Right to Travel vs. Freedom of Movement

Right to Travel vs. Freedom of Movement

The phrase "right to travel" should be clarified because it's commonly confused.

Many cases, documents, etc. using the phrase "right to travel" are in fact about Freedom of Movement, which is the Constitutional right to travel between States at will. If anyone speaks of a "Constitutional right to travel" Freedom of Movement is the only valid thing they could be referring to, as we'll show.

In pseudo-legal circles, "right to travel" means the supposed right to "travel freely in your private property / automobile / conveyance on the public roads / highways without a driver's license, insurance or registration and exempt from regulation or interruption provided one does not engage in commerce / earn profit or cause harm to people or property."

Absolute freedom! Could it be true? How does the law work?

Tenth Amendment, State Codes

Traffic regulation isn't mentioned in the Constitution, the supreme law of the land, therefore the power generally falls to the States pursuant to the 10th Amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

States are free to enact whatever traffic regulations they want provided they do not violate federal law, as determined by the federal courts, pursuant to their police power.

All 50+ States, through their legislatures consisting of the people's elected representatives, have seen fit to devise and enact their own traffic codes and police them.

Was it always this way?

There wasn't always legislation displacing the common law. Automobile regulation began in the early 1900's. Here is an excellent paper that thoroughly explores the transitional period when decisions could go either way: The Orphaned Right: The Right to Travel by Automobile, 1890-1950.

Bicycles were regulated decades before automobiles were invented and activists of the day faced many of the same questions and challenges modern right to travel proponents do. An analysis of that period can be found in this publication: The Impact of the Sport of Bicycle Riding on Safety Law.

Constitutionality

The States have all enacted traffic regulations, but do they violate federal law or the Constitution?

Judging constitutionality is ultimately up to the Supreme Court pursuant to Article 3:

The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.

Appeals are more-often-than-not declined by the Supreme Court so adjudication may stop at the federal United States Courts of Appeals (circuit courts) or District Courts and those are a good place to look for precedent, too. We prefer citations from these federal courts to avoid presumptions of bias that might arise by the State judging its own regulations and because federal decisions are superior to State decisions pursuant to the Supremacy Clause.

Federal Court Decisions

Let's have a look at some federal cases on the right of States to regulate traffic.

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.

Hess v. Pawloski 274 US 352 (1927)

Motor vehicles are dangerous machines; and, even when skillfully and carefully operated, their use is attended by serious dangers to persons and property. In the public interest the State may make and enforce regulations reasonably calculated to promote care on the part of all, residents and non-residents alike, who use its highways.

Reitz v. Mealey 314 US 33 (1941)

The use of the public highways by motor vehicles, with its consequent dangers, renders the reasonableness and necessity of regulation apparent. The universal practice is to register ownership of automobiles and to license their drivers. Any appropriate means adopted by the states to insure competence and care on the part of its licensees and to protect others using the highway is consonant with due process.

There we have three solid federal Supreme Court decisions that set nationwide precedent that cannot be ignored. The Supreme Court is the final arbiter of law in the United States. Unless "right to travel" proponents can come up with a later Supreme Court ruling that states otherwise, their claims are busted.

And we have one less-impressive but telling quote from a lower federal district court:

Wells v. Malloy 402 F. Supp. 856 (1975)

Although a driver's license is an important property right in this age of the automobile, it does not follow that the right to drive is fundamental in the constitutional sense.

A few of the above cases were found in a somewhat inflammatory and dated but comprehensive publication, Idiot Legal Arguments. We picked out the relevant federal cases, but many more high-level State cases can be found there, too, if you're interested.

There actually isn't a whole lot at the federal level because appeals beyond State courts are often denied as it has long been accepted by the federal government that traffic regulation is a proper exercise of State police power. Federal courts uphold the ability of States to regulate road traffic provided it is done so with equality, reasonableness and for public safety and doesn't violate any federal laws or rights.

But I don't "drive" or use a "motor vehicle"! Those are legal terms used to enslave me and I'm smarter than that!

I'm afraid the State and its courts dictate how things are viewed under its law. You don't get to decide what's considered driving or a motor vehicle, they do. You can't simply switch out a few words to avoid responsibility. If you're in territory controlled by the US and/or a State then its laws may be applied to you and you have no lawful recourse (see Law Basics).

I've heard of people being ignored or let go by police, even without a license or insurance!

Police have discretion. The world is a very dynamic place. There are any number of reasons why you might be passed by or allowed to proceed at any given time. The cop might be a scared rookie, not care, not want to fight, have a date, have to pee, be on lunch break, be at the end of their shift and going home – think about it – they're human, not machines. The priorities of police and prosecuting attorneys vary. The law is what it is, though, and when you understand it you know in the long run you're looking for trouble if you don't obey it.

I don't like traffic regulations. What can I do?

Your lawful remedy is to convince the majority of people in your State to put pressure on your elected representatives in the State legislature to change the law. That or you could move to another State or country where there are less regulations (and perhaps more fatalities).

Study hard, verify claims, think for yourself, question this, comment.