Who decided that driving is a privilege, not a right - and why ?
That analysis is not completely accurate. Take for example Brown v. Board of Education. A state is not required to provide a free public education, but *if it does * (and every state does), then it is a property right and protected by the 5th and 14th Amendment. Thus one could argue that the state creates the right to a driver’s license simply by offering it.
Two points, Monty. First, a citation, from post number 12 in this thread:
Under Holt, therefore, roadblocks in Texas currently are unconstitutional under Sitz, because Sitz lays out the requirements with which states must comply before initiating DUI roadblocks. Texas has interpreted Sitz as requiring a legislative mandate – a statute authorizing roadblocks – before said roadblocks pass muster under the federal constitution. So dalej42’s statement with which you took issue was correct; he didn’t assert that Texas already had found that a roadblock was unconstitutional (as Michigan has), but merely:
Under Holt, they are illegal, and unconstitutional because they don’t comply with Sitz. If Texas were to pass a law permitting them, we do not know whether the roadblocks would pass muster under Texas’s constitution as it appears that question has not come up. But currently, roadblocks in Texas are found by the Texas courts to violate the Fourth Amendment.
SaintCad, can you please cite to and distinguish the wingspan cases, or at least explain how they are consistent with your perception of current 4th amendment car jurisprudence? For purposes of your response, please remember that the courts treat the vehicle and the trunk differently.
Big Whistle and SaintCad, if no one’s said it yet: welcome. I hope you plan to stick around.
I would say the seminal case is Preston v. United States in which it is stated that
Preston v. United States, 376 U.S. 364, 366 (1964) which is based in part on Carroll v. United States and Brinegar v. United States. Carroll v. United States does imply that the mobile nature of a car may make *some * searches legal that would otherwise be illegal in a fixed residence.
Many of the cases where police officers are given carte blanche to search a car is when the person is being arrested such as New York v. Belton, Chimel v. California, United States v. Herndon; however there seems to be limitations on this with the person being arrested being linked to the car both by distance (United States v.Strahan) and time (Thornton v. United States). In addition, cars that are impounded can be searched for inventory purposes (United States v. Lumpkin and Colorado v. Bertine).
That is incorrect as you should well know. What the state may not do upon having granted a privilege is withhold that privilege once granted without proper application of due process. Nor (in general) may a state engage in discriminatory behaviour in provision of the privilege when such discrimination draws a line on the basis of race. It does not in any way create a right out of the privilege.
No, I don’t think so.
If you are old enough, and you are a citizen, and you register, and you go to the correct polling place, then you are entitled to vote. Your ability to vote cannot be revoked without due process of law.
If you are old enough, and you prove yourself capable of driving safely, and you pay the fee, then you are entitled to a driver’s license. Your license cannot be revoked without due process of law.
It seems irrelevant to me that one right depends on a competence test and the other doesn’t. The voting age itself is supposedly a rough guideline for determining competence.
I’ll believe that when I see it.
Mr2001, please see Big Whistle’s posting immediately above yours.
Correct. They are, in fact, both about the same - both privileges. States have the option to restrict the right to vote with whatever means they wish, so long as the restrictions are applied consistently to every individual in the state and do not discriminate based on race, sex or age (above 18).
There is no explicit constitutional right to vote like there is with free speech or due process.
Directly from Brown v. Board
© Where a State has undertaken to provide an opportunity for an education in its public schools, such an opportunity is a right which must be made available to all on equal terms.
So public education is not a priviledge, it is a right. So the question is, what distiguishes a driver’s licence from public education that make one a mere privilege and the other a right?
The 26th Amendment states: “The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.”
Of course, since driving is a right even though some people refer to it as a privilege, I suppose voting could be a privilege even though the Constitution refers to it as a right. 
There are rights and then there are rights. States can take away your right to vote, so long as it’s not discriminating against a protected class. Not much of a right.
:rolleyes:
By your silly definition then, making a U-Turn at an intersection is a right.
It’s as much of a right as, say, the right to bear arms. I’m willing to call that a right, even though it’s denied to felons and there are limits on where it may be exercised. Are you?
Yeah, I suppose it is, at least in this state. Do you think I merely have the “privilege” to make a U-turn where it’s allowed, and if so, how is that any different in practice from having the right to do so?
Bad example, since I believe there is some dispute as to whether the Second Amendment offers an individual right or a state right.
As I said, there are rights and then there are Rights. You have the right to make a U-Turn where permitted in the broadest sense of the word. Compare, in practice, with your right to distribute flyers you print up on your home computer to people on a street corner.
One is done at the whim of the legislature with nothing to stop them from banning it except the constituency getting annoyed with them and voting them out. If the appropriate legislature banned U-Turns and you sued to get it overturned, the onus is pretty much going to be on you to justify it.
The latter example is protected by the highest laws of the country and there’s very little the legislature can do to stop you from doing it, short of amending the constitution. If the legislature banned it, the onus would be on them to justify why they should be permitted that sort of censorship.
If you want to state that you have a right to drive, provided you can pass whatever regulations the legislature chooses to set, then that’s technically correct. But let’s not get it confused with a Right.
So you’re saying that the right to drive is not an unenumerated right protected by the Ninth Amendment? But let’s say for the sake of argument you’re correct and driving is a priviledge and not a right. You still do not give up your 4th Amendment rights protecting you from personal searches or having your car searched unless:
A) There is a warrant
B) There is probable cause
c) You are being arrested
So why should all of this change at a sobriety checkpoint?
In other words: “Yes, Mr2001, it’s a right, even though some people argue about what type of right it is. I guess even things that are sometimes restricted can still be rights.”
