The concept of navigating freely without governmental permission might seem alien in today’s regulated world. However, a closer look at the 14th Amendment of the U.S. Constitution reveals a compelling argument for the right to travel without a license, a principle deeply rooted in American jurisprudence. This article delves into the legal citations and arguments supporting this often-overlooked freedom, aiming to clarify the distinction between the right to travel and the privilege of driving as it pertains to licensing requirements.
The Core Principle: Jurisdiction and Freedom to Travel
At the heart of the discussion lies the critical concept of jurisdiction. Understanding and guarding your jurisdictional standing is paramount. The argument centers on the premise that free individuals possess an inherent right to travel on public roads, a right that predates and exists independently of government-issued licenses. This perspective challenges the notion that a driver’s license is universally required for all forms of road travel.
Legal Citations Supporting the Right to Travel
The following legal arguments, substantiated by court cases and legal definitions, form a brief supporting the dismissal of charges related to “driving without a license.” These arguments have been successfully employed to challenge the regulation of free people’s right to travel by governmental entities.
The Forgotten Maxim: Freedom to Travel as a Right
The foundational principle is that free people retain the right to travel on roads provided by their public servants, utilizing common transportation methods of the era. Licensing, in this context, becomes problematic when applied to free individuals because accepting a license inherently involves surrendering a pre-existing right.
However, this does not negate the necessity for driver’s licenses for specific categories of road users. Licensing is legitimately required for those who utilize highways for trade, commerce, or hire – individuals who earn their living on the road, often employing extraordinary vehicles for commercial purposes. The key distinction emerges: if you are not using the highways for profit or commercial gain, the requirement for a driver’s license becomes questionable.
Brief in Support of Dismissal for Lack of Jurisdiction
This brief argues for the dismissal of charges based on a lack of jurisdiction, asserting that the individual is exercising a fundamental right, not a regulated privilege.
Argument: Justice Tolman and the Prophetic Warning
Justice Tolman of the Washington State Supreme Court eloquently articulated the importance of the public’s right to use public roads. In Robertson vs. Department of Public Works, Justice Tolman warned against the potential for highways to be monopolized by the state, stating:
“Complete freedom of the highways is so old and well established a blessing that we have forgotten the days of the Robber Barons and toll roads, and yet, under an act like this, arbitrarily administered, the highways may be completely monopolized, if, through lack of interest, the people submit, then they may look to see the most sacred of their liberties taken from them one by one, by more or less rapid encroachment.”
This statement resonates strongly today, as state governments increasingly regulate and control the use of public roads, potentially encroaching upon fundamental liberties.
Rights: Personal Liberty and Freedom of Locomotion
Justice Tolman’s “most sacred of liberties” refers to personal liberty, a fundamental right defined as:
“Personal liberty, or the Right to enjoyment of life and liberty, is one of the fundamental or natural Rights, which has been protected by its inclusion as a guarantee in the various constitutions, which is not derived from, or dependent on, the U.S. Constitution, which may not be submitted to a vote and may not depend on the outcome of an election. It is one of the most sacred and valuable Rights, as sacred as the Right to private property… and is regarded as inalienable.” – 16 C.J.S., Constitutional Law, Sect. 202, p.987
This definition underscores that personal liberty is an inherent right, not granted by the government, and is constitutionally protected.
Further elaborating on personal liberty, legal scholars define it as:
“Personal liberty largely consists of the Right of locomotion– to go where and when one pleases– only so far restrained as the Rights of others may make it necessary for the welfare of all other citizens. The Right of the Citizen to travel upon the public highways and to transport his property thereon, by horse drawn carriage, wagon, or automobile, is not a mere privilege which may be permitted or prohibited at will, but the common Right which he has under his Right to life, liberty, and the pursuit of happiness. Under this Constitutional guarantee one may, therefore, under normal conditions, travel at his inclination along the public highways or in public places, and while conducting himself in an orderly and decent manner, neither interfering with nor disturbing another’s Rights, he will be protected, not only in his person, but in his safe conduct.” – II Am.Jur. (1st) Constitutional Law, Sect. 329, p.1135
This definition clearly establishes the right to travel on public highways as a component of personal liberty, not a privilege contingent upon government permission.
