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."
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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.
BFL
He does get one part entirely wrong: licensing of the 2nd A effectively DOES makes it a privilege.
He’s exactly correct here. It became a privilege with the advent of 30-40’s cars? IIRC, they originally were little more than ID cards, no testing involved. Even today the license does NOTHING to showcase the skills needed when on the road (15min ‘test’ in the DMV parking lot...WHOOPEE!)
But, as usual, give gov’t one inch and it soon creates the leviathan itself; with the Citizens losing sight of what was once lost....the Right of free travel upon roads bought/paid by the public.
I’m not sure what this guy is arguing about. Sure, in the broadest sense of the term related to the constitution, everybody has a “right” to travel/drive. But all “rights” have restrictions. If he is saying there should be no restrictions established by the state however the quality of the driver, then he is incorrect. Just as you are not allowed to shout “fire” in a crowded area when there is no fire, you are not automatically allowed to drive if you’ve proven to be a menace.
Can you ride a horse after getting a DUI on a horse?
Ask the new castratti.
We have the right to free speech but when we choose to use the public airways and broadcast that speech the FCC gets involved. A case could be made for no such restrictions but then it would be easy to deny your speech by using the same frequency and jamming your message. Persistent drunks do not have the right to endanger the rest if us on the roads. If you accept that premise the rest of the government role gets at least a basis for debate.
I fall on the rights side of the debate. More from praccticalities sake than anything. I saw something very interesting last year that was instructive: a pickup driver in MO who had a tag indicating a refusal to register the vehicle. Driving along the freeway just like the rest of us. It reminded me of us. Sure. The police could stop him, but to what end? He was driving under the speed limit, scrupulously observing traffic laws, and generally going about his business.
What a lot of laws fundamentally boil down to is..whaddaya gonna do to enforce them? So let’s say the police pull this guy over. He refuses to provide ID, and indeed refuses to even speak to police. So they arrest him. He goes to jail. And then promptly goes on hunger strike. Thus raising the ante. In most jurisdictions, he’s going to go free. The county isn’t going to hold someone and force feed them over a low level misdameanor.
The article simply points out that driving is a right, not a privilege.
Nowhere in the article does the author say that this right can not be restricted or regulated.
In fact, he clearly states that it can be.
But, as the author points out,
placing restrictions on a right does not change that right into a privilege.
Placing restrictions or regulations on the clearly enumerated rights of free speech,
a free press, freedom of religion, or the right to keep and bear arms,
does not change any of those things from a right into a privilege.
Any thing else that you read into the article comes from your imagination.
The state has no vested interest in denying the privilege to those who had not warranted such prohibition. To single out a group of law-abiding, tax-paying citizens and arbitrarily deny them the ability to engage in commerce which generates tax revenue is a benefit to the state in what way?
A person who gets drunk and talks crazy does not lose his right to speak his mind because he is not a threat to public safety. Put that person behind the wheel and he becomes exactly that. That is why driving is a privilege to be revoked when it is used in an irresponsible manner.
Sadly, when I actually DO miss the point, I just have to admit it. Don’t like to, but admit it.
In reality, I’ve heard people who have lost their driving license proclaim that they have a “RIGHT” to drive, and they do, no license notwithstanding.
My erroneous reaction was caused by having read way too often of a driver being charged with his 5th or 7th drunk driving offense. Still walking around and on the road.
I think the states come into the equation at some point.
I have said this myself. Driving is a right. Unless someone proves that they are not capable of driving responsibly; it is a right.
Government exists only as a privilege that we the citizens grant to them.
I agree with much of what you have written here. Here you reveal your thinking is upside down.
It is a right that can be abridged for cause.
It is never a privilege.
Think of all the things you do, that the state or federal government enters into it.
Is working a privilege?
Is owning your home a privilege?
Is owning a car a privilege?
If driving is a privilege, then just about your entire existence is a privilege, graced to you by the state.
You don't believe that. Neither do I.
All this talk about rights reminds me of the Priest’s confronting a topless woman in the church. She said, “I have a divine right”. He said “you have a divine left too, but you will have to cover them both”.
It is a right to drive. If you drive my car, I am giving you the privilege to do so.
All this talk about rights reminds me of the Priest’s confronting a topless woman in the church. She said, “I have a divine right”. He said “you have a divine left too, but you will have to cover them both”.
It is a right to drive. If you drive my car, I am giving you the privilege to do so.
sfl
Bingo.
Commercial transportation is "driving."
Private transportation is "travelling."
You don't need a "travelling" license.
Wow, someone else gets it.
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