Posted on 08/18/2013 6:19:11 AM PDT by Deadeye Division
Once again, in a debate — this time on sobriety checkpoints — someone trotted out that old and ludicrous claim: “Driving is a privilege, not a right.”
Excuse me?
This mantra has been repeated by so many government bureaucrats for so long that many Americans actually believe it. I suspect the reason for this erroneous belief is two-fold.
First, decades of driving teachers telling students that driving is a privilege. Indeed, the Ohio Digest of Motor Vehicle Laws uses the term no less than 15 times.
The second reason is that the roads are owned by the government and we need a license to drive. The logic goes that if the state restricts our abilities to engage in an activity, then that activity must be a privilege rather than a right.
That logic, however, fails upon scrutiny. The state (often wrongly) licenses and regulates all kinds of activities that are fundamental rights.
Most would agree that voting is a fundamental right. However, the state says you can't vote until you are 18. The state also dictates where and when you can vote. And the state dictates the rules on how you appear on the ballot. Many states also take away that voting right if you commit certain crimes.
Does that then transform voting into a privilege?
Of course not.
Another pertinent example would be a license to carry a concealed handgun. The right to keep and bear arms is not only a fundamental right, it is one that is actually enumerated in our Constitution. Yet, every state in the union regulates the right. In most states you can't carry a concealed handgun without a license. And you can lose that fundamental right if you commit certain crimes.
Does that then transform the right to bear arms into a privilege?
Again, the answer is no.
It also fails for a more basic reason. Government does not own the roads, we do. Government took the money from us to build the roads. A good analogy is copyright law. When a government employee takes a photograph, there is no copyright. We all own the photograph and we are all free to use it as we see fit.
This debate may seem trivial to some, but it is not. If the government has the power to claim a right is a privilege, then no right is safe.
The thing to remember here is that rights are not political grants from government. Rights exist by the nature of our being regardless of how the government feels about it. Or, as the Founders put it, they are inalienable.
Privileges, on the other hand, are interests created by the grace of the state and are dependent for their existence on the state's sufferance. They may be denied or withdrawn without the substantive and procedural due process protections that normally attach to the denial or the taking of rights.
That alone destroys the myth from a legal perspective that driving is a privilege. The state cannot arbitrarily deny or withdraw a license. There must be due process. If it were merely a privilege, then the clerk behind the desk at the Bureau of Motor Vehicles could simply refuse to issue a license for any reason or for no reason.
That is why it is called a license and not a permit.
The fact is we have an inalienable right to travel. The motor vehicle is the normal mode of transportation today. Ergo, we have the inalienable right to travel and engage in commerce using an automobile upon the roads.
Perhaps the Supreme Court of Illinois put it best in 1929: "The use of the highway for the purpose of travel and transportation is not a mere privilege, but a common fundamental right of which the public and individuals cannot rightfully be deprived."
The Supreme Court of Virginia echoed that sentiment a year later: "The right of the citizen to travel upon the public highways and to transport his property thereon, either by carriage or by automobile, is not a mere privilege which a city may prohibit or permit at will, but a common law right which he has under the right to life, liberty, and the pursuit of happiness."
.
Thomas J. Lucente Jr. is licensed to practice law in the state of Ohio. He is a veteran of the Iraq war, has a bachelor’s degree in history and a law degree from the University of Toledo. He has been published in newspapers, magazines and websites across the country. He can be heard on “Talk with Ron Williams” on WCIT-AM at 3 p.m. Thursdays (listen at http://940wcit.com). Readers may write to him at The Lima News, 3515 Elida Road, Lima, Ohio 45807-1538, or e-mail him at tlucente@limanews.com. His telephone number is 800-686-9924, ext. 2095, or 419-993-2095. Visit his blog at http://www.lucente.org. Follow him on Twitter at http://tho.lu/twitter, Google Plus at http://tho.lu/google, and Facebook at http://tho.lu/facebook.
I’ts right there in the first ten amendments. But you have to dig for it.
I’m not sure about this. To travel where one wants to go is clearly a right. To do so on ones own two legs should not be a matter of governmental assent.
The government may have a role to play in establishing rules of the road and minimum standards of competency when people start piloting a ton or more of sharp edged steel at 70 MPH a few feet from me.