Another perspective from legal dictionaries reinforces this:
“Personal liberty — consists of the power of locomotion, of changing situations, of removing one’s person to whatever place one’s inclination may direct, without imprisonment or restraint unless by due process of law.” – Bovier’s Law Dictionary, 1914 ed., Black’s Law Dictionary, 5th ed.; Blackstone’s Commentary 134; Hare, Constitution__Pg. 777
Justice Tolman’s concern was precisely about the state potentially prohibiting citizens from exercising this “most sacred of liberties”—the right to move freely and use public roads for ordinary life activities.
Corporations vs. Individuals: A Key Distinction
The state’s power to regulate corporations, entities created by the state, differs significantly from its authority over individual citizens. The Supreme Court drew a clear distinction in Hale vs. Hinkel:
“…We are of the opinion that there is a clear distinction in this particular between an individual and a corporation, and that the latter has no right to refuse to submit its books and papers for examination on the suit of the State. The individual may stand upon his Constitutional Rights as a Citizen. He is entitled to carry on his private business in his own way. His power to contract is unlimited. He owes no duty to the State or to his neighbors to divulge his business, or to open his doors to investigation, so far as it may tend to incriminate him. He owes no such duty to the State, since he receives nothing therefrom, beyond the protection of his life, liberty, and property. His Rights are such as the law of the land long antecedent to the organization of the state, and can only be taken from him by due process of law, and in accordance with the Constitution. Among his Rights are the refusal to incriminate himself, and the immunity of himself and his property from arrest or seizure except under warrant of law. He owes nothing to the public so long as he does not trespass upon their rights.
Upon the other hand, the corporation is a creature of the state. It is presumed to be incorporated for the benefit of the public. It receives certain special privileges and franchises, and holds them subject to the laws of the state and the limitations of its charter. Its rights to act as a corporation are only preserved to it so long as it obeys the laws of its creation. There is a reserved right in the legislature to investigate its contracts and find out whether it has exceeded its powers. It would be a strange anomaly to hold that the State, having chartered a corporation to make use of certain franchises, could not in exercise of its sovereignty inquire how those franchises had been employed, and whether they had been abused, and demand the production of corporate books and papers for that purpose.” – Hale vs. Hinkel, 201 US 43, 74-75
Corporations, engaged in commercial activities, fall under the state’s regulatory purview, while individuals exercising their fundamental rights do not equate to entities requiring the same level of state control.
Right vs. Privilege: The Commercial Use Distinction
The distinction between the right to use the road and the privilege to use the road hinges on whether the road is used for private travel or for commercial gain. Hadfield vs. Lundin highlights this difference:
“…Based upon the fundamental ground that the sovereign state has the plenary control of the streets and highways in the exercise of its police power (see police power, infra.), may absolutely prohibit the use of the streets as a place for the prosecution of a private business for gain. They all recognize the fundamental distinction between the ordinary Right of the Citizen to use the streets in the usual way and the use of the streets as a place of business or a main instrumentality of business for private gain. The former is a common Right, the latter is an extraordinary use. As to the former, the legislative power is confined to regulation, as to the latter, it is plenary and extends even to absolute prohibition. Since the use of the streets by a common carrier in the prosecution of its business as such is not a right but a mere license of privilege.” – Hadfield vs. Lundin, 98 Wash 516
This case emphasizes that using streets for private business is a privilege that the state can regulate or even prohibit, whereas ordinary travel is a common right subject only to reasonable regulation.
Constitutional Rights Cannot Be Abrogated
The principle that constitutional rights cannot be undermined by legislation is firmly established in legal precedent. Miranda vs. Arizona clearly states:
“Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.” – Miranda vs. Arizona, 384 US 436, 491
Furthermore, Miller vs. U.S. asserts that:
“The claim and exercise of a constitutional Right cannot be converted into a crime.” – Miller vs. U.S., 230 F. 486, 489
And Snerer vs. Cullen reinforces this by stating:
“There can be no sanction or penalty imposed upon one because of this exercise of constitutional Rights.” – Snerer vs. Cullen, 481 F. 946
These rulings collectively affirm that exercising a constitutional right, such as the right to travel, cannot be criminalized or penalized.
