Oh, what the hell, Friday night and I got no date.
theSovereign1 wrote:
By Jack McLamb (from Aid & Abet Newsletter)
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.
Google Scholar actually puts the citation at
169 N.E. 22 (1929); how a 1929 case indicates that legislators, etc., are "becoming aware" of anything is a mystery to me. It must be a really slow process. Anyway, this is a case in which the bus company was barred from Chicago streets by a municipal ordinance. Key point: the bus company had got a license from the state's Public Utilities Commission, so the real concern was, can the city override that license using its powers to regulate the streets? The Illinois Supreme Court said it could not. Your quote appears nowhere in the published decision; the closest match is:
Even the legislature has no power to deny to a citizen the right to travel upon the highway and transport his property in the ordinary course of his business or pleasure, though this right may be regulated in accordance with the public interest and convenience. Where one undertakes, however, to make a greater use of the public highways for his own private gain, as by the operation of a stage coach, an omnibus, a truck or a motor bus, the State may not only regulate the use of the vehicles on the highway but may prohibit it. A municipality can do so only under a power expressly granted by the State. Ex parte Dickey, 76 W. Va. 576.
Chicago Coach, 337 Ill. 200, 206.
I would suggest that the licensing laws would easily fall under regulation in the public interest, and I believe that's the meaning of this passage:
Many cases have been decided respecting the validity and construction of statutes and ordinances regulating their [i.e., motor vehicles] use upon public highways, and it has been uniformly held that the State, in the exercise of the police power, may regulate their speed and provide other reasonable rules and restrictions as to their use. ( Commonwealth v. Kingsbury, 199 Mass. 542; Christy v. Elliott, [216 Ill. 31]; State v. Swagerty, 203 Mo. 517; State v. Mayo, 106 Me. 62.) Driven by indifferent, careless or incompetent operators these vehicles may be a menace to the safety of the traveling public, and it has been held that under its authority to regulate the use of the streets a city may enact ordinances which may diminish this danger, and for this purpose may regulate the speed of automobiles and repress their careless management. City of Chicago v. Kluever, 257 Ill. 317; People v. Schneider, 139 Mich. 673; Commonwealth v. Kingsbury, supra; Brazier v. Philadelphia, 215 Pa. St. 297.
Chicago Coach, at 205, my emphasis.
theSovereign1 wrote:
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.
Thompson v. Smith,
155 Va. 367 (1930). Again, not sure a 1930 case indicates TPTB are coming around, but, anyway. Your quoted language comes from the case summary (surprise!), and in particular point #5 of the holdings. (To be fair, very similar language is in the opinion, at 377.) If you read further, though:
6. STREETS AND HIGHWAYS -- Right of Citizen to Travel and Transport Property -- Use of Ordinary Vehicles -- Police Power. -- The right of a citizen to travel and transport property and to use the ordinary and usual conveyances of the day may, under the police power, be regulated by the city in the interest of public safety and welfare; but the city may not arbitrarily or unreasonably prohibit or restrict it, nor may it permit one to exercise it and refuse to permit another of like qualifications, under like conditions and circumstances, to exercise it.
7. AUTOMOBILES -- Drivers' Permits -- Arbitrary Revocation. -- The regulation of the exercise of the right to drive a private automobile on the streets of the city may be accomplished in part by the city by granting, refusing, and revoking under rules of general application permits to drive an automobile on its streets; but such permits may not be arbitrarily refused or revoked, or permitted to be held by some and refused to others of like qualifications, under like circumstances and conditions.
Uh-oh! To me, that pretty clearly says the city can issue, and require, licenses. In fairness, this case actually seems to be on point with the question of whether licenses can be required. Thompson got busted a couple of times for speeding, and the chief of the Lynchburg police revoked his license, as he was entitled to do under the licensing ordinance. The court reversed this and remanded for trial, not because licensing was invalid, but only on the basis that the ordinance gave too much discretion to an administrator (the chief of police) and gave no guidance to the driver on what actions could result in revocation of the license. In modern terms, the ordinance was void for vagueness. At any rate, immediately after pronouncing the right to use the highways as a common right, the Virginia court went on to say:
The exercise of such a common right the city may, under its police power, regulate in the interest of the public safety and welfare; but it may not arbitrarily or unreasonably prohibit or restrict it, nor may it permit one to exercise it and refuse to permit another of like qualifications, under like conditions and circumstances, to exercise it. Taylor Smith, 140 Va. 217, 124 S.E. 259; Ex parte Dickey, 76 W.Va. 576, 85 S.E. 781, L.R.A. 1915-F, 840; Hadfield Lundin, 98 Wash. 657, 168 Pac. 516, L.R.A. 1918-B, 909, Ann. Cas. 1918-C, 942.
