Do you Need a Drivers License? – Driver Licensing vs. the Right to Travel
This page collects legal citations on the right to travel and on driver licensing. It presents a collection of legal citations supporting the “Right” to travel.
Key takeaways on the right to travel
- The brief says free people have a right to travel on the roads that their servants provide for that purpose, using the ordinary transportation of the day.
- According to the brief, a driver’s license requirement can apply to people who use the highways for trade, commerce, or hire.
- The brief argues that the terms automobile, motor vehicle, travel, driver, operator, traffic and license have different legal meanings.
- Every police power law must ask three questions, it says, about threatened danger, about a Constitutional Right, and about reasonableness.
- It concludes that it is the duty of the courts to be watchful for the Constitutional rights of the citizen.
Learn more about the right to travel on Wikipedia.
Collection of Legal Citations supporting the Right to Travel
**NOTE: For educational purposes only. Authors unknown.
Brief for the Right to Drive This case Washingto v. Port is important s it details how one can win the case for the right to drieve. Port lost the case because of her error in admitting the state had a right. Read the case and you will soon see how she could easily have won. She actually had won the case until she said the wrong thing.
Using the right to travel argument
The following argument served in at least three states (Pennsylvania, Ohio, and West Virginia) as a legal brief. The brief supported a demand for dismissal of charges of “driving without a license.” It is the argument that caused the charges to be dropped. It also brought a “win” in court against the argument that their servants can regulate the right of free people to travel. People can use these arguments in nearly any state against the state trying to deny a driver’s right to travel.
The forgotten legal maxim is that free people have a right to travel on the roads. Their servants provide those roads for that purpose, and free people use ordinary transportation of the day. The state cannot require licensing of free people, because taking on the restrictions of a license requires the surrender of a right. A driver’s license requirement can apply to people who use the highways for trade, commerce, or hire. That is, it applies if they earn their living on the road, and if they use extraordinary machines on the roads.
If you are not using the highways for profit, no one can require you to have a driver’s license.
NOW, comes the Accused, appearing specially and not generally or voluntarily, but under threat of arrest if he failed to do so, with this “BRIEF IN SUPPORT OF NOTICE FOR DISMISSAL FOR LACK OF JURISDICTION,” stating as follows:
ARGUMENT for the right to travel
If ever a judge understood the public’s right to use the public roads, it was Justice Tolman of the Supreme Court of the State of Washington. Justice Tolman stated:
“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.”
The words of Justice Tolman ring most prophetically in the ears of Citizens throughout the country today as the very entity that holds the power to stand guard over our freedoms, i.e., that of state government, has monopolized the use of the public roads.
RIGHTS and the right to travel
The “most sacred of liberties” of which Justice Tolman spoke was personal liberty. The definition of personal liberty is:
“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.”
Personal liberty and the right to travel
This concept is further amplified by the definition of personal liberty:
“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.”
and further …
“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.”
Justice Tolman and the right to travel
Justice Tolman was concerned about the State prohibiting the Citizen from the “most sacred of his liberties,” the Right of movement. He was concerned about the Right of moving one’s self from place to place without threat of imprisonment. He was also concerned about the Right to use the public roads in the ordinary course of life.
Corporations and individuals
When the State allows the formation of a corporation it may control its creation by establishing guidelines (statutes) for its operation (charters). Corporations who use the roads in the course of business do not use the roads in the ordinary course of life. There is a difference between a corporation and an individual. The United States Supreme Court has stated:
“…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.
Corporations as creatures of the state
“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.”
Ordinary use and extraordinary use of the streets
Corporations engaged in mercantile equity fall under the purview of the State’s admiralty jurisdiction. The State must protect the public at large from their activities, as they (the corporations) engage in business for profit.
“…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.”
Rights and privileges on the road
It will be necessary to review early cases and legal authority in order to reach a lawfully correct theory dealing with this Right or “privilege.” We will attempt to reach a sound conclusion as to what is a “Right to use the road” and what is a “privilege to use the road“. Once reaching this determination, we shall then apply those positions to modern case decision.
“Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.”
and …
“The claim and exercise of a constitutional Right cannot be converted into a crime.”
and …
“There can be no sanction or penalty imposed upon one because of this exercise of constitutional Rights.”