And as I said, driving is a right. Feel free to assign your own meaning to the capitalized form of the word, since you’re the only one using it.
I don’t think you’d get very far trying to distribute flyers on a street corner when the city works department is trying to repave that sidewalk, for instance. You might even go to jail for interfering with their work if you refuse to get out of the way. Does that mean you have no right (or no “Right”) to distribute flyers on a street corner, or simply that this right–like any other–can be restricted when it’s reasonable and necessary?
Yes, thank you. Imagine all the time you could’ve saved just by skipping to this bit.
When police set up RBT (Random Breath Testing) checkpoints, they usually do so in one of several ways:
- a single police car on the side of the road, with the police officers waving randomly selected cars over for the test; or
- as above, but with perhaps 2-3 police cars; or
- as above, but with a booze bus, 5-6 officers and a larger area on the side of the road where perhaps 7-8 drivers can be tested at once.
Here are some pictures of booze buses from the Western Australian police force.
Being avoidable by luck is different to being avoidable through cleverness and learning about them in advance. I don’t claim that everyone going from A to B with a checkpoint in the middle will have to be tested. With the most common implementation I see, it is even possible to drive straight by one and avoid it. Often a police officer will wave you into a queue marked out by witches hats. If the queue is full they do not wave anyone in. Stations tend only to stay in one spot for an hour or so. From week to week they choose different locations, including side streets. Learning about them in advance is quite a difficult prospect.
If prior to receiving (or renewing) your drivers license, you were told one of the ‘restrictions’ of the license was that you may be stopped at a DUI checkpoint, that would be ok?
As I have stated before you do NOT have such a right. The Fourth Amendment does not, neither by its terms, nor by the case law on point, provide you with any such right. You are, under the Fourth Amendment, protected solely from “unreasonable” searches and seizures. A roadblock isn’t a search, anyway, it is a seizure. And you are subject under the Fourth Amendment to any number of potential warrantless seizures.
Please stop misrepresenting the US Constitution in your efforts to argue this point.
Well, that could lessen the issue of limiting drivers’ freedom. I don’t know how practical it would be to start a policy like that, though. My license doesn’t need renewal for another 3 years, so there’d be no need or opportunity for me to consent to being stopped at a checkpoint until then, but I don’t know how a police officer would be able to tell me apart from someone who has consented to it without actually stopping me to check my license.
On the other hand, it might not resolve the issue. It wouldn’t be OK to ask people to waive their rights to free speech in order to exercise their right to drive, for example; why should it be OK to ask them to waive their rights to be free from unreasonable searches?
My state already has an “implied consent” law, under which anyone who receives a driver’s license implicitly consents to taking a breath or blood test, but only “if arrested for any offense where, at the time of the arrest, the arresting officer has reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle while under the influence of intoxicating liquor or any drug” - i.e. they need a reason to suspect that the test will find something.
Mr. 2001, you are quite incorrect in your understanding of what is a “right,” at least in the sense we are discussion (that is, the responsibility of government to private individuals). A “right” is a power inherent in a person and incident upon another (in our case, the state). If you do not have to do anything to have the power, you have a “right.” An example can be found in the Fouth Amendment, which preserves to the people of the United States the “right” to be secure against unreasonable searches and seizures. You don’t have to do anything to obtain that power; it is inherent in you. You have a “right” to speak freely; you don’t have to go get a “speak freely” lisence from the United States in order to do so.
A privilege, by comparison, is a particular benefit enjoyed by a person beyond the common advantages of other persons. A foreign ambassador is privileged in that he cannot be arrested to answer most civil and criminal charges. He doesn’t get this by a right; it is, instead, a privilege he has by virtue of his status. And it can be waived, either by the country from where he hails, or by the country in which he is resident (though the latter might cause an international incident and have questionable recognition).
The legal ability to drive upon the roads of a state is not a “right.” You don’t have the legal capacity to force the state to let you drive inherent in your person. States put up numerous barriers and qualifications to driving. They also take away the ability to drive legally for a variety of reasons, though they must follow due process to do so. You must demonstrate competence before being lisenced. In many states, you must show that you were properly instructed, especially if you intend to drive under the age of 18. You are restricted as to the class of vehicles you may drive absent further testing. If you do any of a number of silly things, you can have the lisence revoked or suspended, including relatively unrelated and trivial things like failure to pay child support or possession of drug paraphernalia. And, as I stated above, there is no inherent, legal reason a state couldn’t simply suspend all driving on its roads, if it felt it necessary. The practical aspects guarantee it wouldn’t be something any state would do, of course.
Now some here have chased the red herring of being able to force the state to let one drive upon passing the requirements as indication you do have a right to drive. But this misstates the situation. The state is in many cases obligated to offer you due process, especially if you are going to lose life, liberty or property. This is not a right to drive, but rather a right to be treated fairly in the case of obtaining a lisence to drive. The difference is simple: if the state wished, it could raise the driving age to 25, and those who are 16 to 25 would not be able to claim a constitutional violation of their rights, except, at best, on the basis of invidious age discrimination, which likely would not succeed.
Please be advised that there is no case from the Supreme Court that would require the state to issue you a lisence should you fill the forms out, etc. Bell v. Burson, 402 U.S. 535 (1971) is inapposite, since it involved taking a lisence away that had already been granted. Still, this would all be irrelevant, because the right to due process is not the same as a right to drive, for the reasons elucidated.
You have no “right” to drive. If you think you do, cut up your lisence, refuse to renew it, and drive around without one. Preferably, drive right up to an officer of the law and show him your lack of lisence. See how far your “right” gets you.