The Gnome of Strawberry Plains has been cited to court for driving without a license, opening the prospect for a renewed effort to show that Tennessee’s driver license regime, out of respect for the state bill of rights, is voluntary and seeks to avoid offending people who use the public roadways as a matter of right.
By David Tulis / 92.7 NoogaRadio
The gnome, 70, a carpenter and Christian who uses a pickup truck, was hauled to the side of the road March 28 on grounds that he’d not been wearing a seatbelt. He was cited to sessions court for driving without a license. He says he’ll exercise his right to an indictment. (Update: the charge is driving on a suspended license. But the Gnome says he did not have a license that could have been suspended, so wonders what the record will show about how the department gave him a license apart from application, and suspended it.)
The state government he faces uses legal fictions and sleights of hand to trick the people into waiving their rights and enter their scheme of government licensure. A government license is, he suspects, different from a privilege or occupational license such as that granted accountants and engineers. The driver license regime exists purely for control and surveillance, as it enforces a state imposition against a basic constitutional right, that of the right to travel. It obviates and deletes that right, and has become so much of the culture that few people believe any freedom exists in the domain of personal transportation.
Driver’s licenses are government licenses purely in exercise of police power, and are not genuine privileges, such as lawyering and doctoring have become through various state-created boards that limit and regulate access to these fields of human service.
The regime overseen by the Department of Safety and Homeland Security pretends to be exhaustive and to totally forbid use of the public roads by individuals in self-propelled automobiles using gasoline or diesel engines. I refer here to the regime as practiced, not necessarily to the regime established in the law.
2 statutes control — or do they?
In practice towns, counties and the state enforce the state monopoly of roadway use. But the law tells a different story, for the person willing to read it. The gnome probably will be charged under the “exhibit on demand” statute, TCA 55-50-351. It applies to “every licensee,” and in its wooden and cheerless way opens as follows: “Every licensee shall have such licensee’s license in immediate possession at all times when operating a motor vehicle” and shall show it “upon demand of any officer.”
But notice to whom this law applies. To every licensee. How can someone be charged as a licensee when he’s not a licensee, and has not had a driver’s license since at least perhaps four decades?
A second option is to charge the gnome under another provision. That rule seems to require everyone to have a license. Now this statute is the key statute, because it ostensibly requires every user of the road to have the state’s permission. It is, in other words, the liability statute.
Generally the law requires a strict construction of any liability statute, because such statutes focus on who is under state compulsion. The rule has to be precise and exact, and it delineates who is subject to obey. Some people are liable; other people are not. Liability for performance is not ever left up to chance, and statutes that create a duty often name the sorts of people who come into view.
Problem with TCA 55-50-301 is that it is a terrible liability statute. In fact, I would say that under the rules of “statutory construction” (that is, how one reads a statute and ascertains its structure) the statute makes entry into Tennessee’s driver’s license law voluntary. The way the rule is written, having a driver license is consensual, entirely at equity (as one 1930s case goes out of its way to affirm). If having a driver license is in equity, it is part of the world of contract. The rules of commerce and fairness apply.
I won’t get into details here on the structure and language of this statute except to cite the controlling initial verbiage: “Every person applying.” The statute applies to everyone applying for a driver license and the details that follow regulate all those who place themselves within the purview of the law and spend a great deal of space regulating the department of safety.
Unseen grace in Tennessee law
Tennessee’s law actually respects the gnome and his use of his pickup truck. I’d like to speculate on why. When the general assembly wrote the law, it knew it could not do anything to oppress the exercise of any citizen’s constitutional right. The state wanted to control and regulate the roads, but at the same time to not be exposed as oppressing anyone exercising a constitutional right to travel by car. So it made the system voluntary and over the years won the majority of the people to see things its way. Operating a motor vehicle is a privilege, any lawyer will tell you. There is no right to drive. Driving is regulated, and one can drive only with a license. These are commonplaces repeated by the members of the bar who don’t read the statute and don’t see in it the great liberty tucked away in the lines. Maybe they want repeat business from people charged under its misreading — who knows?
I have a master’s degree in English from the University of Tennessee. But it doesn’t take that sort of diploma to see the plain meaning of the law. And to see how the system of courts, police departments, sheriff’s departments and the department of safety itself profit from pretending that using the roadway without their permit is outlawry. The state has grown accustomed to its pretense, and it believes its pretense unreflectively.
The gnome’s assignment is to argue the law to get the case dismissed before trial. If his motion to dismiss is rejected, he will go to trial before a petit jury of the people, who will very likely be easily managed by the district attorney.
He could easily be found guilty. You ask me, “What about the thousands of cases decided under the wrong reading of the law that pretends the system is obligatory? Don’t those rulings matter?” They don’t matter, and they do not control. The wrong question will bring the right answer to the wrong question. It’s important that the defendant ask the right question, and he will eventually get the right answer to the right question. The system is in many ways slow to change and predictable, and many cases are lost because the defendant or appellant asks the wrong question. It could be my perception of the statute is novel and it could be wrong. In my driver license case, the legislature rewrote a perfectly good statute to account for my arguments as a driver license applicant who didn’t have an SSN. I had argued that the plain reading of the statute allowed the commissioner to grant me a driver license without my having a number. The commissioner insisted on misreading the law and pretending that he was required to order me to get an SSN if I wanted my driver license renewed.