Thompson, at 377.
theSovereign1 wrote: 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.
Kent v. Dulles,
357 US 116 (1958). Well, at least it's more recent, and it's a Supreme Court case so more generally applicable. Too bad it has nothing to do with driver licensing. This is a case of two men, Mr. Kent and Mr. Briehl, who were denied passports because they were allegedly Communists. The quoted passage is immediately followed by the sentence, "So much is conceded by the Solicitor General." Mr. Justice Douglas then goes on a long, eloquent, and ultimately somewhat pointless diversion about the history and importance of freedom of movement, before coming back to topic and ultimately saying:
We, therefore, hesitate to impute to Congress, when in 1952 it made a passport necessary for foreign travel and left its issuance to the discretion of the Secretary of State, a purpose to give him unbridled discretion to grant or withhold a passport from a citizen for any substantive reason he may choose. ... Since we start with an exercise by an American citizen of an activity included in constitutional protection, we will not readily infer that Congress gave the Secretary of State unbridled discretion to grant or withhold it. ... If we were dealing with political questions entrusted to the Chief Executive by the Constitution we would have a different case. But there is more involved here. In part, of course, the issuance of the passport carries some implication of intention to extend the bearer diplomatic protection, though it does no more than "request all whom it may concern to permit safely and freely to pass, and in case of need to give all lawful aid and protection" to this citizen of the United States. But that function of the passport is subordinate. Its crucial function today is control over exit. And, as we have seen, the right of exit is a personal right included within the word "liberty" as used in the Fifth Amendment. If that "liberty" is to be regulated, it must be pursuant to the law-making functions of the Congress. Youngstown Sheet & Tube Co. v. Sawyer, [343 U.S. 579]. And if that power is delegated, the standards must be adequate to pass scrutiny by the accepted tests.
Kent, at 128, 129.
A driver's license is not a passport, of course. Aside from that, you can see the similarity with case #3: not that the government cannot regulate travel, but that, if it does, it's a function for the legislature to undertake, not its executive officers. This hardly says that travel is an inherent and indomitable right, subject to absolutely no regulation.
theSovereign1 wrote: 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.
Schactman v. Dulles, 225 F.2d 938 (1955). Wot, Dulles again? Yes, indeed. This is another passport case, remarkably similar to
Kent; and being so similar, and preceding
Kent by three years (and thus probably not relevant in the wake of
Kent), not worth additional discussion.
theSovereign1 wrote: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 people's common law right to travel.
Indeed, and as you see above, by 1930 it was pretty well established (in two states, anyway) that the state legislatures have the right to do this. This, of course, has nothing to do with passports.
theSovereign1 wrote:... 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 citizen's constitutionally protected rights. Is that so?
This is gibberish.
theSovereign1 wrote: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."
Hurtado v. California,
110 U.S. 516 (1884). I wish you would pincite these gems, because Google's version of that opinion does not contain the word "diminish." Therefore I cannot find that sentence, plainly stated or no. In any case, the Supreme Court affirmed the prisoner's capital conviction and, presumably, approved of its diminution of his right to travel (among many others). (The case had to do with whether an information was sufficient to initiate a murder case, or whether the prisoner's conviction was void as procured other than through the grand jury.)
theSovereign1 wrote: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."
Bennett v Boggs, 3 F. Cas. 221,
1 Baldw. 60 (1830). Yes,
1830, so old that I'm not even sure I'm getting the citations correct. I also can't find the word "obvious" in the text that I could find (
pincite, that's all I'm asking). This is a case involving fishing on the Delaware River, between Pennsylvania and New Jersey. It sounds like the quoted language summarizes the argument of the defendant; that's not precedent, especially where (as here) the court found for the plaintiff. It also appears that the court upheld the operation of the statute in question as against the common right and reason, so far as that goes (not very far, actually).
theSovereign1 wrote: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
OK, now you're not even trying.
