01 Feb 2008 Property Rights Going Up in Smoke, by Sean Turner

“Life, liberty, and property do not exist because men have made laws. On the contrary, it was the fact that life, liberty and property existed beforehand that caused men to make laws in the first place.”  – Frédéric Bastiat

I am a long-time critic of overregulation, including the increasing trend of government anti-smoking initiatives.  When I recently moved from Georgia to Texas, I was perhaps too naïve in hoping I would escape the inane policies of out-of-control legislators.  I did not, but it would have been a surprising change of pace to avoid those who intend to regulate every facet of our lives.

To the contrary, these officials now believe they are seasoned enough to run for national office.  Presidential candidate Mike Huckabee, for example, signed a measure into law prohibiting smoking in most indoor “public” places when he was governor of Arkansas.  He recently reversed his position on a federal ban of workplace smoking because, he says, he now believes such bans are a state and local issue.  In late 2003, then-governor Mitt Romney announced his support for legislation to ban smoking in workplaces across Massachusetts, including bars and restaurants. 

The attempt by federal, state and local governments and with various anti-smoking organizations to modify our behavior is bad enough.  I believe there is a greater issue relating to smoking bans, however, with which we must concern ourselves.  This concern is the threat to property rights.

A property right is the exclusive authority to determine how a resource is used – whether its’ a car, house, business or any other resource of which one is the owner.  Additionally, private property rights confer an exclusive right to the services of the resource – as well as the right to delegate, sell or rent any portion of the rights by exchange or gift based on mutually agreeable terms.  Conversely, public property is property controlled by the state (government) or a community.

While most would agree with these definitions, many seem to suffer a severe logical disconnect when leaving their homes (i.e., private property) and enter into a restaurant, retail store or other places of business that they do not own (i.e., someone else’s private property). 

Though a business exists to provide a product or service to potential consumers, it should be allowed to do so under the terms of those who own it and not those of the state, or some third party using the state as a tool of coercion.  These terms include the environment in which those products or services are offered.  If the terms are agreeable to both the business owner and potential consumer, a transaction occurs and both parties walk away having benefited.

Just as one lacks the unfettered right to enter into another’s home – much less restrict smoking in it – one also lacks the right to enter into another’s business.  One is given access to the business by the owner who hopes to conduct a transaction, not cede control of the business.

Contrary to popular belief, one does not have the unfettered right to dictate the usage another’s property – whether it be a house or place of business – particularly when one has the ability and choice to avoid that place, and its real or perceived ill-effects.

Few argue the ill-effects of smoking tobacco, as the CDC other organizations continuously point them out.  As someone who believes in the principles of liberty, I find it deplorable when anti-smoking policies are applied to private property and violate the U.S. Constitution.  Not only does this violate the fundamental principal of property rights, but it is also anathema to the concept of a free society.

Smoking bans and more will be coming to your home.  And if you live in certain parts of California, where they love to be on the bleeding edge of nanny state legislation, you already know what I’m talking about.

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Sean Turner is a member of the national advisory council of the black leadership network Project 21.  His commentaries have appeared in the Atlanta Journal-Constitution, Washington Times and other newspapers.  Comments can be sent to [email protected].

Published by The National Center for Public Policy Research. Reprints permitted provided source is credited. New Visions Commentaries reflect the views of their author, and not necessarily those of Project 21 or the National Center for Public Policy Research.