Highways for Travel, Not Just Commerce
Public highways are established and maintained for public travel and transportation, encompassing both business and personal purposes. Chicago Motor Coach vs. Chicago and other cases confirm this:
“The use of the highways for the purpose of travel and transportation is not a mere privilege, but a common and fundamental Right of which the public and the individual cannot be rightfully deprived.” – Chicago Motor Coach vs. Chicago, 169 NE 22; Ligare vs. Chicago, 28 NE 934; Boon vs. Clark, 214 SSW 607; 25 Am.Jur. (1st) Highways Sect. 163
Additionally, Thompson vs. Smith emphasizes the mode of transportation:
“The Right of the Citizen to travel upon the public highways and to transport his property thereon, either by horse drawn carriage or by automobile, is not a mere privilege which a city can prohibit or permit at will, but a common Right which he has under the right to life, liberty, and the pursuit of happiness.” – Thompson vs. Smith, 154 SE 579
These citations solidify the right to utilize automobiles for travel on public highways as a fundamental right.
The Misconception of Privilege: Private Gain vs. Common Right
The perception of road use as a privilege often arises from conflating private travel with commercial use for profit. State vs. Johnson clarifies this distinction:
“…For while a Citizen has the Right to travel upon the public highways and to transport his property thereon, that Right does not extend to the use of the highways, either in whole or in part, as a place for private gain. For the latter purpose, no person has a vested right to use the highways of the state, but is a privilege or a license which the legislature may grant or withhold at its discretion.” – State vs. Johnson, 243 P. 1073; Cummins vs. Homes, 155 P. 171; Packard vs. Banton, 44 S.Ct. 256; Hadfield vs. Lundin, 98 Wash 516
This ruling underscores that while personal travel is a right, using highways as a place of business is a privilege requiring permission.
Radically Different Rights: Ordinary vs. Extraordinary Use
The courts recognize a “radical and obvious” difference between the rights of a common traveler and those using highways for commercial purposes. State vs. City of Spokane explains this distinction:
“The former is the usual and ordinary right of the Citizen, a common right to all, while the latter is special, unusual, and extraordinary.” – State vs. City of Spokane, 186 P. 864
and further emphasizes:
“This distinction, elementary and fundamental in character, is recognized by all the authorities.” – State vs. City of Spokane, supra.
This fundamental difference clarifies that regulations applicable to commercial use should not automatically apply to individuals exercising their common right to travel.
Consistent Legal Position Across Jurisdictions
The distinction between the right to travel and the privilege of commercial road use is consistently upheld across various state and federal courts, as highlighted in Ex Parte Dickey (Dickey vs. Davis) and Thompson vs. Smith, Teche Lines vs. Danforth, Miss.:
“the right of the Citizen to travel upon the highway and to transport his property thereon in the ordinary course of life and business, differs radically and obviously from that of one who makes the highway his place of business and uses it for private gain in the running of a stagecoach or omnibus. The former is the usual and ordinary right of the Citizen, a right common to all, while the latter is special, unusual, and extraordinary.” – Ex Parte Dickey, (Dickey vs. Davis), 85 SE 781
“The right of the Citizen to travel upon the public highways and to transport his property thereon, in the ordinary course of life and business, is a common right which he has under the right to enjoy life and liberty, to acquire and possess property, and to pursue happiness and safety. It includes the right, in so doing, to use the ordinary and usual conveyances of the day, and under the existing modes of travel, includes the right to drive a horse drawn carriage or wagon thereon or to operate an automobile thereon, for the usual and ordinary purpose of life and business.” – Thompson vs. Smith, supra.; Teche Lines vs. Danforth, Miss., 12 S.2d 784
This consistent legal stance underscores the well-established nature of the right to travel as distinct from commercial road use privileges.
U.S. Courts on Highways and Private vs. Public Use
U.S. Supreme Court cases like Stephenson vs. Rinford and Pachard vs Banton further solidify the understanding of highways as primarily intended for private use:
“First, it is well established law that the highways of the state are public property, and their primary and preferred use is for private purposes, and that their use for purposes of gain is special and extraordinary which, generally at least, the legislature may prohibit or condition as it sees fit.” – Stephenson vs. Rinford, 287 US 251; Pachard vs Banton, 264 US 140, and cases cited; Frost and F. Trucking Co. vs. Railroad Commission, 271 US 592; Railroad commission vs. Inter-City Forwarding Co., 57 SW.2d 290; Parlett Cooperative vs. Tidewater Lines, 164 A. 313
This reinforces that highways are fundamentally for public use in private travel, while commercial use is a secondary, regulated privilege.
Defining Privilege: Commercial Road Use
The “privilege to use the roads” therefore clearly refers to using roads as a place of business. The distinction is crucial:
- Right: Traveling and transporting property on public roads in the ordinary course of life.