Public highways and the right to travel
Authorities establish and maintain streets and highways for the purpose of travel and transportation by the public. Such travel may be for business or pleasure.
“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.”
and …
“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.”
Court rulings on the right to travel
So we can see that a Citizen has a Right to travel upon the public highways by automobile. No one can rightfully deprive the Citizen of his Liberty. So where does the misconception that the use of the public road is always and only a privilege come from?
“…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.”
Here the court held that a Citizen has the Right to travel upon the public highways. It held, however, that he did not have the right to conduct business upon the highways. On this point of law all authorities are unanimous.
The Citizen’s right and commercial use of the roads
“Heretofore the court has held, and we think correctly, that 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 of business for private gain.”
and …
“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 for private gain in the running of a stagecoach or omnibus.”
The right to travel as a common right
What is this Right of the Citizen which differs so “radically and obviously” from one who uses the highway as a place of business? Who better to enlighten us than Justice Tolman of the Supreme Court of Washington State? In State vs. City of Spokane, supra, the Court also noted a very “radical and obvious” difference, but went on to explain just what the difference is:
“The former is the usual and ordinary right of the Citizen, a common right to all, while the latter is special, unusual, and extraordinary.”
and …
“This distinction, elementary and fundamental in character, is recognized by all the authorities.”
Authorities on the right to travel
This position does not hang precariously upon only a few cases. An impressive array of cases, ranging from the state courts to the federal courts, has proclaimed it.
“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.”
and …
“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.”
No dissent among authorities
There is no dissent among various authorities as to this position. (See Am. Jur. [1st] Const. Law, 329 and corresponding Am. Jur. [2nd].)
“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 nor dependent on the U.S. Constitution. … It is one of the most sacred and valuable rights [remember the words of Justice Tolman, supra.] as sacred as the right to private property … and is regarded as inalienable.”
Right versus privilege to use the roads
As we can see, the distinction between a “Right” to use the public roads and a “privilege” to use the public roads follows the line of “using the road as a place of business.” The various state courts have held so. But what have the U.S. Courts held on this point?
“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.”
The privilege to use the roads for business
So what is a privilege to use the roads? By now it should be apparent even to the “learned” that an attempt to use the road as a place of business is a privilege. We must draw the distinction between …
- Travelling upon and transporting one’s property upon the public roads, which is our Right; and …
- Using the public roads as a place of business or a main instrumentality of business, which is a privilege.
“[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.
Authority on converting the right to travel into a privilege
There should be considerable authority on a subject as important a this deprivation of the liberty of the individual “using the roads in the ordinary course of life and business.” However, we should note that extensive research has not turned up one case or authority acknowledging the state’s power to convert the individual’s right to travel upon the public roads into a “privilege.”
Therefore, this brief concludes that the Citizen does have a “Right” to travel and transport his property upon the public highways and roads. The exercise of this Right is not a “privilege.“
DEFINITIONS
In order to understand the correct application of the statute in question, we must first define the terms used in connection with this point of law. As this brief will show, many terms used today do not mean what we assume they mean in their legal context. This results in the misapplication of statutes in the instant case.
AUTOMOBILE AND MOTOR VEHICLE
There is a clear distinction between an automobile and a motor vehicle. Courts have defined an automobile as:
“The word `automobile’ connotes a pleasure vehicle designed for the transportation of persons on highways.”
The courts have made the distinction between the two clear:
“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.”
The term `motor vehicle‘ is different and broader than the word `automobile.'”
Title 18 USC 31 makes the distinction very clear:
“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.
Clearly, an automobile is private property in use for private purposes. A motor vehicle, in contrast, is a machine which people may use upon the highways for trade, commerce, or hire.
TRAVEL and the right to travel
The term “travel” is a significant term with this definition:
“The term `travel’ and `traveler’ 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.”
“Traveler — One who passes from place to place, whether for pleasure, instruction, business, or health.”
“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.”
Therefore, the term “travel” or “traveler” refers to one who uses a conveyance to go from one place to another. It included all those who use the highways as a matter of Right.
