First, consider the similarity and the difference between a
“right” and a “privilege” as they might apply to travel on public roads.
Definitions are from on-line dictionaries.
Right
A just claim or title, whether legal, prescriptive, or moral: You have a right to say what you please
Sometimes, rights – that which is due to anyone by just
claim, legal guarantees, moral principles, etc.: women's rights; Freedom of
speech is a right of all Americans. A just claim or title, whether legal, prescriptive, or moral: You have a right to say what you please
A moral, ethical, or legal principle considered as an
underlying cause of truth, justice, morality, or ethics.
PrivilegeA benefit, immunity, etc., granted under certain conditions
The advantages and immunities enjoyed by a small usually
powerful group or class, especially to the disadvantage of others; one of the
obstacles to social harmony is privilege
(Government, Politics and Diplomacy) any of the
fundamental rights guaranteed to the citizens of a country by its constitution
Discussion
Clearly, there are many similarities, but I’ll explain what I see as the fundamental difference. Namely, a “right” is something you enjoy as long as you don’t do something to cause reasonable curtailment of it. The classic example is “yelling ‘fire’ in a crowded theater.” On the other hand, a “privilege” is usually something you get when you fulfill the reasonably related preconditions. For example, taking a driving test, not being blind, and being able to show financial responsibility are usually considered to be “reasonable” preconditions to be able to drive. In other words, you do not have to do anything to enjoy free speech, but you are not allowed to simply drive a motor vehicle without satisfying some preconditions. Usually, driving a more dangerous vehicle adds restrictions – a heavy truck driver needs to know extra stuff to bring the risk to others down. Just as your right to free speech can be curtailed due to abuse, your privilege to drive can be curtailed due to abuse. If you habitually crash into people or “hit and run,” people can and do suffer sanctions, just as if they misuse their right to bear arms or misuse their free speech right to libel others.
Clearly, there are many similarities, but I’ll explain what I see as the fundamental difference. Namely, a “right” is something you enjoy as long as you don’t do something to cause reasonable curtailment of it. The classic example is “yelling ‘fire’ in a crowded theater.” On the other hand, a “privilege” is usually something you get when you fulfill the reasonably related preconditions. For example, taking a driving test, not being blind, and being able to show financial responsibility are usually considered to be “reasonable” preconditions to be able to drive. In other words, you do not have to do anything to enjoy free speech, but you are not allowed to simply drive a motor vehicle without satisfying some preconditions. Usually, driving a more dangerous vehicle adds restrictions – a heavy truck driver needs to know extra stuff to bring the risk to others down. Just as your right to free speech can be curtailed due to abuse, your privilege to drive can be curtailed due to abuse. If you habitually crash into people or “hit and run,” people can and do suffer sanctions, just as if they misuse their right to bear arms or misuse their free speech right to libel others.
Eroded Right
Until motor vehicles, nobody got licensed to operate vehicles. You didn’t get an “equestrian license” or a “cycling license.” It isn’t that government never tried to regulate such things, but the courts took a dim view of curtailments on a “right to travel.” It was presumed that all people had opportunity to travel the public roads without unreasonable constraint. The Constitution’s “Commerce Clause” extended this to include unfettered movement between the states. This all changed with the advent of the motor vehicle. Why did the courts change course? Until the advent of motor vehicles, no transport arose that used the public roads (railroads travelled on privately owned tracks) and also presented a unique danger to other road users due to a combination of very high speed and very high mass. Because of the danger, the courts felt it was reasonable to treat motor vehicle operation as a privilege. You should note that the word “privilege” shouldn’t be considered as some “special favor” from the government. In reality, if you fulfill reasonable conditions and don’t abuse them, you DO get to drive. In that way, driving IS like a right. In truth, the only way it differs from things like the right to free speech is you have to fulfill reasonable conditions first.
