The Jury Talks Back


America’s Private Behavior Paradox

Filed under: Uncategorized — Fritz @ 2:37 pm

I don’t know if this will come as a surprise to you or not, but smoking is not good for your health. Many years of scientific investigation have added the corollary that your smoking around other people isn’t good for them either. I think that any sensible civil libertarian would agree that part of the mandate of government is to reduce, eliminate, or punish harm done by one person to another. Thus, public smoking bans. Fair enough.

There still remains the point that people, in so far as they are not harming others, still retain the liberty to puff away to their heart’s content.

Also remember that it’s a generally accepted principle that if government pays for something, they get to make the rules. Does the state of Louisiana want federal funds to repair its highway system? They better make sure that their drinking age is 21 then.

If the federal government starts paying for health care you should see a lot more of this. Since health care is about our bodies and the way we live, expect deeper encroachments into individual behavior.

Madison, writing as Publius inThe Federalist Papers #10, points out that there are two ways of dealing with problems that naturally arise from liberty: we can control the causes or we can control the effects.

Ronald Brownstein, in a recent editorial in the National Journal, clearly wants to control the causes. He writes, rightly assuming that eventually we’re going to have a national health care system whether we like it or not, that

Any universal coverage plan will grow unsustainably expensive unless healthcare inflation slows. Preventing, rather than treating, disease is one key to controlling healthcare costs. And few diseases present a more obvious target for prevention than the heart and lung ailments and cancers linked to smoking.

It’s worth noting that Browstein notices to following interesting relationship between political ideology and government regulation of private behavior:

The high-prevalence [of smoking] states may fail to act for fear of antagonizing their many smokers, or they may have so many smokers because they have failed to act. It also matters that the heaviest-smoking states are nearly all Republican-leaning red states generally dubious of regulation. Almost all of the lowest-smoking states are Democratic-leaning and more open to regulation.

That’s why the federal government needs to get involved. The states can’t be trusted, especially if they refuse to regulate out of some misplaced deference to their voters. From a progressive point of view this is the failure of liberal democracy.

How about that.

By controlling the causes, Madison meant the tendency towards extinguishing liberty. Madison points out that, “It could never be more truly said than of the first remedy, that it was worse than the disease.” If we have to dance to the tune of the one who pays, what is the limiting factor when it comes to controlling behavior? Don’t get me wrong, smoking is surely the worst. It’s harms are the most likely (you can get cancer for a lot of stuff but nothing does the job like smoking) and the most expensive to treat. Brownstein, in laying out his plan of action, assures the reader, rather sadly one might suspect, that the FDA cannot ban smoking “but it could require further health-risk disclosure, reduce nicotine levels, and more tightly regulate marketing, especially to minors.”

Brownstein also recommends a national war on tobacco, including “mandating that states and private insurers fund cessation programs to exploring, either through legislation or occupational-safety regulations, a national ban on smoking in public places and workplaces.” Brownstein calls the cost of continuing to allow private citizens to use tobacco products “intolerable”.

I wouldn’t shed a single tear in my whiskey and soda or on my double cheeseburger if smoking vanished off the face of the earth tomorrow. But I’ve got to ask, when the principle is the cost to the federal government, where does the limit to federal power lie?


In case you think I’m crazy, at A Don’s Life by Mary Beard, Professor Beard wrote in reference to the record snowfalls and the government’s inability to do anything about it:

What intrigued me was why no one had come outside their houses or shops and actually cleared the snow and slush away. I’ve been in the States when people have got up early to do just that; and the husband remembers (as I do vaguely) when everyone here was asked to clear their frontage and pile the snow along the kerb. Is there some health and safety issue? Could someone sue the local council for recommending the private street clearing if they fell over the snow along the kerb?

My students were amazed by the messy Cambridge pavements. In Belgium, one Belgian student observed, people were REQUIRED to clear their house frontage. I forgot to quiz her about the H and S issues.

I also began to wonder about the economic argument. Sure, the ploughs must be pricy. But during my walks around the town, I saw at least three nasty falls. Assuming that two of them ended up in the hospital — and assuming that there was a lot worse that I didn’t see — how much did all this ‘do nothing’ attitude to the snow actually cost the NHS?


  1. “And few diseases present a more obvious target for prevention than the heart and lung ailments and cancers linked to smoking.”

    I have no doubt that’s the justification they’ll use, but I’m frankly not convinced that smokers are a net drag on our health care system. Yes, they are more likely to development lung ailments and/or cancer, but they are also more likely to, you know, DIE from it. And dead people don’t tax the health care system much, no?

    Comment by Sean P — 2/20/2009 @ 3:09 pm

  2. “I think that any sensible civil libertarian would agree that part of the mandate of government is to reduce, eliminate, or punish harm done by one person to another. Thus, public smoking bans. Fair enough.”

    This is where you went wrong. The smoking bans have nothing to do with the rights of the smokers or non-smokers. The problem is the violation of the property rights. If property owners want to allow smoking on THEIR property, government has no legitimate power to prevent that. Those individuals who wish to avoid smoke have the choice to avoid property that allows smoking. The rights of property owners are being violated and any true libertarian has a problem with that.

