DRIVERS LICENSE VS RIGHT TO TRAVEL Right to Travel DESPITE ACTIONS OF POLICE AND LOCAL COURTS, HIGHER COURTS HAVE RULED THAT AMERICAN CITIZENS HAVE A RIGHT TO TRAVEL WITHOUT STATE PERMITS By Jack McLamb (from Aid & Abet Newsletter) For years professionals within the criminal justice system have acted on the belief that traveling by motor vehicle was a privilege that was given to a citizen only after approval by their state government in the form of a permit or license to drive. In other words, the individual must be granted the privilege before his use of the state highways was considered legal. Legislators, police officers, and court officials are becoming aware that there are court decisions that disprove the belief that driving is a privilege and therefore requires government approval in the form of a license. Presented here are some of these cases: CASE #1: 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. Chicago Motor Coach v. Chicago, 169 NE 221. CASE #2: 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. Thompson v. Smith, 154 SE 579. It could not be stated more directly or conclusively that citizens of the states have a common law right to travel, without approval or restriction (license), and that this right is protected under the U.S Constitution. CASE #3: The right to travel is a part of the liberty of which the citizen cannot be deprived without due process of law under the Fifth Amendment. Kent v. Dulles, 357 US 116, 125. CASE #4: The right to travel is a well-established common right that does not owe its existence to the federal government. It is recognized by the courts as a natural right. Schactman v. Dulles 96 App DC 287, 225 F2d 938, at 941. As hard as it is for those of us in law enforcement to believe, there is no room for speculation in these court decisions. American citizens do indeed have the inalienable right to use the roadways unrestricted in any manner as long as they are not damaging or violating property or rights of others. Government -- in requiring the people to obtain drivers licenses, and accepting vehicle inspections and DUI/DWI roadblocks without question -- is restricting, and therefore violating, the peoples common law right to travel. Is this a new legal interpretation on this subject? Apparently not. This means that the beliefs and opinions our state legislators, the courts, and those in law enforcement have acted upon for years have been in error. Researchers armed with actual facts state that case law is overwhelming in determining that to restrict the movement of the individual in the free exercise of his right to travel is a serious breach of those freedoms secured by the U.S. Constitution and most state constitutions. That means it is unlawful. The revelation that the American citizen has always had the inalienable right to travel raises profound questions for those who are involved in making and enforcing state laws. The first of such questions may very well be this: If the states have been enforcing laws that are unconstitutional on their face, it would seem that there must be some way that a state can legally put restrictions -- such as licensing requirements, mandatory insurance, vehicle registration, vehicle inspections to name just a few -- on a citizens constitutionally protected rights. Is that so? For the answer, let us look, once again, to the U.S. courts for a determination of this very issue. In Hertado v. California, 110 US 516, the U.S Supreme Court states very plainly: The state cannot diminish rights of the people. And in Bennett v. Boggs, 1 Baldw 60, Statutes that violate the plain and obvious principles of common right and common reason are null and void. Would we not say that these judicial decisions are straight to the point -- that there is no lawful method for government to put restrictions or limitations on rights belonging to the people? Other cases are even more straight forward: The assertion of federal rights, when plainly and reasonably made, is not to be defeated under the name of local practice. Davis v. Wechsler, 263 US 22, at 24 Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them. Miranda v. Arizona, 384 US 436, 491. The claim and exercise of a constitutional right cannot be converted into a crime. Miller v. US, 230 F 486, at 489. There can be no sanction or penalty imposed upon one because of this exercise of constitutional rights. Sherer v. Cullen, 481 F 946 We could go on, quoting court decision after court decision; however, the Constitution itself answers our question - Can a