Document Type

Article

Publication Title

San Diego Law Review

Publication Date

1997

Abstract

This Article suggests, on the broadest level, that the history of the "right to passage" in the past two centuries is explicable only in terms of the complex interaction between formal legal doctrine on the one hand and social and political pressures on the other. Specific challenges to public order significantly shaped the evolution of legal rules, but these rules, once established, constrained official action and compelled the authorities at critical junctures to develop countervailing strategies. This exploration confirms that neither an externalist nor internalist approach to legal history by itself adequately explains historical change and, moreover, that the relative significance of contextual and doctrinal factors at any particular point in time is itself historically contingent. This systemic discretion, as has been suggested, was frequently exercised selectively against particular groups and, since the 1960s, has prompted growing criticism and increasing calls for formal recognition of "freedom of assembly." Given the character of much contemporary discourse about the "right to passage," however, a positive right to assemble would not necessarily supersede the powerful and tenacious right of the public to pass along the highway without obstruction. Insofar as the primacy of passage continues to have an inhibiting effect on civil liberties, the history of the "right to passage" is not simply an antiquarian inquiry but a cautionary tale for the present.

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