.  From 1890 to 1920, streetcar ridership increased from 2 to 15.5 million passengers annually. [120]  During this period, local governments required streetcar companies to pay all of their operating costs, while automobile companies were not required to subsidize road building. [121]   The City of Chicago, for example, “spent $340 million on road widening between 1910 and 1940.”[122]

As vehicle production and road construction grew, so did the large trucking industry that ultimately decimated the railroads. [123]   Unlike the mature railroad industry, the trucking industry went largely unregulated until 1935. [124]  In 1915, the railroad industry had 1.8 million employees, carried 1.5 million passengers, and moved over 2 million tons of freight. [125]  Railroad companies faltered, however, as federal highway funding continued to increase, ostensibly to “relieve railroad congestion” by providing roads for trucks. [126]  Congress and President Roosevelt spent over $1.8 billion on road construction in the years leading up to World War II. [127]

Meanwhile, streetcar compani