From the New York Times: This Is Our Country. Let’s Walk It. In much of Europe, walking wherever you want is perfectly legal. Not in America.

There's lots of undeveloped land in the US - much of it out west - that is privately owned. Which means you can't walk on it legally. This is a policy choice we make here. Other countries do. It might be worth considering what this says about political culture in the US.

We have no right to roam.

But there is a right to exclude.

- Click here for the article.

Might we be better off if we could, like a Scot or a Swede, legally amble over our rolling fields and through our shady woods, rather than have to walk alongside unscenic, noisy and dangerous roads? The organization Smart Growth Americareported that from 2003 to 2012 over 47,000 pedestrians were killed and an estimated 676,000 were injured walking along roads. Our lack of safe and peaceful walking places may also contribute to the nation’s status as one of the more sedentary countries in the world. According to a 2012 study by The Lancet, over 40 percent of Americans don’t get the recommended amount of exercise per week.

If we want to create more safe and scenic walking spaces, we should look to Europe’s roaming laws for ideas on opening up our countryside. But would a European “right to roam” law work in the United States?

Jerry Anderson, a Drake University Law School professor who has studied American and British property law, says that emulating Britain’s right-to-roam laws would be difficult because of the takings clause of our Fifth Amendment, which declares that private property cannot “be taken for public use, without just compensation.”Continue reading the main story

“It’s not impossible,” said Mr. Anderson. “You would have to compensate the landowners, and then the question would be, ‘How much compensation is a public right of access worth?’ ”

The amount of compensation is difficult to determine because Britain and other countries with roaming laws don’t have anything like our takings clause. In Britain, landowners were not compensated when their exclusionary rights were compromised by roaming laws. Laws like those in England, Wales and Scotland would probably be declared unconstitutional here.

America, though, started off with an expansive set of roaming rights and traditions. Brian Sawers, a visiting scholar at Emory University School of Law, says that the right to roam — specifically the right to hunt on private, unenclosed land — was cherished by early Americans because it distinguished them from the English, whose aristocracy held exclusive hunting rights and owned the great majority of the country.Photo

The right to roam “was something we had and lost,” said Mr. Sawers.
Roaming rights began to erode in the late 19th century, according to Mr. Sawers. In the South, states passed trespassing laws for racial reasons, seeking to keep blacks from hunting and fishing so as to starve them into submission. Elsewhere, wealthy landowners of the Gilded Era became concerned with game populations, and trespassing and hunting laws were passed to restrict immigrants, he said.

In 1922, the Supreme Court in McKee v. Gratz ruled that in areas where there is a “common understanding,” the public may be permitted to hunt, fish and travel unenclosed land. However, this right is revoked the second the landowner posts a “No Trespassing” sign, according to Mr. Anderson. This is referred to as a landowner’s “right to exclude,” which, over the years, has grown only more powerful and absolute in a series of Supreme Court decisions.

- Click here for the decision in McKee v. Gratz.

The "fundamental principle of equal sovereignty among the states"

Some Justice Steven's remarks in the story below touch on points made in 2305. As we look through the principles embedded in the original document as ratified, not as amended, we've noted that there's very little about equality. And there wouldn't be until after the Civil War and the inclusion of the 14th Amendment.

But its argued that while there was no recognition of the equality of the people, there is one of the states, largely because they each have equal representation in the Senate. At least that's what the majority of court in the Shelby decision argued, and Steven says it formed the basis of their decision.

He disagrees with that argument and says the Constitution did not create equal sovereignty because the 3/5ths compromise tipped the balance of power towards the slave states - he calls it the slave bonus. While the states are still sovereign entities, they are not equal:

The Court’s heavy reliance on the importance of a “fundamental principle of equal sovereignty among the States,” while supported by language in an earlier opinion by Chief Justice Roberts, ignored the fact that Article I, Section 2 of the Constitution created a serious inequality among the states. That clause counted “three fifths” of a state’s slaves for the purpose of measuring the size of its congressional delegation and its representation in the Electoral College. That provision was offensive because it treated African-Americans as though each of them was equal to only three fifths of a white person, but it was even more offensive because it increased the power of the southern states by counting three fifths of their slaves even though those slaves were not allowed to vote. The northern states would have been politically better off if the slave population had been simply omitted from the number used to measure the voting power of the slave states.

The fact that this “slave bonus” created a basic inequality between the slave states and the free states has often been overlooked, as has its far-reaching impact. In 1800, for example, that bonus determined the outcome of the presidential election since it then gave the southern states an extra nine or ten votes in the Electoral College, and Thomas Jefferson prevailed over John Adams by only eight electoral votes. Because of the slave bonus, Adams served only one term as president.

The slave bonus unfairly enhanced the power of the southern states in Congress throughout the period prior to the Civil War. It was after the war that Section 2 of the Fourteenth Amendment, passed in 1868, put an end to the slave bonus. When the Fifteenth Amendment was ratified in 1870 during the Grant administration, the size of the southern states’ congressional delegations was governed by the number of citizens eligible to vote. Since that number included blacks as well as whites, during Reconstruction those states were no longer overrepresented in either Congress or the Electoral College.

Note that he points out that one of the Civil War amendments was responsible for ending the slave bonus and providing equality to the states under the Constitution. That fits one of the basic arguments we make in class - at least in 2305.

This is also a question that touches heavily on items we hit in 2306 when we discussed the role of states in the constitutional system. Does the Constitution guarantee that they be treated equally? There is no explicit language making that case.

Here's more on equal sovereignty:

- Chief Justice Robert's Paean to . . .
- How did we get the principle of equal sovereignty . . .
- Do the states have the right to be treated equally?
- Blue states should get a refund under equal sovereignty.
- The Dignity of the South.