Lets ask some of our over 12 million illegal aliens who are traveling our roads at 70 MPH freely without licenses, tags, insurance, safety inspections nor any understanding of our traffic signs or laws and with a minimum down payment with no payments after that.
You hit the nail. This I***T wants that habitual drunk to have the right to pilot his ton and a half car all over the highway I’m also on. Like hell.
He insists that drunk, weaving across two or three lanes at 70mph has the RIGHT to be on the same road as HIS wife and maybe children.
The government may truly be a pain in the butt, but the safety of its citizens is a paramount obligation. The act of not allowing a habitual offender from the act of driving is one of the ways the citizenry is kept a little safer.
The licenses I have, both driving AND “concealed carry” are evidence that I have been backgrounded, tested, and taught PROPERLY and SAFELY the use of (fill in blank).
A citizens “RIGHT” to do anything cannot put into danger another citizens “RIGHT” to remain alive.
As the article states, most rights are controlled by the government. Driving is a right. Cars replaced horses and carriages, use of which was a right that fact alone makes driving a right. The man writing this article is 100% correct. I can tell by your comment in you that you have a lot of liberal in your brain.
I suppose the right to drive could be hidden in the commerce clause, everything else is.
It really gets murky when we throw in Law Enforcement and their demands of you showing identification.
You have it upside down.
If the Constitution doesn't mention it, the government has no authorization to act on it. The rights of the people, however, are not listed and remain almost unlimited.
/johnny
/johnny
You must distinguish between private and commercial transportation. People using the road to make money ARE operating within a PRIVILEGED capacity.
If you have a right to freely associate with whom you will, then you have to be able to get to them to do so.
You can’t limit this to walking. That would limit who you could freely congregate with. Traveling freely by vehicle is a right. It is not a privilege.
Can that right be restricted? Of course it can, and it should be for cause. Children shouldn’t be able to drive. They don’t have the judgment. Should elderly people drive who have become incompetent to do so? No.
There are other examples to be sure, but we should NEVER buy into the idea that the state should be able to arbitrarily tell normal folks who are abiding by the law, that this is a some sort of privilege. It is a right!
Failing any clear threat to others on the highway, every competent (and it is reasoned they be required to prove so) citizen of age should be able to drive. It is their right to do so.
If it is a privilege, the state could just arbitrarily state that any individual or member of a group it wanted to block from driving, could not drive, whether they had done anything wrong or not.
It can’t. Therefore, driving is a right.
You must distinguish between private and commercial transportation. People using the road to make money ARE operating within a PRIVILEGED capacity.
The interpretation and definition in title 49 is clearly laid out United States code.
The truth of the matter is, by definition you do not have to get a license you do not have to register and put a tag on your car what you do have to do is register the car and get a certificate of title.
Now lawyers, police, judges will not tell you the definition you have to find it yourself.
The only people that have to get a license and register their vehicle or for a commercial drivers license for operating a motor vehicle.
Take the time to read the law and you will find out that all of us have been lied to.
Okay, so you drive down the highway in your vehicle, and you have a right to do so.
Toss some flats of strawberries in the back seat to sell at the swap meet, and all of a sudden, you’re operating under a privilege? Say what?
You drive a big rig and you’re only doing so by the grace of the state?
Oh hell no! You may have to comply with laws, but then we all do. That still doesn’t make it a privilege. People have every right to utilize our highways for commerce. They don’t need permission to do so, any more than you and I do to get to grandma’s.
“I***T”
Do you mean “idiot”? Hardly a word to self censure.
Maybe you are missing the point.
From the article:
-
“Rights are not political grants from government...
as the Founders put it, they are inalienable.”
“Privileges are interests created by the state...
and may be denied or withdrawn without due process.”
“(It is a) myth from a legal perspective that driving is a privilege.
The state cannot arbitrarily deny or withdraw a license.
There must be due process.”
“The fact is we have an inalienable right to travel.
This debate may seem trivial to some, but it is not.
If the government has the power to claim that a right is a privilege,
then no right is safe.”
“the state could just arbitrarily state that any individual or member of a group it wanted to block from driving, could not drive”
And they do. Sometimes for things like failing to make child support payments.
Not only is it an abuse that should not be allowed, it’s impractical: it very likely takes away someone’s job - good luck getting your child support payments now.
DL is a tax and a lever of control for all kinds of things.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.