I love when people ask questions, especially thoughtful ones.  vivy45 asked just such a question on my YouTube channel.  I not only like the question, but the considered and deliberative way it was asked.  What was this wonderful question?

vivy45’s Question

I understand that when a perceived ‘right’ infringes on another such as forcing someone to teach me or provide me with healthcare then it’s not a ‘right’. What about driving? Is that a Right or a privilege? In that instance, I’m not forcing anyone to do anything for me.

vivy45 started with a premise I have discussed before.  A right cannot be properly exercised if it infringes on the legitimate right of another.  I’ve even used the examples of education or healthcare not being a right because they require forcing others to work for your benefit.  Based on this premise, vivy45 asks the question, what about driving?  The act of driving does not force anyone to do something to make it happen.  Then vivy45 brings up an interesting point about roads.

You could make the argument about roads but that should be either privatized or funded from the purchase of fuel. Then only drivers are paying for roads.

The roads are an interesting question, but more about that later.  Finally, vivy45 states their position.

I don’t think driving should be considered a privilege. I think it’s a Right. What are your thoughts?

All in all, a good, solid, and well supported question.

My Reply

Since a right is defined as a just immunity or privilege, I would rephrase your question about driving to “Is it an alienable right?” So let’s think about this for a minute.

I start by defining some terms.  We often compare rights and privileges, but since a right is defined as a just immunity or privilege, I looked at the question slightly differently: Is your right to drive alienable or unalienable?

If you buy a car, you own that car, it is your property and you have a right to do with it whatever you wish, as long as you don’t infringe on the legitimate rights of another. So you can drive your car on your property, but you do not have the right to drive on someone else’s property.

To start with, vivy45 and I agree.  You own your car and have the right to do with your property what you want.  However, we then get to the issue of the roads.

We call them “public roads”, but really they are owned by the government not the public. Since the roads are owned by the government, then they can determine who, when, and under what conditions someone can use them.

Again we have a property rights issue.  If you don’t own the roads, who does?  Because he who owns the road can determine when, how, and under what circumstances it can be used.

Although we don’t act that way, technically we “own” the governments (state, local, and federal), since We The People are ultimately sovereign in this nation. So we should be telling the government who, when, and under what conditions someone can use property owned by them. Sadly, we have given governments (mostly through our inaction) a virtual monopoly not only over our roadways, but the authority to determine qualifications for using them. That means they not only exercise power over government owned roads, but private ones as well. Ultimately, that is our fault for letting it happen.

Since we are supposed to oversee our governments, they are responsible to us for the decisions they make.  Sadly, most Americans give little thought to that responsibility.

So, I would say you have an inalienable right to purchase a vehicle, and use it wherever you like as long as you have the permission of the owners of the land. Since you do not own public roads, your right to use them is alienable. If governments own the “public roads”, they get to set standards for their use.  They are also bound to the Constitution, meaning those rules are to apply to everyone equally and your right to use public land cannot be revoked without due process of law (the protection of your rights). If we do not like the way one of our governments is discharging their duties over our roadways, it is up to us to hire (elect) representatives that will do a better job.

So driving is a right, but your right to use “public” roads is alienable.  Of course, since those governments are bound by constitutions (both state and local), they are governed by those documents.  And the ultimate responsibility for what those governments do rests with the American people.

Personally, I would like to see the government monopoly over driver qualifications and roadways broken up, but I don’t see that happening. At least not until we get control of our governments in the first place.

The question “If government doesn’t do it, who will?” often comes up.  Since there are many ways the licensing of drivers and the building and maintenance of roads can be done outside of government, vivy45 brings up the possibilities of privatization or funding by fees.  Would these be better?  Maybe yes, maybe no.  One of the great things about living in a union of sovereign states is that those states can try things and we can learn from them.

vivy45’s Followup

I like your train of thought. You mentioned that “We call them ‘public roads’, but really, they are owned by the government not the public”. For my part, I didn’t think the government could ‘own’ anything. As you pointed out, the government is ‘owned’ by the people, and anything the government ‘gets’ it gets from the people,  So how does the government ‘own’ anything?  Furthermore, if the roads are paid for with tax dollars, the people’s money, doesn’t that mean the People and not the government ‘owns’ the roads? And if we the people own the roads and own the car, doesn’t that make driving a ‘right’?

