[Cdt-l] Hitchhiking in Idaho -- followup

Will Hiltz will.hiltz at gmail.com
Wed Jul 27 16:32:26 CDT 2011


A constitutional right to hitchhike! This must be contained in one of those

But seriously, yes you are quite correct about the interplay between state
and federal constitutions-- the bill of rights sets the "floor" of minimum
rights that states may go above but not below.

However, your conception of what constitutes rights under the first
amendment is a little off the rails here.  As you concede, speech (and
assembly) may be restricted, so then the question then becomes whether the
restriction in question is reasonable in light of the desired ends and the
expansiveness of the restriction contemplated (whether the restriction is
"over broad" and not "narrowly tailored".)  State perogatives are viewed as
especially compelling when they are dealing with areas that have
traditionally been within the purview of the individual states, and this
would definitely include police-type powers as well as provisions concerning
the health and welfare of its citizens.

Your conception of things being presumptively constitutional if they don't
"infringe upon other people's rights" may be pleasing intellectually and
make a sort of intuitive sense, but it is just not a distinction that is
drawn in the jurisprudence. Which is why nobody would bother to challenge
this law in the federal courts... because it would easily be upheld in light
of all the restrictions that we both accept as a matter of course in our
daily lives and that courts have ruled acceptable given the competing
interests involved.

I spend so much time on this not because I personally disagree with your
substantive position-- I think we should be able to hitch too.  But there is
this tendency amongst lay people (or maybe LEY people... see what I did
there?!) to identify things they dislike or find unfair and assert they are
"unconstitutional." The way to change these sorts of things is through the
state legislature and convincing your fellow citizens that is it a bad idea.
 Because, yes, it probably IS constitutional.

On Wed, Jul 27, 2011 at 2:09 PM, Jonathan Ley <jonathan at phlumf.com> wrote:

