An obstacle to reform is the legal profession, whose members have brought us to our low legal estate. But might I find among these practitioners of the law a man who is willing to defend original liberties, and go against the interest of his guild? 

By David Tulis / NoogaRadio 92.7 FM

One attorney to whom I’ve proposed a new line of business is sympathetic to me personally. But he’s cold to my warmly argued defense of God-given personal rights that I seek to promote through the notice project.

“David, I just don’t see any court accepting your position that the state has no authority to regulate non-commercial use of roads/highways,” he says in response to a letter of inquiry. “There are some causes that I would be willing to undertake even if I only had a 1% chance of success, but this is not one of them. Moreover, I don’t even think you have a 1% chance of success.  In my view, there’s just no way a court will accept your argument.”

My response to Phil — and his further commentary — make up this post. He accuses me of slighting the common law, says the state has authority to regulate private activity, insists there exists a liability statute requiring people to apply for driver licenses, and holds to a view of society that is essentially statist and skeptical of my free market analysis. 

Very positively he says that until the notice is injected into the court system it is “irrelevant.” Yes, notice needs to be put to work by ordinary people fighting criminal charges and also seeking damage for false arrest and false use of law in their traffic arrests. But it already is having a leavening effect among officers, and will have a greater effect on their obedience to their oaths once lawsuits call them personally to account for false arrest and abuse of process.

The rebuttal points from Phil the attorney are here in bold type.

Attorney doubts notice project

Phil, I am counting on the rules of statutory construction’s abiding despite court policy obliterating by fiat the right of communication and personal movement.

Which specific rules of statutory construction are you counting on? And what specific statute(s) are you applying these rules to?

I am counting on the power of black-letter law to determine that an arrest of someone under the privilege statute at Title 55 — one who is not in fact nor in intent exercising a privilege — is a tort and an actionable oppression.

​What specific black letter law are you relying on?

In your theory, there is a magical power of the state to “regulate” private activity. What is the source of that authority? Cite the statute?

I could approach this series of questions in a couple of different ways. I will not address each aspect of these series of questions, but I will offer a couple of lines of thought.

First, based on some of your earlier writings as well as your current comments, I think you and I may have very different views of the common law. I think (but am not sure) that you may believe that all non-constitutional rules of law must stem from a statute. As  a corollary to that, I think (but am not sure) that you don’t give any credence to the common law. If so, you and I part ways on that point. The common law was a huge part of our law at the founding of our country and at the time of the adoption of our Constitution.

In my view, any jurisprudential philosophy that discards or dramatically discounts the significance of the common law is greatly contrary to the intent of our founding fathers and is quite contrary to fundamental conservative beliefs.

Second, the common law supports–at least all the way back to Blackstone I think — the idea of the “police power” of the state. The police power historically and traditionally includes some realm of regulatory authority to protect the public health, safety and morals.

Please don’t get me wrong. I believe that police power is often abused and I applaud efforts to reign in such abuses. But the scope of appropriate exercise of police power is a different question than whether the state has “police power.” I believe the common law clearly supports the idea that the state has some degree of police powers.

So, what–generally speaking–is the source of the State’s power to regulate private activity when public health, safety or morals are involved? One answer is: the common law.

Another possible answer is that the source of the authority is the Tennessee Constitution which establishes and gives authority to the legislative branch to pass laws. There is much more that could be said on this point, but I don’t have time to discuss it fully at this moment.

Another possible answer is that the source of the authority is the statute — duly enacted by the state legislature — that purports to regulate the behavior in question. The authority is the statute, and the authority of the statute comes from the legislature, and the authority of the legislature comes from the Tennessee Constitution. Of course, this question of authority is a different question than the question of the proper interpretation of the statute. Likewise, a separate question is whether the statute — properly interpreted — is unconstitutional. For sake of time, I will not attempt to address that issue at this moment.

Another huge issue I will not attempt to tackle at this moment is the proper definition of “private activity.” I will note, however, that if a person is traveling along a tax-funded road and hits me, that doesn’t really strike me as a “private activity” even if the person was not traveling for a commercial purpose.

Without statutory warrant, in the wonderland theory you appear to accept, it has power to compel 100 percent of the people on the road into the privilege of being an operator of a motor vehicle in commerce, subject to Title 55 and to USC 49, the federal transportation law. Where’s the statute requiring a private person to apply for a driver license?

What is a private person?

​Tenn. Code 55-5–301. Is your argument an argument of statutory interpretation (i.e., 55-5-301, properly interpreted, does not apply to private persons)? Or are you arguing that the statute is unconstitutional if interpreted to apply to private persons. (This again begs the question of what is a private person).

What if you are not using your private chattel as a motor vehicle, but for the exercise of your constitutionally guaranteed rights?

​What if you are pursuing personal necessities, and are NOT a carrier, either a common carrier nor a private carrier. 

In your joining in the judiciary’s claim against the people, you are saying that your wife, enroute to church or a homeschool event, is in fact and at law a private carrier. Or is she a common carrier? ​Why does it have to be either? I’m really not following your “carrier” argument.

