The Orphaned Right: The Right to Travel by Automobile, 1890-1950

Abstract

Driving an automobile is a privilege, not a right, according to the prevailing laws of every jurisdiction of the United States. However, this was not always the case. When automobiles were first introduced around the turn of the twentieth century, drivers relied on common law traditions that protected the right of every person to travel upon public roadways without a license. Courts repeatedly wrote of an individual's "right to travel" by automobile and struck down regulations aimed at limiting the liberties of automobile drivers on constitutional grounds. With the passage of time, however, automobile regulators generally prevailed in legislative halls and courtrooms. Today, the public has accepted a degree of travel regulation which would have seemed almost tyrannical to nineteenth century Americans. This paper analyzes this change in common law and suggests that even if most Americans are unaware of it, the change represents a substantial loss of liberty.

Keywords: Right to Travel, automobile