Lawyer Phil beats me up badly in his commentary. Don’t forget his overall perspective: That of the primacy of the state that he serves as a court officer. In my perspective, the power of government is constrained by a bubble of law and constitutional limits (bottom image) (Sketch David Tulis)
Defendant Jon Luman, left, talks with Chad Wilson outside criminal court in Hamilton County. Mr. Wilson is present on other business. (Photo David Tulis)

Lawyers rarely know the constitution and do not think about law in terms of the constitutional guarantees of the people. They presuppose the state, and its laws, and if there’s any room left after these powers expand their operation (for the public benefit, of course), let that sliver be allocated to the people and their hallowed rights.

By David Tulis / NoogaRadio 92.7 FM

Phil the attorney graciously exchanges views with me about my racial reparations project, transportation administrative notice Tennessee. By notice I apply the Tennessee code and federal law to police powers that are operating boldlyin our faces and against our rights, with a grievous train of damage among tens of thousands of Tennesseans for decades.

Phil struggles as much with the implications of liberty as the actual limits of the law, apart from which liberty is to be understood as existing unmolested. To him, liberty is dangerous, and he has philosophical and religious reasons against it. Chaos, you see, anarchy would result if the constitution were respected and the people free.

“I assert that the most natural reading of the statute–and therefore what corresponds to the legislative intent–is that the statute requires licensing for both non-commercial and commercial driving on public roads.  As a conservative, I put great value on legislative intent, and I believe–based on the wording of the statute–that the legislature intended to regulate non-commercial driving on public roads.”

Lawyer Phil argues philosophically for state regulation of private travel as a necessity

I want some degree of regulation of non-commercial drivers on public roads.  Three extreme examples of why I want some degree of regulation are:

1.  I don’t want a blind person driving down the road toward me.

2.  I don’t want a person driving 120 mph in my subdivision where children are playing.

3.  I don’t want a 9 year old driving down the road toward me.

Yes, these are extreme examples, but they demonstrate that some degree of regulation of non-commercial driving is necessary in my opinion.  Where to draw the line between those extreme examples and other scenarios is a tougher question.

To attorneys, it’s simply inconceivable that people travel as a matter of right. A common law order of society is mere fantasy of a few patriots and anarchists. Regulation exists because it is “necessary.” The driver license and state regulation are through the privilege, lawyer Phil denies that privilege is the controlling means of state power. Just as do prosecutors, he insists on the application of privilege to all defendants, but says, “What are you talking about? Whaddaya mean, ‘privilege’?” when pressed for proof of the privilege in a court setting. The state has power over private people exercising their rights by a means hard for lawyer Phil to nail down.

Here, lawyer Phil takes my correspondence to pieces. His words are in boldface type.

Is policing privilege enforcement?

Phil, you keep suggesting I am calling anything in the law as unconstitutional. I’m not. I’m not challenging constitutionality of Title 55 at all. Please. I am alleging misuse of the law and ultra vires enforcement.

​A substantial portion of your wording indicated to me that you were challenging the validity of the statute.  But if you aren’t, fine. I accept that.  

But aren’t you at the end of the day trying to argue, in essence, that the legislature can’t regulate non-commercial driving because non-commercial driving on public roads is a right rather than a privilege?  Perhaps I read too much into some of your statements, but I got the impression that such was your position.  

On the other hand, if you are simply arguing that the statutes do not express an intent to regulate non-commercial driving, then I acknowledge that you are not asserting a constitutional challenge to the statute.  

The authority of police power operates through privilege. It is privilege enforcement; that is where the abuse lies. 

​I don’t have a clear understanding of what you mean by the two preceding sentences.  

The entire authority of traffic “regulation” is through the privilege and upon those who obtain the privilege. A natural reading of the whole body of law is that it is commercial only and that is what the early cases make clear. 

​This may simply be the point of impasse between the two of us.  I strongly believe that the most natural reading of Title 55 is that it is intended to regulate both commercial and non-commercial driving.

Commercial affects the public interest, and if commerce is on the road, it is extracting private gain from the public, and so must be subject to taxation and the privilege requirements.  ​

Accepting the preceding statement as true says nothing about whether the legislature, when enacting Title 55, was also intending to regulate non-commercial driving.