Notice that in all these definitions, the phrase “for hire” never occurs. This term “travel” or “traveler” implies, by definition, one who uses the road as a means to move from one place to another.
Therefore, one who uses the road in the ordinary course of life and business for the purpose of travel and transportation is a traveler.
DRIVER
The term “driver” in contradistinction to “traveler,” has this definition:
“Driver — One employed in conducting a coach, carriage, wagon, or other vehicle …”
Notice that this definition includes one who is “employed” in conducting a vehicle. It should be self-evident that this individual could not be “travelling” on a journey, but is using the road as a place of business.
OPERATOR
Today we assume that a “traveler” is a “driver,” and a “driver” is an “operator.” However, this is not the case.
“It will be observed from the language of the ordinance that a distinction is to be drawn between the terms `operator’ and `driver‘; 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 the `driver‘ 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‘ and `driver.'”
To further clarify the definition of an “operator” the court observed that this was a vehicle “for hire.” It also observed that it was in the business of carrying passengers.
This definition would seem to describe a person who is using the road as a place of business. In other words, it describes a person engaged in the “privilege” of using the road for gain.
This definition, then, is a further clarification of the distinction we mentioned earlier, and therefore:
- Travelling upon and transporting one’s property upon the public roads as a matter of Right meets the definition of a traveler.
- Using the road as a place of business as a matter of privilege meets the definition of a driver or an operator or both.
TRAFFIC
Having defined the terms “automobile,” “motor vehicle,” “traveler,” “driver,” and “operator,” the next term to define is “traffic“:
“… 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 …”
Note: In the above, Justice Tolman expounded upon the key of raising revenue by taxing the “privilege” to use the public roads “at the expense of those operating for gain.”
In this case, the court used the word “traffic” in conjunction with the unnecessary Auto Transportation Service, or in other words, “vehicles for hire.” The word “traffic” is another word that one must strictly construe to the conducting of business.
“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 …”
Here again, notice that this definition refers to one “conducting business.” The definition does not mention one who is travelling in his automobile. This definition describes one who engages in passing a commodity or goods in exchange for money, i.e .., vehicles for hire.
Traffic versus the right to travel
Furthermore, the word “traffic” and “travel” must have different meanings which the courts recognize. Ex Parte Dickey, supra, recognizes the difference:
“…in addition to this, cabs, hackney coaches, omnibuses, taxicabs, and hacks, when unnecessarily numerous, interfere with the ordinary traffic and travel and obstruct them.”
The court, by using both terms, signified its recognition of a distinction between the two. But, what was the distinction? We have already defined both terms, but to clear up any doubt:
“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.”
Here the Supreme Court of the State of Washington has defined the word “traffic” (in either its primary or secondary sense) in reference to business. It did not define it in reference to mere travel! So it is clear that the term “traffic” is business related and therefore, it is a “privilege.” The net result is that the legislature brings “traffic” under its (police) power. The term has no application to one who is not using the roads as a place of business.
LICENSE and the right to travel
It seems only proper to define the word “license,” as the definition of this word will be extremely important in understanding how the statutes properly apply:
“The permission, by competent authority to do an act which without permission, would be illegal, a trespass, or a tort.”
“Leave to do a thing which licensor could prevent.”
In order for these two definitions to apply in this case, the state would have to take up a certain position. That position is that the exercise of a Constitutional Right to use the public roads in the ordinary course of life and business is illegal, a trespass, or a tort. The state could then regulate or prevent it.
This position, however, would raise magnitudinous Constitutional questions as this position would oppose fundamental Constitutional Law diametrically. (See “Conversion of a Right to a Crime,” infra.)
The proper definition of a license
In the instant case, the proper definition of a “license” 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.”
This definition would fall more in line with the “privilege” of carrying on business on the streets.
The purpose of licensing
Most people tend to think that “licensing” is something the state imposes for the purpose of raising revenue. Yet there may well be more subtle reasons in view. For when one seeks permission from someone to do something he invokes the jurisdiction of the “licensor” which, in this case, is the state. In essence, the licensee may well be asking the “licensor” to regulate him.
“A license fee is a charge made primarily for regulation, with the fee to cover costs and expenses of supervision or regulation.”
