"Free Movement Rights and the American City" by Ryan Stoa

Alternate Title

Free Movement Rights and the American City

Ryan Stoa, Louisiana State UniversityFollow

Keywords

Constitutional Law, First Amendment, Fourteenth Amendment, Fourth Amendment, Land Use Law, State and Local Government Law

Abstract

American cities are facing an inflection point. Widespread dissatisfaction with urban planning outcomes is making land use and transportation policies (such as congestion pricing) a mainstream topic of debate. Suburban sprawl and housing shortages are moving urban populations into the periphery, commuting times (and associated mental health problems) are increasing, and pedestrian and cyclist deaths caused by vehicles are at all-time highs. American cities that were largely planned and built in the twentieth century based on assumptions that we now know are flawed are not meeting the needs of their residents, and urban planners are making changes to reshape urban life as we know it. On one end of the spectrum, cities are embracing density by designing for walkable and bikeable communities that prioritize a diversity of transportation modalities. On the other end of the spectrum are cities that embrace ‘motonormativity’ and are enacting policies to facilitate speed and vehicular mobility.

The state or municipal government’s ability to regulate land use and design streets is a well-established police power, often considered in relation to private property rights. Much less understood are the individual rights that are implicated when a city uses its police power to limit or eliminate movement within a city. Collectively referred to in this Article as ‘free movement rights,’ these rights act as a safeguard against oppressive urban planning decisions. Nonetheless, movement rights have not been brought together and studied as such, nor have they been conceptualized as a tool to promote or push back against ill-conceived city design.

This Article is the first to comprehensively bring the Constitution’s free movement rights together in the context of urban planning in order to understand the individual’s rights to move about the urban environment. Four such rights are identified and explored: 1) the right to interstate travel; 2) the right to intrastate local travel; 3) the right to locomotion; and 4) the right to public assembly and expression. While much has been written about some of these rights in other contexts, little is known about the rights they confer on an individual’s urban mobility. This Article explores the contours of these rights, and, for the first time, draws conclusions regarding the outer limits of urban planning in the face of free movement rights.

In broad terms, the Article posits, first, that the collective of movement rights guarantees an individual’s right to move about the urban environment but does not guarantee the individual’s right to move about using their preferred transportation modality. Second, while bans on vehicular, pedestrian, or cyclist travel in certain areas or at certain times may be justified for safety or general welfare reasons, city-wide bans would likely represent an overextension of state power relative to movement rights. Third, given the increased awareness of negative outcomes created by motonormativity, as well as the fundamental and traditional need to be able to walk or move around affordably, cities likely have more leeway to restrict vehicular travel.

This Article unfolds in six sections. Following the introduction in Section I, Section II explores the government power to regulate land use, street design, and transportation networks. In Section III, the Article juxtaposes dueling visions of the American city. On one end of the spectrum are cities moving away from motonormativity, and on the other end of the spectrum are cities doubling down on car dependency. Section IV identifies and analyzes the collective of free movement rights and civil liberties that counteract the government’s broad powers to use urban planning to limit individual movement within the city. Section V draws out the implications of these movement rights, defining broadly how far cities can go in limiting individual transportation choices, and how individuals may assert their movement rights to shape the future of American cities. Section VI concludes with a roadmap for future research and previews the application of free movement rights to contemporary urban planning debates such as congestion pricing, 15-minute cities, the right to walk to school, and the legal possibility of a car-free city.