government legally put restrictions on the rights of the American people at any time, for any reason? The answer is found in Article Six of the U.S. Constitution: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; …, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. In the same Article, it says just who within our government that is bound by this Supreme Law: The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution... Heres an interesting question. Is ignorance of these laws an excuse for such acts by officials? If we are to follow the letter of the law, (as we are sworn to do), this places officials who involve themselves in such unlawful acts in an unfavorable legal situation. For it is a felony and federal crime to violate or deprive citizens of their constitutionally protected rights. Our system of law dictates that there are only two ways to legally remove a right belonging to the people. These are: by lawfully amending the constitution, or by a person knowingly waiving a particular right. Some of the confusion on our present system has arisen because many millions of people have waived their right to travel unrestricted and volunteered into the jurisdiction of the state. Those who have knowingly given up these rights are now legally regulated by state law and must acquire the proper permits and registrations. There are basically two groups of people in this category: Drivers License is a Contract between you and the Motor Vehicle Department relating to traffic laws: state govt can restrict driving on the public roads to drivers with valid current licenses, and restrict drivers to vehicles registered as having passed inspection, notwithstanding argument about a right to travel. Hendrick v. Maryland (1915) 235 US 610 (a state may restrict the use of its highways to drivers who have complied with the license, insurance and vehicle registration laws of this state or, if the driver is a non-resident, of his home state) 1. This case isolates right to travel defense only… The court only addressed the very narrow right to travel issue. Not a valid case when Property Rights and other rights of choice are the issue. Bell v. Burson (1971) 402 US 535 (state statute which denies or suspends driver’s license for failure to carry insurance or comparable financial responsibility does not violate constitution) (this authority to prescribe reasonable requisites for the privilege of driving on the public highways is inherent in state and local govts) 2. Where a state issues a permission, it is reasonable that such permission can be revoked by issuer for any reason it chooses. This case does not address any element of the right of an individual. It only addresses contractural elements of licensing and has no effect on a Rights defense. State v. Booher (Tenn.Crim.App 1997) 978 SW2d 953 (the appellant asserts that the state ... has unduly infringed upon his right to travel by requiring licensing and registration .... However, contrary to his assertions, at no time did the State of Tennessee place constraints upon the appellants exercise of this right. His right to travel ... remains unimpeded.... Rather, based upon the context of his argument, the appellant asserts an infringement upon his right to operate a motor vehicle on the public highways of this state. This notion is wholly separate from the right to travel. The ability to drive a motor vehicle on a public highway is not a fundamental right. Instead, it is a revocable privilege that is granted upon compliance with statutory licensing procedures.) 3. This court addressed two elements; one. Right to travel. And two. Right to operate a motor vehicle. For #one see response 1 above. For #two,,,,,, we don’t assert that a right to operate a motor vehicle (as defined federally and as this court is using the term) as a right that is protected by the constitution. The federal definition SW2d is using is; Title 18 USC 31: 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 definition of motor vehicle does not include private motor Vehicles as distinguished from the 18 USC 31 motor vehicle definition and as was clearly distinguished in Bowman vs City of Kansas City; “ We take judicial notice of the fact that off-street parking tends to facilitate traffic and avoid hazards to life and property. In few cities and towns are the streets in the business districts of sufficient width to accommodate the greatly increased traffic resulting from the almost universal use of private motor vehicles. “ As a consequence to this fact, this court has