By David Tulis
Our interest to defend constitutional liberty reaches into dark areas of oppression about which ordinary people do not think.
One is the right to travel.
The right of free movement is a property right no less vital than the right of free speech, the right to marry or the right to pass along an estate to one’s children.
Yet since the late 1930s Tennessee has followed other states in pretending we do not have a right to travel on the public roadway by a conveyance of our choice. That conveyance is the automobile, a metal frame providing seats, roof, window glass, engine, transmission and gasoline tank. And, most importantly, a steering wheel and brake and gas pedals.
We have come to universally accept the claim enforced by police and sheriff’s departments — and state troopers — that we are not free to use these contraptions on the public way.
Universally we believe we must obtain a driver’s license from state government as a form of permission and ID, and always keep it current, show it when demanded by the officer and pay the fee (a tax) for the state’s allowing us to travel about.
Suing for a license
In God’s providence I have long studied this question, having litigated the right to a driver’s license among those who do not have social security numbers. In that case I sued to obtain a driver’s license, and though I did not appeal a negative decision in the Tennessee court of appeals and effectively lost litigation, the legislature rewrote the statute in Title 55 of the Tennessee Code Annotated to account for my religious liberty arguments. Today, free people and immigrants who’ve never had a social security number may obtain a driver license in Tennessee. All they have to do is affirm by affidavit they’ve never been issued one. A fair rule accounting for religious objectors to the SSN and immigrants.
But I was suing to obtain something I didn’t actually need in the first place.
My study of the law changed my mind about what the law requires of travelers. It does not absolutely require a driver license to use the road. The rules of statutory construction make clear to me that the statute is written to make the application of a driver license voluntary, so as not to offend the constitutional right of anyone who wants to use the public road privately and for his own lawful and constitutionally protected purposes.
In a nutshell, the driver license is needed only by those using the public road for profit, for commercial purposes, to make money from the people’s asset. These people are required in the current system to have licenses, for the purpose of ensuring public safety and accounting for wear and damage to the public’s property. If they are in commerce, they apparently need to have a driver license.
Going to trial in Lawrence County, Tenn., circuit court on Dec. 22 is one Arthur Jay Hirsch, a Christian man accused of various paperwork offenses that are alleged by the state and that unite to blight his constitutional rights.
Mr. Hirsch, a bachelor who makes a living restoring church parking lots, is accused of driving on an expired driver license (he’d had one living in Virginia) and having a firearm in his work pickup truck.
His understanding of his plight is very much like my own. Whenever the state prosecutes someone for exercising a constitutional right, it does so from a weak position. That position is administrative law. Administrative law never trumps constitutional law. And no one in the administrative realm can reach out to seize and hold to account a free person exercising a protected right under the radiance of the Tennessee constitution.
Indeed most people have driver licenses. Indeed, cops enforce the driver license law as if it were universally required. But legal mistake on behalf of the majority and the police is in no way a guide to how this man should proceed. Just because everyone else yields constitutional rights and enters BY APPLICATION into the administrative realm controlled by the state doesn’t mean that Mr. Hirsch cannot exercise his rights.
As is true of every courageous Christian, Mr. Hirsch acts as a representative. As Christ saves His people by acting as their representative before God, He takes the wrath of God’s law upon Himself and so saves His people before the throne of justice. Christ, fully God, saves man by being fully man in His incarnation and life among us for three decades 2,000 years ago.
Just so Mr. Hirsch. Whether he likes it or not, he represents a whole class of people oppressed by the current operation of law enforcement and the courts. Among these who may benefit from his Christian courage are immigrant Spanish speakers here from Guatemala, Mexico, Honduras and lands south; these people use the roads without license or insurance. Also, Mr. Hirsch stands in the place of those free people of ancient rights such as the Gnome of Strawberry Plains, whom we have met. These often are cranky Caucasian heirs of Anglo Saxon common law liberties that they believe still exist, though we have for decades endured the modern total welfare and administrative state that pretends they do not.
Just a detail?
Today on the public airwaves in Chattanooga (and globally through YouTube and via the TuneIn radio app) I will interview a former state and federal prosecutor, Braden Doucek, who has come over to our side. He works as new staff attorney in a unique and wonderful position at Beacon Center in Nashville (beaconTN.org).
Our interview at 10 a.m. will focus on the state scandal of civil asset forfeiture, the official form of theft and robbery sanctioned by Tennessee law and enriching police and other departments statewide. Beacon Center and the state’s ACLU are combining their efforts to overturn this evil and very anti-local economy law.
Beyond that area of labor, Mr. Doucek wants to fight cases like the one before us involving Mr. Hirsch. Mr. Doucek wants to overturn a progressive and state-centered legal system that tramples our ancient rights and makes us cower — makes us all obediently ask permission to perform deeds that are free and unencumbered in our organic law. He is looking for defendants and plaintiffs to help overturn barnacle-covered systems that the state bar has allowed to be build over decades of careless litigating and defending.
The driver license issue is not a mere backwater in the battle for liberty. As Mr. Hirsch, an able expositor of legal arguments, directs his case through the courts, he could overturn a gigantic system of roadway regulation operating perniciously and deceitfully against every one of us. I ask you to pray for him in the time of his tribulation and raise him before the throne of grace.
You may also enjoy these related essays by David Tulis and Roger Roots