Bicycling: Privilege or Right?

The right to travel is thousands of years old, but is sometimes forgotten in the age of motoring

by Steven Goodridge

During discussion at the September 11 meeting of the HB232 Bicycle Law Study Committee, a member claimed that “use of the road is a privilege, not a right.”  The context was a proposal to require bicyclists to carry an official form of identification in order to operate on roadways. Most of the committee members felt that such a requirement could present a hardship for low income people and other groups who did not possess driver licenses or other official credentials, much like the voter ID law. However, it is not uncommon for motoring advocates to call for increased regulatory burdens to be placed on bicyclists, preferably to equal the expense of motoring regulations, for the sake of “fairness.” Their argument often begins with the motoring-centric assumption that because motoring on roadways is regulated as a privilege, then any use of roadways is also a privilege, and not a true right.  Historically and legally speaking, however, this claim is inaccurate.

Legal recognition of an individual’s basic right to travel on shared roads dates back millennia. Roads evolved from unimproved footpaths and trails over five thousand years ago. Some roads were constructed and maintained by private land owners, and others by governments. The earliest challenges to public travel over these routes came from land owners or other local inhabitants who might extort money from travelers or block travel by force or physical obstruction. Public use of roads was compelling for access to water, food, and trade, for transport of goods and materials, and for military purposes. Across the world, laws evolved to define the rights and responsibilities of travelers and land owners.

Some of the first written descriptions of travel rights are found in Roman property laws from the second century BC. Rural property owners could be required by law to accommodate the travel of other people across their land via easements. Different types of traffic needed to be accommodated according to the type of easement assigned by the government. The lowest level of obligation, servitus iter, required that the property owner allow others to walk or ride horse-back through their land. The next level, servitus actus, expanded that accommodation to the driving of animals, and was a superset of servitus iter. The third level, servitus viae, added heavy wagons to the requirements of servitus iter and servitus actus, and consequently required the most durable road surface. This illustrates how the Romans viewed lighter travel modes such as walking to be a more basic travel right than heavier modes.

The Romans were prolific road builders, creating a network of durable paved highways that spanned most of Europe including England. While of strategic military importance to the Roman government, these roads were public ways (iter publicum) permitted to all. Any act to block or hinder travel upon public roads was prohibited by Roman law (Interdicta De Itineribus Publicis).  Within the city of Rome, traffic congestion became such a nuisance that Julius Caesar banned wheeled traffic in the city during most of the daytime. Many urban streets and rural roads were too narrow to accommodate two vehicles passing in opposite directions. When two road users did meet in a location of limited space, Roman traffic law dictated that the travelers work out the situation peacefully. If one traveler carried a greater burden than another, for example if one wagon were fully loaded and the other empty, the lesser-burdened traveler would yield the road to the other. If the travelers were equally burdened, they would barter with one another for priority.

Following the decline of the Roman Empire, most rural road building and maintenance was done by land owners in a decentralized, ad-hoc manner, resulting in poor travel conditions.  The tradition of public passage, however, survived. In the twelfth century, the seminal English law text Tractatus of Glanvil written for Henry II declared the legal status of the king’s highway and the public right to travel upon it. When combined with the Anglo-Saxon principle of the king’s peace, this meant that any attack on any traveler using the king’s highway (later extended to all roads) would be treated as an attack upon the king himself. The concept of right of way originated in English law at this time with a dual meaning: First, the right of the king to establish public roads across private properties, and second, the public’s right of passage on such ways.

The common-law right to travel on public ways followed the colonists to North America. When the founding fathers of the United States developed its constitution, they carefully enumerated many individual rights and protected liberties that had been violated or threatened by King George or other monarchs. The right to travel had not been threatened at the time, and so there was no motivation to include it in the Bill of Rights. Roads spread across America carrying pedestrians, horseback riders, carriages and wagons. All animal-drawn vehicles as well as pedestrians were considered legitimate traffic, and no road user was expected to obtain a license or carry identification to travel within the country.

In the late 1800s controversy erupted over a new type of vehicle that was speeding along rural roads and urban streets, frightening horses and pedestrians: the bicycle. Considered a nuisance by many non-bicyclists, cities and states enacted numerous bans on bicycle travel (for instance, Kentucky banned bicycles from most major roads). Numerous court cases involving bicyclists’ road rights resulted in inconsistent outcomes. In cases involving collisions, English and American courts eventually concluded that the rules of the road for carriages should apply equally to bicyclists. These rules prohibited speeding or otherwise operating in a manner dangerous to others. Eventually the higher courts in the states would reach conclusions protecting the right to travel by bicycle on public roads. In Swift vs City of Topeka (1890) the Kansas Supreme Court stated:

“Each citizen has the absolute right to choose for himself the mode of conveyance he desires, whether it be by wagon or carriage, by horse, motor or electric car, or by bicycle . . . . This right of the people to the use of the public streets of a city is so well established and so universally recognized in this country that it has become a part of the alphabet of fundamental rights of the citizen.”

