The Right to Travel by Human Power
Steven G. Goodridge
Cyclists and pedestrians have a legal right to access every destination reachable by public roads. This means that they deserve safe accommodation on every road and across every intersection. Non-motorized travel must not be prohibited except where controlled-access expressways provide service that is completely redundant to safe and efficient routes for non-motorized users. Accommodation of cyclists and pedestrians must be provided via safe, lawful and courteous behavior by other road users and by appropriate engineering of roadways.
Anyone who has spent much time bicycling or walking in America knows how it feels to be treated as a trespasser on our streets. As the popularity of motoring has grown, so has the belief among some Citizens that there is no room to safely or affordably accommodate non-motorized travel on public roads - at least, not on the important roads. Motorists give us helpful advice: "Roads are meant for cars, not bicycles." During road widening projects, we sometimes hear that "there aren't enough pedestrians here to warrant sidewalks or pedestrian signals" or that "we don't want to encourage pedestrians to walk here - it's too dangerous." As traffic congestion worsens, competition over road space grows bitter. "Go join a gym!" the commuting cyclist may hear from a passing car. "Get off the road!" is the standard line from pickup drivers. Even town planners, roadway engineers, and elected officials have sometimes sought to encourage "people getting exercise" (as if that were the only reason people might not drive) to stick to residential areas and stay away from those roads that actually go anywhere.
One of the things that walking or cycling affords us is the time to question ourselves. If a vocal segment of the population believes that non-motorized travel on important roadways is obsolete, hazardous, and rude, does that make cycling and walking irresponsible? When city planners build "multi-use paths" and sidewalks in some places, does that make it a crime to bike or walk in other places? If one cannot drive a car, or cannot afford a car, does this make one less of a human being? If one owns a car but chooses to travel without it, is doing so a sin, or simply crazy? Just what are the rights of those who travel under their own power?
To answer these questions, we might start with the first official document of the United States, drafted over one hundred years before the development of the automobile. In the Declaration of Independence, Thomas Jefferson expressed the ideals of liberty and equality that would shape our government and public policy:
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness…That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed."
Jefferson did not imply that all men are physically equal. Certainly some are stronger or richer than others. What we believe he meant is that government should treat all persons as equals without bias or discrimination. This has interesting implications for differences in travel mode. Furthermore, "liberty and the pursuit of happiness" are established not just as legal rights, but as "unalienable Rights" to be given special respect when shaping our laws. Lastly, Jefferson clearly states that government's primary charge is to preserve these rights, and that when acting to do so must have the consent of those it affects.
Constitutional law, which encompasses legal opinions that derive from principles defined in the US Constitution, allows us to relate the concept of liberty to transportation policy. In American Jurisprudence we read: "Personal liberty largely consists of the Right to locomotion – to go where and when one pleases – only so far restrained as the Rights of others may make it necessary for the welfare of all other Citizens. The Right of the Citizen to travel upon the public highways and to transport his property thereon, by horsedrawn carriage, wagon, or automobile, is not a mere privilege which may be permitted or prohibited at will, but the common Right which he has under his Right to life, liberty, and the pursuit of happiness. Under this Constitutional guarantee one may, therefore, under normal conditions, travel at his inclination along the public highways or in public places, and while conducting himself in an orderly and decent manner, neither interfering with nor disturbing another's Rights, he will be protected, not only in his person, but in his safe conduct." - American Jurisprudence 1st, Constitutional Law, Section 329, p. 1135.
Courts have found that the "The right of the Citizen to travel upon the public highways …. includes the right, in so doing, to use the ordinary and usual conveyances of the day, and under the existing modes of travel…." (Thompson vs. Smith, supra.; Teche Lines vs. Danforth, Mississippi.) "Ordinary and usual conveyances of the day" is subject to interpretation, but given that walking and cycling are existing modes of travel used for about ten percent of trips in the United States (and outnumber motor vehicle trips world-wide) and Americans purchase about fifteen million bicycles each year, we can only assume that human-powered travel is included.
