Before Driving Became a Privilege

Recovering the Forgotten Line Between Private Travel and Commercial Highway Use

There is a question buried beneath modern motor-vehicle law that I believe has been inadequately examined.

It is not merely whether government may regulate automobiles.

It plainly may.

The more important question is this:

When did regulation of the manner in which the people use the public highways become understood as governmental permission to exercise the underlying liberty itself?

That distinction matters.

It matters constitutionally. It matters historically. And it matters immensely to any serious discussion concerning what has come to be called the Right to Travel.

For years, people challenging modern driver's-license requirements have often relied upon a familiar proposition: early legal dictionaries defined a “driver” as “one employed,” supposedly demonstrating that driver's licenses historically concerned commercial operators rather than ordinary people privately traveling upon the highways.

There is something important buried within that argument.

But I believe we must develop it much further.

Because the real historical record is considerably more sophisticated—and, properly understood, considerably stronger—than merely pointing to two words in an old dictionary.

The Black's Law Dictionary Clue

Consider Black's Law Dictionary, Fourth Edition.

Its definition of “driver” begins with the formulation:

“One employed in conducting or operating…”

That language immediately draws attention.

But intellectual honesty requires reading the entire definition.

The Fourth Edition also includes a person actually driving, including one who is driving his own vehicle. Thus, Black's does not establish the proposition that every person classified as a “driver” necessarily had to be a salaried employee or commercial operator.

That distinction is important.

The word “employed” itself historically could mean being engaged in the use or operation of something, not merely working pursuant to an employer-employee relationship.

So I would not build the constitutional argument upon the proposition that:

“Driver means employee; therefore only employees are subject to driver's-license laws.”

That is too narrow.

It gives the opposition an easy answer.

Read the remainder of the definition, and the argument appears defeated.

But I believe stopping there produces the opposite error.

Because when we move beyond the dictionary and examine the actual jurisprudence surrounding highway regulation during the development of the automobile, an unmistakable distinction emerges.

And that distinction is far more important than the word “employed.”

Two Fundamentally Different Uses of the Highway

The early cases repeatedly distinguish between two forms of highway use:

the ordinary and customary use of the highway by the public;

and

the use of the highway as the situs, instrumentality, or means of conducting a business for private gain.

Those are not historically treated as identical things.

That distinction appears repeatedly in United States Supreme Court decisions and state supreme court opinions from the formative period of motor-vehicle regulation.

It is this doctrinal division—not a dictionary slogan—that I believe must become central to the modern Right to Travel discussion.

The Highway Was First Understood as Belonging to the Public

The Washington Supreme Court said something extraordinarily important in Hadfield v. Lundin, 98 Wash. 657, 168 P. 516 (1917):

“The streets and highways belong to the public. They are built and maintained at public expense for the use of the general public in the ordinary and customary manner.”

The court then immediately distinguished that ordinary public use from operating a common-carrier business upon those highways for private gain. The latter use, the court explained, could be conditioned by government because the highway was being used as the principal instrumentality of a business.

That distinction cannot simply be ignored.

The court did not say that every person's presence upon a highway existed solely by governmental grace.

It specifically identified the highways as belonging to the public and existing for the public's ordinary and customary use.

What it characterized as a special privilege was the appropriation of those public highways as a place of business or main instrumentality of business for private gain.

That is an entirely different proposition.

Washington Had Already Recognized the Same Principle

One year earlier, the Washington Supreme Court decided State v. Seattle Taxicab & Transfer Co., 90 Wash. 416, 156 P. 837 (1916).

The statute there concerned common carriers of passengers.

The court upheld regulatory requirements imposed upon commercial transportation operations but explained why:

highways were constructed principally as passageways available to all of the people, while no person possessed an absolute right to appropriate them for his own private gain.

The distinction was therefore not between regulated people and unregulated people.

It was between ordinary public highway use and the exploitation of public infrastructure as part of a commercial enterprise.

That distinction should immediately cause us to reconsider the language commonly used today.

When someone tells me:

“Driving is a privilege.”

My first question becomes:

Driving in what capacity?

Operating what?

For what purpose?

Under what statutory classification?

Using the highway merely as a member of the public?