In the case of the self-propelled automobile, however, the Kansas Supreme Court spoke too soon. In 1890, automobile travel was primarily a novelty for the wealthy, but motor traffic volumes and speeds grew quickly on public roads over the next thirty years. With popularization of motoring came a staggering epidemic of crash fatalities and injuries for pedestrians and vehicle operators. In response, cities across the country enacted new regulations on motoring ranging from licensing requirements to outright bans. Automobile organizations challenged the regulations in court based on right-to-travel grounds, and won many of the early cases. But as motoring’s death toll continued to increase each year, and government regulators made a stronger case that improper motoring violated the travel rights of others, the courts relented. By 1920, no court found the right to travel to be sufficient grounds to strike down a driver license requirement for motor vehicle use. For instance, in the federal case Hendrick v. Maryland 235 US 610 (1915):

“The movement of motor vehicles over the highways is attended by constant and serious dangers to the public, and is also abnormally destructive to the ways themselves . . . In the absence of national legislation covering the subject a State may rightfully prescribe uniform regulations necessary for public safety and order in respect to the operation upon its highways of all motor vehicles — those moving in interstate commerce as well as others. And to this end it may require the registration of such vehicles and the licensing of their drivers . . . This is but an exercise of the police power uniformly recognized as belonging to the States and essential to the preservation of the health, safety and comfort of their citizens.”

Drivers who were charged with driving a motor vehicle without a license would continue to attempt a defense based on the right to travel, but to no avail. 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.”

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 City of Salina v. Wisden decision implies that protecting the safety of pedestrians and bicyclists is one of the goals of motorist licensing. The State v. Davis decision calls out the importance of walking and bicycling in supporting the right to travel. If driving a motor vehicle is an issued and revocable privilege, then it stands to reason that some other modes must remain in order to preserve the right to travel. Otherwise, only the privileged could continue to travel independently on the essential trips that people have been making for thousands of years.

In some parts of the US, bicycle theft and recovery has presented a headache for police departments and bicycle owners. Numerous independent bicycle registration programs were implemented by cities around the world to facilitate tracking and recovery of bicycles, much as was done for motor vehicles at a wider scale. Bicycle thieves quickly learned to transport the bicycle out of its city of registration, however, rendering the local registration system ineffective. As a result, most bicycle owners saw little benefit to bicycle registration, and were usually unwilling to expend the time and fee to obtain it. Some cities made the registration mandatory in order to boost its usage or in attempts to raise revenue, and some states provided a uniform state-wide registration process to expand the effective recovery area.  However, bicycle registration rates in most US communities remained very low. Mandatory bicycle registration programs became a source of friction between bicyclists and police departments due to unbalanced or biased enforcement, pretextual stops, arbitrary seizure and impoundment of bicycles, and enforcement against out-of-town or out-of-state bicyclists. Some bicycle registration and enforcement campaigns were viewed as a regressive burden on the poor. Most registration programs lost money or were unable to meet revenue goals. As a result, most US communities ended mandatory bicycle registration programs. Today, Hawaii is the only US state with a mandatory bicycle registration requirement, which succeeds primarily because it is implemented as an excise tax on new bikes at the point of sale. (Also, it is relatively difficult for residents of other states to ride their bicycles across the border of Hawaii.)

To improve safety and traffic law compliance for bicyclists, many European nations implemented comprehensive bicyclist education programs, often made compulsory for children in public schools. Most of the US, however, did not implement such education programs. As a result, many bicyclists and motorists in the US do not know safe and legal bicycling practices. Unsafe and unlawful bicycling is described by many Americans to be a problem (although there is often disagreement between motorists and bicyclists about what is safe and lawful). These concerns occasionally result in proposals to require bicyclists to be licensed in a manner similar to motor vehicle drivers. Examination of the cost of implementing such a scheme (including the side effect of discouraging bicycling) in comparison to the low level of public benefit has prevented governments in the US and abroad from implementing licensing as a requirement for adults to bicycle on public roads. Bicycling for travel on ordinary public roads continues to be enjoyed by the public as a basic right, rather than as a licensed privilege. However, bicyclists must obey the normal rules of the road when exercising that right, or else face citation, just as drivers in ancient Rome who violated the traffic laws could be called to traffic court.

Despite the right of bicyclists and pedestrians to travel to their destinations, American society has promoted motoring through means that unintentionally discourage non-motorized modes. Many modern roads are built wider and straighter with fewer interruptions in order to facilitate higher speeds, which increases the potential for friction between the high speed motorists and people traveling at human-scaled speeds. The clearest examples are fully controlled access highways, aka freeways, which are the only roads legally prohibited to bicyclists and pedestrians in North Carolina. Prohibition from such highways is acceptable only because the full control of access prohibits driveway access between the highways and the adjacent land; the adjacent properties are accessible by other roads that are not fully controlled access and therefore open to bicyclists. The prohibition from fully controlled access highways does not prevent pedestrians and bicyclists from reaching their destinations, but may sometimes require longer routes.