The Right to locomotion has sometimes been used, unsuccessfully, as a defense in cases where motorists have been charged with driving a motor vehicle without a license. The argument that "travel equals driving" sounds compelling, but because incompetent or reckless operation of a motor vehicle is dangerous to others, states can regulate motor vehicle operation as a privilege. The courts strongly support this:
In City of Salina v. Wisden (Utah 1987): "Mr. Wisden's assertion that the right to travel encompasses 'the unrestrained use of the highway' is wrong. The right to travel granted by the state and federal constitutions does not include the ability to ignore laws governing the use of public roadways. The motor vehicle code was promulgated to increase the safety and efficiency of our public roads. It enhances rather than infringes on the right to travel. The ability to drive a motor vehicle on a public roadway is not a fundamental right it is a privilege that is granted upon the compliance with the statutory licensing procedures."
In City of Bismarck v. Stuart (North Dakota 1996): "No court has ever held that it is an impermissible infringement upon a citizen's constitutional Right to Travel for the legislature to decree that ... every person who operates a motor vehicle on public roads must have a valid operator's license.... The legislature has the constitutional police power to ensure safe drivers and safe roads."
In State v. Davis (Missouri 1988): "The state of Missouri, by making the licensing requirements in question, is not prohibiting Davis from expressing or practicing his religious beliefs or from traveling throughout this land. If he wishes, he may walk, ride a bicycle or horse…. He cannot, however, operate a motor vehicle on the public highways without … a valid operator's license."
The courts make it clear that not only is the purpose of traffic law and operator licensing to "increase the safety and efficiency of our public roads" and "ensure safe drivers and safe roads" but that walking and cycling are lawful activities protected by and fulfilling the Right to locomotion. In fact, one might observe that the preservation of walking and cycling as safe and viable alternative travel modes is essential if the states are to maintain the ability to lawfully and effectively issue and revoke driving privileges for the purpose of public safety.
Traffic law in every US state allows pedestrians to walk along and across roadways, and allows cyclists to travel on roadways in travel lanes as vehicle operators, with the exception of some controlled-access freeways that are redundant to the local road network. But traffic laws are needed to regulate how cyclists and pedestrians should behave in order to maximize safety. Pedestrians and cyclists pose little threat to motorists; most of the benefit goes to the pedestrians and cyclists themselves. Cyclists who ride with traffic and obey traffic signals fare better than those who do not. Cyclists must be discouraged from operating on sidewalks, and must yield at crosswalks, in order to protect both themselves and pedestrians. Pedestrians are required to use sidewalks or walk facing traffic in order to help protect themselves from vehicle traffic.
Efficiency is the other major benefit of traffic laws for pedestrians and cyclists. Intersection controls and right-of-way laws improve the ability of all users to share roadways effectively and keep traffic moving smoothly. Some motorists have argued that pedestrians and cyclists impede the efficient movement of traffic. But pedestrians and cyclists are traffic. Any mode of traffic has some effect on the movement of other traffic. (Whenever traffic conflicts create unacceptably poor levels of service for a given roadway design, the prudent course of action is to improve the roadway - not ban the public from using the road. Adding roadway width or sidewalks is the most common way to mitigate these conflicts to acceptable levels.) The intent of traffic laws for pedestrians and cyclists is to limit their impact to the level that is necessary for their own safe and efficient movement as equal users in the eyes of the law.
Some motorists have argued that walking and cycling are inefficient or obsolete modes, and should therefore not be accommodated on modern roadways in the interest of increasing the efficiency of travel. There are two major problems with this argument. First, what is efficiency? Walking and cycling require less energy than motoring, create insignificant levels of pollution, and are much less expensive and time consuming than owning, maintaining, and operating a motor vehicle for the purpose of making short trips. They also require less expensive transportation facilities - per mile and per hour of travel - than do automobiles, and do not require large areas of land set aside for parking. Second, walking and cycling are still practiced for transportation in the United States, so they are not obsolete. The percentage of the US population able and willing to afford and operate motor vehicles is near its practical limit, which leaves millions of Americans using other modes for transportation now and in the foreseeable future. Cycling and walking serve a permanent niche of road users who wish to travel independently anywhere they want to go. Walking is often an unavoidable part of trips taken by motor vehicle, especially in urban areas and activity centers. Furthermore, many people simply prefer to cycle or walk, and having this choice is important to their pursuit of happiness.
