Actions Of Police And Local Courts, Higher Courts Have Ruled That
American Citizens Have A Right To Travel Without State Permits
Jack McLamb, (from Aid & Abet Newsletter)
the criminal justice system have acted on the belief that traveling by
motor vehicle was a privilege that was given to a citizen only after
approval by their state government in the form of a permit or license
to drive. In other words, the individual must be granted the privilege
before his use of the state highways was considered legal.
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:
“The right of a citizen to travel upon the public highways
and to transport his property thereon in the ordinary course of life
and business is a common right which he has under his right to enjoy
life and liberty, to acquire and possess property, and to pursue
happiness and safety. It includes the right in so doing to use the
ordinary and usual conveyances of the day; and under the existing modes
of travel includes the right to drive a horse-drawn carriage or wagon
thereon, or to operate an automobile thereon, for the usual and
ordinary purposes of life and business. It is not a mere privilege,
like the privilege of moving a house in the street, operating a
business stand in the street, or transporting persons or property for
hire along the street, which a city may permit or prohibit at
will.” – Thompson v. Smith
155 Va. 367,154 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
“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
U.S. 116, 125
“The right to travel, to go from place to place as the means
of transportation permit, is a natural right subject to the rights of
others and to reasonable regulation under law. A restraint imposed by
the Government of the United States upon this liberty, therefore, must
conform with the provision of the Fifth Amendment that ‘No
person shall be . . . deprived of . . . liberty . . . without
process of law’.” – Schactman
, 96 App DC 287, 225 F.2d 938, at 941
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.
Is this a new legal interpretation on this subject? Apparently not.
This means that the beliefs and opinions our state legislators, the
courts, and those in law enforcement have acted upon for years have
been in error. Researchers armed with actual facts state that case law
is overwhelming in determining that to restrict the movement of the
individual in the free exercise of his right to travel is a serious
breach of those freedoms secured by the U.S. Constitution and most
That means it is unlawful.
The revelation that the American citizen has always had the inalienable
right to travel raises profound questions for those who are involved in
making and enforcing state laws.
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?
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
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.”
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
22, at 24 (1923)
“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,
“The claim and exercise of a constitutional right cannot thus
be converted into a crime.” – Miller v.
, 230 F.2d 486, at 489 (1956)
“. . .there can be no sanction or penalty imposed upon one
because of his exercise of constitutional rights.”
– Sherar v.
, 481 F.2d 946 (1973)
We could go on, quoting court decision after court decision; however,
the Constitution itself answers our question - Can a government legally
put restrictions on the rights of the American people at anytime, for
The answer is found in Article Six of the U.S. Constitution:
“This Constitution, and the Laws of the United States which
shall be made in Pursuance thereof;...shall be the supreme Law of the
Land; and the Judges in every State shall be bound thereby, any Thing
in the Constitution or laws of any State to the Contrary
In the same Article, it says just who within our government that is
bound by this Supreme Law:
“The Senators and Representatives before mentioned, and the
Members of the several State Legislatures, and all executive and
judicial Officers, both of the United States and of the several States,
shall be bound by Oath or Affirmation, to support this
Here’s an interesting question. Is ignorance of these laws an
excuse for such acts by officials?
If we are to follow the letter of the law, (as we are sworn to do),
this places officials who involve themselves in such unlawful acts in
an unfavorable legal situation. For it is a felony and federal crime to
violate or deprive citizens of their constitutionally protected rights.
Our system of law dictates that there are only two ways to legally
remove a right belonging to the people.
These are (1) by lawfully amending the constitution, or (2) by a person
knowingly waiving a particular right.
Some of the confusion in our present system has arisen because many
millions of people have waived their right to travel unrestricted and
volunteered into the jurisdiction of the state. Those who have
knowingly given up these rights are now legally regulated by state law
and must acquire the proper permits and registrations.
There are basically two groups of people in this category:
1) Citizens who involve themselves in commerce upon the highways of the
Here is what the courts have said about this:
“...For while a citizen has the right to travel upon the
public highways and to transport his property thereon, that right does
not extend to the use of the highways...as a place for private gain.
