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Warning: Smoking ban hazardous to the tenure of Supreme Court justices
By
Jim Waters
I am
not a smoker. In fact, I dislike second-hand smoke so much that I have been
known to tell rude smokers in restaurants to blow their smoke in another
direction – at least until I finish dessert.
However, as much as I dislike smoking, the thought of government trying to
regulate that activity is even more distasteful. I can walk away from a smoky
restaurant, but I can’t leave behind the organized force of government.
Freedom-loving Kentuckians should take exception to a recent state Supreme Court
ruling upholding the iron fist of the Lexington-Fayette Urban County Council,
which has voted to ban smoking in private businesses.
If politically unpopular but legal activities such as smoking can be outlawed,
what could be next? Elected officials confiscating a privately owned water
company? If Kentucky’s judicial system fails to protect the property rights of
its citizenry from a government determined to eliminate them, what will?
In sustaining Lexington’s smoking ban, a majority of the Kentucky Supreme Court
sides with the confiscatory behavior of government, while the dissenting opinion
upholds liberty and the individual’s right to private property.
On the wrong side of a six-to-one decision, Kentucky Supreme Court Justice
William Graves of Paducah courageously warns that the ban is “arbitrary” and
“oppressive” because it represents the confiscation of private property.
Some may protest that enacting a smoking ban is not the taking of property; it
merely restricts which activities can take place on that property. But, as
Graves and other brave jurists who steadfastly believe in upholding the
Constitution have pointed out, there is no difference.
“Use is an essential attribute of ownership,” Graves wrote.
By restricting a legal activity like smoking in a private establishment,
government essentially seizes a part of that property and impairs its economic
vitality. The U.S. Constitution and Kentucky’s Bill of Rights label such
procurement as “regulatory taking” for which compensation must be given to the
owner.
In a pitiful defense of the infringement upon these property rights, Justice
Donald Wintersheimer points to “evidence” presented by the government suggesting
that such a ban would have “no adverse economic effect.” He also points to
numerous surveys suggesting that the public favors the ordinance.
This is a disrespectful and nonsensical way to determine the constitutionality
of a proposed law.
Whether the public favors a smoking ban or not is irrelevant. What is relevant
is whether government has a right to interfere in the affairs of private
businesses and their owners when no illegal activity is taking place.
Whether such a ban results in a positive or negative economic impact is equally
irrelevant. The guarantee of individual liberty protected by the Kentucky Bill
of Rights is clearly at stake.
Perhaps among the topics of conversation at future gatherings of Lexington’s
cigar clubs would be the outrage of our nation’s founders toward assertions made
by Judge Wintersheimer. Writing for the majority, he states that using the
police powers of government to enforce the ban of a legal activity is
“reasonable.”
But often, it’s what well-intended politicians consider to be reasonable
government actions that bear the worst results.
“Of all tyrannies a tyranny exercised for the good of its victim may be the most
oppressive,” wrote C.S. Lewis. “It may be better to live under robber barons
than under omnipotent moral busybodies. The robber baron’s cruelty may sometimes
sleep, his cupidity may at some point be satiated, but those who torment us for
our own good will torment us without end for they do so with the approval of
their own conscience.”
Lexington’s policymakers have apparently deluded themselves into believing they
are doing something good by banning smoking in establishments owned by private
individuals. In reality, they have dealt Kentuckians another setback for freedom
and a blow to the liberties of their constituents.
Lovers of liberty in Kentucky should remember that our constitution gives them
the ultimate recourse to the unconstitutional actions of its Supreme Court
justices. Every six years we can eject those who do not defend our Kentucky
Constitution and elect those who guarantee they will.
-- Jim Waters is the Director of Policy and Communications at the Bluegrass
Institute for Public Policy Solutions, Kentucky’s only free-market think tank.
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