Friday, June 17, 2011

Where there's 'No!' smoke, there's fire.

Where there's 'No!' smoke, there's fire.
Smoking laws. This is one issue that seems to cut equally across all segments of society, whether they be Republicans, Democrats, Conservatives, even some Libertarians and Tea Party members; it is such a tangible issue, everyone confronts it, everyone has an opinion on it. Just this last week the next town out succumbed to a total 'public; smoking ban with no exemptions, and my town just dodged the bullet for the moment, because the county executive thought there were too many exemptions:
"If the purpose of the smoking ban is to protect the health of employees, there is no rational reason to exclude casino floor workers," Ehlmann said in his veto message. "If tobacco smoke is harmful, there is no reason to exempt cigar bars, while regulating bars that allow cigarette smoking."
This is a very unusual situation for regulatory law, exemptions are the bread and butter of power dealers - no, this is something people actually feel they are in the right on. Maybe because it's such a physically tangible issue, very few people seem to bother with thinking it through down to its conceptual roots, their 'gut' response to real physical discomforts, or pleasures, forms their response, and the "No__!" smoke billows up over the legal landscape and everyone's Rights are choking in it.

I missed out on a good argument with my extended family over this, this past graduation weekend, and work has kept me from following up on it, so I'll take my frustration out on you.

What is the real issue here, where is the fire at the root of the 'no smoking' smoke screen? In principle there's little difference between smoking bans and bans on Trans-Fats, Salt, etc, but the true issue is easier to see, and to miss, with the smoking bans so I'll stay with that - and it is an issue worth following down to its roots because it goes to the very heart of the Rule of Law and of America itself.

The Smoke
Those arguing for banning smoking have many legitimate concerns and have made some phrases common for justifying their enthusiasm for banning the lowly smoker from smoking anywhere around them. Some of the most common are:

  • "Second hand smoke!",
  • "Kids stunted growth!",
  • "Health care costs!
  • "Physical assault on nose, breathing, food, clothing...!"
  • "You have no right to subject me or my kids to your smoke!"
Whether or not there is something to their arguments scientifically, economically or otherwise, for the most part, these concerns are irrelevant because they are only justifications or pretexts for doing what the real issue is about, pitting the rights of some against the rights of others. Here's a tip: One persons Rights (not desires, mind you, but Rights) do not conflict with anothers - if they seem to, you've got an error lurking somewhere in your premises.

The issue after all, at least amongst those who honestly think these bans are justified (as opposed to those who just want to extend statist power), is not about whether or not it's proper to forbid smokers from smoking when they enter into someone else's home or property - most people still think of 'a man's home as his castle' and no smoker questions a homeowner’s right to prevent a guest from smoking in that host's home; instead the argument is about whether or not one group (non-smokers) can legally prevent another group (smokers), from smoking in their own homes and property - a regulatory storming of the castle as it were. After all, if you remove the references to smoking in that last phrase, as the statist does and will, I think you'll begin to see the threat it holds to all of your rights.

The real problem, as the last bullet point above makes clear, involves confusion over where the very real rights and concerns of one person overlap with those of another, and what fosters that confusion is a lack of clarity in what rights are, how the law is to uphold them, and how private and public spheres interact. That confusion raises up the most sincere and effective complaints, a fear for your and your child's health and property, but in doing so inappropriately, it raises up a smoke screen which hides and fans a long smoldering fire within our Rights, because taken by itself, the concern is absolutely valid, but in the context it's commonly tossed around in, it is dead wrong.

The Fire
You do of course have an indisputable right, one might even say an unalienable right, to forbid anyone from smoking in your car or your home, and arguably from walking up to you and blowing their smoke into your lungs or those of your kids. This brings up a couple important questions:
1 - Why? Why do you have the right to forbid such actions? What is it that gives you that right?
Do you know the answer? It's an important one. Here's another:
2 - Do your personal Rights have the ability to transform the area around you, no matter where, into a 'public' place? Or put another way, does being in public eliminate your private individual rights?
And following on the heels of that there's at least one more question to be asked,
3 - Do your individual rights give you the right to deny others the ability to exercise their individual rights? Sometimes? Always? Never? Why?
The answers to these questions go to the very root of our Western conception of Law, Natural Law and the very the meaning and foundation of America itself. When the misguided and flat out wrong answers to these questions prevail... you can practically smell the the acrid smoke of your Rights roasting on a red hot open fire.

