Marceaux, ‘illegals,’ libertarians slip past mysterious gap in driver license law

The senior Basil Marceaux is a perennial Tennessee candidate who argues for a constitutional and anti-state framework that beats back traffic stops and other claws of the administrative state.

Basil John Marceaux

By David Tulis

The arrest last week of Basil John Marceaux sets up a case against the police enforcement of driver license laws that his widely known political candidate father has fought for years.

The younger Mr. Marceaux, 40, is facing drug charges in Hamilton County.

The state also is charging him as one driving an unregistered automobile and using the road without a driver license.

Mr. Marceaux’ dad, Basil, ran for governor in 2010 and 2014 on a rough-hewn push-back-the-state platform and won 2 percent of the vote last year.

The younger Mr. Marceaux appears to have many of his father’s minority views. If true to family form, he will elect to waive the lower court and boldly stand on his right to an indictment. If the state convinces a grand jury to issue a true bill, the case will go to a trial in which the state will make its usual arguments about driver licenses. That is, that its administrative law machinery effectively deletes the constitutional right to use roadways that are open as a matter of right to public vehicular travel.

State owns roads?

Tennesseans almost uniformly believe they are forbidden to use their cars on the public highway if they don’t have a driver’s license. They accept the state as having ownership and jurisdiction over driving.

If you’ve never had a license, it’s illegal and a crime to drive a car. No teenager dares zip down a highway without a driver’s license, because that would be wrong, an offense worthy of arrest, trial and punishment. No one can use the road without the state license.

So the popular perception.

Adding to this universal understanding is agreement by the knowledgeable class of people who may actually know differently. But, to play along, judges, lawyers and people schooled in public policy point to court cases that declare driving a motor vehicle a privilege, not a right. But saying that hardly exhausts the issue that Mr. Marceaux is free to develop. Opinions from the court of appeals and the supreme court hold that public safety and public policy require convictions be upheld against existing or one-time licensees who deny the state’s implied claim of total jurisdiction over the activity of traveling by car or truck.

Loaded nachos question

The flood of immigrants from Mexico and Central America into Tennessee invites a re-examination of what is practically total state control over travel by auto. Many Hispanics use the roads without licenses and without requisite insurance coverage, and are vulnerable to harassment for exercising what in the early period of automobility was a constitutional right to travel by car.

For Tennessee to become a magnet for immigrants and others seeking liberty from oppression and opportunity in the free markets, it’s important to consider how liberal and gracious Tennessee’s driving laws are.

For, indeed, the law in Tennessee is not the dire threat that everyone thinks it is.

State law is respectful of people who exercise a right to travel by car apart from state permission. The law imposes no absolute liability upon those using the roadways at liberty, a liability directing them unequivocally to obtain a driver license before getting behind the wheel. Tennessee law should be understood as comporting to and respecting citizens’ and residents’ protections under the Tennessee constitution’s bill of rights.

The law indicates the system operates 100 percent by consent and not by coercion. Law enforcement, however, operates quite the contrary — hence the peril police impose on immigrants and other travelers who never held driver’s licenses and are on the state’s roadways. The rules in Title 55 of the Tennessee Code Annotated apply to licensees, and do not speak to others who appear not to come into the law’s purview.

Law’s narrow focus

Highlights regarding the state’s respect for the right to travel in its driver license law:

➤ The driver license law applies to “every person applying for an original *** driver license” and who obtains one.

➤ The prohibition against anyone using the road without a license applies to licensees who are required to have a valid license while using the road.

➤ The “exhibit on demand” rule applies to “every licensee.”

Nationwide, state authority over driving

The assertion that Tennessee law is gentle with free users of the road is not to say that its legal system is friendly. Court cases I’ll speak of below are hostile to people who drive cars on expired, suspended or revoked licenses — to people, in other words, who are licensees through the legal fiction that “once a licensee, always a licensee.” An analyses of these driver license cases gives the impression that Tennessee is like the rest of the country.

American law as seen from a bird’s eye view holds that “the state has the power to require the procurance of a license before one may operate a motor vehicle on the public highways.” This power to license carries with it the power to create police and administrative bureaucracies to codify how one obtains a license. Licenses are granted under what’s called state police power that operates for public safety and welfare. “A statute mandating that every person who operates a motor vehicle on public roads must have a valid operator’s license, unless he or she is exempted by statute, does not impermissibly infringe upon a citizen’s right to travel,” avers the legal encyclopedia American Jurisprudence 2d.

Licensing is an administrative function, must be evenhanded, and cannot be denied an applicant for reasons that are capricious, arbitrary or not applied to others under like circumstances and conditions. I have published at Nooganomics.com an essay by legal historian Roger Roots on the history of what he calls an “orphaned right.” While state regulation of automobile use is undeniable, a question remains in the Volunteer State.

Just how far does the Tennessee code reach toward you, grip your jacket lapels and rough-house you into either getting a license or staying off the road? The relevant language is at TCA 55-50-301.

(a) Every person applying for an original or renewal driver license shall be required to comply with and be issued a classified driver license meeting the following requirements:

Next follow five paragraphs, the fine print. Detail No. 1 bears on the topic of driving without a license:

(1) No person, except those expressly exempted in this section, shall drive any motor vehicle upon a highway in this state unless the person has a valid driver license under this chapter for the type or class of vehicle being driven;

Now, is this a blanket obligation for everyone behind a steering wheel to obtain a driver license?

Construction of the statute is important. A subparagraph is controlled by its heading. Point (a) controls (1), and (1) does not reach past (a) in its scope. In other words, the ban on driving except for those with a “valid driver license” is not a general statement, but limited to “every person applying for” a license.