> States are part of the union. A state constitution cannot be more
> restrictive of rights than the US constitution. Idaho couldn’t pass a law
> that required citizens to house members of the Idaho National Guard; it
> would violate the 3rd amendment to the US constitution. It doesn’t matter
> what the Idaho state constitution says on the matter.****
> ** **
> Rights granted under the 1st amendment are not absolute (e.g. you can’t
> yell fire in a crowded theater… unless it’s on fire). Basically, you can’t
> infringe on the rights of others while exercising your rights. Standing on
> the side of a public road with your thumb out & maybe holding a sign while
> safely away from traffic doesn’t infringe on anyone’s rights to do anything.
> Some may argue that allowing such behavior can affect the environment of a
> community; that allowing unrestricted hitchhiking would degrade property
> values for example. That kind of argument might have merit in upholding
> zoning laws, but I don’t think it applies to impermanent actions like those
> of a hitchhiker.****
> ** **
> Anyway, there’s little to prevent any legislature – federal or state – from
> passing a law that’s unconstitutional. And nothing preventing the state or
> federal executive branches from enforcing those laws. The law will remain in
> effect until someone challenges it in the courts. In the case of
> hitchhiking, what constituency is going to spend the time & money it would
> take to challenge such laws?****
> ** **
> -Jonathan
> On Jul 27, 2011, at 1:04 PM, Will Hiltz <will.hiltz at gmail.com> wrote:
> The rights to free speech and assembly are not absolute, things like
> incitement to imminent violence are not allowed even though we believe in
> free speech. Same for assembly. You are talking about the federal
> constitution here... state constitutions tend to have the same protections
> as the bill of rights, but that is not necessarily true in all states. For
> example in Oregon, the state constitution's freedom of expression provisions
> are construed to be more expansive than the bill of rights, which allows the
> most strip clubs per capita in the US in the portland metro area, among
> other things.
> States get wide leeway to choose how to govern themselves, particularly in
> law-enforcement type matters. This is in the Constitution. I won't get into
> the standard of review owed to state exercises of police power when they are
> alleged to violate the federal constitution, but suffice it to say that
> restrictions are most definitely allowed and the standard of review is very
> deferential. The rights you speak of are nowhere near absolute. The citizens
> of Idaho to a large degree choose the laws they will live under and in this
> case, they have chosen no hitching. Idaho doesn't "have" to ban walking
> along the side of the road any less than they "have" to allow any number of
> number of things banned by ordinance, state law and the like. I suggest
> moving to Idaho and amending its laws through the state assembly!
> Easy
> On Wed, Jul 27, 2011 at 12:18 PM, Jonathan Ley < <jonathan at phlumf.com>
> jonathan at phlumf.com> wrote:
>> **
>> I can't understand how these laws are constitutional. We have a right to
>> free speech & free assembly in this country, and that's what hitching is -
>> asking for a ride (speech) and getting a ride (assembly). I could possibly
>> understand hitchhiking being made illegal for safety reasons. But, then
>> you'd have to make it illegal to walk on the shoulder of any road as well.
>> I wonder if you could make a sign that said something like:
>> I am not asking for a ride to X...
>> But might consider it if you offered.
>> That might technically comply with the law ;-). But, good luck explaining
>> that to an officer... they generally don't appreciate clever people.
>> There's more about this here:
>>  <http://www.digihitch.com/usa428.html>
>> http://www.digihitch.com/usa428.html
>> State specific info here:
>> Montana - somewhat restricted, but not bad:
>>  <http://www.digihitch.com/usa133.html>
>> http://www.digihitch.com/usa133.html
>> Idaho - illegal:
>>  <http://www.digihitch.com/usa330.html>
>> http://www.digihitch.com/usa330.html
>> Wyoming - illegal:
>>  <http://www.digihitch.com/usa89.html>http://www.digihitch.com/usa89.html
>> Colorado - no problem:
>>  <http://www.digihitch.com/usa324.html>
>> http://www.digihitch.com/usa324.html
>> New Mexico - a little restricted but not a real problem:
>>  <http://www.digihitch.com/usa92.html>http://www.digihitch.com/usa92.html
>> -Jonathan
>> On 7/27/2011 5:50 AM, Brill Stephen wrote:
>>   I wanted to follow-up on the recent post concerning hitchhiking in
>> Idaho.  Yes, it is illegal to hitchhike in the Gem State.  My own
>> personal experience in this may be helpful.
>> Last year I was hitching back to my home in Boise after a 4-day CDT hike
>> in Yellowstone.  My friend picked me up from the trail and after spending
>> the night at his place in Island Park, drove me to Rexburg, from where I
>> started hitching.
>> It was a Sunday morning in the heart of Idaho’s MoCo.  I managed to get a
>> ride from Rexburg to Mud Lake but had a very difficult time getting out of
>> Mud Lake.  After about two hours trying to hitch out of Mud Lake, a state
>> trooper came by and informed me that what I was doing (standing by the side
>> of the road with a sign reading “Arco”) was against the law in Idaho.  Had
>> there been a sidewalk there and had I been standing on the sidewalk with my
>> sign, this would have been ok.  But since there was no sidewalk, even
>> though I was well off the roadway, what I was doing was illegal.  It is
>> illegal to attempt to solicit a ride with your thumb or sign if you are on a
>> highway (or any public road, for that matter).  According to this
>> trooper, it is perfectly legal to simply stand by the side of the road if
>> you make no attempt to solicit a ride.  It is also legal to ask a
>> motorist in a stopped car for a ride.  This last strategy eventually
>> worked for me, and I was incredibly fortunate to catch a ride all the way
>> from Mud Lake to Boise, a distance of about 250 miles.
>> Finally it is worth noting that before the trooper left he said he would
>> return in a few hours.  .And if he saw me out there attempting to solicit
>> a ride illegally, he would arrest me.
>> Hope this helps for all those considering hitchhiking in Idaho.  My
>> suggestion is to go to a gas station and ask for a ride, rather than attempt
>> to truly hitch.
>> -- Moondancer
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