Or appropriating the highway as the principal instrumentality of a transportation business for compensation?

Those questions matter because the historical jurisprudence itself made those distinctions.

Packard v. Banton: “Private Ends” Versus Carrying for Hire

The United States Supreme Court recognized essentially the same distinction in Packard v. Banton, 264 U.S. 140 (1924).

Packard involved New York regulation of persons engaged in carrying passengers for hire.

The Supreme Court specifically contrasted that activity with persons operating motor vehicles for their own private ends.

The Court held that government possessed broader regulatory authority over activities conducted by governmental permission than over activities undertaken by private right.

That is extraordinarily important.

Why?

Because the Court itself was recognizing that different classes of highway use could be subjected to materially different governmental authority.

A person carrying passengers for compensation is not situated identically to a father taking his children to dinner.

A freight carrier operating a scheduled transportation business is not situated identically to someone traveling to visit family.

A taxicab operating its vehicle as the centerpiece of a commercial enterprise is not situated identically to someone using his automobile as the ordinary conveyance of modern life.

Yet modern discourse frequently collapses all of these into one word:

driving.

And from that single word arises an enormous presumption:

Driving is a privilege because driving is regulated.

But that conclusion does not necessarily follow.

Regulation and Permission Are Not the Same Thing

This is where I believe the discussion becomes constitutionally significant.

There is a profound difference between:

regulating the manner in which a liberty is exercised

and

declaring that the liberty exists only because government granted permission to exercise it.

Those are completely different theories of governmental authority.

The state undoubtedly possesses police power.

Motor vehicles can cause serious injury.

Government may establish reasonable rules concerning speed, traffic direction, equipment, vehicle condition, roadway safety, intoxication, reckless operation, and competency.

I do not dispute that proposition.

But governmental authority to regulate dangerous instrumentalities does not, by itself, answer the antecedent question:

What is the juridical character of the underlying activity being regulated?

One can regulate a right.

The existence of regulation does not automatically convert the regulated activity into a governmental privilege.

Speech is regulated.

Firearms are regulated.

Marriage is regulated.

Assemblies are regulated.

Businesses are regulated.

Property is regulated.

The existence of regulation alone does not tell us whether the underlying interest originates with government.

Therefore, saying:

“Driving is regulated, therefore driving is merely a privilege”

begs the very question requiring examination.

Frost & Frost: Government Cannot Manufacture Unlimited Power Through Conditions

The Supreme Court's decision in Frost & Frost Trucking Co. v. Railroad Commission, 271 U.S. 583 (1926) takes this issue even deeper.

The case involved a private carrier operating for compensation.

California attempted to condition the carrier's continued highway operation upon accepting obligations associated with common-carrier status.

The Supreme Court rejected that arrangement.

The Court assumed for purposes of the case that the state could deny the privilege of using its highways for private carriage for hire, yet nevertheless held that government could not condition that privilege upon surrendering constitutional protections.

The Court explained that government cannot accomplish indirectly, through a condition, what the Constitution prevents it from accomplishing directly.

That principle transcends trucking.

It speaks to the entire relationship between government licensing and constitutional liberty.

Government cannot manufacture unlimited constitutional authority merely by announcing:

“This activity is a privilege.”

A label cannot substitute for constitutional analysis.

The inquiry must always remain:

What authority does government possess?

What interest is being regulated?

What condition has been imposed?

And does that condition exceed the lawful authority underlying the regulatory scheme?

Robertson v. Department of Public Works

Washington gives us perhaps one of the clearest articulations of the private/commercial distinction in Robertson v. Department of Public Works, 180 Wash. 133, 39 P.2d 596 (1934).

The majority stated:

“We know of no inherent right in one to the use of the highways for commercial purposes.”

Notice the qualification.

For commercial purposes.

The court then relied upon the proposition that highways are public property whose primary and preferred use is for private purposes, while their use for purposes of gain constitutes a special and extraordinary use subject to greater legislative control.

Read that carefully.

The court was not describing private highway use as the extraordinary privilege.

It was describing use for gain as extraordinary.

The primary use was private.

That is precisely the historical distinction I believe has become obscured.

