By David Tulis

The Gnome of Strawberry Plains has been cited to court for driving without a license, opening the prospect for a renewed effort to show that Tennessee’s driver license regime, out of respect for the state bill of rights, is voluntary and seeks to avoid offending people who use the public roadways as a matter of right.

The gnome, 70, a carpenter and Christian who uses a pickup truck, was hauled to the side of the road March 28 on grounds that he’d not been wearing a seatbelt. He was cited to sessions court for driving without a license. He says he’ll exercise his right to an indictment. (Update: the charge is driving on a suspended license. But the Gnome says he did not have a license that could have been suspended, so wonders what the record will show about how the department gave him a license apart from application, and suspended it.)

The state government he faces uses legal fictions and sleights of hand to trick the people into waiving their rights and enter their scheme of government licensure. A government license is, he suspects, different from a privilege or occupational license such as that granted accountants and engineers. The driver license regime exists purely for control and surveillance, as it enforces a state imposition against a basic constitutional right, that of the right to travel. It obviates and deletes that right, and has become so much of the culture that few people believe any freedom exists in the domain of personal transportation.

Driver’s licenses are government licenses purely in exercise of police power, and are not genuine privileges, such as lawyering and doctoring have become through various state-created boards that limit and regulate access to these fields of human service.

The regime overseen by the Department of Safety and Homeland Security pretends to be exhaustive and to totally forbid use of the public roads by individuals in self-propelled automobiles using gasoline or diesel engines. I refer here to the regime as practiced, not necessarily to the regime established in the law.

2 statutes control — or do they?

In practice towns, counties and the state enforce the state monopoly of roadway use. But the law tells a different story, for the person willing to read it. The gnome probably will be charged under the “exhibit on demand” statute, TCA 55-50-351. It applies to “every licensee,” and in its wooden and cheerless way opens as follows: “Every licensee shall have such licensee’s license in immediate possession at all times when operating a motor vehicle” and shall show it “upon demand of any officer.”

But notice to whom this law applies. To every licensee. How can someone be charged as a licensee when he’s not a licensee, and has not had a driver’s license since at least perhaps four decades?

A second option is to charge the gnome under another provision. That rule seems to require everyone to have a license. Now this statute is the key statute, because it ostensibly requires every user of the road to have the state’s permission. It is, in other words, the liability statute.

Generally the law requires a strict construction of any liability statute, because such statutes focus on who is under state compulsion. The rule has to be precise and exact, and it delineates who is subject to obey. Some people are liable; other people are not. Liability for performance is not ever left up to chance, and statutes that create a duty often name the sorts of people who come into view.

Problem with TCA 55-50-301 is that it is a terrible liability statute. In fact, I would say that under the rules of “statutory construction” (that is, how one reads a statute and ascertains its structure) the statute makes entry into Tennessee’s driver’s license law voluntary. The way the rule is written, having a driver license is consensual, entirely at equity (as one 1930s case goes out of its way to affirm). If having a driver license is in equity, it is part of the world of contract. The rules of commerce and fairness apply.

I won’t get into details here on the structure and language of this statute except to cite the controlling initial verbiage: “Every person applying.” The statute applies to everyone applying for a driver license and the details that follow regulate all those who place themselves within the purview of the law and spend a great deal of space regulating the department of safety.

Unseen grace in Tennessee law

Tennessee’s law actually respects the gnome and his use of his pickup truck. I’d like to speculate on why. When the general assembly wrote the law, it knew it could not do anything to oppress the exercise of any citizen’s constitutional right. The state wanted to control and regulate the roads, but at the same time to not be exposed as oppressing anyone exercising a constitutional right to travel by car. So it made the system voluntary and over the years won the majority of the people to see things its way. Operating a motor vehicle is a privilege, any lawyer will tell you. There is no right to drive. Driving is regulated, and one can drive only with a license. These are commonplaces repeated by the members of the bar who don’t read the statute and don’t see in it the great liberty tucked away in the lines. Maybe they want repeat business from people charged under its misreading — who knows?

I have a master’s degree in English from the University of Tennessee. But it doesn’t take that sort of diploma to see the plain meaning of the law. And to see how the system of courts, police departments, sheriff’s departments and the department of safety itself profit from pretending that using the roadway without their permit is outlawry. The state has grown accustomed to its pretense, and it believes its pretense unreflectively.

The gnome’s assignment is to argue the law to get the case dismissed before trial. If his motion to dismiss is rejected, he will go to trial before a petit jury of the people, who will very likely be easily managed by the district attorney.

He could easily be found guilty. You ask me, “What about the thousands of cases decided under the wrong reading of the law that pretends the system is obligatory? Don’t those rulings matter?” They don’t matter, and they do not control. The wrong question will bring the right answer to the wrong question. It’s important that the defendant ask the right question, and he will eventually get the right answer to the right question. The system is in many ways slow to change and predictable, and many cases are lost because the defendant or appellant asks the wrong question. It could be my perception of the statute is novel and it could be wrong. In my driver license case, the legislature rewrote a perfectly good statute to account for my arguments as a driver license applicant who didn’t have an SSN. I had argued that the plain reading of the statute allowed the commissioner to grant me a driver license without my having a number. The commissioner insisted on misreading the law and pretending that he was required to order me to get an SSN if I wanted my driver license renewed.

State agencies go to great length to control the argument, and use many legal fictions to accomplish their goals. But legal fictions cannot control, and they are not law.

To expand this area of liberty, I have proposed finding an Hispanic immigrant in the Chattanooga area to defend against a “driving without a license” charge under either TCA provision. He and his defense attorney would use my free market and local economy analysis of these laws and overturn existing practice as a matter of law. Perhaps the case against the carpenter pre-empts this agenda. The Gnome of Strawberry Plains may be the perfect case upon which to argue for the generosity, grace and kindness of the statutes as written. He may be just the person to argue that the law allows him to proceed in the quiet exercise of the property right of self-propulsion, and that he may do so without a state license and without threat from the police in the exercise of that right.

The streets are among the most strictly enforced area of modern life in America, and it is high time we start seeing the state retreat from its feckless regulation of motorists and their modes of transport.

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You may also enjoy these related essays by David Tulis and Roger Roots

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