Driving is Not a Right: It’s a Privilege

by Gerard Magliocca · February 8, 2015

This is a common phrase that deserves more attention. I don’t where the idea came from originally, though most state DMVs and driving test manuals include something like that statement. I find the expression interesting for a couple of reasons.

1. The terms “right” and “privilege” were used interchangeably for most of our history. Even now, that is often the case. Take the privilege against self-incrimination or the Privileges or Immunities Clause of the Fourteenth Amendment. Many people, though, now think that there is a difference between those things as a result of this phrase.

2. How is driving different from entitlements? The state can charge drivers a fee for licenses, which is not true for a fundamental right like voting. If states waive license fees for the indigent, though, then a driver’s license is not different from many other rights. (I don’t know how many states do this.) Another thought, of course, is that you have to pass a written and road test to drive. How many people never manage to pass those though? Probably very few. If the driver’s test was like the bar exam, that would be one thing. Otherwise, the test does not seem like much of a practical barrier on driving.

Orin Kerr says:

February 8, 2015 at 7:49 pm

Of possible interest: http://constitution.org/lrev/roots/orphaned_right.pdf
Joe says:

February 8, 2015 at 9:00 pm

“privilege against self-incrimination”

I have for a while found this a troubling phrasing. This “privilege” is found among a range of “right” that generally are so phrased. I have not heard of the “privilege” of a grand jury trial or the “privilege” of just compensation before taking of property being used as common practice. Why the “privilege” to self-incrimination? I reckon there is a reason but seems to degrade it.

It is noted that “privilege” and “right” have long have been deemed to overlap (many think “privilege” and “immunity” should do the job of 14A incorporation of the Bill of “Rights.” As to failure of a test here, well, I do know someone (not me) who failed the first time around. It is true that most eventually manage to past it though the same might be said for various things. There are physical requirements to driving but that is also the case for jury service (e.g., to my knowledge the blind can be constitutionally denied entry to a jury).

Anyway, putting aside the article cited (one that many would agree with if you asked them), I take driving would be cited as a ‘liberty interest’ these days of some significance.
- Brett Bellmore says:
  
  February 9, 2015 at 5:22 am
  
  Speculating, maybe this distinguishes between what was thought to be an inherent right of Man, and pseudo-rights which were considered expedient to create and protect? But which could not be an inherent part of human nature, because they depend on government for their context.
  
  Even in a state of nature, you could speak, and so have a right to freedom of speech, could own property, and so have a right to it. But only the existence of the state creates the preconditions for a ‘right’ to vote being comprehensible. There’s no “incrimination” without laws to make things criminal, so a ‘right’ not to self-incriminate is equally artificial, being contingent on the existence of the state.
  
  At least, that’s my thought on the matter.
  - Joe says:
    
    February 9, 2015 at 11:00 am
    
    The division you speak of makes sense and reflects common understanding but why is self-incrimination singled out among a range of rights that arise from society? There is no grand jury is nature, e.g., juries a prime example of a fundamental right that arises from the existence of society. There should also be a “privilege” against double jeopardy, the jeopardy as much a result of the existence of a state criminalizing things as self-incrimination is. A jury is in fact arguably less a violation of natural or inherent rights than forcing someone to speak here. It is second level procedure.
Joe says:

February 8, 2015 at 9:03 pm

ETA: As usual, I apologize for any typos. I also note that the anti-spam word did not work in recent posts.
Mike Stern says:

February 9, 2015 at 12:01 am

Get back to me when you have a teenager.
dht says:

February 9, 2015 at 1:00 pm

I see privileges as things which are earned (i.e. privileged classes) whereas rights are granted through existence. Therefore, driving is a privilege because it requires that one pass a test and pay a fee. No matter how easy or trivial, it still requires some effort. Rights, such as Freedom of Speech, are granted simply because one is born in, or moved to, a country which grants such rights.
- Joe says:
  
  February 10, 2015 at 10:45 am
  
  I think rights by mere “existence” would be a sort of “natural” or “inherent” right, but I wonder — voting can require basic literacy, so is “voting rights” a misnomer? If a parade required a fee, would such an assembly become a mere “privilege”?
  
  Driving also doesn’t itself require a test. It is something that is done as a safety mechanism to protect the public.
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Paul M says:

February 22, 2015 at 12:33 pm

“Driving” is a term used in “Transportation” codes and regulations for control of ‘commerce’. It is different from ‘traveling’, which is a “God” given right that gov’t does not have the authority to regulate.. Your analysis is flawed.
Kylie Keough says:

March 4, 2015 at 3:25 am

I think driving is both a right and a privilege. A “right” that can be acquired through test and exam. Passing those requirements will enable you to have license. On the other hand, a “privilege” to some because they are able to purchase an automobile. They will have the luxury of travelling from one place to the other in a short period of time. It’s up to you on how you are going to handle both this right and privilege but if you ever find yourself in an accident, do not hesitate to get the services of a reputable lawyer at Accident Attorney Help.