And Justice Tolman's separate writing in Robertson contains one of the most profound warnings in American highway jurisprudence.

Tolman warned that freedom of the highways was so deeply embedded within American life that people had nearly forgotten the historical dangers of allowing governmental power gradually to encroach upon it.

His warning was not really about automobiles.

It was about liberty.

It was about what happens when the people become accustomed to government converting ancient liberties into administratively dispensed permissions.

That warning deserves renewed attention.

But Hendrick v. Maryland Must Be Confronted

A serious legal argument cannot simply collect favorable language while avoiding contrary authority.

That has never interested me.

If we want to understand the law at an advanced level, we must confront the strongest authority on the opposing side.

And here that authority begins with Hendrick v. Maryland, 235 U.S. 610 (1915).

Hendrick is important because it predates many of the commercial-highway cases discussed above.

Maryland imposed registration and licensing requirements upon motor vehicles and operators generally.

The United States Supreme Court sustained reasonable motor-vehicle licensing and registration requirements as exercises of state police power and concluded that such requirements did not impermissibly interfere with interstate passage.

That decision means we cannot responsibly say:

“Early driver's-license laws exclusively applied to commercial operators.”

They did not.

At least some general operator-licensing systems existed early in the automobile era and survived constitutional challenge.

That fact must be incorporated into the analysis.

But Hendrick does not erase the distinction developed in Packard, Frost, Hadfield, Seattle Taxicab, Robertson, and related cases.

Instead, I believe Hendrick reveals the real constitutional question.

The Question Is Not Whether the State May Regulate

The correct question is not:

“Can government impose any requirements upon someone operating an automobile?”

Hendrick makes the answer largely obvious.

The state possesses police authority to regulate motor vehicles.

The deeper question is:

How far can regulation of the manner of exercising a preexisting liberty extend before government has effectively converted the underlying liberty itself into a privilege dependent upon prior governmental permission?

That is a different inquiry.

And it is the inquiry I believe modern Right to Travel analysis should begin asking.

The Modern Right to Travel and the Automobile Are Not Identical Doctrines

We must also distinguish the constitutional right to interstate travel from a claimed constitutional right to personally operate a particular mode of transportation without regulation.

The Supreme Court has repeatedly recognized interstate travel as a fundamental constitutional liberty.

In Saenz v. Roe, 526 U.S. 489 (1999), the Court identified at least three aspects of that right: entering and leaving another state, being treated as a welcome visitor while temporarily present there, and receiving equal treatment upon becoming a resident.

But modern courts generally refuse to equate the constitutional right to travel with an unrestricted right personally to operate an automobile.

The Ninth Circuit's decision in Miller v. Reed, 176 F.3d 1202 (9th Cir. 1999) is a prime example.

There, the court reasoned that denying one particular mode of transportation—personally driving an automobile—did not by itself unconstitutionally impair the broader constitutional right of interstate travel.

Again, I believe intellectual honesty requires acknowledging that authority.

But Miller answers a narrower question than many people assume.

It says that the constitutional right of interstate migration does not necessarily guarantee every chosen means of transportation free from licensing requirements.

It does not erase the historical distinction between ordinary highway use and commercial exploitation of the highway.

Nor does it render meaningless the constitutional difference between regulating conduct and redefining the source of the underlying liberty.

Even a Driver's License Is Not a Constitution-Free Zone

The Supreme Court's decision in Bell v. Burson, 402 U.S. 535 (1971) is instructive here.

The Court did not hold that everyone possesses an unqualified constitutional right to receive a driver's license.

It nevertheless held that once issued, a driver's license implicates important interests and cannot simply be suspended without constitutionally adequate procedural protections.

The Court observed that continued possession of a license may become essential to the pursuit of one's livelihood.

That alone demonstrates why simplistic terminology such as “mere privilege” can obscure more than it explains.

Modern constitutional doctrine recognizes protected interests even within heavily regulated licensing schemes.

The question therefore cannot end with a label.

The Contract Argument Requires Proper Recognition

Another common Right to Travel argument recognizes that obtaining a driver's license creates a contractual or consensual legal relationship with the state, and that one who affirmatively declines that relationship cannot simply be presumed to have voluntarily entered it.

