On December 20, 2019, President Donald Trump signed a spending bill which included a provision to raise the legal age to purchase tobacco products from 18 to 21. I am hard-pressed to name many legitimate uses of government power Trump and Congress routinely exercise, but this is one of them.
Can an individual’s usage of tobacco create, maintain, enhance or increase his life, liberty, and property? Of course not. The only effects of tobacco use are deleterious ones. The effects on the lives of the consumer and to those exposed to second-hand smoke, which in turn erode the properties of both parties via health care costs.
Some may argue that the freedom of a person to smoke cigarettes is a good in and of itself since it is an example of body autonomy and self-determination, and any action by the state to curtail and/or control it is an erosion of liberty. Yet, the so-called freedom to poison one’s self with tobacco is in itself the destruction of liberty. Liberty is not just a descriptive status of an individual’s relationship to a state, but a descriptive status of his balance of power with other individuals. An individual erodes his own liberty when he engages in behavior that affects the liberty of other individuals.
Henry David Thoreau wrote:
It is not a man’s duty…to devote himself to the eradication of any, even the most enormous wrong; he may still properly have other concerns to engage him; but it is his duty, at least, to wash his hands of it, and, if he gives it no thought longer, not to give practically his support. If I devote myself to other pursuits and contemplations I must first see, at least, that I do not pursue them sitting upon another man’s shoulders. I must get off him first, that he may pursue his contemplations too.
This passage from “On the Duty of Civil Disobedience” relates specifically to slavery and abolition, but as slavery involves the lack of, and impossibility to provide informed, consent, as well as the inability to withdraw from the imbalance of power, so it applies to the relationship between users and non-users of tobacco. Consent of the governed involves compromise among individuals comprising the nebulous makeup of the populace, as well as between the individual and the state.
An individual can not give informed consent if he has been lied to any more than a smoker can control the lower atmosphere so non-smokers do not have to change their own lives to avoid second-hand smoke. Individuals who do not engage in behavior that result in deleterious effects should not be forced to adapt to the behaviors of those who do.
There is no more appropriate time for public/governmental action than when private entities, whether they be individuals or corporations, devote themselves to pursuits and contemplations which serve to the detriment of fellow members of the populace. Consumers and manufacturers of tobacco knowingly and recklessly affect the lives, liberties, and properties of other individuals, and anyone ignorant of this fact should not be trusted to safely use matches and lighters.
In “Government’s Role in Protecting Health and Safety” published in The New England Journal of Medicine, Thomas R. Frieden, M.D. wrote:
Pack warnings convey clear information about the health effects of tobacco use, creating a visual and visceral counter to the aggressive and often misleading information spread by tobacco companies, which have been convicted of deliberately deceiving the public about the health effects of tobacco…
A second key role of government is to protect individuals from preventable harm caused by other individuals or groups. An individual’s right to engage in particular conduct may affect others (“your right to swing your fist ends at my nose”). Government has a responsibility to protect individuals from unhealthy environments, whether the sources of health risks are natural (e.g., mosquito infestation) or created by people or organizations…
Opponents of public health action often fail to acknowledge the degree to which individual actions are influenced by marketing, promotion, and other external factors. They also may underestimate the health costs of inaction and overestimate the financial or other costs of action. For-profit corporations have a fiduciary responsibility to increase return on investment; some (e.g., tobacco companies) have incentives to oppose actions that may harm their business, even if these actions would promote overall economic development and benefit other businesses.
Manufacturers of tobacco products have a long history of marketing to young people, a demographic more easily influenced than older and wiser people. Raising the age by three years is negligible, but it conveys a clear idea of our society, which is, the more knowledgeable an individual is the better when deciding what substances to consume.
If I could press a button to make tobacco disappear, I would, despite my enjoyment of the occasional cigar. Yes, I recognize the hypocrisy and irony; I’m only human. But tobacco is not going away, and since there are those who use it despite its effects on themselves and others, and there are those who do not want to be exposed to it, a compact must be found. If a populace can not reach a social contract on a certain issue based on informed consent, then the state has a role in determining one.
Under the American system of government, it is not a violation of an individual’s civil rights to be deterred and/or prevented from engaging in an activity that can only harm that individual’s life, liberty, and property. There was no greater influence on the Founding Fathers’ vision for the American system of government than John Locke. In The Two Treatises of Civil Government, he wrote:
But though this be a state of liberty, yet it is not a state of license: though man in that state have an uncontrollable liberty to dispose of his person or possessions, yet he has not liberty to destroy himself, or so much as any creature in his possession, but where some nobler use than its bare preservation calls for it…no one ought to harm another in his life, health, liberty or possessions…there cannot be supposed any such subordination among us, that may authorize us to destroy one another, as if we were made for one another’s uses, as the inferior ranks of creatures are for our’s…
And that all men may be restrained from invading others rights, and from doing hurt to one another, and the law of nature be observed, which willeth the peace and preservation of all mankind, the execution of the law of nature is, in that state, put into every man’s hands, whereby every one has a right to punish the transgressors of that law to such a degree, as may hinder its violation: for the law of nature would, as all other laws that concern men in this world, be in vain, if there were nobody that in the state of nature had a power to execute that law, and thereby preserve the innocent and restrain offenders.
People enjoy tobacco the same way they enjoy drugs and alcohol, but there are no forms of tobacco that provide therapeutic or cleansing functions; you can not hand a prescription to a pharmacist for medical tobacco, nor use it to sterilize. Tobacco provides no utilitarian shield against the violation of his civil rights the way firearms and other protections granted in the Constitution do. Neither cigarette nor cigar can be wielded against tyranny.
Therefore, the government has a role in which to exercise its legislative and enforcement powers against the usage of tobacco.
And, my fellow libertarians, I implore you to cease making the childish argument that government shouldn’t enact a law because it’ll just be broken, or may be difficult to enforce. Our laws serve as statements of the ideals of a society, not as monolithic preventative measures against criminalized behavior.
An individual enjoys no inalienable and unregulated right of tobacco usage based on the concepts of body autonomy and self-determination since the ripples of that usage spread outwards towards other individuals, and none of those ripples can be construed as rising tides that lift all boats. Those ripples serve as waves that only flood and capsize fleets.
The three legitimate uses of governmental power are to protect an individual’s rights to life, liberty, and property. An individual’s protections of his life, liberty, and property are not being violated when government deters or prevents an individual from engaging in behavior which only results in the erosion of that individual’s, or the erosion of other individuals’, life, liberty, and property.
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