Before the Driver's License

In the spring of 1867 a stagecoach operator named William Crandall was arrested in Nevada for refusing to pay a state tax of one dollar on every person leaving the state by railroad or stagecoach. He took his case to the Supreme Court and won. In Crandall v. Nevada, 73 U.S. (6 Wall.) 35 (1868), the Court held that citizens have a right to come to the seat of national government, to pass through the states, and to move freely across the country, and that a state could not tax the act of leaving it.

Fifty years later, a Washington, D.C. resident named John Hendrick drove his automobile into Prince George's County, Maryland, without having registered it in Maryland or obtained a Maryland license. He was fined. He too went to the Supreme Court, arguing that Maryland's law burdened interstate travel and commerce. In Hendrick v. Maryland, 235 U.S. 610 (1915), he lost. A state, the Court held, may require registration and licensing of motor vehicles and their operators, including nonresidents, as a reasonable regulation of its highways for safety and maintenance.

Between those two decisions lies the story of how the freedom to move across America remained a constitutional right while the act of operating a machine on a public road became a licensed activity. At what point did that happen — and why?

Roads Before Automobiles

For most of American history, travel on public roads was largely unregulated at the level of the individual traveler. Roads were maintained through local labor obligations — many states required able-bodied men to work a number of days each year on the highways or pay a fee — and through turnpike companies that charged tolls. Towns adopted rules for speeding horses, obstructing streets, and hitching posts. Commercial carriers were often licensed: cab drivers, draymen, stage lines and ferries were classic examples of businesses operating under municipal or state license. But a farmer driving his own wagon to market did not need a license to do so.

The common law treated public highways as open to all for passage. Courts and treatise writers described a common right to use them, subject to the duty to use them reasonably and without endangering others. That common right is the source of the language, still quoted today, that travel on the highways is "not a mere privilege." The fuller passages in those decisions, however, almost invariably add that the right is subject to reasonable regulation in the public interest.

The Automobile Arrives

The motor car changed the calculus quickly. Early automobiles were fast, heavy, frightening to horses, and frequently driven by people with no training. Fatalities rose. Local governments responded first: Chicago adopted an ordinance in 1899 requiring operators of motor vehicles to pass an examination, and other cities followed with their own rules.

States soon took over. New York required owners to register automobiles in 1901, an early example of state registration with identifying marks. In 1903 Massachusetts and Missouri adopted licensing requirements for drivers, though early licenses often required no examination at all — they functioned more as registries of who was driving. Driving tests spread slowly; many states did not require examinations until the 1930s or later, and South Dakota is commonly cited as the last state to adopt a driver's license requirement, in 1959.

Federal policy reinforced the trend. The Federal Aid Road Act of 1916 began large-scale federal funding of state highways, conditioned on states having highway departments. The Uniform Vehicle Code, developed beginning in the 1920s by a national committee that Herbert Hoover convened as Secretary of Commerce, offered states model rules for licensing, registration and traffic. By mid-century, licensing, registration, and uniform traffic laws were nearly universal.

The Courts Confront the License

Motorists challenged the new rules almost immediately, and the pattern of the decisions is consistent.

Hendrick v. Maryland (1915) upheld state licensing and registration even as applied to interstate drivers, describing the motor vehicle as a dangerous machine whose use on public highways the state could regulate in the interest of safety.

Kane v. New Jersey, 242 U.S. 160 (1916), upheld New Jersey's requirement that nonresident motorists register and appoint the Secretary of State as their agent for service of process.

Hess v. Pawloski, 274 U.S. 352 (1927), upheld a Massachusetts statute providing that a nonresident who drove on its highways was deemed to consent to service of process for accidents there — an early example of the state attaching legal consequences to the act of driving.

Reitz v. Mealey, 314 U.S. 33 (1941), upheld a New York law suspending the license of a driver who failed to satisfy an accident judgment, describing the use of public highways by motor vehicles as subject to state regulation and licensing. (The Court later rejected a separate part of Reitz's reasoning in Perez v. Campbell, 402 U.S. 637 (1971), which held that a similar statute conflicted with federal bankruptcy discharge.)

Bell v. Burson, 402 U.S. 535 (1971), marked a significant limit in the other direction. Georgia suspended an uninsured minister's license after an accident without any hearing on fault. The Court held that once licenses are issued, they become essential to the pursuit of a livelihood and cannot be taken away without procedural due process. Whether the license is called a "right" or a "privilege" does not control. (See our Judicial Archive entry, Bell v. Burson (1971).)