There are some roads, such as controlled-access freeways, where all traffic that cannot attain fast motor vehicle speeds (bicycles, mopeds, pedestrians, horses) is prohibited. This allows these roads to be designed with features that are beneficial to high speed traffic (such as high speed multi-lane on and off ramps) without having to provide consideration for non-motorist travel. High speed freeways improve convenience for motorists, but do they deny travel rights to non-motorists? Not if alternative, safer, reasonably efficient routes exist. Since controlled-access freeways do not provide local access to homes, businesses, and other destinations, pedestrians and cyclists do not need to use them in order to reach their destination of choice. But in some areas, interstates are the only way to get from point A to point B. In these places, bicycle traffic is often allowed even on interstates in order to preserve the right to travel. These are typically rural interstates with low traffic volumes, in which the operation of a bicycle across on and off ramps can be done safely without inconvenience to high speed traffic.
In practice, the Right to locomotion means that persons traveling by non-motorized modes have a right to access every destination in safety and with reasonable efficiency. This means that pedestrians and cyclists must be accommodated on every road, at every intersection, with only rare exceptions. Those exceptions must accompanied by alternative access that is both safe and efficient. For instance, an underpass might be provided for pedestrians and cyclists at a major interchange. But in the vast majority of cases, the simplest and most cost efficient approach is to enforce traffic laws while accommodating cyclists in travel lanes and pedestrians on sidewalks and crosswalks.
To preserve their constitutional rights, pedestrian and cyclist traffic must be accommodated by default when designing roadways, not considered as an afterthought. Rather than having one network of travel facilities for automobiles, another for human-powered vehicles, and a third for pedestrians, the most practical approach is to have one network - public roads - and accommodate all legal forms of travel as safely and efficiently as possible on or along each link and across each node. Expressways designed exclusively for motor travel are useful for transportation efficiency, but are acceptable only if they are completely redundant to the network of roads accessible by all. Likewise, off-street greenways for non-motorized travel can be quite pleasant, and sometimes provide useful shortcuts, but they have their own significant disadvantages and must not be used as a substitute for the right to travel on roadways. Roadways are the only facilities that go everywhere, allow safe and efficient movement, and are open around the clock.
Some have argued that the low number of cyclists and pedestrians found on many roadways makes it unnecessary to design those roadways with human-powered travel in mind. But it is primarily the number of motor vehicles on a roadway, not the number of cyclists or pedestrians, that determines the importance of designing the road to minimize conflicts. On streets with low volumes of traffic moving at relatively low speeds, a motorist can share a narrow right-of-way with a cyclist or pedestrian with minimal inconvenience or danger to either party. Lateral movements can easily be made by the motorist, or occasionally, the pedestrian. But as motor traffic volumes and speeds increase, the presence of other vehicles makes it more difficult for motorists to move laterally to pass cyclists and pedestrians within a narrow right-of-way or between narrow lanes. Without room to pass, the motorist must follow the cyclist at reduced speed waiting for a safe opportunity to pass. Another all-too-common result is that the overtaking vehicle operator violates the right-of-way of the overtaken traffic or forces pedestrians to abandon the roadway. This is inconvenient, unsafe, and unacceptable. Since walking and cycling are both legal and inevitable on virtually every roadway, it is essential to design roadways with careful consideration given to how non-motorized users affect other traffic and how other traffic will affect them. Better facilities such as wide outside lanes and sidewalks minimize these conflicts. The cost of better facilities should be paid with funds raised from all Citizens, but a fair share must be paid by motorists because it is the volume of motor vehicles, and the preference of motorists to travel at high speed, that makes the improvements necessary. When motor traffic volumes are high enough to require facility improvements, the per-motorist cost of such improvements is not unreasonable.
Another common argument for limiting human-powered mobility is that many or most pedestrians and cyclists are walking for recreation - they don't need to be using roadways important to motorists. There are two problems with this argument. First, there is no hierarchy of trip importance in government transportation policy or the Right to locomotion. Many motoring trips on important roads are for recreational purposes; for example, automobile traffic jams frequently occur on holidays, long weekends, sunny days at the beach, and at sporting events. "Sports cars" and "recreational vehicles" consume considerable highway resources but are completely legal. Discrimination against non-utilitarian pleasure travel is not tolerated in a free country. Second, it would be impossible to reliably determine which road users "need" or "ought" to be using the roadway for "worthy" purposes without stopping to interrogate each and every one. This would constitute unreasonable search. We must conclude that surrendering our freedom would be much more costly than safely accommodating recreational human-powered travel on roadways.