    Comment by Sean — 2/20/2009 @ 3:29 pm

  3. Not tomention the “slippery slope”. What next? Banning your whiskey and soda? No cheeseburger for you!

    So what are the second-hand effects of drinking, aside from the obvious “drinking and”? And you do remember what happened when the government banned alcohol last time?

    And even more of a stretch is the second-hand cheeseburger effect.

    Last night I was at a dinner in Jilin, China. No “non smoking” rules there. Of the 11 people in attendance, 6 were chain smokers. I probably got a fatal dose of second-hand smoke. But I did not make a fuss, because of “when in Rome…”

    Comment by Dr. K — 2/20/2009 @ 4:40 pm

  4. Sean,

    There are two questions here:

    1.) Public, as in sidewalks and beaches.
    2.) Public, as in public accommodations such as restaurants and bars.

    In the first, smoking is a known harm. It seems to me that government can take steps to control the distribution of that harm.

    Now, with regard to the second, someone who presumably knew about these things once explained to me that there is, in this case, a market failure in the distribution of smoke-free dining experiences. As I understand it, restaurant and bar income went up concurrent with smoking bans. I remember from my Hayek that in such cases, assuming that there really is a market failure, government regulation is justified. I’m not an economist, so I will say no more.

    Comment by Fritz — 2/20/2009 @ 4:42 pm

  5. Oh, and dude. Please close the italic tag. It’s screwing up the rest of the site.

    Comment by Dr. K — 2/20/2009 @ 4:42 pm

  6. “I think that any sensible civil libertarian would agree that part of the mandate of government is to reduce, eliminate, or punish harm done by one person to another.” FAIL.

    Comment by gp — 2/20/2009 @ 5:49 pm

  7. I must not be very sensible, then…

    Comment by Scott Jacobs — 2/20/2009 @ 6:33 pm

  8. So, if a disease is spread by activity X, then government may control the activity? Why stop at smoking?

    What about:

    ..AIDS and unsafe sex in its various forms?
    ..Diabetes, obesity and certain foods?
    ..Motorcycles, skiing, scuba and other dangerous sports?
    ..Drinking alcohol, taking herbal supplements and other unhealthful substances?

    Do we need to ban these? Tax them? Harass participants with petty restrictions? Have official rationss or quotas?

    Or, do we decide that national health plans have such a obvious impact on liberty that they are presumptively unconstitutional?

    Comment by Kevin Murphy — 2/20/2009 @ 6:43 pm

  9. I’m still trying to see the paradox part.

    Comment by nk — 2/20/2009 @ 7:03 pm

  10. GP,

    I’ve always thought there was a difference between libertarianism and anarchy.

    Comment by Fritz — 2/20/2009 @ 9:02 pm

  11. If they eliminate smoking, how are they going to pay for SCHIP?

    Comment by Pablo — 2/21/2009 @ 5:24 am

  12. On a Zero-100 scale where Zero is anarchy, and 100 is Totalitarianism, where do you want the pointer?
    Progressives, more and more, nudge that pointer closer and closer to 100.
    Libertarians seem to be comfortable with something around 10-20 (with a few exceptions who tend toward 5 or less).
    We, as a society, need to figure out where we want to set the thermostat (and we know how much friction that causes).
    I would be happy if we could get it down on the low side of 50, for a start.

    Comment by AD - RtR/OS — 2/21/2009 @ 12:01 pm

  13. Fritz : Re comment # 4. Please reread your third paragraph. You cannot mean what you wrote.

    Comment by Longwalker — 2/21/2009 @ 1:05 pm

  14. Third paragraph of my comment or my original post? Why can’t I mean it?

    Comment by Fritz — 2/21/2009 @ 1:07 pm

  15. On the one hand, I agree with Sean’s comments in comment #2 (“The rights of property owners are being violated and any true libertarian has a problem with that.”). On the other hand, I am so much more comfortable wherever I go now. When I was a kid, movie theaters were thick with tobacco haze. Until even several years ago, the taste of food was ruined even in a restaurant’s no smoking area. Going to a nightclub meant stinking of tobacco until I put all my clothes in a plastic bag and took a long hot shower. Flying on an airplane meant two to three days of chest congestion. When the bans were first put in, I heard smokers complain. Today, when the subject is raised, even smokers comment that movies, dining, nightclubbing and flying are much more comfortable without smoke. So, as much as I think Sean is correct, I am glad that we have smoking bans.

    Comment by Ira — 2/21/2009 @ 11:17 pm

  16. Proposition A: “part of the mandate of government is to reduce, eliminate, or punish harm done by one person to another.”
    Proposition B: “there is a difference between libertarianism and anarchy.”
    Fritz says @ 10: not(A) implies not(B).
    Did I summarize that correctly?

    Comment by gp — 2/22/2009 @ 4:41 am

  17. Most of the smokers that I know are Democrats.

    Comment by Hazy — 2/24/2009 @ 11:20 pm

  18. And most of the “Health Nazis” I know are also Democrats!

    Comment by AD - RtR/OS — 2/28/2009 @ 10:04 am

  19. There are people who desire power over the lives and possessions of other people. And there are people who, for many reasons, allow them to do so. That is the sum of social psychology.

    Comment by nk — 2/28/2009 @ 4:45 pm

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