The inverted pyramid: How state uses consent to operate driver license scheme

Hispanic immigrants such as the Perez family in Morristown, Tenn., are subject to harrassment for using their cars without driver licenses. (Photo Southern Spaces)

Hispanic immigrants such as the Alfredo and Sylvia Perez family in Morristown, Tenn., are subject to harassment for using their cars without driver licenses. (Photo Southern Spaces)

The Legislature shall have no power to suspend any general law for the benefit of any particular individual, nor to pass any law for the benefit of individuals inconsistent with the general laws of the land; nor to pass any law granting to any individual or individuals, rights, privileges, immunitie [immunities], or exemptions other than such as may be, by the same law extended to any member of the community, who may be able to bring himself within the provisions of such law. [bold added]

— Tennessee constitution, Article 11, section 8

By David Tulis

The use of the automobile on the people’s roadways is largely not free today. That’s not because of direct coercion and the state’s violation of rights under the constitution. That loss of personal rights is by virtue of consent.

We don’t have free use of the public roads because we’ve agreed that we don’t. The regime of driver’s licenses in Tennessee, as in other states, affects Guatemalans, Hondurans, Mexicans and other newcomers who use the public roads as a matter of right and who are not licensees. It also afflicts other innocent users of the roads, namely stubborn Americans maintaining their constitutional rights who refuse to play along.

Driver licenses and apple pie

Are we free to tootle freely about by car? Or is humming from Point A to Point B subject to the state’s permission through a driver license regime described in Title 55 in Tennessee law? No system exists whereby if you are at home and you wish to drive to the Bi-Lo in your neighborhood that you have to call the department of safety and homeland security and ask permission from a languid and tired voice at the other end that makes note of your driver license, your car tag and demands details of your itinerary and the time in which you will be on the roads.

The driver license system in Tennessee is much more co-operative than that, much more liberal. What is licensed is the person himself as a licensee. Once he has the license, he is free to go as he pleases. He doesn’t have to report in.

You are expected, as a teenager, to enter the state’s driver license system by application, following an exam on road and traffic knowledge, and to keep the plastic card of the DL on your person at all times when using the roads. How trusting is the state of its people; how confident that they can move freely about without having to check in to the department prior to every excursion or trip into work. It doesn’t require a daily checking-in, but an occasional renewal of the license by remission of a fee. “The granting of the right to operate a motor vehicle upon the highways is a privilege subject to reasonable regulations in the interest of the public under the police powers of the state” and this ability to drive a “motor vehicle” is not a fundamental right but a “revocable privilege,” a Tennessee legal encyclopedia explains.

Reading this sort of language makes liberality seem as remote as east is from west. But the statute itself is full of liberality, of grace. The provisions of TCA 55-50-301 are remarkable the way in which they are written, a style that seems to have escaped lawyers who defend traffic cases. It is written to indicate that it is consensual, 100 percent voluntary, and that people subject to it enter the department’s regulatory regime fully agreeing to waive a right to travel by car. I have explored the statute’s language elsewhere. That waiver of rights and the implied agreement to be supervised lets the state easily and conveniently exercise its police power for the public benefit and safety.

Rite of passage

Every Tennessean knows as a matter of culture that driving is a privilege. Lawyers will tell you that. Schoolteachers will tell you that. A teenager’s parents will tell him that Every teenager knows that a driver license is obtained as part of his rite of passage to manhood. It stands without question as an indubitable fact that in Tennessee you have no access to the wheel of a car unless you obtain a driver license. It shows maturity and responsibility.

It is an early interaction with the modern state. On Facebook over the past few weeks I’ve been photos from juvenile court judge Bob Philyaw and attorney Ron Powers whose daughters are no longer just girls, but women. Each holds up the camera a new driver license.

What happened in 1935?

An explanation as to WHY and HOW the driver license regime arose is crystalizing. The argument is important if we are to understand the business of lost rights and how they might be restored.

Tennessee appears to have been late on the scene to regulating automotive users. Other state’s regimes had existed for 10 years or more before Tennessee got into the act circ. 1935.

The state created the department of safety to remove from the highways, streets and roads of Tennessee and its cities those people exercising a constitutional right to travel. Such people protected by constitutions are hard to deal with; they are difficult to deal with because confronting them over the use of their rights is time consuming, juries are required is there is an offense or accident, and they are difficult for police to assail or confront if there exists a dispute or argument. Their consent is required, and they cannot be arrested, detained or waylaid without their constitutional rights being scrupulously observed.

So, how to separate the people from their constitutional rights on the matter of traveling and using the people’s roads?

Pass what’s called remedial legislation, one that fixes a problem, replaces one law with another. Black’s Law Dictionary defines remedial law as “a law passed to correct or modify an existing body of law; esp., a law that gives a party a new or different remedy when the existing remedy, if any, is inadequate.”

In other words, the state’s department of safety, given authority to regulate the use of the roads, obtains power over motorists and their conveyances by a law system in the alternative.

From constitutional protection to supervision

Question is: How to get people from under one law system into another? Get them to volunteer into it. Get them to apply for entry by an application process. Get Tennesseans to solicit their way into the alternative scheme giving them the impression they have no choice.

The state’s driver license law is a form of temporizing, a shorthand, an ad hoc system that substitutes one body of government for another. The constitution in its oath of office has public officials swear they will not “consent to any act or thing, whatever, that shall have a tendency to lessen or abridge their rights and privileges, as declared by the Constitution of this state” (Article 10, section 2). It defines among professions, callings and profitable activities subject to tax; the state has power “to tax merchants, peddlers, and privileges, in such manner as they may from time to time direct” (Article 2, section 28).

Lawyering, doctoring, accounting or contracting to build housing subdivisions are privileges in Tennessee. Driving a car isn’t anything like a regulated means of earning a livelihood. If it is a privilege, it is a sort of hybrid privilege, a government privilege over an activity that is quite unlike that of peddler or storekeep. Using the roadway is an everyman’s activity, a common activity as routine as breathing or eating lunch, yet it has been elevated into a pseudo-privilege in the name of public safety, with its barriers to entry and continued surveillance afterward of all manner of activities unconnected to use of the roads.

The term that occurs to me is temporizing. The driver license is evidence of the state is making it up as it goes. But remedial law is probably the legal term. The DL law is remedial to the state, and deleterious to the people.

Remedial law lets the state get what it wants: The majority of the citizenry in an area that excludes the costly and tedious operation of constitutional rights, an area in which constitutional rights are waived. When you waive your constitutional rights, you don’t have them. You don’t have them to assert, and the state doesn’t have them as obstacles to its management and supervision. We are no longer at liberty, but in administration. We are policed and “kept safe” by what is a gigantic regulatory inverted pyramid balanced on a tiny point: Consent of members of the public and their application to bring themselves within the provision of such law.

Source: Photo credit: Alfredo and Sylvia Perez and their children appear in a study, “Going South, Coming North: Migration and Union Organizing in Morristown, Tennessee,” http://southernspaces.org/2011/going-south-coming-north-migration-and-union-organizing-morristown-tennessee, May 19, 2011, Fran Ansley, University of Tennessee, Knoxville, Anne Lewis, University of Texas, Austin

Tennessee Jurisprudence, automobiles