Judges’ trick on ‘right to travel’ defied by hard-of-hearing motorists

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Tennessee courts have ruled that every use of a car is “the driving of a motor vehicle,” and that this act is subject to licensure and regulation, regardless of whether the motorist is operating in commerce. A Hixson man is challenging this claim.

By David Tulis

The battle of local economy is one in which the promises of the credit economy salesman at the front door so preoccupy us that we scarce pay any attention to the looting of our kitchen cabinets by his sneaker-clad cohort with the bag slung over his shoulder.

A local man recently appeared in a Chattanooga courtroom vainly objecting to an important loss of liberty. To whet your appetite for details, his case is written up in Chattanoogan.com under the headline, “‘Sovereign Citizen’ Questions City Court’s Authority, But Judge Rules Him Guilty On All Counts.” But before we meet him another day I want to tell you about the legal wall he faces.

Government control of the roadways began in the 1910s when New York created a licensing regime that eventually snagged every user of the roads and every motorized conveyance under a regime of permissions and licensure. If we believe the free market actors in this dispute, the state converted cars and trucks into vehicles and the people behind their steering wheels into drivers.

So what?

We get into this controversy not hoping vainly to change anything about the status quo. We have lately become aware of free-range chickens being healthier in their egg-laying, and free-range cattle producing better quality meat, such as that sold by the Brady family at St. Alban’s farmer’s market on Saturdays in Hixson. Consider how the free-range motorist may be insisting on health of a different sort, if only to point out what we have lost by way of liberty.

The case of Robert K. Booher suggests how this is done by what seems a sleight of hand. The Tennessee court that ruled in his 1997 case wants to recognize your rights with one hand (the sales pitch), while with the other it takes the canned chowder and bags of pasta out of the cupboard that might otherwise nourish your family.

A valuable right has been destroyed by Tennessee courts in compliance with the “public policy” of requiring every car owner to be a driver. What is that right? The right to travel.

I have not done a comprehensive review of the cases that imposed this regime of permissions upon the free people of our state. So I will take the story of Mr. Booher as suggestive of the rulemaking from the bench that is part of the narrative of revolution by government and within government.

Before we meet Mr. Booher up close, let me make your head spin by the trick given in the ruling. “We agree with the appellant that he enjoys a fundamental right to freedom of travel.” Fine thus far. We can agree with judge. But hold on. “Travel, in the constitutional sense, however, means more than locomotion; it means migration with the intent to settle and abide. Thus any American is free to travel from state to state, and to change his state of residence or employment whenever he desires, unrestricted by unreasonable government interference or regulation. Whether a specific type of travel is protected by one’s constitutional right to travel depends upon the intent which motivates the movement.”

Do you see what is happening here? Travel, they say, means something MORE THAN LOCOMOTION, but the judges define is as entirely something less.

What is travel?

The judges say travel is moving your household to another address with the intent to reside. Residency is a legal concept that is filled with your intention to move your physical address to another location. This liberty, the judges say, is yours. You are free to move wherever you like, with your wife and children in the car and you in the cab with the movers.

But travel is defined much more broadly in common usage. Black’s law dictionary defines traveler simply as “a person who passes from place to place, for any reason.” The word “travel” appears in Bouvier’s law dictionary, which defines original constitutional usages, as part of a definition of turnpike: “A turnpike is a public highway, and a building erected before the turnpike was made, though upon a part out of the travelled path, if continued there is a nuisance.” The movement discerned here is that of traffic, not strictly relocation. Noah Webster’s 1828 dictionary place travel very simply in physical movement from Point A to Point B.

To walk; to go or march on foot; as, to travel from London to Dover, or from New York to Philadelphia. So we say, a man ordinarily travels three miles an hour. *** To journey; to ride to a distant place in the same country; as, a man travels for his health; he is traveling in Virginia. *** To go to a distant country , or to visit foreign states or kingdoms, either by sea or land.

