The Liberty Papers

It’s long been noted that our Federal Government has grown in scope and hubris to the point where they don’t see any limits to their powers except that which is explicitly forbidden by the Bill of Rights, and even then they try to get around it (McCain-Feingold, warrantless wiretaps, etc). Usually, though, they try to couch their actions as if they’re balancing our rights with “compelling government interests”, not suggesting that those rights simply don’t exist. But one of them slipped up…

“The constitutions of the United States and the state of Ohio do not recite any ‘right to smoke in public’; controlling precedent creates no such right; and other courts have held that there is no such right,” Nelson wrote.

He also refuted the businesses’ claim that the ban violates their right to use their property as they see fit. They had argued the case is similar to the recent eminent domain case in Norwood, where homeowners won in court after the city tried to take their property.

Nelson said the smoking ban is different.

Rather than taking the property, he said, the state is imposing regulations on the businesses, similar to other safety and health code requirements.

The judge’s ruling seemed to express some sympathy for the plight of bar and restaurant owners, some of whom claim the ban will run them out of business.

But he said the law is constitutional.

The Constitution of the United States and Constitution of Ohio don’t recognize the right to wear plaid on Tuesday, but I would think rational people would consider it an invasion of privacy and our individual rights to ban that activity. Those Constitutions don’t recognize our right to eat meat on Friday during Lent, but I would suggest that if government tried to ban it, it would result in calls of “Theocracy!” from the same people who want to ban smoking. It further shows a misunderstanding between something that is done “in public” and “on private property”, dramatically restricting our right to enjoy the latter.

I touched on this here, a post that was inspired by reading Randy Barnett’s Restoring The Lost Constitution. In that book, Barnett argues that our Constitution was designed with a presumption of liberty in mind; anything the government is not explicitly given power to do is prohibited. We’ve moved to a presumption of Constitutionality; anything not explicitly forbidden by the Constitution is allowed. I’ve recommended on several occasions that people read the book, as it clearly explains how the Constitution was eviscerated in order to make this change.

One thing it doesn’t really discuss at length is WHY this is so important. A world where government can do anything they haven’t been explicitly forbidden to do is dangerous. Fear of this situation is specifically where the 9th and 10th amendments come from. Trying to claim that government doesn’t have unlimited power is like trying to prove a negative. After all, anything not explicitly mentioned in the Constitution— like breathing, for example— may be regulated by the State.

Under this paradigm, the government doesn’t have to justify what it’s doing. Overwhelming power, mixed with a nearly complete lack of accountability, with a dash of egotistical nanny-statism, is a recipe for disaster.

Hat Tip: Reason