Citizens with their rights resemble a porcupine, jealous of its space. (Photo Wikimedia Commons)
A Lawrenceburg, Tenn., man goes on trial Tuesday on criminal charges that he is using the public roadways without a driver’s license. The arguments of Arthur Jay Hirsch are remarkably insightful, and much in line with my own analysis about the purportedly lost right to use a car without having to ask the state for permission. — DJT
By David Tulis
As a citizen of this state you positively bristle. You are protected by rights and immunities that make you resemble a porcupine.
If you sat down with a pencil and counted out your rights you would consume all 150 pages of a notepad. Just that many rights exist. They are virtually innumerable and in fact are protected unnamed and unnumbered in the ninth amendment of the federal constitution that says that an enumeration of rights “shall not be construed to deny or disparage others retained by the people.” Hence, to the state and its operatives you are a porcupine.
This prickliness bothers the modern welfare-warfare-surveillance state. How is a government like that of Tennessee to bring its valuable management to you? How to supervise, herd, direct, regulate and serve you and members of your family? It does so through two instruments that clip the quills that are your constitutional rights.
The instruments are the state’s operation in commerce and its creation of executive agencies operating under administrative law.
Mr. Malady’s bad day
Jonathan Malady is a reckless driver, a winebibber who on August 1989, December 1990 and March 1994 got behind the wheel of a car while woozy. Tried under Tennessee’s Motor Vehicle Habitual Offender Act in a civil (noncriminal) hearing, he loses his cause. In his appeal he argues that the finding that he is a habitual offender constitutes a violation of double jeopardy, a constitutional protection against being tried twice for the same offense. In dismissing his claims to a constitutional violation, the court says he is operating in a separate legal realm.
The petitioner asserts that having been previously convicted of the offenses which form the basis for adjudicating him to be an habitual motor offender, the double jeopardy provisions of the State and Federal Constitutions prohibit the additional punishment of habitual offender status. It has long been established that both the State and Federal Constitutions protect against the “peril of both a second punishment and a second trial for the same offense.” *** [citations omitted] However, the appellant candidly admits that the Tennessee Supreme Court has ruled contrary to his position. State v. Conley, 639 S.W.2d 435, 437 (Tenn. 1982) holds that
the revocation of all driving privileges of one declared to be an habitual offender under the Act is nothing more than the deprivation of a privilege, is “remedial in nature,” and is not intended to have the effect of imposing “punishment” in order to vindicate public justice.
Therefore, the declaration of an individual to be an habitual offender and the removal of his driving privileges “does not subject him to double jeopardy.” We have considered the authority cited by the appellant pertaining to forfeitures and double jeopardy, but find none of such to be pertinent to this issue. The driving of an automobile upon a public road is a privilege, not a property right. Sullins v. Butler et al., 175 Tenn. 468, 135 S.W.2d 930 (1940). There was no violation of double jeopardy in the declaration of the petitioner to be an habitual motor offender. [Italics added] STATE vs. JONATHAN MALADY, 952 S.W.2d 440; 1996 Tenn. Crim. App. LEXIS 449
In other words, because Mr. Malady is a licensee, his hearing under the act is effectively about a contractual arrangement between Mr. Malady and the state. Did he honor an agreement in commerce? Or did he violate the contract? His in-agency hearing looks solely at that question. Under the habitual offender act, “proceedings *** are civil in nature” and do not evoke constitutional protections. Facts are not in dispute, a jury not needed, the law clear, and the sole nondiscretionary task of the judge is to execute the revocation of his driver license.
Other stories about “the fiddle man” of Lawrenceburg, Tenn.
‘Fiddle man’s’ defense hobbled as lawyer bails; pray for his cause, need for funds
Restoring our ancient rights one case at a time: Mr. Hirsch goes to trial
State lacks grounds to prosecute free user of roads, fiddler says in motion
Remedial law is “a law passed to correct or modify an existing law; esp., a law that gives a party a new or different remedy when the existing remedy, if any, is inadequate” (Black’s Law Dictionary). Administrative power operates under “remedial” law because it remedies a defect as perceived by government stymied by constitutional rights thickly scattered among members of the public.
The state’s remedy to the bother of a constitution is administrative law that foreshortens the process, facilitates the operations of the state and brings convenience and efficiency. It allows courts to pile dockets with cases. It allows for police departments to haul in thousands of defendants they otherwise would have no purpose in arresting. It expedites the imposition of penalties, costs, fees and sentences upon the masses.
Government by offices
A party subject to the wondrous world of administrative power, a sobered Jonathan Malady thrashes about in his appeal. He brings up “principles of equity.” But the judge says these principles are not in view, because “[t]he sanction of declaring an individual to be an habitual offender is not a matter affected by principles of equity.” In other words, the administrative act of revoking his license is not a matter subject to his constitutional rights, just a simple process at the end of which Mr. Malady loses his license.
Cases such as this one support my reading of the state’s driver license law, that it is 100 percent based on consent and is voluntarily entered by members of the free people in the state of Tennessee. TCA 55-50-301 and related statutes apply to those who enter state jurisdiction by visiting the department of safety and homeland security. The statute envisions people with constitutional rights making a voluntary written application into the administrative realm of power in commerce and at equity, to be bound by rules therein.
This concession by members of the public saves the state from having to deal with millions of automobile users protected by constitutional rights. A driver license is a rite of passage for teenagers and part of a human necessity in an age of self-propulsion, gasoline engines and rapid movement. It compels by culture and habit, but not by law.
To pluck the quills on the constitutional porcupine, the state invites everyone into its system of safety, supervision and care. It exercises police power for this very purpose — public health and welfare. The face of that system is the governor of Tennessee and his department of safety and homeland security, ensuring the people’s safety and keeping off the roadway folks such as Mr. Malady the tippler who, having lost their driver licenses, agree stay off the roads.
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You may also enjoy these related essays by David Tulis and Roger Roots
Behind the modern driver license: Absolutism of administrative law
Driver license system voluntary, Gnome of Strawberry Plains says amid new prosecution
New defense for aliens, liberty lovers: No requirement to obtain driver license
If licensing scheme runs on consent, ‘illegals’ may be freer than citizens
The next time you get ticket, ask questions a la Scarlet Pimpernel
Mr. Kiesche, tootling about in auto, insists not ‘driving a motor vehicle’
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
Coercion alone is to blame. Operating a motor vehicle is indeed a state-granted privilege. While every motor vehicle is an automobile, not every automobile is a motor vehicle. An automobile becomes a motor vehicle when it is registered as one, in the design of the state. Once registered as such, the state treats ALL activities carried out in the vehicle as the “privilege” and the right to travel, public vehicular travel, is set aside and will not be recognized or considered.
Google – “open as a matter of right to public vehicular travel”
I just got 2.96 million hits on that phrase. Just what highways are all of those statutes and ordinances talking about? Americans, one and all, have been coerced into a system designed to administer and regulate a privilege granted by the State with which untold fees, taxes, pains and penalties, are associated. No such regimen attached to the exercise of the right of public vehicular travel.
David R. Myrland