Tennessee state government has authority to regulate one group of people on the public roads, but not another.
The regulatory power it has (arguably) is upon commerce within the state. But it does not have the constitutional authority to control, regulate and threaten private innocent activity on the public right of way that is not commercial and not for profit.
By David Tulis
Yet we all know differently.
We all know that nothing can move on the public right of way unless it is licensed. This supposition is supported on every side. It starts with Bill Haslam and all his predecessors as chief executive in the governor’s mansion since 1937.
It is supported by the general assembly, and the courts of appeal have all shared in the deception — that we users of car and truck are involuntarily in commerce.
But the Hirsch case is working its way out of the trial court and promises to challenge the progressive status quo in Tennessee. I’ll skip the details. But chances are decent (between poor to slight) that the judiciary will side with the people as against the other branches that allow state enforcement of commerce — by the police — against private people.
The courts can claim their hands are clean because (under the case Ashwander v Tennessee Valley Authority, 1936) they haven’t been asked the right question or they settle (or evade) potentially explosive constitutional cases on technical or lesser nonconstitutional grounds.
In God’s providence over the affairs of men and the defendant, Arthur Jay Hirsch, the court will have a chance to continue the program of control and harassment, the legacy of modern progressivism and statism. Perhaps it will uphold the state licensing scheme as a political necessity of the modern state and continue to allow criminalization of constitutional rights.
Or the justices may courageously elect to do the opposite: Recognize the distinction between commercial travel and private, and bring reform pressure upon the general assembly.
It depends on whether he raises the questions properly. It may be Mr. Hirsch will win dismissal on grounds of plain error — of which there many egreious ones under Judge Stella Hargroves in Lawrence County circuit court.
Control of commerce, respect for freedom
The activity subject to regulation is that of companies and individuals who profit by the use of the road by carrying people and goods for hire.
That would include:
➤ Taxi companies (hauling people for hire)
➤ Bus companies (big window-lined behemoths)
➤ Trucking lines
➤ Courier services
These make a living by taking a public asset (the roads, paid for by taxation and belonging to the people) and pounding away at them and shortening their lives for profit.
In Chattanooga, Covenant Transport Inc. is a major hauler and employer.
It was started in commerce in 1986 by David Parker and his family with 25 trucks and 50 trailers. Today it operates 2,700 trucks and 7,000 trailers for temperature controlled trucking, regional hauling and longhaul delivery. Drivers are all clearly in commerce, because they are paid for their work in hauling. On average, rig owner operators drive 5,000-6,000 miles per week. They get an annual equity bonus of F$10,000. If a driver runs at least 35 loads or 50,000 miles every quarter, he’ll receive a $2,500 bonus, according to Truckdriversalary.com. Covenant pays a F$7,500 bonus for a driver at the five-year mark.
Taxis and truckers are rightly subject to regulation and taxation because they bring damage, wear and tear to the people’s goods, to the commonwealth, by earning pay and bonuses upon the people’s highways and byways.
Their rigs tear up the people’s property by being carriers for hire. So the people need to be compensated for the loss of quality and maintenance expenses of enduring the 20-ton rigs of Merchants Freight Line in Nashville or any other. Carriers bring F$43 billion worth of accidents annually, according to a Murfreesboro law firm, citing federal stats.
That’s damage to the people’s asset — the transportation infrastructure.
Innocent, private users — free to go?
In 1937, an era marked by the great fascist dictatorships, Tennesseans representatives wrote a commercial driving code to regulate the for-profit use of the roads. The statute was immediately enforced, however, against private users such as Earl Sullins, whose case was the first major review of the statute by the Tennessee supreme court (1940).
The noncommercial users of the roads were in practice made subject to regulation as if they were operating in commerce.
But they weren’t, and they aren’t today.
Who are these people, and what generally is the private use of the public right of way? The private use is any use of a car, truck or motorcycle to get a private person from Point A to Point B for a private purpose.
If the road is not itself being used for commerce, a given act of travel is not a commercial use.
This assertion is true even if the user is a businessman going to a meeting. A man making sales calls also is acting privately. He makes a living tuning sheet metal fabricator laser cutters at Ben Parker Co. downtown. His living is not from hauling or transporting, but maintaining. He’s not in commerce even if he makes an occasional delivery of a device to Evan Parker, company president.
Incidental vs. essential to calling
The state might try to argue that every use of the road is in commerce if it is even remotely connecting to money, prosperity, livings, business, sales or going to a convention at the trade center. The state could say your driving to church is commercial because, to you, prosperity is bound up in the love and worship of God.
But that distinction doesn’t hold because only the profession of carrier makes his living from the actual transport of people or goods. For everyone but cabbies and truckers, travel is incidental, not essential to the calling.
Hence the use of the highway is not commercial or subject to regulation, because its use is not primary to the calling or profession. A lawyer using the highway to get to court is not in commerce in that act, though he has a professional license to practice law. An engineer using the highway to get to a client’s construction site is not making a living traveling. Travel is incidental to his profiting from his engineering degree and state license.
So even these high and mighty ones whose callings are pretendedly owned by the state are not carriers in commerce.
Political tea leaves
As much as I have studied the issue of the free use of the road, I don’t know the political necessities of the court’s judges and how they will hear the coming claims, if God ordains Mr. Hirsch, 65, to prosper in life and pursue his defense.
The courts have taken part in the licensing fiction within the realm of administrative law since Sullins v. Butler. They did it in the case of the Gnome of Strawberry Plains in his appeal of a 1992 conviction of “operating a motor vehicle upon the public streets without having a valid driver license in his possession.”
They said if one should have a license, he is a licensee required to have said license on his person, though Mr. Ballinger, a carpenter in Knoxville, hadn’t used the roads under license since 1985. The claim is a legal fiction of the purest kind, and allows the state to continue its pretense as sovereign over all human activity, even if private.
Next: State troopers take private sector by storm, bully travelers into commerce. Please like me on Facebook.
You may also enjoy these related essays by David Tulis and Roger Roots