Flattery will get my attention; I am only human.  This is once again a well formed followup to our discussion.  I love this type of back and forth because it opens us up to new ideas.  (It’s also why I think studying the Constitution in groups is beneficial.)  We started talking about driving and now we’re into the ownership of “public” property.  vivy45 then goes on to a different topic regarding the penalties for not following the rules, but I want don’t want to include too much personal information here.  I do want to focus on this property ownership question.

My Reply

Yes, governments can own things. Just go to any government office and look at the more expensive items, like computers and furniture, and you’ll find asset tags that state “Property of …”.

A government is just an organization, not that different from a corporation. We form corporations to manufacture products or provide goods and services. We form governments to protect our rights and perform functions we think would be inappropriate or inefficient to do individually. We don’t think it appropriate for individuals to create “laws” for themselves, then enforce and prosecute them, so we form a government to do it for us. Corporations have their own money and can engage in commerce, and governments have their own assets and can purchase things. Yes, they got the money from us, but we agreed to give them the power to take that money from us. Just as a corporation is made up of people but are a separate entity, governments are also made up of people but are a separate entity. Just as corporations have owners, either directly or as stockholders, governments have owners in the people who created them. And just as when the oversight of a corporation is lax it runs amok, when we don’t oversee our governments they also run rampant. So, just as when a corporation builds a building it is owned by the corporation and not the individual stock holders, when the government builds a road it, and not the individual tax payers, own the road. Since you don’t directly own the road, you don’t have the right to use it as you see fit. Rights are individual not collective, so even if you view the road as purchased collectively you do not have a right to it since that collection is organized under a contract, a Constitution, a Charter, or some other forming document.

One of the more interesting ideas I came across while writing my book The Constitution Study, is this idea that governments aren’t all that special.  They aren’t some magical think tank, they aren’t infallible, they don’t endow people with some special ability, and they are most certainly not to be worshiped.  A government is just an organization.  It is created by people, consists of people, and has all the foibles and failures of people.  So when we talk about government doing something, it’s really just people acting as part of this organization.  The only real difference between a government and a corporation or social group is the fact that you are born a shareholder of some government whether you want to be or not.  With this premise in mind, not only does the idea of government ownership make more sense, but our responsibilities as “owners” of the government become more clear.  This may help you understand my response to vivy45’s question about traffic fines.

The issue of traffic fines is a question of justice. What is the just penalty for using something in a way the owner forbids? What is the responsibility of the person who violated the rules established by the owner? A good way to look at it is to put yourself in the other’s shoes. Imagine you have a long driveway that connects one road to another, and you require people who drive on your driveway to prove they have the skills and training necessary to operate the vehicle (a license) and to drive no more than 15 MPH (because you are concerned about the safety of others on your property). How would you punish someone who violated that speed limit? Would you vary the punishment based on how fast they were going? If they continued to ignore your rule, would you revoke their permission to use your driveway? And what if they continued to drive on your driveway even after your permission had been revoked? Now, if you think the fines and punishment the [State] imposes on violating the rules they have established to use their roads is excessive, then you should go to the person you and your neighbors hired to represent you in the state government for a redress of your grievance. I think you will encourage more cooperation with a calm, reasoned, logical argument based on facts and evidence than a claim that these fines are a violation of a person’s right to drive, since any such right to drive on government roads is an alienable right granted by said government.

And here we come full circle to the right to drive.  One of the problems with the idea that everyone owns public property is that effectively no one does; we all assume someone else will take care of it.  So we create organizations to do this work.  Call them governments, homeowners associations, or not-for-profit corporations, they are all still ways for us to collectively manage and maintain property.  And if we put ourselves in the position of the organization we may get a better point of view on why they do things.  Maybe if we did so more often, we would not take our responsibilities of overseeing our organizations so lightly.