For the latter purpose, no person has a vested right to use the
highways of this state, but it is a privilege...which the (state) may
grant or withhold at its discretion...” –
State v. Johnson
75 Mont. 240, 243 P. 1073 (1926)
There are many court cases that confirm and point out the difference
between the right of the citizen to travel and a government privilege
and there are numerous other court decisions that spell out the
jurisdiction issue in these two distinctly different activities.
However, because of space restrictions, we will leave it to officers to
research it further for themselves.
(2) The second group of citizens that is legally under the jurisdiction
of the state are those citizens who have voluntarily and knowingly
waived their right to travel unregulated and unrestricted by requesting
placement under such jurisdiction through the acquisition of a state
driver’s license, vehicle registration, mandatory insurance,
etc. (In other words, by contract.)
We should remember what makes this legal and not a violation of the
common law right to travel is that they knowingly volunteer by contract
to waive their rights. If they were forced, coerced or unknowingly
placed under the state’s powers, the courts have said it is a
clear violation of their rights.
This in itself raises a very interesting question. What percentage of
the people in each state have applied for and received licenses,
registrations and obtained insurance after erroneously being advised by
their government that it was mandatory?
Many of our courts, attorneys and police officials are just becoming
informed about this important issue and the difference between
privileges and rights.
We can assume that the majority of those Americans carrying state
licenses and vehicle registrations have no knowledge of the rights they
waived in obeying laws such as these that the U.S. Constitution clearly
states are unlawful, i.e. laws of no effect – laws that are
not laws at all.
An area of serious consideration for every police officer is to
understand that the most important law in our land which he has taken
an oath to protect, defend, and enforce, is not state laws and city or
county ordinances, but the law that supersedes all other laws
– the U.S. Constitution. If laws in a particular state or
local community conflict with the supreme law of our nation, there is
no question that the officer’s duty is to uphold the U.S.
What does this mean to the “patrol officer” who
will be the only sworn “Executive Officer” on the
scene, when knowledgeable Citizens raise serious objections over
possession of insurance, drivers licenses and other restrictions? It
definitely means these officers will be faced with a hard decision.
(Most certainly if that decision effects state, city or county
revenues, such as the issuing of citations do.)
Example: If a state legislator, judge or a superior tells a police
officer to proceed and enforce a contradictory, (illegal), state law
rather than the Supreme Law of this country, what is that
“sworn officer” to do? Although we may not want to
hear it, there is but one right answer, - “the officer is
duty bound to uphold his oath of office” and obey the highest
laws of the nation. This is our sworn duty and it’s the law!
Such a strong honest stand taken by a police officer, upholding his or
her oath of office, takes moral strength of character. It will, without
question, “separate the men from the boys.” Such
honest and straight forward decisions on behalf of a government
official have often caused pressure to be applied to force such
officers to set aside, or compromise their morals or convictions.
As a solace for those brave souls in uniform that will stand up for law
and justice, even when it’s unpopular, or uncomfortable to do
so...let me say this. In any legal stand-off over a sworn official
“violating” or “upholding”
their oath of office, those that would side with the
“violation” should inevitable lose.
Our Founding Fathers assured us, on many occasions, the following:
Defending our freedoms in the face of people that would for
“expedients sake,” or behind the guise,
“for the safety and welfare of the masses,” ignore
peoples rights, would forever demand sacrifice and vigilance from those
that desired to remain free. That sounds a little like -
“Freedom is not free!”
Every police officer should keep the following U.S. court ruling
– discussed earlier – in mind before issuing
citations concerning licensing, registration, and insurance:
“The claim and exercise of a constitutional right cannot thus
be converted into a crime.” – Miller v.
., 230 F.2d 486, at 489 (1956)
And as we have seen, traveling freely, going about one’s
daily activities, is the exercise of a most basic right.
For an updated interpretation of the meaning of
article, click this link and read our article “Updated
Significance of Jack McLamb’s Article
If you would like to learn more about concepts of law so you
the whole mess without having to “appear” in court,
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