- Privilege: Using public roads as a place of business or primary business instrument.
Ex Parte Sterling and other cases emphasize this:
“[The roads]… are constructed and maintained at public expense, and no person therefore, can insist that he has, or may acquire, a vested right to their use in carrying on a commercial business.” – Ex Parte Sterling, 53 SW.2d 294; Barney vs. Railroad Commissioners, 17 P.2d 82; Stephenson vs. Binford, supra.
“When the public highways are made the place of business the state has a right to regulate their use in the interest of safety and convenience of the public as well as the preservation of the highways.” – Thompson vs. Smith, supra.
“[The state’s] right to regulate such use is based upon the nature of the business and the use of the highways in connection therewith.” – Ibid.
“We know of no inherent right in one to use the highways for commercial purposes. The highways are primarily for the use of the public, and in the interest of the public, the state may prohibit or regulate…the use of the highways for gain.” – Robertson vs. Dept. of Public Works, supra.
This body of case law consistently points to the state’s authority to regulate commercial road use, not to restrict the fundamental right of personal travel.
Lack of Authority to Convert Right to Privilege
Extensive legal research has not uncovered any case law that grants the state the power to transform an individual’s right to travel into a privilege. Therefore, it’s concluded that citizens possess a right to travel and transport property on public highways, and this exercise of right is not a privilege granted by the state.
Definitions: Unpacking Key Legal Terms
To correctly interpret statutes related to road use, understanding the precise legal definitions of key terms is crucial. Many terms used in everyday language carry different meanings in a legal context, leading to misapplication of laws.
Automobile and Motor Vehicle: Not Interchangeable
A clear legal distinction exists between “automobile” and “motor vehicle.” An automobile is defined as:
“The word `automobile’ connotes a pleasure vehicle designed for the transportation of persons on highways.” – American Mutual Liability Ins. Co., vs. Chaput, 60 A.2d 118, 120; 95 NH 200
This definition emphasizes the private, non-commercial nature of an automobile. In contrast, a motor vehicle is defined more broadly, especially in the context of commercial use:
“A motor vehicle or automobile for hire is a motor vehicle, other than an automobile stage, used for the transportation of persons for which remuneration is received.” – International Motor Transit Co. vs. Seattle, 251 P. 120
“The term
**motor vehicle**' is different and broader than the wordautomobile.'” – City of Dayton vs. DeBrosse, 23 NE.2d 647, 650; 62 Ohio App. 232
Title 18 USC 31 further clarifies the definition of “motor vehicle” for federal purposes:
“‘Motor vehicle‘ means every description or other contrivance propelled or drawn by mechanical power and used for commercial purposes on the highways in the transportation of passengers, or passengers and property.
‘Used for commercial purposes‘ means the carriage of persons or property for any fare, fee, rate, charge or other considerations, or directly or indirectly in connection with any business, or other undertaking intended for profit.”
This federal definition explicitly links “motor vehicle” to commercial use and transportation for profit. Thus, an automobile is private property used for private purposes, while a motor vehicle is a commercial machine potentially used for trade, commerce, or hire.
Travel: Broad Definition Encompassing Rightful Road Use
The term “travel” is legally significant and broadly defined to include all rightful use of highways:
“The term
travel' andtraveler’ are usually construed in their broad and general sense…so as to include all those who rightfully use the highways viatically (when being reimbursed for expenses) and who have occasion to pass over them for the purpose of business, convenience, or pleasure.” – 25 Am.Jur. (1st) Highways, Sect. 427, Pg. 717
“Traveler — One who passes from place to place, whether for pleasure, instruction, business, or health.” – Locket vs. State, 47 Ala. 45; Bovier’s Law Dictionary, 1914 ed., Pg. 3309
“Travel — To journey or to pass through or over; as a country district, road, etc. To go from one place to another, whether on foot, or horseback, or in any conveyance as a train, an automobile, carriage, ship, or aircraft; Make a journey.” – Century Dictionary, Pg. 2034
These definitions emphasize that “travel” encompasses all legitimate highway use, whether for business, personal convenience, or pleasure, and includes all those who rightfully use the highways as a matter of right. Notably, the phrase “for hire” is absent from these definitions, reinforcing that “travel” inherently refers to personal movement, not commercial transportation for pay.
Therefore, one who uses the road for personal travel in the ordinary course of life and business is legally a traveler.
