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The Right to Travel by Human Power

    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 If a vocal segment of the population believes that non-motorized  travel on important roadways is obsolete, hazardous, and rude, does that make  cycling and walking irresponsible?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.