Biking - Right or Privilege?

Found this interesting

Quoted post said:

Quoted post said:

When reading the June 2009 edition of Bicycling, and the column “First, There Was the Bicycle“, I was struck by the number of references to our “rights” to use the road. Specifically, you state:

Today, as in the past, our rights to the road are sometimes challenged. Towns occasionally ban bicycles from the roads, despite our rights. Law enforcement fails to protect us, and sometimes, officers even attempt to remove us from the roads— despite our rights. And self-styled vigilantes assault cyclists with their vehicles in deluded efforts to enforce laws they wish existed. Even with these challenges, we exercise our right to the road.

As a fellow advocate for all Florida cyclists, I want to take a moment to express concern that the repeated mantra that we have the “right” to use the road is illusory; that “right” is actually nothing more than a “privilege” that the state can take away from us, without recrimination. Recently, in the Florida case of State v. Wells, 965 So.2d 834 (Fla. 4th DCA 2007), the court reaffirmed what us lawyers all know—limitations on the use of the public rights-of-way do not implicate a fundamental constitutional right and, thus, any such law is not unconstitutional on overbreadth grounds; the right to travel does not encompass a fundamental right to drive, and driving is a privilege rather than a right.

As such, I remain concerned, and have repeatedly expressed as such, that my fellow cyclists’ continued disregard for traffic laws may ultimately lead to the banning of bicycle use—as we currently enjoy it—altogether. Even today, cities are curbing group riding due to the lack of respect the participants often exhibit to other users of the roadway. While some of us view such behavior as civil disobedience, our “right” to use the road is not protected in our state or federal constitutions and therefore our behavior on the roads is not making the point some of us are trying to make (i.e, that bikes belong).

In “First, There was the Bicycle,” I briefly summarized the 19th century campaign to gain the right to the road. This campaign was waged by the League of American Bicyclists, then known as the League of American Wheelmen...The campaign was based on a two-pronged legal strategy, directed towards the courts and legislatures of the states. In the 19th century, cyclists were often faced with discriminatory laws that restricted their use of the road. For example, Topeka, Kansas passed an ordinance prohibiting cyclists from riding on city sidewalks, and ostensibly, “across the Kansas river bridge.” When cyclists were arrested for violating traffic laws that restricted their use of the roads, Col. Pope provided the financial backing to appeal those convictions to the highest state courts—and those appeals resulted in decisions holding that bicycles are “vehicles,” and that cyclists have the same rights and responsibilities as other vehicle operators.

But is that right to the road really a “right,” or is it instead a “privilege,” as Lynne has argued? It’s an interesting point. The language devised by judges and legislators in the 19th century is essentially the same as the language describing the legal status of cyclists today, so if the right to the road was indeed a right then—and 19th century courts made it clear that they were discussing a right —it should also be a right today. Of course, that doesn’t necessarily demonstrate that cyclists have a “right” to the road. After all, it’s been well-established by the courts that motorists have only a privilege, and not a right to use the roads.

In 1973, for example, the Supreme Court of Washington held that “there is no constitutional right to a particular mode of travel.” Why the change? Driver’s licenses. When the Kansas Supreme Court held that the right of travel included the right to choose the mode of travel, no state required that drivers be licensed. In fact, the first state law requiring all drivers to pass an exam before receiving a license took effect in July of 1913, in New Jersey. Gradually, every state since then has mandated that drivers be licensed. And corresponding with those requirements, beginning in 1920, and continuing over the course of the next 30 years, courts began to hold that driving is not a right, as it had previously been viewed, but a privilege that the state may revoke. Today, that view is universal.

What’s really remarkable here is the shift in thinking from the Kansas court’s 1890 opinion that “every citizen has the absolute right to choose for himself the mode of conveyance he desires…” The right to travel is an ancient right; it was acknowledged in the Magna Carta:[indent]It shall be lawful to any person, for the future, to go out of our kingdom, and to return, safely and securely, by land or by water…

[/indent]562 years later, the right to travel was recognized in the Articles of Confederation, but when that document was replaced by the Constitution, the right to travel was not enumerated in the Bill of Rights. Nevertheless, the right has been acknowledged in courts since the early 19th century. Thus, by 1890, the Kansas court well understood that the right to travel is a fundamental right.

Even though the right to travel is universally recognized by the courts, it has also clearly been somewhat restrained by the legislatures since 1890, as evidenced by numerous cases holding driving to be a privilege, rather than a right.

Can the legislatures do that? Can they restrain a fundamental constitutional right like the right to travel? The answer is a qualified yes. No right is absolute; even fundamental rights.

Relatively few restraints have been placed on the right to travel; nevertheless, the right is not absolute. It is limited to the right to use the public highways for travel; the right to travel does not include the freedom to trespass on private property (unlike in Scandinavia, where the freedom to roam—even across private property—is an ancient right.). The right to travel is also restrained by the traffic laws. This was so even in 1890, before the advent of licensing requirements; as the Kansas Supreme Court held: Each citizen has the absolute right to choose for himself the mode of conveyance he desires…subject to the sole condition that he will observe all those requirements that are known as the ‘law of the road.’

Finally, the right to travel does not include the right to choose a mode of travel that is licensed by the state. [For example,] because driving is permitted by the states, through licenses that can be revoked, driving is a privilege extended by the state. However, because most other modes of travel are not licensed, the state cannot “revoke” your ability to travel via those other modes, and thus, unlicensed modes of travel are not “privileges.” Instead, they are modes of travel that fall within the right to travel, and laws that are overly restrictive of those unlicensed modes of travel would be susceptible to overbreadth challenges.

So if cycling is not a privilege, is it a right? That may be an unsettled question. Prior to 1920, the right to travel included the right to choose one’s mode of travel. Since 1920, that right has been steadily eroded. Nevertheless, one possible interpretation of the jurisprudence is that we retain the right to choose our mode of travel for those modes that have not been transformed into privileges.

I believe that cycling is at a minimum an expression of our right to travel, and there is reason to believe that we have retained the right to choose our mode of travel—at least where that mode has not been transformed into a privilege. However, it is clear from the public discourse that discourteous behavior and disregard of the traffic laws is having a profoundly negative effect on cycling. As you have pointed out, through their negative behavior, cyclists tend to be their own worst enemies.

[N]obody should be fooling themselves into believing that society is powerless to react to their negative behavior. By the early years of the 20th century, automobiles were already widely perceived as posing a danger to the public. As early as 1902, proposals to license drivers—an unheard of regulation of the right to travel—had entered the public discourse as a means of addressing the problem; by 1913, licensing was a reality. Today, proposals to require registration of bicycles and licensing of cyclists have entered the public discourse.

Do the legislatures have the power to regulate bicycling in ways that cyclists would find extremely undesirable, completing the transformation of cycling from a right to a privilege controlled by the state? They have already demonstrated the power to do so once, and that power has been unanimously upheld by the courts. Would the legislatures and the courts do so again? That remains to be seen.