Privilege is upon calling, occupation or trade, as declared by the GA. In the case at hand, owning dogs is not a privilege, and cannot be converted into a privilege. Property is taxable by other means, the ruling says, but not by converting it into a privilege.  ​

‘Privilege’

This is another example of where you sound like you are trying to attack the validity of the statute.  Based on your comments above, I will accept that you are not. But if you are not, what statutory interpretation argument are you trying to make with the preceding statements?  Are you trying to argue that the statute’s use of the word “privilege” means the legislature was only attempting to regulate commercial driving? Is that the essence of your statutory interpretation argument?  

The driver license scheme is entirely a matter of the operation and definition of privileges. Criminal cases must prove the essential elements of privilege at the beginning of the case, but they never [do].​ 

No they don’t.  What is your basis for making this statement?  Can you cite to any law–constitutional, statutory, or common law–that backs this up?  I’m not aware of any legal support for such a proposition. (But I don’t claim to know all the law either, particularly criminal law).  No one appears to understand that defense, neither attorneys nor defendants.  ​I don’t understand it.  What is the basis for this assertion?

If a person cannot be shown to be doing the activity, trade, calling or occupation that is subject to privilege, the traffic case falls apart. 

This again suggests  to me that perhaps the essence of your statutory interpretation argument is that the use of the word privilege indicated that the legislature was only attempting to regulate commercial driving.  I again do not believe that is the most natural reading of the statute. Perhaps it all comes down to that: you and I read the statute differently when it comes to discerning the legislative intent.

Is the car privileged, or its use?

You are mistaken to think that it is the car that is privileged. No. Not the car. The activity in the car.

​It was never my intent to indicate that the car itself if privileged.  For that matter, however, my analysis doesn’t hinge on “privilege.” I don’t think the use of the word privilege in the statute means that the legislature intended to limit its regulations to commercial driving. 

Privilege taxes are upon privileged actions. 

But we’re not dealing with a privilege tax here.  We’re dealing with health, safety and welfare regulations or police power regulations.

What is privilege? Driving is a privilege?

My analysis does not hinge on this, especially if we aren’t addressing the validity/constitutionality of the statute.  You can call it a privilege. You can call it a right. It doesn’t change my interpretation of legislative intent and that’s what matters if we aren’t attacking the validity or constitutionality of the statute.  

What are the elements, Phil?​

To the best of my recollection–and it’s possible I’m wrong here–no court cases discuss “elements” of this type of privilege.  They may discuss the elements of testimonial privileges such as attorney-client privilege, spousal privilege, etc., but I don’t remember reading a case discussing the “elements” of privilege when determining whether something is a privilege or a right.  I’m not following the significance of the question of “what are the elements of privilege?” What are you saying the elements of privilege are? And what is your basis for such an assertion? And why does it really matter in interpreting the legislative intent of the statutes?  I want to know what the legislature intended. How are you saying the “elements of privilege” are going to affect my understanding of the legislative intent?  

Start at the beginning. At no time did the GA ever vote to extend commercial regulation upon people not involved in commerce on the people’s roads. Didn’t happen. 

​I guess this is just where we part ways and probably have an insurmountable impasse.  When I read the statutes, I walk away with the clear impression that the GA was intending to regulate non-commercial driving as well as commercial driving.  

I am looking for an attorney who can file civil tort cases upon cops, sheriffs and municipal corps. that violate constitutional rights by applying in bad faith (because of notice) the transportation law upon private people not involved in transportation.​

The notice has no impact whatsoever unless you can convince the court that the notice accurately states the law.   

Across the state, there’s a lot of money to be made. And I’d suggest it can happen even though judicial policy is set against liberty and law.

A lot of money suing based on my project to defy the activist judiciary in a state where remonstrance is rejected and proper appeal denied (Hirsch case). 

Assembly intends to regulate commercial, non-commercial driving’

​Generally speaking, it’s not an activist judiciary if the judiciary is following the legislative intent.  I believe in following legislative intent unless that intent violates constitutional law. That is a very conservative approach, not an activist approach.  And again, this brings us to the point where you and I probably have an insurmountable impasse. When I read the statutes, I walk away with the clear impression that the legislature was intending to regulate both commercial and non-commercial driving.  You walk away with a different impression. We’re probably stuck right there.  

Thanks for thinking things through with me.  

​It’s kind of fun to work through this.  But I’d better go do some client work now.

The David Tulis show is 1 p.m. weekdays, live and lococentric.

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


Print Friendly, PDF & Email

One Response

Leave a Comment

This site uses Akismet to reduce spam. Learn how your comment data is processed.