Driver: Defined by Employment in Vehicle Operation
The term “driver,” in contrast to “traveler,” carries a specific connotation of employment or commercial operation:
“Driver — One employed in conducting a coach, carriage, wagon, or other vehicle…” – Bovier’s Law Dictionary, 1914 ed., Pg. 940
This definition links “driver” to someone employed in operating a vehicle, suggesting commercial activity rather than personal travel.
Operator: Licensed for Commercial Passenger Transport
The term “operator” further distinguishes commercial road use from personal travel. While today “traveler,” “driver,” and “operator” are often used interchangeably, legally they are distinct. Newbill vs. Union Indemnity Co. clarifies the difference:
“It will be observed from the language of the ordinance that a distinction is to be drawn between the terms
**operator**' anddriver‘; the**operator**' of the service car being the person who is licensed to have the car on the streets in the business of carrying passengers for hire; while thedriver‘ is the one who actually drives the car. However, in the actual prosecution of business, it was possible for the same person to be both**operator**' anddriver.'” – Newbill vs. Union Indemnity Co., 60 SE.2d 658
An “operator” is licensed to conduct commercial passenger transport, using the road as a place of business for profit. This further clarifies the distinction:
- Traveler: Exercises the right to travel for personal purposes.
- Driver/Operator: Exercises the privilege of commercial road use for business purposes.
Traffic: Commerce and Trade, Not Personal Travel
The term “traffic” is also often misunderstood in the context of personal travel. Northern Pacific R.R. Co. vs. Schoenfeldt connects “traffic” to commercial transportation services:
“…Traffic thereon is to some extent destructive, therefore, the prevention of unnecessary duplication of auto transportation service will lengthen the life of the highways or reduce the cost of maintenance, the revenue derived by the state…will also tend toward the public welfare by producing at the expense of those operating for private gain, some small part of the cost of repairing the wear…” – Northern Pacific R.R. Co. vs. Schoenfeldt, 213 P. 26
Justice Tolman, in this case, highlights that “traffic” is related to raising revenue from commercial road users (“those operating for gain”).
Legally, “traffic” is defined as:
“Traffic — Commerce, trade, sale or exchange of merchandise, bills, money, or the like. The passing of goods and commodities from one person to another for an equivalent in goods or money…” – Bovier’s Law Dictionary, 1914 ed., Pg. 3307
This definition firmly links “traffic” to commercial activity, involving the exchange of goods or money—business. It does not refer to personal travel in a private automobile.
The courts recognize a distinction between “traffic” and “travel.” Ex Parte Dickey, supra, uses both terms, indicating their different meanings:
“…in addition to this, cabs, hackney coaches, omnibuses, taxicabs, and hacks, when unnecessarily numerous, interfere with the ordinary traffic and travel and obstruct them.”
Allen vs. City of Bellingham further clarifies that “traffic” refers to business transportation:
“The word `traffic’ is manifestly used here in secondary sense, and has reference to the business of transportation rather than to its primary meaning of interchange of commodities.” – Allen vs. City of Bellingham, 163 P. 18
Therefore, “traffic,” in its legal context, is business-related and falls under the state’s police power to regulate commercial activities—a privilege, not a right.
License: Permission for Otherwise Illegal Acts
Understanding the term “license” is crucial for interpreting licensing statutes correctly. A license is defined as:
“The permission, by competent authority to do an act which without permission, would be illegal, a trespass, or a tort.” – People vs. Henderson, 218 NW.2d 2, 4
“Leave to do a thing which licensor could prevent.” – Western Electric Co. vs. Pacent Reproducer Corp., 42 F.2d 116, 118
For these definitions to apply to personal travel, the state would have to argue that exercising the constitutional right to travel is inherently illegal, a trespass, or a tort, which is a constitutionally untenable position.
The more relevant legal definition of “license” in this context is:
“a permit, granted by an appropriate governmental body, generally for consideration, to a person, firm, or corporation, to pursue some occupation or to carry on some business which is subject to regulation under the police power.” – Rosenblatt vs. California State Board of Pharmacy, 158 P.2d 199, 203
This definition aligns with the “privilege” of conducting business on public roads. Licensing in this sense is a regulatory tool for commercial activities, not a prerequisite for exercising a fundamental right.
The true purpose of licensing, beyond revenue generation, might be to establish jurisdiction. By seeking a license, an individual implicitly acknowledges the state’s authority to regulate their activity, potentially surrendering their standing as exercising a right and accepting the status of a regulated licensee.