I believe that principle is fundamental.

Government cannot manufacture consent merely by declaring that consent is mandatory. Nor can the absence of consent be transformed into consent simply because refusal carries a statutory penalty.

The deeper question is not whether every statute itself constitutes a bilateral private contract. The question is whether government can compel an individual to enter a licensed legal status—complete with conditions, obligations, duties, liabilities, and continuing administrative control—when that individual expressly declines to request or accept the privilege being offered.

For that reason, I do center part of the inquiry upon the statement:

“I never contracted with the DMV.”

But that statement must be understood in its fuller legal context.

The issue concerns consent, assent, status, jurisdiction, classification, legislative authority, and constitutional limitation.

Did I voluntarily apply for the privilege?

Did I knowingly enter the licensed status?

Did I accept the benefits and corresponding obligations of that regulatory relationship?

Am I engaging in conduct that independently places me within the class the legislature lawfully intended to regulate?

What activity has the legislature actually regulated?

How has that activity been defined?

What class of persons does the statute reach?

What jurisdictional facts must exist before the statutory scheme attaches?

Is the conduct private or commercial?

Is the highway merely being used for ordinary passage, or has it become the situs and instrumentality of a transportation business?

Is government regulating harmful conduct and public safety?

Is it regulating commercial exploitation of public infrastructure?

Or has a regulatory system originally grounded in distinguishable classes and purposes expanded to the point that an antecedent liberty is now presumed to be unlawful unless the individual first petitions government for permission?

Those questions do not move beyond contract.

They reveal why contract, consent, jurisdiction, and constitutional authority must be examined together.

If government claims that I am bound by the duties and liabilities of a licensed relationship despite my express refusal to enter that relationship, then it must identify the lawful source of authority that permits it to impose that status without my assent.

A statute cannot answer that question merely by referring back to itself.

The constitutional inquiry remains:

What lawful authority allows government to convert peaceful private conduct into a privilege that requires my consent, and then punish me because I refuse to give that consent?

Words of Art Still Matter

This does not mean the historical definitions of driver, operator, motor vehicle, carrier, passenger, transportation, for hire, commerce, or highway are irrelevant.

Quite the opposite.

They matter tremendously.

Law operates through classification.

A statute must be read according to its text, definitions, structure, context, history, and subject matter.

Words of art acquire meaning from the statutory system in which they operate.

What I reject is the shortcut of pulling one word from one dictionary and treating it as though it conclusively determines every motor-vehicle statute in every jurisdiction.

The better method is far more exacting.

Read the whole act.

Identify the object of the legislation.

Trace its statutory ancestry.

Determine which activities were originally regulated.

Determine which classifications were added later.

Examine how the legislature defined the relevant terms during each period.

Compare those definitions against contemporaneous judicial decisions.

And then determine whether modern enforcement corresponds with the actual legislative and constitutional foundation of the statute.

That is statutory interpretation.

That is historical analysis.

And that is much harder to dismiss.

The Whole Act Matters

One of the largest errors in contemporary traffic litigation is reading isolated statutory definitions without reconstructing the legislative scheme as a whole.

A word obtains meaning from context.

The Supreme Court has repeatedly employed what is commonly called the whole-act rule: statutory language is understood in relation to surrounding provisions and the overall statutory structure.

That approach becomes particularly significant when dealing with laws that evolved over generations.

Motor-vehicle codes did not descend from heaven in their present form.

They developed incrementally.

Commercial transportation.

Vehicle registration.

Road maintenance.

Safety regulations.

Operator competency.

For-hire carriage.

Financial responsibility.

Licensing.

Insurance.

Suspension schemes.

Administrative enforcement.

Criminal penalties.

Each development arose from a particular governmental concern.

The serious researcher therefore asks:

What power was originally being exercised, and how did the statutory scheme evolve from there?

Ordinary Travel and Commercial Highway Use Are Not the Same Thing

The historical cases make one proposition especially difficult to deny:

There was a recognized distinction between an individual's ordinary use of the highway and the use of that highway as an instrumentality of private commercial gain.

Hadfield said the highways exist for the ordinary and customary use of the public.