All use of the road in commerce is one or the other.  ​This is the court’s legal fiction. So which is it for Mrs. Phil? ​

First, I don’t think you’ve demonstrated that only use of the road in commerce can be regulated. Second, I don’t think you’ve demonstrated that the courts have adopted a legal fiction that all use of the road in commerce must be either through a private carrier or common carrier. Again, I’m not really following your carrier argument.

There is no private use of the road, according to the lawyers and scribes. All use of the road affects the public interest, the health, safety, health and morals of the public under police power, according to policy.​

All use of road public

If you are driving a 3,000 pound car toward me at 55 mph (as we are each traveling toward each other on a road), is that not implicating public health, safety and health issues? Are you really saying there shouldn’t be ANY regulation of that process? I sure don’t want you driving toward me at 175 mph on my street–regardless of whether you’re driving for “private” purposes such as to attend a prayer meeting at my neighbor’s house or whether you are driving for commercial purposes such as to deliver an appliance that you just sold to my neighbor. And I sure don’t see how your constitutional rights would be violated by saying you can’t drive 175 mph on my street. What constitutional right?

In the reigning theory, the “exhibit on demand” statute at 55-50-351, that holds “Every licensee shall have the licensee’s license in immediate possession at all times when operating a motor vehicle and shall display it upon demand of any officer,” is applicable to people who are not licensees because EVERYONE on the road is a licensee, even if he didn’t apply for one, but should have one.

Without specifically looking up the statute before making this comment, I don’t agree — as a matter of statutory interpretation–that the statute says that EVERYONE on the road is a licensee. People cited for not displaying a license — if they really don’t have a license — are really being cited for not having a license, right? As opposed to being cited for not displaying their license?

If the rules of construction don’t apply, ​[which specific rules?] this law rightly is made to apply to free travelers (the poor, immigrants, many blacks, too) because

 that is the only way the state can reach and charge them. That’s how one lawyer explained to me how this law is used against people not subject ​[not sure I’m following you here]  because they are not licensees, and not engaged in the regulated profession of transportation. ​They are subject to 55-5-301.

You haven’t considered subject matter jurisdiction as the way to defeat this deep-state abuse brought upon us by lawyers and judges. A person in a car, truck or bus comes under jurisdiction of the state by the activity of for-profit use of the road.

​I’m still not following your argument that a person only comes under jurisdiction of the state by virtue of for-profit use of the road.

My notice makes this point clear. The problem is the current interpretation of the law, and the origins of the regulatory power, as I trace it in the notice. If one is not engaged in the privilege of for-hire use as a carrier, one cannot by any argument be subject to privilege enforcement. Since when are rights exerciseable only pursuant to a privilege? Since when is movement to exercise a right taxable?

​Are you saying there is a constitutional right to move however you wish on a public street or highway? Or are you saying thre is a common law right to do so? What can you cite to support either proposition? Does this mean that you can drive 175 mph down my street as long as you aren’t driving for commercial purposes?

Title 55 is administrative law subject to UAPA, ​[no, Title 55 is very clearly statutory law, not administrative law] subjecting those people who have an equitable interest in a regulated activity via license — by payment of tax, application, proof of qualification, etc.

​I don’t really know what you mean by “equitable interest in a regulated activity.” Read Title 5 on UAPA, and admin law does not abrogate the common law nor common law rights.

​Okay. I’m glad to see you aren’t throwing out the common law. I’m out of time and won’t at this time tackle the proposition that administrative law can’t abrogate common law.

The laws of the state apply to agencies charged with putting into  effect the law. I have reported that only the THP can enforce Title 55, and cops and Hammond’s cannot.

​What law, rule or right are you relying on to make this assertion? This is based on the statute of the duties of the THP and annual averments by DOS commissioners to the U.S. government. THP is the “sole agency” for enforcement of transportation regulation.

What law, rule or right are you relying on to make this assertion?

The state is involved in criminal activity, as alleged in a recent complaint to the FBI.

Its activities, esp. in “assigning” driver licenses to people who didn’t apply for them ​[I’m not following you here] is also subject to private action under RICO.

The two links I sent you describe a project that realizes there is no appeal directly on the issue in the courts. Yet there still is actionable violence against individuals for which I believe litigation is a redress, and defense in criminal cases.

I’ve covered in detail how this defense is made in sessions court, and I am looking for an attorney to file false arrest charges and tort actions pursuant to the notice. My notice is unrebutted, notoriously published, but the officials are so high-handed they think they don’t have to answer or to account for their actions outside the scope. Their enforcing judicial policy is no defense when a person is falsely arrested if the cop cannot show he made any effort to determine whether the person was properly subject to the statute.

Without attempting to address the full scope of issues relating to your notice, if your notice were to have any potential force or implications, a court would have to agree that your notice properly states the law. Your notice is completely irrelevant if you can’t get a court to agree that the notice accurately states the law.

Get your TAN now: Transportation Administrative Notice creates cause of action vs. cops, traffic court defense