The fee is the price; the regulation or control of the licensee is the real aim of the legislation.
Does the state really use these licenses to fund legitimate government? Or are they nothing more than a subtle introduction of police power into every facet of our lives? Have our “enforcement agencies” been diverted from crime prevention, perhaps through no fault of their own? Are they instead now busying themselves as they “check” our papers to see that all are properly endorsed by the state?
How much longer will it be before the state forces us to get a license for our lawn mowers? How much longer before our wives will need a license for her “blender” or “mixer?” They all have motors on them and the state can always use the revenue.
POLICE POWER and the right to travel
The confusion of the police power with the power of taxation usually arises in cases where the police power has affixed a penalty to a certain act. It also arises where it requires people to obtain licenses and pay a certain sum for certain occupations. The power used in the instant case cannot, however, be the power of taxation since an attempt to levy a tax upon a Right would be open to Constitutional objection. (See “taxing power,” infra.)
Each law relating to the use of police power must ask three questions:
“1. Is there threatened danger?
“2. Does a regulation involve a Constitutional Right?
“3. Is this regulation reasonable?
When applying these three questions to the statute in question, some very important issues emerge.
First question: threatened danger
First, “is there a threatened danger” in the individual using his automobile on the public highways, in the ordinary course of life and business?
The answer is No! There is nothing inherently dangerous in the use of an automobile when one manages it carefully. Their guidance, speed, and noise are subject to a quick and easy control, under a competent and considerate manager, it is as harmless on the road as a horse and buggy.
It is the manner of managing the automobile, and that alone, which threatens the safety of the public. The ability to stop quickly and to respond quickly to guidance would seem to make the automobile one of the least dangerous conveyances. (See Yale Law Journal, December, 1905.)
To deprive all persons of the Right to use the road in the ordinary course of life and business, because one might, in the future, become dangerous, would be a deprivation of the Right to travel. It would also deprive them of the Right to due process. (See “Due Process,” infra.)
Second question: a Constitutional Right
Next; does the regulation involve a Constitutional Right?
This brief has already addressed and answered this question. It needs no reinforcement other than to remind this Court that this Citizen does have the Right to travel upon the public highway by automobile in the ordinary course of life and business. We can therefore conclude that this regulation does involve a Constitutional Right.
Third question: is the regulation reasonable?
The third question is the most important in this case. “Is this regulation reasonable?”
The answer is No! It will be shown later in “Regulation,” infra., that this licensing statute is oppressive and that less oppressive means could administer it effectively.
Although the Fourteenth Amendment does not interfere with the proper exercise of the police power, in accordance with the general principle that the power must be exercised so as not to invade unreasonably the rights guaranteed by the United States Constitution, it is established beyond question that every state power, including the police power, is limited by the Fourteenth Amendment (and others) and by the inhibitions there imposed.
Moreover, the ultimate test of the propriety of police power regulations must be found in the Fourteenth Amendment. This is so since it operates to limit the field of the police power to the extent of preventing the enforcement of statutes in denial of Rights that the Amendment protects. (See Parks vs. State, 64 NE 682.)
Police power and the U.S. Constitution
“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.”
“The police power of the state must be exercised in subordination to the provisions of the U.S. Constitution.”
“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.”
“As a rule, fundamental limitations of regulations under the police power are found in the spirit of the Constitutions, not in the letter, although they are just as efficient as if expressed in the clearest language.”
As it applies in the instant case, the language of the Fifth Amendment is clear:
As this brief has shown, the courts at all levels have firmly established an absolute Right to travel.
In the instant case, the state, by applying commercial statutes to all entities, natural and artificial persons alike, has deprived this free and natural person of the Right of Liberty. It has done so without cause and without due process of law.
DUE PROCESS and the right to travel
“The essential elements of due process of law are … Notice and The Opportunity to defend.”
Yet, the state has not given one individual notice of the loss of his/her Right, let alone before signing the license (contract). Nor did the state give the Citizen any opportunity to defend against the loss of his/her right to travel, by automobile, on the highways, in the ordinary course of life and business. This amounts to an arbitrary deprivation of Liberty.