The license becomes obligatory for “every person applying for an original *** driver license,” and this person “shall be required to comply with” the license as described in the law.

Unlicensed or free motorists also are prosecuted under the “exhibit on demand” statute. But here, too, the presupposition of the provision is that a licensee is in view.

Prosecution under 55-50-351, “exhibit on demand,” also requires an antecedent act — the defendant’s having applied for a license and agreed to its terms. No one who is not a licensee can be charged under this provision, which begins: “Every licensee ***.”

At least 30 Tennessee rulings define the interpretive process called “statutory construction.” This rule determines how statutes are written, understood and enforced. The rules of construction support my analysis, despite numerous court victories by the administrative state that suggest today’s enforcement methods are proper.

‘Once a licensee, always a licensee’

Two cases help establish an operating fiction that effectively denies Tennesseans and immigrant newcomers the free use of the public roadways of Tennessee. They are cases involving John Ballinger and Robert Booher, Tennessee men whose claims to be free users of the roadways (without government permission) were defeated on appeal.

The fiction is, “once a licensee, always a licensee.” Mr. Ballinger, of Strawberry Plains, was convicted under the “exhibit on demand” statute. He’d let his license expire, as a matter of principle and personal independence of a patriotic nature. At a stop a cop charged him with driving without a valid license. Since he’d once been a licensee, he was made to fall under purview of the statute.

Mr. Booher, of Waverly, in 1997 fell into a similar conundrum. He had been a licensee of the state, but a fit of liberty-minded patriotic fervor that cited constitutional rights, he turned his license and registration documents back into the state’s since-renamed department of safety. Halted by a cop roadside, he did not have a valid license and was charged with operating a motor vehicle without a valid license.

The convictions of both men were upheld on the basis of the once-a-licensee-always-a-licensee operating fiction, though neither opinion makes the claim explicit.

The fiction implies what is clearly a falsehood, that if you give up your rights one time you are obligated to give them up continually forever after. No, constitutional law always trumps administrative law. Say in 2003 you, in a weak moment, granted cops the right to search your car trunk on the side of the road. Did yielding then mean you have no right to say “No” today in a similar circumstance? No, your rights exist whenever you defend them. If you don’t know your rights and don’t defend them, you effectively have no rights. You may have said yes yesterday, but you can say “No” today.

Upon whom does law’s wrath fall?

If state law strictly speaking avers no threat to the free user of the public highway, upon whom does it pour its wrath? Upon licensees who do not carry valid licenses.

Here now the question about Tennessee’s two great jurisdictions: The constitution and administrative law.

The driver license statute creates an enforcement mechanism for all those who enter the administrative law realm by application, and who leave behind constitutional rights for the benefits conferred by the state. People with driver licenses see the benefit of having that document, useful in all sorts of interactions with government and corporations. The driver license is easily the most useful form of ID, whether for transacting with a bank, buying alcohol or fending off demands from a suspicious policeman for “some identification.”

By written application, these people give up their right to travel and enter the jurisdiction of Uniform Administrative Procedures Act, which controls the operation of the department of safety and homeland security and all other executive branch agencies. Proceedings against individuals in this domain do not violate their constitutional rights, but are essentially civil. The case State vs. Jonathan Malady, 952 S.W.2d 440; 1996 Tenn. Crim. App. LEXIS 449, makes clear that in administrative law, constitutional rights are conveniently out of the way, are not in view. Mr. Malady claimed double jeopardy in the revocation of his driver license for DUI, and was told his constitutional rights were not at issue.

‘Illegals’ freer than citizens

The driver’s license appears to create a debility in a man’s status. That diminution of status would seem to be avoided by the poor immigrant in the free state of Tennessee. Arriving here from Honduras or Mexico, he operates on the roadway in his used carlot rattletrap as a free man, unencumbered and not subject to TCA 55-50-351.

So-called “illegal immigrants” in Hamilton County, it would appear, are freer than us whites and blacks, and that the system of law indeed respects their right to travel by car and does not offend that right, despite the Ballinger and Booher rulings, even despite a 1939 case that sets the standard for the driver license regime and its public safety implications (Sullins v. Butler, 175 Tenn. 468; 135 s.W. 2d 930; 1939 Tenn. Lexis 63)

Americans are gulled into the system by societal norms, by high school hallways chatter, by systems of thought that assume driver’s licenses are requisite for all users of the road, that it is automatically a crime for a user of the road to actually convey himself by car or truck on that tarmac without a valid driver license.

If my analysis is right, how might a correctly argued driver license case defeat the regulatory scheme once and for all, and make Tennessee truly the free state and the free people as she is described in her constitution? Or, how might a good case prompt the general assembly to rewrite the law to create a legal duty to obtain a driver’s license before one can use the road?

The right to travel by car is not universally dead in Tennessee, even though the privilege of driving is at every point assumed. We all understand the difference between right and privilege, and the use of the car on the road is deemed a privilege attained by application and subjecting one’s self to the rules.

But is it requisite for any individual to yield his rights and attain the privilege of being a licensed driver in light of the law itself? That law lacks language making a driver license compulsory, mandatory and universal.

Licenses do not make drivers safer, but possibly less safe. (Graphic Tennessee Department of Safety and Homeland Security)

— David Tulis hosts a talk show weekdays in Chattanooga from 9 to 11 a.m. on 1240 AM Hot News Talk Radio, covering local economy and free markets in Chattanooga and beyond. Support this site and his radio station on the real airwaves in Chattanooga, on your smartphone via the TuneIn radio app, or online at Hotnewstalkradio.com. You back David by patronizing his advertisers with specific reference to him. Even better, encourage independent media by having David run commercials for your business. Also, “buy me a coffee at the tip jar.”