A Slow March of Encroachment
A Slow March of Encroachment: Preserving the Constitutional Freedom of Our Highways
For generations, Americans have revered the open road as a symbol of liberty, self-determination, and individual choice. Justice Tolman’s sentiment in Robertson vs. Department of Public Works captures a vital constitutional principle: “Complete freedom of the highways is so old and well established a blessing that we have forgotten the days of the Robber Barons and toll roads, and yet, under an act like this, arbitrarily administered, the highways may be completely monopolized, if, through lack of interest, the people submit, then they may look to see the most sacred of their liberties taken from them one by one, by more or less rapid encroachment.” That timeless caution underscores how easily incremental government regulation over the roads can morph into sweeping controls over our daily lives.
Recent legislative proposals in Washington—particularly House Bill 1512—illustrate a new stage in these “more or less rapid encroachments.” On its surface, this measure purports to limit certain police stops by restricting officers from pulling over drivers solely for nonmoving violations, such as expired tabs or equipment infractions. It even includes provisions for mailing warnings instead of stopping drivers and aims to divert resources toward more egregious offenses like drunk driving or reckless speeding. To some, this approach might seem a boon to civil liberties. But beneath the veneer of reduced stops lies a subtle expansion of regulatory oversight, accompanied by troves of new data-collection requirements and an overarching acceptance that the state shall dictate, with increasing precision, precisely how and when law enforcement interacts with those using the public roadways.
Seattle, WA municipal code § 11.14.715 Way open to the public. "Way open to the public" means any road, alley, lane, parking area, path, or any place, private or otherwise, adapted to and fitted for travel, that is in common use by the public with the consent, expressed or implied, of the owner or owners, and further shall mean public playgrounds, school grounds, recreation grounds, parks, parkways, park drives, park paths and wharves, station grounds, and rights-of-way open to the use of the public.
Historically, our highways and byways have served as arteries of commerce and personal freedom. These routes connect communities, families, and economic opportunities. From a constitutionalist viewpoint, the right to travel freely, unburdened by excessive governmental intrusion, is an implicit but vital liberty. Echoing Justice Tolman’s admonition, the American people once recognized highways as a “blessing,” a self-evident domain of personal autonomy that government could regulate only with the lightest possible hand.
Yet as technology and administrative strategies evolve, so too do the rationales for new controls. The specter of “public safety” is often invoked to justify broad legal authority over vehicles and drivers, enveloping not only legitimate safety measures, but also novel data-collection mandates, warrantless expansions of police questioning, or the compilation of extensive driver demographics. In the case of Washington’s new proposal, robust data gathering on the location, demographics, and timing of traffic stops—though potentially used in good faith—enlarges the scope of governmental knowledge about ordinary citizens’ daily movements.
Subtle Shifts Toward Greater Control
Superficially, not stopping a vehicle for a minor infraction sounds like a reprieve from regulatory harassment. However, the legislation envisions mailing a warning or citation later, thereby preserving the state’s authority over the motorist while funneling ever more data through departmental channels. In addition, the bill contemplates the expansion of social welfare and voucher programs, presumably to assist low-income individuals who cannot afford standard compliance costs like registration fees or car repairs. While laudable in its humanitarian spirit, such programs inevitably invite deeper entwinement between personal finances and government oversight: the more reliant individuals become on bureaucratic “fix-it” vouchers and fee offsets, the more leverage the state wields.
In truth, the creeping nature of these measures can be more insidious than a single bold assault on liberty. Under the banner of “traffic safety,” the state inserts itself into every level of vehicle ownership and operation—from inspection requirements to detailed recordkeeping on the reasons for a stop, to new written-consent protocols for vehicle searches. Though each incremental step might appear innocuous or even beneficial on its own, the cumulative weight of these measures tightens the yoke of official supervision on the citizenry.
The Danger of Complacency
Justice Tolman warned that “if, through lack of interest, the people submit,” their treasured freedoms will be lost through “more or less rapid encroachment.” Indeed, complacency fosters an environment in which the state can expand its reach under the rubric of “helpfulness” or “public order.” Free people must remain vigilant about yielding even minor aspects of control over their movements. While high-fatality crashes are a legitimate concern and require sensible enforcement of truly dangerous driving behaviors, the overarching legislative strategy must not nullify the very liberties that make free travel possible.
We risk forgetting that the right to move about one’s state, absent undue government interference, was once taken as a given, anchored in the tradition that roads belong to the people. Revisiting Robertson vs. Department of Public Works, we see that it is not an outright ban or toll that poses the greatest threat, but a slow process of normalizing intensified oversight: new documentation rules, incremental compliance demands, and data-driven policing that culminate in the government’s effective preemption of that once unassailable right to drive along the public roads unencumbered.
A Call to Constitutional Vigilance
The solution, then, is not to abandon public safety nor to jettison every regulatory mechanism for controlling reckless driving. Instead, it is to ensure that each new piece of legislation is scrutinized to maintain—rather than erode—our longstanding traditions of freedom on the open road. There is a rich jurisprudential tradition insisting that rights and liberties persist unless specifically curtailed by pressing state interests. House Bill 1512 might reduce certain unnecessary stops, but it also codifies a more detailed monitoring system and invests greater power in those who administer our roads.
In a free society, laws must be carefully calibrated to address genuine threats without becoming a gateway for unchecked governmental reach. Citizens who remain oblivious to these creeping regulations risk, in Justice Tolman’s words, seeing “the most sacred of their liberties taken from them one by one.”
If history is any guide, once public complacency sets in, old rights become historical relics. The highways must not be allowed to devolve into a realm of perpetual scrutiny, oppressive data harvesting, and paternalistic gatekeeping. True adherence to constitutional principle calls for unwavering vigilance in preserving the blessing of free and open roads—a blessing that, once lost, may prove exceedingly difficult to regain.
