Document Type

Article

Publication Date

2023

Publication Information

75 Oklahoma Law Review 815 (2023)

Abstract

Scholars, activists, and advocates have long identified the “transportation gap” as a significant factor contributing to race- and class-based economic and other disparities. Carlessness correlates closely with race and poverty; meanwhile, widespread disinvestment in public transit results in low-income Black and Brown people suffering a disproportionate lack of access to opportunity and choice in almost every conceivable area of life.

State and local governments most often propose one of three solutions to correct the transportation gap: 1) renewing their investment in public transit; 2) increasing access to shared transit; and 3) making adaptations to the built environment. This Article demonstrates that these three proposals are all inadequate. Despite their many benefits, none of these solutions provide an equivalent substitute for private car ownership for individuals who need or want better transportation. Thus, any solution privileging public approaches to the exclusion of private options is doomed at the outset and will never completely suffice to close the gap.

The thinking that inspires the major public-approach proposals is in line with the current understanding of the constitutional right to travel, which judges and legal scholars contemplate as a negative right, blocking undue interference with interstate travel. A right to intrastate travel is not universally recognized, but where it is acknowledged, it is also consistently framed as a negative right.

This Article argues that, instead, advocates and lawmakers must design solutions that incorporate a positive right to autonomous mobility, allowing individual input and choice in the modes of transportation best suited to each person. The low-income, Black, and Brown people stranded in the transportation gap are not well served by top-down, one-size-fits-all solutions. Moreover, the public-approach proposals typically ignore private car ownership as a possible option, or outright discourage it, to stem the tide of the environmental and infrastructural problems associated with the popularity of driving. This dismissal imposes private burdens to solve societal problems; it yokes the most vulnerable to eliminate problems created by the most powerful.

Instead, courts, legislatures, business leaders, and the American public at large must affirm a positive right to autonomous mobility: to trust individuals to know their own needs and to meet them, even if those needs include private vehicle ownership. Only when the law expands to recognize this right and include private options can state and local governments design creative and principled solutions that have a chance of closing the transportation gap.

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