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 it may courageously elected 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.
Continue Reading: Cabbies, haulers subject to state control; what about you, private user?
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