Some motorists insist that they have a greater right to use roads because they pay fuel taxes and registration fees. But travel on public roads is free (with the exception of a few special-purpose toll facilities). A variety of funding sources - including property taxes, sales taxes, income taxes, and fuel taxes - are used to pay for road construction, maintenance, traffic law enforcement and emergency services. Government may distribute roadway costs among Citizens in whatever way the electorate deems fair, for example placing the greatest burden on those Citizens who travel the most, pollute the most, require the most expensive facilities, create the greatest danger to others, or do the most damage to roadways. But under no circumstances does this cost distribution or the fuel efficiency of one’s travel mode affect one’s legal right of way.
The most emotionally compelling argument for the prohibition of human-powered traffic on roadways, one that leverages the fears of many compassionate Citizens and policy makers, is the premise that walking and cycling in the presence of automobile traffic is unsafe. But this activity is quite safe with responsible, competent users on properly designed facilities. The vast majority of collisions between motor traffic and pedestrians and cyclists can be attributed to (a) illegal or incompetent behavior by the motorist, and/or (b) illegal or incompetent behavior by the cyclist or pedestrian, and/or (c) inadequate facilities. Statistically, cycling on US roadways produces fewer deaths per hour of exposure than travel in a personal motor vehicle. Children living in downtown neighborhoods, where walking makes up a greater percentage of trips, are usually less likely to suffer automobile-related deaths than children living in suburbs. Vulnerability does not necessarily result in fatalities because competent roadway users compensate by using caution. The most appropriate response to unacceptable levels of pedestrian and cyclist crashes is to improve the competence of all road users and improve the roadways to better facilitate safe sharing. After these efforts have been exhausted, if human-powered access to some destinations is still not acceptably safe then it is motoring that should be discouraged in those places, not walking or cycling.
The safest facility improvements for pedestrians on high-volume roadways tend to be segregated facilities such as sidewalks and crosswalks. However, the same is usually not true for cyclists. The operational characteristics of human-powered vehicles traveling at typical cycling speeds are much more similar to motor vehicles than to pedestrians. Attempts at encouraging cyclists to use sidewalks and multi-use paths instead of vehicular travel lanes have typically resulted in an increase in cyclist crashes while simultaneously decreasing the convenience of cycling for transportation. Despite the vulnerability of cyclists in crashes involving motor vehicles, strategies that increase the visibility and predictability of cyclists operating on streets as vehicle operators have been shown to improve both the safety and efficiency of cycling transportation in the US better than segregation. And while off-street greenway paths can offer useful short-cuts and pleasant recreational opportunities for pedestrians and cyclists, they are not an adequate substitute for safe accommodation on every roadway and every intersection for access to every destination.
State, federal, and local government transportation policy affects the safety and convenience of human-powered travel. These policies and their execution are largely shaped by the often misinformed opinions of the motoring majority and the interests of the transportation industry. In recent years, the opinions of environmentalists on how people ought to travel have been given increased weight. Government programs and bureaucracies have formed to determine how to spend an increasing amount of funding available for non-motorized modes. But conspicuously absent are the voices of those who actually use human-powered methods to travel - especially those who rely on them. It is a mistake to assume that those responsible for building and regulating our transportation infrastructure can or will best serve the needs and desires of pedestrians and cyclists without the direct involvement of such users. By default, government is more likely to serve the interests of the motoring majority, and provide for cyclists and pedestrians only what is easy to provide. For this reason, those of us who travel by human power must do our part to get what we want. We must do what we can to educate ourselves in the principles of traffic science and the politics of transportation policy. Many of us also drive cars, and appreciate the importance of accommodating efficient motor travel. To defend our rights to travel as we wish, we must draw upon all of our experiences as motorists, cyclists, and pedestrians and actively speak out to our elected officials, public servants, and society in general. Only then will government policies affecting the Right to travel by human power be applied with the consent of the governed.
Copyright 2001 by Steven Goodridge
This document may be freely copied and distributed in whole or in part for any purpose.