Wikipedia, the all-knowing source of knowledge for college students writing papers, says travel is “the movement of people or objects (such as airplanes, boats, trains and other conveyances) between relatively distant geographical locations.”

The case of Mr. Booher

Now, hold on. Before we meet our defendant from Hixson who made spectacle of himself in Judge Sherry Paty’s court, I’d like to tell you of his predecessor in patriotism, Mr. Booher, whose story is recounted in an official record by the Tennessee court of criminal appeals in Nashville.

Mr. Booher of Waverly, Tenn., in his 1997 case says he is free to use the roads so long he is acting privately and is not involved in commerce. Mr. Booher was convicted in the circuit court of Humphreys County for driving without a license and driving without vehicle registration. He was convicted after he sent by registered mail all registration papers, certificates of title and licenses plates for three autos and two pickup trucks. After that, “the appellant asserts that he traveled as a ‘free man’ for about three and a half weeks.”

As the appeals court frames the case, Mr. Booher is arguing that it is unconstitutional for state government “to require him to procure a driver’s license and vehicle registration before operating a motor vehicle on the public highways of this state.” I don’t have the record before me, but this statement frames the defendant’s case in terms of the established paradigm. That paradigm is that there is no distinction between directing a car and driving a motor vehicle. The first activity — using a car on the road — according to the patriotic argument of Mr. Booher and others, is free. The second activity, driving a motor vehicle, is part of commerce and subject to regulation and licensure. Mr. Booher made no such argument about motor vehicles, and that he was insisting his cars and pickups were being used privately.

“Moreover, the appellant argued that a vehicle only becomes a ‘motor vehicle’ when it is registered and, because his 1985 Dodge was not registered, he could not be guilty of either misdemeanor offense.”

Presumption of total state control of car use

The courts turn a deaf ear to the argument that says use of a car or private use is not subject to regulation. Remember, traveling is something more than going from A to B on the map; meaning, it is something definitely less.

Mr. Booher’s arguments are simply rejected, and the judges piously insist the right to travel remains unaffected.

“His right to travel within this state or to points beyond its boundaries remains unimpeded. Thus, not only has the appellant’s right to freedom of travel not been infringed, but also, we cannot conclude that this right is even implicated in this case. Rather, based upon the context of his argument, the appellant asserts an infringement upon his right to operate a motor vehicle on the public highways of this state. This notion is wholly separate from the right to travel.”

So a private use is a public use. The court bars private use of cars on the roads entrusted to the care of state government, and insists the right to travel and the right to travel by car are “wholly separate” concepts.

In a text in the near future we will meet a man who cockily uses the concept of “individual sovereignty” to insist he has a right to use the roads privately, and is not required to obtain a license to drive a motor vehicle, because he is not driving a motor vehicle — he is operating a car for private purposes.

Am I wasting my time talking about the Boohers and “sovereign citizens” of Tennessee — letting legal cranks get me agitated about lost liberties? Maybe.

But maybe these oddballs and seeming troublemakers are on to something valuable, if only so we might understand our predicament better. As we work toward increasing our liberties and asserting our rights as the yeomanry, the commonfolk and members of the commonwealth in the Volunteer State, we might do well with a little legal context.

Please read Part 2 of this essay here.

David Tulis, the mild-mannered editor of Nooganomics.com, interviews Eric Kiesche on his radio show. Nooganomics.com at Hot News Talk Radio 1240 AM weekdays 1 to 3 p.m.

Sources: State of Tennessee vs. Robert K. Booher, 978 S.W.2d 953; 1997 tenn. Crim. App. Lexis 799.

Noah Webster, American Dictionary of the American Language (San Francisco: Foundation for American Christian Education, 1828, 1995). Facsimile edition.

You may also enjoy these essays by David Tulis

The next time you get ticket, ask questions a la Scarlet Pimpernel

Preserving your rights in city court; judge fields my odd liberty queries

Roadway gnome insists on right to travel at liberty, apart from licensing demands

1997 Tenn. case says you have right to travel, but not by car

5 Comments

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