The Right to Travel Did Not Disappear

While states were licensing drivers, the Supreme Court was strengthening the constitutional right of interstate travel. In Edwards v. California, 314 U.S. 160 (1941), it struck down a law criminalizing bringing indigent nonresidents into the state. In Kent v. Dulles, 357 U.S. 116 (1958), it recognized the right to travel abroad as part of the "liberty" protected by the Fifth Amendment. In Shapiro v. Thompson, 394 U.S. 618 (1969), it struck down durational residency requirements for welfare. And in Saenz v. Roe, 526 U.S. 489 (1999), it described the right to travel as having three components: the right to enter and leave another state, the right to be treated as a welcome visitor while temporarily present, and, for those who become permanent residents, the right to be treated like other citizens of that state.

What none of these cases recognizes is a right to a particular mode of travel free from regulation. Federal courts of appeals have repeatedly said so directly: burdens on a single mode of transportation, such as a license requirement or suspension, do not violate the constitutional right to travel, because the person remains free to travel by other means. A licensed driver, an unlicensed passenger, a bus rider and a pedestrian all enjoy the same constitutional freedom of movement.

The "Traveling, Not Driving" Argument

A long-circulating theory holds that a private person "traveling" in his own automobile for non-commercial purposes is not "driving" or "operating a motor vehicle" within the meaning of licensing laws, which on this view apply only to commercial carriers. Proponents often cite older cases about the common right to use highways and statutes defining terms in commercial transportation codes.

Courts have rejected this argument in every reported decision we are aware of. The licensing statutes apply by their terms to the operation of motor vehicles on public highways, not only to commercial carriers; the older cases recognizing a common right to use the highways also recognized the state's authority to regulate how that right is exercised. We examined the commercial-travel claim and the contract theory of licensing separately in When Travel Is Treated as Non-Commercial Activity and Is a Driver's License a Contract?

The historical record does show something real underneath the argument: commercial carriers were licensed long before private drivers, and private travel was once largely free of permission requirements. The change was a deliberate legislative choice in response to the automobile, upheld by the courts — not a misreading of statutes that never applied.

Why the Shift Happened

The documented reasons given by legislators and courts were consistent:

• Safety. Motor vehicles were described, repeatedly, as dangerous machines capable of great harm at speed.
• Identification and accountability. Registration plates and licenses allowed victims to identify drivers and owners, and allowed states to attach financial responsibility to driving.
• Road finance. Registration fees, and later fuel taxes, financed the enormous expansion of paved highways.
• Coordination. Uniform rules of the road were needed once drivers routinely crossed jurisdictional lines.

Critics at the time and since have raised different concerns: the growth of revenue-driven enforcement, the use of license suspension for unpaid fines unrelated to safety, and the practical exclusion from mobility of people who cannot obtain or keep a license. Several states have in recent years ended license suspensions for unpaid court debt, a policy debate that continues.

Doctrine, Interpretation, and Open Questions

Documented: a constitutional right of interstate travel recognized since at least Crandall; state power to license and register motor vehicles and drivers upheld since Hendrick; procedural due process protections for issued licenses under Bell v. Burson.

Interpretation: whether the language of "privilege" used in older licensing cases accurately describes a modern necessity of economic life remains a live academic and policy question.

Unsupported: the claim that licensing statutes do not apply to private, non-commercial operation of automobiles on public highways.

Conclusion

Operating a vehicle on a public road became an activity requiring government permission at a specific historical moment — roughly 1900 to 1930 — when legislatures confronted a new and dangerous machine and courts upheld their power to regulate it. The freedom William Crandall vindicated in 1868 survived intact: Americans may move across state lines without a tax, a passport or permission. What changed was the means. The right to go remained. The right to drive yourself there became licensed.

Sources & Further Inquiry

• Crandall v. Nevada, 73 U.S. (6 Wall.) 35 (1868).
• Hendrick v. Maryland, 235 U.S. 610 (1915).
• Kane v. New Jersey, 242 U.S. 160 (1916); Hess v. Pawloski, 274 U.S. 352 (1927).
• Reitz v. Mealey, 314 U.S. 33 (1941); Perez v. Campbell, 402 U.S. 637 (1971).
• Bell v. Burson, 402 U.S. 535 (1971).
• Edwards v. California, 314 U.S. 160 (1941); Kent v. Dulles, 357 U.S. 116 (1958); Shapiro v. Thompson, 394 U.S. 618 (1969); Saenz v. Roe, 526 U.S. 489 (1999).
• Federal Aid Road Act of 1916, 39 Stat. 355.
• Federal Highway Administration, Highway Statistics Summary to 1995 (historical motor-vehicle registration and driver-licensing tables).

Continue the Inquiry

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