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.”
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.”