Laying Down The Natural Law

For instance, from John Locke's The Two Treatises of Civil Government, Chapter VI:
"... for law, in its true notion, is not so much the limitation as the direction of a free and intelligent agent to his proper interest, and prescribes no farther than is for the general good of those under that law: could they be happier without it, the law, as an useless thing, would of itself vanish; and that ill deserves the name of confinement which hedges us in only from bogs and precipices. So that, however it may be mistaken, the end of law is not to abolish or restrain, but to preserve and enlarge freedom: for in all the states of created beings capable of laws, where there is no law, there is no freedom: for liberty is, to be free from restraint and violence from others; which cannot be, where there is no law: but freedom is not, as we are told, a liberty for every man to do what he lists: (for who could be free, when every other man’s humour might domineer over him?) but a liberty to dispose, and order as he lists, his person, actions, possessions, and his whole property, within the allowance of those laws under which he is, and therein not to be subject to the arbitrary will of another, but freely follow his own."
This was the spirit of Law from which our nation was founded upon; that law is not an unnatural creation, a scold and brute to keep us in check, as Hobbes would have it, but a supremely natural method for liberating the nature of reasoning men and securing their lives and livelihood. This is especially true and visible in the Declaration of Independence, where Jefferson phrased the Declaration in such a way so as to make it accessible and acceptable to all, religious, secular and philosopher alike. He said that for Americans:
" assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation..."
, making it clear that capital "L" Law was not created by men nor defined by one particular religion or another, but that our rights are derived from our nature as human beings, a fact that is true and accessible to all, across place and time for all human beings. As in the phrase that Obama so likes to hack,
"...We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.",
Our legislators did not *create* our Rights or Liberties, they identified them through the use of right reason and informed by that they designed a government rooted in those principles of Natural Law; and knowing the problematic aspects of man's nature, his tendency to rationalize passions over reasoned principle - whether to do good or evil is irrelevant - they then bound that government down with not only a written constitution but with an additional ten amendments to restrain what government can and cannot do, giving men protection from their protectors.

We don't only recognize our rights in order to get things and distribute them fairly, we recognize our rights because it isn't possible to fully develop our potential as human beings, absent them.
It isn't enough to just recognize your right to life, liberty and the pursuit of happiness, if everything needed to engage in that pursuit, as well as the fruit of your pursuits, can be seized at the whim of someone sneaky or strong enough to do so. As I said in my previous post,
"For your life, to be lived, you must be free to think, for your thoughts to benefit your life you must see to it that they respect reality - cherish truth - for your freedom of thought to be anything other than a mockery, you must be free to put them into action, and again, for your thoughts and your actions to be a benefit to you, rather than a mockery, you must be free to retain and use that which your thoughts and actions have produced, and what they produce is called Property."
Private Property
To be clear: you absolutely do have a right to forbid smoking in your home, in your car and your person when in public, and the reason why is rooted in the meaning of natural law, individual rights and the property rights which support them and which this nation was founded upon. The failure to take into account the proper context of person, place and time while wielding the force of law, is what has formed the central assault upon the American way of life for well over the last century.