“A license fee is a charge made primarily for regulation, with the fee to cover costs and expenses of supervision or regulation.” – State vs. Jackson, 60 Wisc.2d 700; 211 NW.2d 480, 487
The fee might be secondary to the regulatory control the license grants the state over the licensee. This raises questions about the scope of state police power and whether licensing extends beyond legitimate regulation into unwarranted control over fundamental rights.
Police Power: Balancing Regulation with Constitutional Rights
Confusion often arises between police power and taxation power. Police power, when applied through licensing, is intended for regulation, not primarily for revenue. However, applying police power to regulate fundamental rights raises serious constitutional questions.
Every law invoking police power must address three key questions, as outlined in People vs. Smith:
- Is there a threatened danger?
- Does a regulation involve a Constitutional Right?
- Is this regulation reasonable?
Applying these questions to driver licensing for personal travel reveals significant issues.
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Threatened Danger? Is personal automobile travel inherently dangerous? Legal precedents like Cohens vs. Meadow argue against this:
“The automobile is not inherently dangerous.” – Cohens vs. Meadow, 89 SE 876; Blair vs. Broadmore, 93 SE 532
Danger arises from how an automobile is managed, not from its inherent nature. Competent and considerate operation makes an automobile as safe as other forms of transportation. Depriving all individuals of the right to travel because some might be dangerous infringes upon due process and the right to travel itself.
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Constitutional Right Involved? As previously established, the right to travel is a constitutionally protected personal liberty. Therefore, regulations impacting this right must be carefully scrutinized.
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Reasonable Regulation? Is universal driver licensing a reasonable regulation of the right to travel? This is questionable. Licensing statutes, as currently implemented, may not effectively achieve their stated goal of public safety and might be overly oppressive. Less restrictive means, like competency tests and certificates, could potentially achieve similar safety outcomes without infringing on the right to travel.
The 14th Amendment, while allowing for legitimate police power exercises, limits state power from infringing upon constitutionally guaranteed rights. Every state power, including police power, is subordinate to the 14th Amendment. As Connolly vs. Union Sewer Pipe Co. states:
“With regard particularly to the U.S. Constitution, it is elementary that a Right secured or protected by that document cannot be overthrown or impaired by any state police authority.” – Connolly vs. Union Sewer Pipe Co., 184 US 540; Lafarier vs. Grand Trunk R.R. Co., 24 A. 848; O’Neil vs. Providence Amusement Co., 108 A. 887
State police power must be exercised in subordination to the U.S. Constitution, and constitutional rights are protected from police power invasion, including both express and implied prohibitions, as Tiche vs. Osborne clarifies:
“It is well settled that the Constitutional Rights protected from invasion by the police power, include Rights safeguarded both by express and implied prohibitions in the Constitutions.” – Tiche vs. Osborne, 131 A. 60
The Fifth Amendment’s Due Process Clause is directly relevant:
“No person shall be…deprived of life, liberty, or property, without due process of law…”
As established, the right to travel is a component of liberty. Applying commercial statutes to all individuals, regardless of commercial activity, potentially deprives free individuals of their liberty without due process.
Due Process: Notice and Opportunity to Defend
Due process of law fundamentally requires notice and an opportunity to defend, as Simon vs. Craft states:
“The essential elements of due process of law are…Notice and The Opportunity to defend.” – Simon vs. Craft, 182 US 427
Individuals are generally not given explicit notice that obtaining a driver’s license involves surrendering a right. Nor are they afforded an opportunity to contest this perceived loss of right before licensing. This lack of notice and opportunity to defend constitutes an arbitrary deprivation of liberty, which Barbour vs. Connolly and Yick Wo vs. Hopkins caution against:
“There should be no arbitrary deprivation of Life or Liberty…” – Barbour vs. Connolly, 113 US 27, 31; Yick Wo vs. Hopkins, 118 US 356
Kent vs. Dulles directly links the right to travel to liberty and due process:
“The right to travel is part of the Liberty of which a citizen cannot deprived without due process of law under the Fifth Amendment. This Right was emerging as early as the Magna Carta.” – Kent vs. Dulles, 357 US 116 (1958)
Due process, in the context of road use, should focus on addressing actual harm. If an individual’s travel causes harm or damage, civil action for damages and potential restriction of their right to use public highways for cause would be consistent with due process. However, absent harm or damage, state interference in personal travel becomes questionable.