I hope you will take some time and comment on vivy45’s and my discussion about driving rights and public ownership.  I also hope you will do so with the thought and grace that we have shown here.  And as always, if you have questions you would like to discuss, please comment or as a question at the website.

July 2nd Update

Usually, I publish the article before I release the podcast episode.  But, due to some crazy scheduling, the video on this topic got released first.  And it has generated a fair amount of discussion, which is very good.  There is one comment I want to bring up for two reasons.  First, like vivy45’s comment, it was fairly well thought out.  Second, during the discussion, both sides admitted there were aspects to this discussion they hadn’t thought about.  I want to thank David Oldham both for the wonderful discussion we had and for the courtesy with which he brought it to my attention.  In this followup, I will do my best to represent David’s point of view as I understand it from our discussion.  If I get something wrong, I hope David will correct me in the comments, but it is important for everyone to recognize that this is my understanding, not necessarily David’s point of view.

Rights

The question at hand has to do with the question of rights and how we know what is and is not a right.  Things like freedom of religion, speech, and press are easy because they are listed in the Constitution.  But are only the rights enumerated in the Constitution the ones that get protection?

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment 9

The Ninth Amendment to the Constitution specifies that just because a right isn’t specifically listed in the Constitution doesn’t mean it’s not a right and that it shouldn’t be protected.  I argued that the right to drive is basically a property rights issue, specifically that of your right to operate something you own as long as you do not use it to infringe on the legitimate rights of others. David sees this as a freedom of movement right. Freedom of movement is not enumerated in the Constitution, but we all agree that we have a right to move along public roads without interference.  From this, I have two challenges for my readers. First, can anyone find a quote from a Founding Father that can be referenced to the effect of our right to travel?  I believe we do, but have not found a quote I feel comfortable using as a reference. Second, can someone find a reference from the founding era that the mode of transportation is not a factor in the right to travel?  Again, I don’t think the mode matters, but the only quotes I’ve found so far are too modern and I find them suspect.

Licensing

The point that David brought up that I didn’t think about in my discussion with vivy45 was licensing. Specifically is the requiring of a license “prior restraint”? Prior restraint is the restraining your actions before you act, the idea of preventing you from doing something because you may do something wrong.

…nor be deprived of life, liberty, or property, without due process of law…

Amendment 5

If operating a motor vehicle on public roads is a right, then preventing you from doing so before you’ve done anything wrong is depriving you of your liberty without due process of law.  So is requiring a license to operate a motor vehicle on public roads depriving you of a liberty?  That depends on what type of liberty we’re talking about. According to the Webster’s 1828 dictionary there are several types of liberty:

LIB’ERTY, noun [Latin libertas, from liber, free.]

1. Freedom from restraint, in a general sense, and applicable to the body, or to the will or mind. The body is at liberty when not confined; the will or mind is at liberty when not checked or controlled. A man enjoys liberty when no physical force operates to restrain his actions or volitions.

2. Natural liberty consists in the power of acting as one thinks fit, without any restraint or control, except from the laws of nature. It is a state of exemption from the control of others, and from positive laws and the institutions of social life. This liberty is abridged by the establishment of government.

3. Civil liberty is the liberty of men in a state of society, or natural liberty so far only abridged and restrained, as is necessary and expedient for the safety and interest of the society, state or nation. A restraint of natural liberty not necessary or expedient for the public, is tyranny or oppression. civil liberty is an exemption from the arbitrary will of others, which exemption is secured by established laws, which restrain every man from injuring or controlling another. Hence the restraints of law are essential to civil liberty.

Webster’s 1828 Dictionary

So mandatory licensing does deprive someone of their general liberty and their natural liberty since I know of no natural law that operating a motor vehicle violates.  But does it violate a person’s civil liberty?  Are mandatory drivers licenses necessary or expedient for the safety and interest of society? More importantly, is the licensing of drivers a proper function of government or should it be turned over to another process?  Is it the proper role of government to tell the citizens who created it when they are qualified to operate equipment?

I thought this time I’d open this up to debate.  So tell us what you think in the comments below.