At increased cost, high speed road designs have been implemented on many general purpose surface roads used by mixed traffic. Some of these designs present safety hazards for pedestrians and bicyclists, particularly if motorists do not drive with a sufficient level of care. In response to these dangers, some highway engineers, police, and motorists act to discourage pedestrians and bicyclists from using those roads, even though they provide essential access routes to many local destinations. Rather than seeing bicyclists and pedestrians as equally entitled and intended users of the road, some authorities view them as obstructions or interruptions to be removed. What good is spending all of that money for a road that supports a high posted speed limit, some say, if drivers must slow down for bicyclists and pedestrians? With so much public money invested in motoring, what started as a privilege under the condition of safe road sharing becomes twisted into a supposed right of speed, upon which slower travelers are thought to infringe. What was once the courteous practice of the lesser-burdened traveler deferring to the greater-burdened traveler has increasingly become an assumption of fault in a collision; pedestrians are expected to vacate the roadway for speeding motorists at all costs, with little to no legal protection if hit. Bicyclists who use important roadways in the US are harassed by motorists and police for slowing motor traffic.  Bicyclists continue to have equal right to travel lanes as other drivers in North Carolina, but many motoring proponents, including some within our government, wish to take away that right, as has happened in some other states. Left unchecked, the motoring establishment would repurpose our roads from public rights of way open to all users into specialized facilities reserved for the privileged.

Motoring proponents in America often argue that non-motorized travel modes are obsolete. This argument often goes unchallenged in public discourse because those people who most depend on non-motorized modes have the least political and economic power. Many US residents do not drive motor vehicles due to limitations of age, health, or economics, or simply by choice. Worldwide, motorists are a clear minority; people outnumber motor vehicles 7 to 1. In much of the world, the bicycle is the most popular vehicle choice for travel, essential for the mobility of people with modest incomes or in areas with a scarcity of space that can be dedicated for motoring (or even for parking).  Mass motoring is also less healthy for individuals and for the environment; its desirability is widely disputed. If affluent Americans who claim to support equality, independence and upward mobility choose to abandon protection of the right to travel by human power because they think that it inconveniences motorists, what are the implications for the rest of the planet?

Fortunately, there is growing public awareness of the need to make our transportation system work for everyone, not just motorists. Campaigns to reform motoring-exclusive transportation policies in the US are spreading throughout the country. Much of that effort is coming from grassroots activities by citizens who want to build or retain a human-scaled transportation network to connect and strengthen their local communities. BikeWalk NC is part of that movement. In response, cities and states are adopting improved design standards and “complete streets” policies to formalize accommodation of non-motorized road users’ needs into all planning and engineering projects. According to the Complete Streets policy adopted by the North Carolina Board of Transportation in July 2009, “[t]he North Carolina Department of Transportation, in its role as steward over the transportation infrastructure, is committed to providing an efficient multi-modal transportation network in North Carolina such that the access, mobility, and safety needs of motorists, transit users, bicyclists, and pedestrians of all ages and abilities are safely accommodated.” The NCDOT Roadway Design Manual says “It is the responsibility of the Section Engineers and Project Engineers to be assured that all plans, specifications, and estimates (PS&E’s) for federal-aid projects conform to the design criteria in the “A Policy on Geometric Design of Highways and Streets” (2011).” That document, also known as the AASHTO Green Book, states: “The bicycle should also be considered a design vehicle where bicycle use is allowed.” It should be clear that bicyclists are intended users of all roadways in North Carolina except fully controlled access highways (freeways), and that it is our government’s job to facilitate this travel, not deter it.

The HB232 proposal to require bicyclists to carry identification as a condition of road use raised an essential question: What problem would such a law solve? One member of the Bicycle Law Study Committee suggested that it would provide useful information for medical personnel in the event of a bicyclist injury. However, the majority of the committee didn’t find this to be a persuasive argument, since the same issue applies to pedestrians or vehicle passengers, who are involved in far more crashes than are bicyclists, but are not being asked to carry ID. Another suggestion was that police might need a road user’s ID in order to enforce the traffic laws. A highway patrol officer on the committee countered that law enforcement has many different ways to obtain identification other than through driver licenses or IDs. He said that the State now uses databases that can provide identification based upon many other factors such as tattoos, moles, scars, etc. and these identity systems are linked to national databases. (Police officers also use questioning tactics that can often reveal when a person has given false information.) Another member pointed out that failure to carry ID does not affect the safety of other road users.

The committee discussed difficulties that an ID requirement would create for minors and socially or economically disadvantaged cyclists, and the likelihood that a written ID requirement would generate objections and legal challenges on civil liberties grounds in a state without a stop and identify law. No clearly compelling argument was made that a sufficient public safety benefit from an ID requirement existed to warrant the potential net costs. In its official response to the HB232 agenda item, the committee voted 7-2 recommending that bicyclists not be required to carry ID as a condition of road use.

[Author’s note: While BikeWalk NC does not support a legal requirement for bicyclists to carry ID, we do recommend as a best practice that cyclists, skaters, runners and pedestrians carry their name, emergency contact and relevant health condition information when they travel away from home.  This may take the form of an information card or decal inside their helmet, or a bracelet such as those manufactured by Road ID.]