Daniel Webster‘s famous definition of due process in the Dartmouth College Case emphasizes procedural fairness:
“…a law which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial.” – Dartmouth College Case (4 Wheat 518)
This definition underscores the need for a fair process before restricting individual liberties. The current licensing system, applied universally to personal travel, arguably lacks this procedural fairness.
Washington Attorney General’s Opinion and the Miranda Decision
A 1959 Washington Attorney General’s opinion, while acknowledging the distinction between private and commercial road use, suggests that licensing is a permissible regulation of private use to ensure competency. However, this opinion is challenged by later legal developments, particularly the Miranda vs. Arizona decision in 1966.
“The distinction between the Right of the Citizen to use the public highways for private, rather than commercial purposes is recognized…”
“Under its power to regulate private uses of our highways, our legislature has required that motor vehicle operators be licensed (I.C. 49-307). Undoubtedly, the primary purpose of this requirement is to insure, as far as possible, that all motor vehicle operators will be competent and qualified, thereby reducing the potential hazard or risk of harm, to which other users of the highways might otherwise be subject. But once having complied with this regulatory provision, by obtaining the required license, a motorist enjoys the privilege of travelling freely upon the highways…” – Washington A.G.O. 59-60 No. 88, Pg. 11
This opinion implies that licensing converts the right to travel into a privilege, achieved under the guise of regulation. However, Miranda vs. Arizona directly contradicts this notion:
“Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.” – Miranda vs. Arizona, 384 US 436, 491
Miranda asserts that legislation cannot abrogate constitutional rights. Therefore, mandatory driver licensing for personal travel, if it forces citizens to waive their right to travel and accept a privilege, is constitutionally suspect. The “privilege” of licensing should be properly limited to commercial road users (“conducting business in the streets” or “operating for-hire vehicles”). Applying it universally to personal travel arguably exceeds legislative power and deprives citizens of their right to travel without due process.
Regulation: Reasonableness and Constitutional Guarantees
Regulations governing highway use must be reasonable, impartial, and definite, and must not violate constitutional guarantees, as 25 Am.Jur. (1st) Highways, Sect. 260 states:
“In addition to the requirement that regulations governing the use of the highways must not be violative of constitutional guarantees, the prime essentials of such regulation are reasonableness, impartiality, and definiteness or certainty.”
Furthermore, Davis vs. Massachusetts and Pachard vs. Banton highlight the distinction between regulating a right and regulating a government-granted privilege:
“Moreover, a distinction must be observed between the regulation of an activity which may be engaged in as a matter of right and one carried on by government sufferance of permission.” – Davis vs. Massachusetts, 167 US 43; Pachard vs. Banton, supra.
While driver licensing regulations are generally applied impartially, their reasonableness and constitutionality are questionable when applied to personal travel, as discussed earlier in the police power section.
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Does licensing accomplish its stated goal (safety)? Arguably, no. Licenses can be renewed indefinitely without re-testing, potentially undermining the goal of ensuring continued competency. The licensing system may create a perception of safety without guaranteeing actual competency.
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Is licensing reasonable? No. Requiring citizens to surrender their right to travel to obtain a license (a privilege) is an unreasonable and oppressive regulation. Less restrictive alternatives, like competency tests and certificates, could achieve similar safety goals without infringing on fundamental rights.
The current licensing system, when applied to personal travel, appears to function more as a mechanism for control and potential revenue generation than a genuine safety measure. By obtaining a license, individuals may unwittingly enter into a quasi-contract with the state, consenting to be subject to regulations and potential prosecution for actions that might not involve actual harm or criminal intent. This system may effectively convert the exercise of a right into a regulated privilege, subject to state control under the guise of police power related to interstate commerce – a domain of regulation distinct from personal, intrastate travel.
Surrender of Rights: Unconstitutional Condition
Citizens cannot be compelled to surrender constitutional rights in the name of regulation. Riley vs. Laeson and Stephenson vs. Binford establish this principle:
“…the only limitations found restricting the right of the state to condition the use of the public highways as a means of vehicular transportation for compensation are (1) that the state must not exact of those it permits to use the highways for hauling for gain that they surrender any of their inherent U.S. Constitutional Rights as a condition precedent to obtaining permission for such use…” – Riley vs. Laeson, 142 So. 619; Stephenson vs. Binford, supra.