“There should be no arbitrary deprivation of Life or Liberty …”
and …
“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.”
Balancing police power and due process
The focal point of this question of police power and due process must balance upon the point of making the public highways a safe place for the public to travel. If a man travels in a manner that creates actual damage, an action would lie (civilly) for recovery of damages. The state could then also proceed against the individual to deprive him of his Right to use the public highways, for cause.
This process would fulfill the due process requirements of the Fifth Amendment while at the same time insuring that this process would protect Rights guaranteed by the U.S. Constitution and the state constitutions.
But unless or until someone commits harm or damage (a crime), there is no cause for interference in the private affairs or actions of a Citizen.
Definitions of due process of law
One of the most famous and perhaps the most quoted definitions of due process of law, is that of Daniel Webster in his Dartmouth College Case (4 Wheat 518). In it he declared that due process means:
“a law which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial.”
Somewhat similar is the statement that is a rule as old as the law that:
“no one shall be personally bound (restricted) until he has had his day in court,”
by which is meant, until he has received a due citation to appear and an opportunity to be heard. Judgment without such citation and opportunity lacks all the attributes of a judicial determination; it is judicial usurpation and it is oppressive and can never be upheld where it is fairly administered. (12 Am.Jur. [1st] Const. Law, Sect. 573, Pg. 269)
Note: This sounds like the process used to deprive one of the “privilege” of operating a motor vehicle “for hire.” We should keep in mind, however, that we are discussing the arbitrary deprivation of the Right to use the road that all citizens have “in common.”
The 1959 Washington Attorney General’s opinion
One can most easily observe the futility of the state’s position in the 1959 Washington Attorney General’s opinion on a similar issue:
“The distinction between the Right of the Citizen to use the public highways for private, rather than commercial purposes is recognized …”
and …
“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 …”
This alarming opinion appears to be saying that every person using an automobile as a matter of Right, must give up the Right and convert the Right into a privilege. The government accomplishes this under the guise of regulation. This statement is indicative of the insensitivity, even the ignorance, of the government to the limits placed upon governments by and through the several constitutions.
Legislation and the right to travel
This legal theory may have been able to stand in 1959. However, as of 1966, in the United States Supreme Court decision in Miranda, even this weak defense of the state’s actions must fall.
“Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.”
Thus the legislature does not have the power to abrogate the Citizen’s Right to travel upon the public roads. It cannot do so by passing legislation forcing the citizen to waive his Right and convert that Right into a privilege. Furthermore, we have previously established that the definition of this “privilege” applies only to those who are “conducting business in the streets” or “operating for-hire vehicles.”
The legislature has attempted (by legislative fiat) to deprive the Citizen of his Right to use the roads in the ordinary course of life and business. It has done so without affording the Citizen the safeguard of “due process of law.” The legislature has accomplished this under supposed powers of regulation.
REGULATION and the right to travel
“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.”
and …
“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.”
One can say for certain that these regulations are impartial since the state applies them to all, even though they are clearly beyond the limits of the legislative powers. However, we must consider whether such regulations are reasonable and non-violative of constitutional guarantees.
Reasonableness of the licensing statute
First, let us consider the reasonableness of this statute requiring all persons to hold a license (presuming that we apply this statute to all persons using the public roads). In determining the reasonableness of the statute we need only ask two questions:
1. Does the statute accomplish its stated goal?
The answer is No!
The attempted explanation for this regulation “to insure the safety of the public by insuring, as much as possible, that all are competent and qualified.”
However, one can keep his license without retesting, from the time he/she is first licensed until the day he/she dies. This is so without regard to the competency of the person, by merely renewing said license before it expires. It is therefore possible to completely skirt the goal of this attempted regulation. This proves that this regulation does not accomplish its goal.
Furthermore, by testing and licensing, the state gives the appearance of underwriting the competence of the licensees. Courts could therefore hold the state liable for failures, accidents, etc. caused by licensees.
2. Is the statute reasonable?
The answer is No!
The licensing statute and the right to travel
One cannot determine this statute to be reasonable since it requires to the Citizen to give up his or her natural Right to travel unrestricted in order to accept the privilege. The purported goal of this statute could be met by much less oppressive regulations, i.e., competency tests and certificates of competency before using an automobile upon the public roads. (This is exactly the situation in the aviation sector.)