But, the camel had gotten its nose into the tent.Until motor vehicles, nobody got licensed to operate vehicles. You didn’t get an “equestrian license” or a “cycling license.” It isn’t that government never tried to regulate such things, but the courts took a dim view of curtailments on a “right to travel.” It was presumed that all people had opportunity to travel the public roads without unreasonable constraint. The Constitution’s “Commerce Clause” extended this to include unfettered movement between the states. This all changed with the advent of the motor vehicle. Why did the courts change course? Until the advent of motor vehicles, no transport arose that used the public roads (railroads travelled on privately owned tracks) and also presented a unique danger to other road users due to a combination of very high speed and very high mass. Because of the danger, the courts felt it was reasonable to treat motor vehicle operation as a privilege. You should note that the word “privilege” shouldn’t be considered as some “special favor” from the government. In reality, if you fulfill reasonable conditions and don’t abuse them, you DO get to drive. In that way, driving IS like a right. In truth, the only way it differs from things like the right to free speech is you have to fulfill reasonable conditions first.
Before you knew it, “privilege” had gotten twisted around.
On the one hand, it enticed lawmakers into putting ever less relevant
restrictions on driving. “Driving is a privilege, not a right!” On the other
hand, it lured militants to either rail about their “right” or else to demand licensing
be extended to other road users such as cyclists. Really, now, the degree of
danger that a 200lb vehicle at 20mph presents to others is not very comparable
to the danger to others that a 4000lb vehicle at 60mph presents. The fatality
data backs that up.
Sadly, in all the discussion and governmental rush to
regulate, the REAL right got clouded. Namely, the right of the public to travel
on public roadways without having to purchase particular means of doing so. In some
ways, it is like the health care mandate that faces us in the next few years to
come. The model of the railroad could have been applied – uniquely dangerous
transportation travels on its own private infrastructure (ever heard of toll
roads?), but we chose a different path. A principle of free movement was
extended to facilitate easier commerce and greater road throughput, and even
the Commerce Clause got twisted around. Rather than prohibiting dangerous forms
of transport, the ones hurt or killed by the dangerous transport were first
regulated and then banned from many roadways. As in many other areas, the
notion that reasonable regulation should be “restrict us from killing others”
became “protect us against our own actions.” In some cases, people were left
with no reasonable way to travel from point to point unless they purchased a
car. Pretty soon, people that did not do so were accused of endangering
themselves, and scare stories accelerated a trend towards driving.
What Now?
Well, personally, I’m not an advocate. However, I know DARN sure that I will not vote for people that want to unreasonably restrict my ability to travel. That INCLUDES choices that make it impossible for me to get places unless I spend money. That INCLUDES restrictions on motor vehicle users that are unrelated to keeping them from killing others. Can you say “click it or ticket?” I really can’t support restrictions on my motorists under the cloak of their driving “privilege” except where those restrictions directly relate to the safety of those in danger as a RESULT of poor or irresponsible motor vehicle operation.
Well, personally, I’m not an advocate. However, I know DARN sure that I will not vote for people that want to unreasonably restrict my ability to travel. That INCLUDES choices that make it impossible for me to get places unless I spend money. That INCLUDES restrictions on motor vehicle users that are unrelated to keeping them from killing others. Can you say “click it or ticket?” I really can’t support restrictions on my motorists under the cloak of their driving “privilege” except where those restrictions directly relate to the safety of those in danger as a RESULT of poor or irresponsible motor vehicle operation.
Nice post Steve! I have to re-read it and think about it for a while but well said for sure.
ReplyDeleteI'll have to go back and take another look at that section in the Mionske book (Bicycling and the Law). I know he talked about the right of travel quite a bit. I do recall that he said that it's interstate travel that has been affirmed in the courts, with intrastate being implied--it's hard to imagine how you could go about interstate without the right to intrastate, logically.
ReplyDeleteGreat analysis, Steve. My perspective is that travel is only one example among thousands (which isn't to imply it isn't fundamentally important). When we hand over responsibility, we trade it for tyranny.
ReplyDeleteRemember I wrote a post titled "Cycling is a Civil Right." However, it's not just the bugaboo of "big government" (Cue scary music). It's the evolution of transportation and the widespread acceptance by the majority of modes of transport that do not make them arrive sweaty and out of breath. Widespread along with this are their massively spreading asses from never getting out of breath and sweating, but the motor vehicle would have taken over in any case. If all motorways were toll roads we would still have to have a complete network serving all points for the non-motorized citizen, taxed accordingly to cover costs.
ReplyDeleteIncidentally there is no health care mandate. It's a health insurance mandate, and that's what makes it unacceptable. Insurance in many ways is the opposite of care as insurance companies try to limit their liabilities by denying as much actual care as possible. There should either be single payer universal coverage or nothing at all.