not addressed the issue we promote on property rights. Quackenbush v. Superior Court (1997) 60 Cal.App.4th 454, 70 Cal.Rptr.2d 271 (state can require insurance for drivers licenses) ditto (state has legitimate interest in requiring financial responsibility of drivers) Berberian v. Lussier (1958) 87 RI 226, 139 A2d 869 (this crank, a lawyer who was evidently his own favorite client and eventually got himself disbarred for threatening to bomb the courthouse, Carter v. Berberian (RI 1981) 442 A2d 1263, later got his 13 year old son to sue over the age requirement for learners permits, see below) see generally essay, Validity of Motor Vehicle Financial Responsibility Act, 35 ALR2d 1011 & suppl. See # 2 above Guerrero v. Ryan (1995) 272 IL.App.3d 945, 209 IL.Dec 408, 651 NE2d 586 app.denied 163 IL.2d 556, 657 NE2d 621 cert.den 516 US 1180 (state can suspend license already issued if lack of insurance is discovered, drivers license not a basic constitutional right) See #2 above similarly State v. Turk (1982) 197 Mont 311, 643 P2d 224 ditto Berberian v. Lussier (1958) 87 RI 226, 139 A2d 869 (cannot evade insurance requirement by religious objections) State v. Cosgrove (So.Dak. 1989) 439 NW2d 119 cert.den 493 US 846 Similarly State v. Skurdal (1988) 235 Mont 291, 767 P2d 304 (This is obviously a growing school of thought which had been misguided.... The notion of right to travel remains wholly separate from the right or privilege to operate a motor vehicle on the public highways. The court made a point of discussing many of the crank arguments against requiring drivers licenses evidently the crank notion is not only are the licensing requirements inapplicable to them but also speed limits) There is no Right to operate a motor vehicle to my knowledge. The privilege matter can be referred to #2 above. Similarly City of Bismarck v. Stuart (No.Dak 1996) 546 NW2d 366 (No court has ever held that it is an impermissible infringement upon a citizens constitutional Right to Travel for the legislature to decree that ... every person who operates a motor vehicle on public roads must have a valid operators license.... The legislature has the constitutional police power to ensure safe drivers and safe roads.) 4. More carefully worded language that does not address private property and individual rights……. Similarly City of Salina v. Wisden (Utah 1987) 737 P2d 981 (Mr. Wisdens assertion that the right to travel encompasses the unrestrained use of the highway is wrong. The right to travel granted by the state and federal constitutions do not include the ability to ignore laws governing the use of public roadways. The motor vehicle code was promulgated to increase the safety and efficiency of our public roads. It enhances rather than infringes on the right to travel. The ability to drive a motor vehicle on a public roadway is not a fundamental right it is a privilege that is granted upon the compliance with the statutory licensing procedures.) 5. This rhetoric is representative of the accepted thinking on the subjects herein addressed. Responding to each; (Mr. Wisdens assertion that the right to travel encompasses the unrestrained use of the highway is wrong. I agree, within the limit of this statement, however, adequate restraint exists as a byproduct of the constitution in two ways; first, restraint in the form of regulation (regulation of traffic is done with signs, lines, curbs, lanes, speed signs (informing what the expected rate of speed of other citizens fitting the lowest common denominator principle may be doing) all of which inform the individual about what is ahead and what they should reasonably be able to expect. This is a duty of government as a result of its mandate to provide for the health and welfare of the people. Regulation is the visible product of that duty. Second, citizens have a constitutionally mandated self-restraining responsibility to harm no other. When harm does occur, existing regulation is used to determine which citizen was at fault thereby providing the necessary elements with which to compensate the victim or untangle rights entangled. Regulation has no other purpose. The right to travel granted by the state and federal constitutions do not include the ability to ignore laws governing the use of public roadways. Constitutions do not grant rights. Laws governing the use of public highways are unnecessary in light of the restraints described above. Consequently, vehicle codes that are being applied to citizens and their use of private property are unconstitutional