By David Tulis
As you pointed out in the first of our two phone conversations, “driving is a privilege.” OK. Licensed driving is a privilege for people who have a current and valid driving license. But a driver license is obtained by application at equity. The relationship is made clear in the first major case on driver licenses, Sullins v. Butler, 175 Tenn. 468; 135 s.W. 2d 930; 1939 Tenn. Lexis 63.
Another case that establishes the status-altering nature of the driver license is State v. Booher. Booher was a patriot constitutionalist defendant who thought he could turn in his driver license and drive freely on the road as a matter of right. The ruling against him bolsters the existing regime of the state’s appearing to require a license to drive. The judges apply the statute against him as he was once a licensee. State of Tennessee vs. Robert K. Booher, 978 S.W.2d 953; 1997 tenn. Crim. App. Lexis 799
[Excerpts of a letter to a Chattanooga attorney who cares about constitutional liberty and who is willing to think about the openness and seeming graciousness of Tennessee’s statute as regards the use of autos on the public road and the law’s seeming unwillingness to close off roadway use to licensees only.]
Booher and a second case, State v. Ballinger, seem to establish the best claim the state has as against a right to travel by car. And that is, “once a licensee, always a licensee.” Booher was charged with driving without a license because he didn’t have a valid license on him; the statute requires a licensee to have a valid license on him, and he didn’t. I’ve read Ballinger, and know the defendant, but don’t have a cite. Both men, I think, lost because of a reduced legal status as one-time licensees.
Proper construction of statute
Well, where am I going with these observations? To TCA 55-50-301. Its construction suggests the driver license regime is 100 percent by consent. 55-50-301 is in its general effect and purpose focusing on “every person applying” for a DL. There follow 5 subpoints. 55-50-301(1) is a detail serving the interest of the general heading.
55-50-301. License required — Requirements — Exception — Applicability to temporary licenses and permits.
(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:
(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;
I suggest that 55-50-301(1) doesn’t go beyond the scope of the heading, but that it applies to “every person applying.” If so, we are a freer people than the state might want us to suppose. Might a study of statutory construction affirm this assertion?
Is the statute really not as oppressive and comprehensive as police officers tell us and judges seem to imply? The state is always about constraining liberty, reducing travel down to the right to relocate one’s residence.
Caring for strangers and aliens
I perceive an unexplored area at law on this point. If you have a good defendant who is a Mexican or Guatemalan immigrant in Tennessee, you can pursue my argument that Tennessee is really a free state, with a consent-based DL system that does not offend a right to travel by car on the public highway.
The argument would hinge on statutory construction, and would hopefully be bolstered by legislative review of the original statute’s creation in 1937. I have not done this historical reading. Perhaps legislative debate would show that the general assembly indeed intended to destroy a right recognized as a constitutional right. See the history of this “lost right” by Roger Roots.
He says that since 1950 the constitutional right to travel became increasingly interpreted not as a right to locomotion by the means of one’s choice, but as a mere right to emigrate between states.
Rather than allow the general assembly to be painted as destroying any right, I would want to propose that it didn’t, but created an artifice of regulation by which it could get people to surrender their rights by misdirection and propaganda. Courts have a duty to make legislation work, and not to overturn them if there is some way they can be construed as constitutional.
Is Tennessee law gracious?
The point of litigating this liberty issue is: Tennessee is a gracious and free state, and it welcomes newcomers who never had a DL in this state (or any other), and we know it welcomes them because its DL statute is open, free, equity-based and premised on your voluntary entry into the system, in goodwill and a care for public safety.
Our statute welcomes people to become licensees, but doesn’t coerce them. Mexican immigrants and others cannot be prosecuted for driving without a license if they never had one in any of the 50 statues.