Seattle Taxicab emphasized that the highway is a passageway for all people while commercial appropriation for private gain is subject to greater regulation.

Packard distinguished carrying passengers for hire from motorists operating for their own private ends.

Frost distinguished regulation of the highway from regulation of the business conducted upon it and imposed constitutional limits upon governmental conditions.

Robertson described private use as the primary and preferred highway use while characterizing use for purposes of gain as special and extraordinary.

Those authorities do not establish that every private motorist today is automatically exempt from driver's-license statutes.

But neither can they intellectually be reduced to nothing.

They preserve a historical distinction that deserves far greater attention.

The Question I Believe We Should Be Asking

For me, the Right to Travel discussion has therefore evolved.

I am no longer satisfied with the statement:

“Black's says a driver is one employed.”

There is truth behind why that definition attracted attention.

But the historical doctrine is deeper.

The real inquiry is this:

How did American law move from recognizing ordinary highway use as the primary public use, while treating commercial appropriation of the highway as extraordinary and permissive, to the modern assumption that personally controlling the ordinary conveyance of the age is itself simply a privilege granted by government?

That question cannot be answered with a meme.

It cannot be answered with a dictionary definition.

And it cannot be answered merely by repeating:

“Driving is a privilege.”

It requires historical reconstruction.

It requires statutory analysis.

It requires constitutional analysis.

It requires identifying what courts actually meant when they distinguished ordinary use, private use, commercial use, for-hire use, common-carrier use, and regulated motor-vehicle operation.

Regulation Is Not Ownership of Liberty

At the foundation of my position is a principle much larger than automobiles.

Government does not create every liberty it regulates.

A self-governing republic rests upon precisely the opposite understanding.

The people possess liberty antecedent to government.

Government is instituted to secure ordered liberty, protect the equal rights of others, preserve peace, and establish reasonable rules where competing exercises of liberty intersect.

That regulatory authority is substantial.

But it is not metaphysically unlimited.

The state may regulate the manner in which highways are used.

It may punish reckless conduct.

It may establish legitimate safety rules.

It may heavily regulate those who convert public highways into the operating infrastructure of commercial transportation enterprises.

But none of those propositions should prevent us from asking whether there remains a constitutional difference between:

regulating an existing liberty

and

requiring governmental permission before the liberty legally exists.

I believe there is.

And I believe the historical highway cases understood that distinction more clearly than much of today's simplified discourse suggests.

The Forgotten Line

The Right to Travel debate has spent too much time fighting over vocabulary and too little time reconstructing the legal architecture beneath the vocabulary.

“Driver.”

“Traveler.”

“Operator.”

“Motor vehicle.”

“Privilege.”

“Right.”

“Commercial.”

“Private.”

Those words matter.

But they matter because they reflect deeper legal classifications.

The forgotten line is not simply between a “driver” and a “traveler.”

The forgotten line is between:

the public's ordinary use of its highways

and

the special appropriation of those highways as the instrumentality of private commercial enterprise.

Once that distinction is restored, the historical record becomes considerably clearer.

The earliest cases did not uniformly reject licensing of private automobile operation. Hendrick prevents such an oversimplification.

Modern cases do not recognize an unlimited constitutional entitlement to personally drive an automobile free from licensing. Miller prevents that oversimplification as well.

But neither proposition eliminates the deeper constitutional inquiry.

The jurisprudence simultaneously preserves a powerful historical principle:

the highways belong to the public; ordinary public use and commercial exploitation were historically understood as legally distinct forms of activity; and governmental authority differed according to that distinction.

That is where I believe the modern research needs to go.

Not backward into slogans.

Forward into the statutes themselves.

Into the original motor-vehicle acts.

Into the legislative journals.

Into contemporaneous dictionaries.

Into common-carrier statutes.

Into police-power jurisprudence.

Into the progression of amendments that gradually produced today's motor-vehicle codes.

And ultimately into the constitutional question that sits beneath all of it:

At what point does the reasonable regulation of the exercise of liberty become the administrative conversion of liberty into permission?

That is the question worth pursuing.

And I believe answering it requires us to rediscover a distinction American courts once understood quite well:

the difference between traveling upon the people's highways and making the people's highways one's business.