If surrendering rights is unconstitutional even for commercial privileges, it is even more so when applied to the exercise of a fundamental right like personal travel. Hoke vs. Henderson and Simons vs. United States reinforce this:
“To be that statute which would deprive a Citizen of the rights of person or property, without a regular trial, according to the course and usage of the common law, would not be the law of the land.” – Hoke vs. Henderson, 15 NC 15
“We find it intolerable that one Constitutional Right should have to be surrendered in order to assert another.” – Simons vs. United States, 390 US 389
Because driver licensing for personal travel arguably requires surrendering the right to travel unrestricted in exchange for a regulated privilege, such regulations are constitutionally suspect under police power, due process, and regulation principles. They appear to be misapplied statutes that deprive citizens of rights guaranteed by both the U.S. and state constitutions.
Taxing Power: Not a Legitimate Basis for Licensing Rights
If driver licensing is argued to be a form of taxation, it faces immediate constitutional objections. Taxing a right is constitutionally problematic, as it can be used to effectively destroy constitutionally protected rights through oppressive taxation, as McCulloch vs. Maryland suggests:
“Any claim that this statute is a taxing statute would be immediately open to severe Constitutional objections. If it could be said that the state had the power to tax a Right, this would enable the state to destroy Rights guaranteed by the constitution through the use of oppressive taxation. The question herein, is one of the state taxing the Right to travel by the ordinary modes of the day, and whether this is a legislative object of the state taxation.
The views advanced herein are neither novel nor unsupported by authority. The question of taxing power of the states has been repeatedly considered by the Supreme Court. The Right of the state to impede or embarrass the Constitutional operation of the U.S. Government or the Rights which the Citizen holds under it, has been uniformly denied.” – McCulloch vs. Maryland, 4 Wheat 316
The power to tax is the power to destroy. Crandall vs. Nevada further emphasizes the unconstitutionality of taxing the right to travel:
“…It may be said that a tax of one dollar for passing through the state cannot sensibly affect any function of government or deprive a Citizen of any valuable Right. But if a state can tax…a passenger of one dollar, it can tax him a thousand dollars.” – Crandall vs. Nevada, 6 Wall 35, 46
“If the Right of passing through a state by a Citizen of the United States is one guaranteed by the Constitution, it must be sacred from state taxation.” – Ibid., Pg. 47
Therefore, the right to travel must be protected from state taxation. If licensing fees are defended as taxes on the right to travel, this argument also fails constitutional scrutiny.
Conversion of a Right to a Crime: Unconstitutional on Its Face
Criminalizing the exercise of a constitutional right is inherently unconstitutional. When personal travel (a right) is made a crime without first surrendering that right and accepting a license (a privilege), it constitutes an unlawful conversion of a right into a crime. Hurtado vs. California and Miranda, supra, reinforce this:
“The state cannot diminish Rights of the people.” – Hurtado vs. California, 110 US 516
“Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.” – Miranda, supra.
The very purpose of constitutional governance is to protect individual rights from governmental intrusion. Any legislative attempt to criminalize the exercise of the right to travel is void on its face. Individuals exercising their right to travel cannot be lawfully tried for a crime for doing so.
Conclusion: Upholding the Substance of Rights Over Form
Courts are obligated to recognize the substance of rights over mere legal forms. Mulger vs. Kansas and Boyd vs. United States emphasize this duty:
“The courts are not bound by mere form, nor are they to be misled by mere pretenses. They are at liberty– indeed they are under a solemn duty– to look at the substance of things, whenever they enter upon the inquiry whether the legislature has transcended the limits of its authority. If, therefore, a statute purported to have been enacted to protect…the public safety, has no real or substantial relation to those objects or is a palpable invasion of Rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.” – Mulger vs. Kansas, 123 US 623, 661
“It is the duty of the courts to be watchful for the Constitutional rights of the citizen and against any stealthy encroachments thereon.” – Boyd vs. United States, 116 US 616
Courts are duty-bound to protect against encroachments on the citizen’s right to travel and transport property in the ordinary course of life and business (Hadfield, supra). The right to travel is a fundamental aspect of liberty, protected by the Fifth Amendment’s Due Process Clause (Kent, supra).
The history of driver licensing for personal travel reveals a legislative overreach that has, perhaps inadvertently, converted a fundamental right into a regulated privilege. Understanding the legal arguments and citations presented here is crucial for defending the 14th Amendment right to travel without a license and ensuring that fundamental liberties are not eroded by regulatory overreach.
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