Davis v. Wechsler,
263 U.S. 22 (1923), is a two-pager that Mr. Justice Holmes probably tossed off on his lunch break, having to do with a claim against a railroad that was defeated by some procedural "springes" in the state court. This has nothing to do with anything.
theSovereign1 wrote: "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.
Ah,
Miranda! Now
that's a case!
Miranda v. Arizona,
384 U.S. 436 (1966). Too bad nothing so far has really identified a constitutional right to be abrogated by rule making or legislation; too bad, too, that this remark most probably falls into the category of
obiter dicta (in layman's terms, "s*** my judge says") and doesn't really mean anything significant anyway.
theSovereign1 wrote: "The claim and exercise of a constitutional right cannot be converted into a crime." Miller v. US, 230 F 486, at 489.
This one's a mess. It's apparently
Miller v. U.S.,
230 F.2d 486, and the cite apparently should be to 490, and it's missing a "thus" (i.e., "...cannot
thus be converted into a crime."), but otherwise it's OK. The constitutional right in question in
Miller was a Fourth Amendment right to refuse a search of Ms. Miller's home (for Mr. Morris, whom she was concealing against a subpoena). This one was another quickie (no surprise there, given the subject), and also irrelevant (again, no identified constitutional right to drive without a license).
theSovereign1 wrote: There can be no sanction or penalty imposed upon one because of this exercise of constitutional rights." Sherer v. Cullen, 481 F 946
This one's a little trickier to track down, no thanks to the defective citation. I think it's
Sherar v. Cullen,
481 F.2d 945 (1973). Apparently there's a page break within the case heading that throws the page numbering off, but also acts as a nice genetic marker for tracing these lists of cases around the internet. (A search for "481 F 946" brought up all sorts of references to all these cases, and will probably have Google suggesting all sorts of weird stuff for me from now on. Thanks.)
The pincite for the quote is at 947. This case involved an IRS agent whose records were administratively subpoenaed in support of an audit of his own taxes. He refused to comply, and got fired; the 9th Circuit agreed this was not reasonable:
Thus, contrary to the administrative procedure followed in Sherar's case, under § 7402(b) the taxpayer is afforded the complete protection of a judicial determination based upon adversary proceedings in which any of his challenges to the summons can be fully aired. "In such a proceeding only a refusal to comply with an order of the district judge subjects the witness to contempt proceedings." 375 U.S. at 446, 84 S.Ct. at 512. Furthermore, the governmental interest in conducting a reasonable tax audit is also protected because the court, based upon its hearing, has full power to determine if the administrative summons should be enforced.
The See and Reisman decisions, and the statutory procedures of § 7402(b), reflect the obvious concern that there be no sanction or penalty imposed upon one because of his exercise of constitutional rights. ...
In the present case, the Internal Revenue Service placed Sherar in the untenable position of having to decide whether to submit to an allegedly unreasonable and unwarranted tax examination, or, should he refuse, to suffer the penalty of dismissal. This was clearly a penalty that infringed upon the constitutional right to be free from unreasonable searches because, as a practical matter, the only manner by which a taxpayer can prevent an unreasonable search is to withhold his records pending judicial determination in enforcement proceedings
Sherar, at 947, 948.
It should suffice to say that a case in which a tax officer invoked his right to be free of unreasonable searches has little to do with requiring a driver's license to drive on public roads.
I'm not going to bother with the coda to this list (the non-sequitur about Article Six). I've gone on more than far enough. Quoting a bunch of 80+ year old driver licensing cases that contradict your premise, passport cases from the height of the Red Scare, and miscellaneous cases that are relevant only for having the word "Constitution" somewhere in them may work for the rubes on Sui, or huddling 'round the Moons Over My Hammy. It is not going to work here.
Crain is right (and
Wnuck explains why;
Wnuck v. Commissioner,
136 T.C. 498 (2011)) that it's unworthy of serious debate. The topic there was the income tax; but it's not possible to assert, with a straight face, that driver's licenses have been declared unconstitutional since 1930, and yet they are still required in all fifty U.S. states, and all the Canadian provinces that I know of.
Now, please go away, and before you come back arguing this again, read the cases first, for pity's sake; don't just copy and paste foolishness that you found somewhere on the Internet.