But isn’t this what we have now?
The answer is No! The real purpose of this license is much more insidious. When one signs the license, he/she gives up his/her Constitutional Right to travel in order to accept and exercise a privilege. After signing the license, a quasi-contract, the Citizen has to give the state his/her consent to prosecution for constructive crimes and quasi-criminal actions. This applies where there is no harm done and no damaged property.
These prosecutions take place without affording the Citizen of their Constitutional Rights and guarantees such a the Right to a trial by jury of twelve persons and the Right to counsel. They also take place without the normal safeguards such as proof of intent and a corpus dilecti and a grand jury indictment. These unconstitutional prosecutions take place because the Citizen is exercising a privilege and has given his/her “implied consent” to legislative enactments designed to control interstate commerce. Interstate commerce is a regulatable enterprise under the police power of the state.
We must now conclude that the state forces the Citizen to give up Constitutional guarantees of “Right” in order to exercise his state “privilege” to travel upon the public highways in the ordinary course of life and business.
SURRENDER OF RIGHTS and the right to travel
No one can force a Citizen to give up his/her Rights in the name of regulation.
“… 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 …”
If the state cannot force one to surrender Rights in order to exercise a privilege, how much more must this maxim of law, then, apply when one is simply exercising (putting into use) a Right?
“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.”
and …
“We find it intolerable that one Constitutional Right should have to be surrendered in order to assert another.”
Since the state requires that one give up Rights in order to exercise the privilege of driving, the regulation cannot stand under the police power, due process, or regulation. One must expose it as an oppressive statute that the state has misapplied to deprive the Citizen of Rights guaranteed by the United States Constitution and the state constitutions.
TAXING POWER and the right to travel
“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.
In addition, 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.”
Taxing the right to travel
The power to tax is the power to destroy. If the state gains the power to destroy Rights through taxation, the framers of the Constitution wrote that document in vain.
“… 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.”
and …
“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.”
Therefore, one must keep the Right of travel sacred from all forms of state taxation. If the state uses this argument as a defense of the enforcement of this statute, then this argument also must fail.
CONVERSION OF A RIGHT TO A CRIME
As previously demonstrated, the Citizen has the Right to travel and to transport his property upon the public highways in the ordinary course of life and business. However, if one exercises this Right to travel (without first giving up the Right and converting that Right into a privilege) the Citizen is by statute, guilty of a crime. This amounts to converting the exercise of a Constitutional Right into a crime.
Recall the Miller vs. U.S. and Snerer vs. Cullen quotes from Pg. 5, and:
and …
“Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.”
Indeed, the very purpose for creating the state under the limitations of the constitution was to protect the rights of the people from intrusion, particularly by the forces of government.
Attempts to make the right to travel a crime
So we can see that any attempt by the legislature to make the act of using the public highways as a matter of Right into a crime, is void upon its face.
No one can try any person who claims his Right to travel upon the highways, and so exercises that Right, for a crime of doing so. And yet, this Freeman stands before this court today to answer charges for the “crime” of exercising his Right to Liberty.
As we have already shown, the term “drive” can only apply to those who work in the business of transportation for hire. This brief has shown that freedom includes the Citnzen’s Right to use the public highways in the ordinary course of life and business without license or regulation by the police powers of the state.
CONCLUSION on the right to travel
It is the duty of the court to recognize the substance of things and not the mere form.
“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.”
and …
“It is the duty of the courts to be watchful for the Constitutional rights of the citizen and against any stealthy encroachments thereon.”
The courts are “duty bound” to recognize and stop the “stealthy encroachments” which the state has made upon the Citizen’s Right to travel and to use the roads to transport his property in the “ordinary course of life and business.” (Hadfield, supra.)
Further, the court must recognize that the Right to travel is part of the Liberty of which no one can deprive a Citizen without specific cause and without the “due process of law” that the Fifth Amendment guarantees. (Kent, supra.)
The history of this “invasion” of the Citizen’s Right to use the public highways shows clearly that the legislature simply
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