Modern state works to make private people public people — commercial legal entities

Basil Marceaux of Soddy-Daisy chats with Jay Hirsch in a greasy spoon restaurant near the Tennessee supreme court building in Nashville. Mr. Marceaux has been arrested more than 50 times as a legal reformer opposed, among other things, to roadblocks and unconstitutional stops and searches. Mr. Hirsch of Lawrence County is fighting abusive state enforcement of Title 55 on due process and jurisdictional grounds. (Photo David Tulis)

My reading in Tennessee law strongly indicates a general purpose of the modern state; to make private citizens public citizens, to transfer lawful private activities into the public realm, subject to supervision, taxation and licensure.

By David Tulis / NoogaRadio 92.7

The state today is in a condition of senescence, its celebrated powers and integrity hollowed out by a century of warfare and state social welfare. Institutions such as the public school have lost their rationale and seem to be in a holding action to maintain the public trust rather than advancing any further into the public realm among the people with increased services and capital outlays.

Still, the strength of the modern state is in its words, namely statutes and court rulings, that keep the people in a position of subjection and fear.

This assertion is true, even in the state of Tennessee, the Volunteer state, which has many fewer burdens and relatively less onerous claims upon the people than other states do upon their subjects. Tennessee, in other words, is reputed to be among the freer and more business-friendly states.

But my readings in the transportation statues in the past 6 months and court cases suggest that claims for liberty as against commercial government face an uphill battle.

The transportation statue lets the state control its people. To exercise their liberty, to work, to run businesses, to affect worship and education, to bring about warmer human relations through public assembly (an activity called communication), people have to travel on the highway to get from Point A to Point B.

Easy access to the people, to harass them

Travel and movement are an essential element of liberty, and are a crucial ingredient to the exercise of other liberties enumerated in the constitution, state or federal.

However, the state through is commercial transportation statute has easy access to the people to bring them before judges and to put them in prison for violations of law. Most people have their unpleasant encounters with the state along the highway and at traffic stops. The driver license has, in fact, become the state ID for most Americans. Since travel is an acute human need and practice, it is a universal human activity, yet when done by car is pretendedly put under state control.

These laws are ignored by tens of thousands of people, and yet they have been enforced for years. They are the driver license statute, the financial responsibility law and the vehicle registration statute. They make common people subject to state management. The groups most negatively affected are, in short order, the poor, the black and the immigrant. They include also the dissenter, the American constitutionalist or patriot who believes he has unalienable rights from God to live, move, and work at liberty without the state’s permission or consent. The appeals of patriots fill the court records.

My review of the statues indicates there exists a distinction between the private person and the public person. In the area of movement, that distinction is between the traveler who travels as a matter of right, and the person involved in transportation, who plays a quasi-public role.

It may sound boring, but it is a area of lively interest to anybody who cares about constitutional government, political Liberties and legal rights. The government regulates commercial and public activity, not private activity, pursuant to Hale v. Henkel, 1906.

The distinction between travel and transportation is vital to understanding the people’s low estate vis a vis the state itself. Private people travel on the highways. They go about their pleasure, pursue private goals and personal ambitions and are not accountable to anybody for their moving about in their motorcycles, cars and trucks.

State misuses law in war against people

In contrast, the person who is involved in transportation is making a profit because he is moving goods or people for hire on the people’s asset, the roadway. He is bringing wear and tear to the road, and he is raising the risk to other people by moving his car goes about or traveling on very heavy trucks which need supervision and the weight of which reaches 25 or 30 tons. The state regulates trucking and transportation to ensure the people are safe.

Through the instruments of commercial regulation, the Nashville government of Republicans and Democrats deprives the people of their liberty. The people are in a kind of bondage of which they are largely unaware. They have grown used to the fetters and assume that travel is incomprehensible, perilous, dangerous, and simply not possible in a civilized society apart from licensure and regulation. Juries convict defendants for commercial transportation crimes when prosecutors evoke the concept of mass danger if people were not in registered vehicles and not trackable through auto controls.