based upon the fact that no compelling state interest exists due to the restraints already in place as described above. The motor vehicle code was promulgated to increase the safety and efficiency of our public roads. This, of course is propaganda spread by shallow men in support of aspirations of castles (how much marble do you have in your home?) Society is no better off as a result of vehicle codes. Accidents will happen at generally the same rate with or without such codes. Hence, these codes are a manifestation of an errant definition of the words compelling state interest which must exist before a state may exert a police power. And which don’t exist here. Similarly (The right to operate a motor vehicle is wholly a creation of state law it certainly is not explicitly guaranteed by the Constitution, and nothing in that document or in our state constitution has even the slightest appearance or an implicit guarantee of that right. The plaintiffs argument that the right to operate a motor vehicle is fundamental because of its relation to the fundamental right of interstate travel ... is utterly frivolous. The plaintiff is not being prevented from traveling interstate by public transportation, by common carrier, or in a motor vehicle driven by someone with a license to drive it. What is at issue here is not his right to travel interstate, but his right to operate a motor vehicle on the public highways, and we have no hesitation in holding that this is not a fundamental right.) See #2 above Berberian v. Petit (RI 1977) 374 A2d 791, 86 ALR3d 468 (this case was a 13-year-old boy challenging the age requirement for learners permits, the court quoted from a 1958 decision involving his father’s challenge to the requirement for motorists insurance) similarly Jones v. City of Newport (1989) 29 Ark.App 42, 780 SW2d 338 Similarly Azubuko v. Registrar of Motor Vehicles (1st Cir unpub 9/3/96) cert.den 520 US 1157 ditto (state can require drivers license, vehicle registration, display of license plate, etc., notwithstanding argument about right to travel) State v. Weisman (Minn.App unpub 11/1/88) cert.den 489 US 1080 ditto Maxfield v. Corwin (WD Mich unpub 3/17/87) ditto (While there exists a fundamental right to travel, neither this court, nor our [state] supreme court, nor the US Supreme Court has ever held that there exists a fundamental right to drive a motor vehicle. State can require display of official registration tag, and that driver present police with valid license and car registration, even against purported religious objections, and can punish for use of homemade license plate)Terpstra v. State (Ind.App 1988) 529 NE2d 839 No compelling state interest. See #5 above. ditto City of Spokane v. Port (1986) 43 Wash.App 273, 716 P2d 945 revw.den 106 Wash.2d 1010 State v. Patterson (Kan.App unpub 2/14/92) review den (Kan. Supm 1992) 250 Kan 807 ditto US ex rel Verdone v. Circuit Court for Taylor County (7th Cir 1995) 73 F3d 669 Similarly Commonwealth v. Levy (1961) 194 Penn.Super 390, 169 A2d 596 see especially essay, Validity of statute making it a criminal offense for operator of motor vehicle not to carry or display his license or registration, 6 ALR3d 506 & suppl.) Similarly (right to property does not enable perp to drive his car despite its lack of registration, safety inspection, license plate, drivers license, etc., nor to prevent it from being impounded until he complies with the licensing laws) Wisden v. City of Salina (Utah 1985) 709 P2d 371 This is perplexing language….. the first to mention Right to property. I suspect a definition of that right must be part of this decision and therefore I will get the entire case for assessment. In any case,,,,,, the decision, if it actually comes down to this is defective for the reasons stated in #5 above….. similarly (perp already had an SSN but refused, supposedly on religious grounds, to provide it to apply for drivers license and thereby refused to renew or carry drivers license on religious grounds The appellant advised [the policewoman] that he could not be arrested because her God was not as big as his God. He referred to her as an agent of the socialist govt ..., court held the state had sufficient reasons to require SSNs for drivers licenses and that, since driving without a license is a crime, religious fastidiousness could not excuse a criminal act) State v. Loudon (Tenn.Crim.App 1993) 857 SW2d 878 similarly (when cranks already have SSNs but refuse to reveal them for drivers licenses applications, supposedly on religious