State agencies go to great length to control the argument, and use many legal fictions to accomplish their goals. But legal fictions cannot control, and they are not law.
To expand this area of liberty, I have proposed finding an Hispanic immigrant in the Chattanooga area to defend against a “driving without a license” charge under either TCA provision. He and his defense attorney would use my free market and local economy analysis of these laws and overturn existing practice as a matter of law. Perhaps the case against the carpenter pre-empts this agenda. The Gnome of Strawberry Plains may be the perfect case upon which to argue for the generosity, grace and kindness of the statutes as written. He may be just the person to argue that the law allows him to proceed in the quiet exercise of the property right of self-propulsion, and that he may do so without a state license and without threat from the police in the exercise of that right.
The streets are among the most strictly enforced area of modern life in America, and it is high time we start seeing the state retreat from its feckless regulation of motorists and their modes of transport.
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You may also enjoy these related essays by David Tulis and Roger Roots
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Judges’ trick on ‘right to travel’ defied by hard-of-hearing motorists
Preserving your rights in city court; judge fields my odd liberty queries
1997 Tenn. case says you have right to travel, but not by car
The orphaned right: How states squelched Americans’ right to travel
Driving is a Right, Not a Privilege.
The following is case law from various states. Your rights always supersede legislation. Anyone who tries to tell you driving is a privilege is trying to limit your right to travel.
“Nonetheless, the right of the citizen to drive on a public street with freedom from police interference, unless he is engaged in suspicious conduct associated in some manner with criminality, is a fundamental constitutional right which must be protected by the courts.” — People v. Horton (http://law.justia.com/cases/california/court-of-appeal/3d/14/930.html)
“The use of the automobile as a necessary adjunct to the earning of a livelihood in modern life requires us in the interest of realism to conclude that the right to use an automobile on the public highways partakes of the nature of a liberty within the meaning of the constitutional guarantees of which the citizen may not be deprived without due process of law.” — Berberian v. Lussier (http://law.justia.com/cases/rhode-island/supreme-court/1958/139-a-2d-869-0.html)
“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.” — Thompson v. Smith, 155 Va. 367, 154 S.E. 579, 583, 71 A.L.R. 604, 610.(http://ms.findacase.com/research/wfrmDocViewer.aspx/xq/fac.19430405_0042001.MS.htm/qx)
“In Adams v. City of Pocatello, 91 Idaho 99, 101, 416 P.2d 46, 48 (1966), the Court declared that the right to drive “is a right or liberty, the enjoyment of which is protected by the guarantees of the federal and state constitutions.” — STATE v. WILDER (http://caselaw.findlaw.com/id-court-of-appeals/1436850.html)
All state driver’s licensing laws are administrative in nature and thus can be challenged in a judicial forum for the deprivation of the right to travel/drive upon the public roads. It’s not an easy battle, but as these court cases show, the right exists. And as previous cases show…
The claim and exercise of a constitutional right cannot thus be converted into a crime.
Evelyn Miller, Appellant, v. United States of America, Appellee, 230 F.2d 486 (http://law.justia.com/cases/federal/appellate-courts/F2/230/486/232145/)
A state may not impose a charge for the enjoyment of a right granted by the Federal Constitution. Thus, it may not exact a license tax for the privilege of carrying on interstate commerce (McGoldrick v. Berwind-White Co.,309 U. S. 33, 309 U. S. 56-58), although it may tax the property used in, or the income derived from, that commerce, so long as those taxes are not discriminatory.
Murdock v. Pennsylvania 319 U.S. 105 (https://supreme.justia.com/cases/federal/us/319/105/case.html#113)
State/government, people say state when they mean government. The State is the people. The government is what the people created. The people manage and control their government. Not the government control the people. More often than not this set up gets switched. Today our situtation is the government has upsurps control over the people. It could be called tyranny. Our Bill of Rights to the U S and State Constitutions has no other purpose than to ABOLISH this TYRANNY. An example of this usurped power/control the government now has over the people is, the only way people can use the people’s roads and highways is with a privilege from government. A government created privilege/license. Not a legal privilege, not a Constiturtional privilege but a “government license privilege” It could also be called “governmental expediency”. Governmental expediency is not a power the people gave government when we created it as for example maybe “police powers”.. Is it a proper function of the governments “police powers too create a license/privilege to circumvent Constitutional Law? I personaly do not believe so. Can the state government use its police power too force anyone to get a federal social security number (ssn#) ? I do not believe so. Will the state issue you a state drivers license without a federal ssn#? WHAT IS GOING ON HERE? We hear every day that we live under the RULE OF LAW. in America. In America, as well as most every place on this planet the only source of law is man. The source determines who or what rules. To be ruled by law you would need to have a higher source of law than man. This ended many years ago when man went about to seprate his law from God”s Law, the Moral Law.. Look it up and find out how all this came about. I can give you many sources to look up. Man can make all the laws he chooses to but to be something other than the whims of man they must not derrogate from God’s Law or Constitutional Law. I can not understand how it can be decreed to be immoral for me to drive a car to work or to the store or any where. And if it is not immoral the only way it can be illegal for me to do so would be if I knowingly volunteered into a scheme that make it illegal. I choose not to consent to such a scheme. John