Transportation Administrative Notice creates new cause of action vs. cops who enforce Title 55 outside the scope

The judges in Tennessee to a man are attorneys, willing to overlook the mistake and deception. All of them are lawyers.

“Judges *** are picked out from the most dextrous lawyers, who are grown old or lazy,” notes Jonathan Swift, “and having been biased all their lives against truth or equity, are under such a fatal necessity of favoring fraud, perjury and oppression, that I have known several of them to refuse a large bribe from the side where justice lay, rather than injure the faculty by doing any thing unbecoming their nature in office.”

They are willing to curry favor with the state, their patron and signer of their paychecks. They largely have proven unwilling to see in past cases the interest of the people among the defendants and claimants who are asserting the right of travel. They are famous for using words of art, establishing legal fictions and avoiding recognition of the obvious. I make this observation having had numerous conversations with attorneys high and low about the right of property in free movement.

Hirsch appeal makes true distinctions

In the most recent case of this type, State of Tennessee vs. Arthur J. Hirsch, the government ignores the main claims in the distinction between travel and transportation. It instead focuses on procedural problems in the accused’s claims and in the motions of his appeal. Mr. Hirsch argues that the transportation law is misapplied to him, a man traveling freely. He correctly is arguing due process rights, which are flatly rejected.

It is fair to say that the Hirsch case is the most important case in Tennessee in the past 85 years. Mr. Hirsch, known as the Fiddle Man of Lawrenceburg, is taking on both of transportation statute abuse and the Tennessee gun statue, the carrying a weapon “with intent to go armed” law, which he argues is unconstitutionally vague.

The system of judges using words of art is highlighted in a 2012 California case that pretends to eviscerate the right of travel in that state, arguments that are sure to be replicated as Tennessee courts deal with — and dismiss — Mr. Hirsh’s very well-presented arguments about not being a person involved in transportation, but rather being a private traveler on the roads in the state of Tennessee.

In the California case, the appellant appears to rephrase the proper questions about not being in commerce but being a private traveler. It’s true, that perhaps he didn’t insist that he was exercising an unalienable right. Nonetheless even if you had raised that argument, it’s likely the court would simply have ignored it in the service of the compelling state interest doctrine of public safety and reasonable regulation.

In the Hirsch case, the appellant insists that he is exercising unalienable rights that are protected in the Tennessee Constitution and come from God. The judges follow the preconception about their roles and their maintenance of the state’s hegemony over the people. They simply ignore these claims even if they are drawn straight in the Constitution. How can you have unalienable rights when there is a requirement for state government to regulate the people for the interest of safety? If these regulations are reasonable, which person enjoying his private rights of liberty can stand against them?

Pietism blocks gospel claims

This condition is grievous to the people Tennessee, who are committed to not seeing the problem because of their rejection of God and their fear of man. This essay is not the place in which to deal with this question about the role of pietism and antinomianism in the Christian church. But it is fair to say that Christianity in Tennessee has not been aroused to defend what God has given to the people, if they would just live in fear of Him and not of men, and claim these ancient rights for the benefit of all, especially those in the the vulnerable classes.

Christians should look again at their lost liberties because their destruction hurts whom the most? It hurts the poor, the widow, the orphan and the stranger. These are the categories of people who are struck constantly by the transportation statute and law enforcement in Tennessee. Their faces line the pages of the Just Busted tabloid and’s “latest bookings.”

The Lord expects much of His people, and it is time to get to work fighting on these issues in the name of the gospel. We have become disconnected from the claims of the gospel. We have ignored its requirement that we promote and fight for a society shaped by the judicial ethical system presented in the holy scriptures. That system is one of liberty and freedom, with scrupulous care for the poor and the alien and stranger.

For everyone to whom much is given, from him much will be required; and to whom much has been committed, of him they will ask the more.” Luke 12:48.


One Response

  1. John Ballinger

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