grounds) Penner v. King (Mo.Supm 1985) 695 SW2d 887 I need to get these cases as well, maybe it will provide the compelling state interest element we are looking for. And, I am yet to see the origin of the duty that a citizen has to the state to license. I can understand the potential duty to other citizens to have insurance…… but not license. Similarly (refused to reveal SSNs for drivers license on privacy grounds, citing various laws on non-disclosure of SSNs, court held that state could require disclosure of SSN on license application) Nowlin v DMV (1997) 53 Cal.App.4th 1529, 62 Cal.Rptr.2d 409 if state law requires the SSN on the license application then the use of the SSN is not optional and an applicant who fails to provide his SSN will thereby be refused a license. Schmidt v. Powell (IL App 1972) 4 IL.App.3d 34, 280 NE2d 236 Ostric v. Board of Appeals on Motor Vehicle Policies (Mass 1972) 361 Mass 459, 280 NE2d 692 I wonder how this case would do before the US Supreme Court? similarly (crank claimed to have unilaterally revoked his SSN and tried to invoke state law that would permit an individual without an SSN to obtain a drivers license upon submission of a federal govt document attesting to the lack of a Soc.Sec. number or account for that person, at least the individuals own assertion without the federal documentation was insufficient the court noted that driving on the public roads is a privilege, not a right nor a contract, and the state may impose reasonable conditions upon that privilege and someone too fastidious to meet those conditions would not obtain the privilege) Hershey v. Commonwealth Dept of Transportation (Penn.Commonw.Ct 1995) 669 A2d 517 app.den 544 Penn 664, 676 A2d 1202 ditto Kocher v. Bickley (Penn.Commonw.Ct 1999) 722 A2d 756 similarly (state can insist on SSN to obtain a drivers license and apparently not required to offer alternatives to someone with religious objections to having an SSN) McDonald v. Alabama Dept of Public Safety (Alab.Civ.App unpub 4/9/99) ditto Miller v. Reed (9th Cir 1999) 176 F3d 1202 (and quoting from Bowen v. Roy, 1986, 476 US 693, which upheld an AFDC requirement that welfare payments would not be paid for children whose parents did not provide the childs SSN, notwithstanding the parents religious objections to SSNs, and without offering an alternative) requirement of SSN to obtain a drivers license did not infringe on religious rights, because the plaintiffs may preserve their religious scruples intact by foregoing this privilege [of driving on the public roads]. It is for them to balance the resulting inconvenience. Penner v. King (Mo. 1985) 695 SW2d 887 I’m not fully informed on SSNs so I will pass this one accept to say,,,,,,, where is the compelling state interest when #5 above is a consideration? Similarly, The state of Missouri, by making the licensing requirements in question, is not prohibiting Davis from expressing or practicing his religious beliefs or from traveling throughout this land. If he wishes, he may walk, ride a bicycle or horse, or travel as a passenger in an automobile, bus, airplane or helicopter. He cannot, however, operate a motor vehicle on the public highways without ... a valid operators license. State v. Davis (Mo.App 1988) 745 SW2d 249 There we go again with the carefully constructed motor vehicle language. One has to wonder if this court recognizes the difference between their definition of a motor vehicle and that of the states? (On the other hand, some states have made provision for issuing drivers licenses in special circumstances in which an SSN is unavailable, such as lawfully admitted aliens, with their green cards, who are ineligible for Soc.Sec.) Lauderbach v. Zolin (Cal.App 1995) 35 Cal.App.4th 578, 41 Cal.Rptr.2d 434 Similarly (accepting the IRSs Taxpayer Identification Number [TIN] as a substitute for the SSN) Devon Inc. v. State Bureau (Ohio App 1986) 31 Ohio App.3d 130, 508 NE2d 984 Ditto (state would accept TIN as a substitute for the SSN and not obliged to create any more alternatives) Kocher v. Bickley (Penn.Commonw.Ct 1999) 722 A2d 756 [The state may also give applicants the options of not having their SSNs appear on their drivers license and the public registry but may still require the SSN on the applications. Doe v. Registrar of Motor Vehicles (Mass.Super unpub 6/8/93) 1 Mass.L.Rptr 156, 21 Media L.Rptr 2041 and if the drivers license does not display the SSN, a policeman stopping the driver may insist on seeing the drivers Soc.Sec. card when the SSN is required on traffic citations. State v. T.N. Hill (Ohio App. unpub 2/6/92)] Neither right to migrate nor right to a job implies a right to unlicensed driving. Maher v. State (Ind.App 1993) 612 NE2d 1063 (ditto, when crank sent the state letters rescinding his signature to all drivers license papers assenting to the states statutory consent to breathalyzer test this had the effect of cancelling his drivers license, and he was charged with unlicensed driving moreover, the states refusal to return his car until he presented a valid license and registration was not a taking without due process) Maxfield v. Corwin (WD Mich unpub 3/17/87) {Note: There are reasons, other than dangerous driving, that a court may use to suspend or revoke drivers licenses e.g. non-payment of taxes Wells v. Malloy (D Vt 1975) 402 F.Supp 856 affd 538 F2d 317 failure to pay court fines City of Milwaukee v. Kilgore (Wis.App 1994) 185 Wis.2d 499, 517 NW2d 689 failure to pay child support Richey v. Richey (La.App 1997) 704 So.2d 343 generally essay, Revocation or Suspension of Drivers License for Reason Unrelated to Motor Vehicle, 18 ALR5th 542 & suppl. Another essay deals with putting conditions upon the reinstatement of a suspended license, such as requiring proof of financial responsibility. 2 ALR5th 725.} (The right to travel on public highways is not absolute. It is subject to reasonable regulation by the state, pursuant to the police power granted by the Constitution. We have previously held that the motor vehicle codes are a valid use of police power. We have also previously held that requiring automobile insurance coverage and the registration of vehicles is a valid use of the police power and does not violate the due process requirements of the US Constitution.) State v. R.E. Wilson (Mont.Supm unpub 12/3/98) {The references to the right to travel in this propaganda turn out to refer to court cases that dealt with restrictions on passports, or on restrictions on out-of-state visitors or newcomers to a state obtaining employment or benefits such as food stamps cf. G.B. Hartch, Wrong Turns: A critique of the Supreme Courts right to travel cases, 21 Wm. Mitchell Law Rev. 457 (1995). The exercise of state and municipal police powers to regulate and restrict traffic on public roads predates the automobile by at least a half-century, when bicycle riding was restricted to avoid frightening horses cf. R.D. Perry, The Impact of the Sport of Bicycle Riding on Safety Law, 35 Amer. Business Law Jrnl 185 (1998). In France, the registration of automobiles goes back to 1893, before the first US automobile factory, and in the US, registration of cars dates back to 1901 and the licensing of drivers to 1916, and by the mid-1920s there were, in almost every state, age requirements and other limitations on who could be licensed to operate an automobile, even for personal use for example, see J. Simon, Driving Governmentality: Automobile accidents, insurance, and the challenge to social order in the inter-war years, 1919 to 1941, 4 Conn. Insur. Law Jrnl 521 (1998). As the US Supreme Court noted in 1915, The movement of motor vehicles over the highways is attended by constant and serious dangers to the public, and is also abnormally destructive to the [high]ways themselves. ... [A] state may rightfully prescribe uniform regulations necessary for public safety and order in respect to the operation upon its highways of all motor vehicles - those moving in interstate commerce as well as others. ... This is but an exercise of the police power uniformly recognized as belonging to the states and essential to the preservation of the health, safety, and comfort of their citizens. Hendrick v. Maryland (1915) 235 US 610 See #3 above…….. This case clearly makes the distinction between motor vehicles (per fed definition) and private property. And in 1927, Motor vehicles are dangerous machines, and even when skillfully and carefully operated, their use is attended by serious dangers to persons and property. In the public interest the state may make and enforce regulations reasonably calculated to promote care on the part of all, residents and non-residents alike, who use its highways. ... The state’s power to regulate the use of its highways extends to their use by non-residents as well as by residents. Hess v. Pawloski (1927) 274 US 352. See #5 regulations above. The states are taking this case completely out of context. Notice the court said promote not mandate.
Posted on: Thu, 11 Dec 2014 13:13:21 +0000
Trending Topics
Recently Viewed Topics
© 2015