Property has formed the basis of the Western conception of Rights since the very beginning, and you can chart the rise and fall of periods of prosperity and order in the West by the clarity with which this has been understood, or not. From the time of ancient Athens, where it was first dimly grasped, to our day, it might be best summed up in a phrase popularized by Sir Edward Coke regarding a 1604 case from English Common Law, Every man’s home is his castle.
"So it is holden in 21 Hen. 7. 39. every one may assemble his friends or neighbours to defend his house against violence: But he cannot assemble them to goe with him to the Market or elsewhere to keep him from violence: And the reason of all the same is, because domus sua cuique est tutissimum refugium - everyone’s house is his safest refuge (“Every man’s home is his castle.”)]
The implication is not only that what is yours is yours, but that you must respect the rights of others to what is theirs. To claim a Right to what is yours, you must at the same time acknowledge the Right of others to exercise their Rights over their Property. Your Rights literally rest upon your upholding the Rights of your neighbors, and that is how the health of a society may be defined - it is not enough to say
'This is mine
', such a claim is just as easily asserted by misers and tyrants alike, you must also be able to respect and defend
'That is theirs'
, without that mutual understanding and respect, life truly shall become 'nasty, brutish and short'. But with that understanding and commitment, a peaceful and civilized society becomes possible, where prior to it all was only red in tooth and claw. To say both 'this is mine' and 'that is theirs' requires that you rule your actions by reason, not passion, it requires a respect for an objective reality as it is, not as you might wish it were - Truth, not Spin. Without that you cannot say 'this is mine' and 'that is theirs'.

Without this understanding there is no Western Civilization; as John Adams noted, without it, if it is not accepted, held and defended with as much zeal as if it were a Commandment from God, then all of civilization becomes a facade that falls away with the changing whims of custom and the passions of the mob. Not for nothing did the Founders of this nation consider Property Rights to be the very fundamental basis for all of our Individual Rights, the basis of Law and of our Constitution and Bill of Rights.

Not for nothing did Jean-Jacque Rousseau and Karl Marx consider the abolition of Property Rights the fundamental basis of their respective systems of thought - which is why they are anti-Western in general and anti-American in particular, and thoroughly rotten to their common core.

As Aristotle noted, Descartes' idiocies notwithstanding, the most fundamental thought, upon which all else rests, is that A thing cannot be, and at the same time and context, be something else, at the same time and in the same context - that's the law of non-contradiction, and it is absolute. Dispense with that and you dispense with any and all claim to legitimate thought. It also shouldn't be surprising that modern philosophy in general, and the ideas of modern education in particular, seek to dispense with just that.

You cannot lay claim to the right to make your choices regarding your property and with your person, while denying the same Right, supported and upheld by force of law, to your neighbor. To do so is to throw away the concept of law in its entirety, and replace it with the prevailing whims of either the majority of the mob or that of those thugs who are able to cow them through their use of, or threat of, force - as it suits their fancy.

Many people, though sadly not all, see that this applies within the confines of someone's own home... but then they lose the thread as they venture out into the context of the wider world; with the very real right which they have when in their homes, they attempt to use it to transform the private property of others into something owned by them in name only, something which the public somehow 'has a right' to decree the terms upon which they will be allowed to retain it - in name only.

There's an ism which fits pretty well with that.

It's called Fascism. The policy of fascist Italy and Germany, was to allow people and corporations to keep their names affixed to (some) property, as long as they made it available for use and/or at fees and conditions which the government said was 'right' and 'fair' - while their 'property' stayed in their name, it was the government which said what it was that they could or couldn't do with it.

Such a system is one which doesn't end well for anyone's rights, property or lives.

Context Is King
As Coke's quote indicates, the context of where a person is and what they are doing, is critical to determining where Rights and Property begin and end and co-mingle. A person's property does not become public property simply because members of the public are allowed to enter into it, no matter how frequently or in what numbers. Whether it be a shopping mall or a restaurant, a place which the public is allowed to enter in to, on the owners terms, remains private property.

No, I'm not a libertarian, yes, I do support the right of those living in a local community to set particular standards and codes for appearances, uses and constructions upon property - based upon property rights.

Yes, I do understand that the Supreme Court has often ruled the opposite on public/private property, going back to the early 1800's. That same Supreme Court also said that Dred Scott was not a man, but a possession, and able to be thought of as being the 'property' of another, a claim made for many of the same reasons of 'the greater good' which smoking ban'rs justify their actions with.. is that really what you wish to rest your case upon? The 'right' to enslave and rob another? Such a position has little or nothing to do with the ideas of Property Rights which our nation was founded upon and negates not only the idea of Property, but Humanity, Individuals and Rights all together; it is the old line of Thrasymachus,
'Might makes Right'
, but far from making 'right', it simply replaces the concept of Rights with the demands of the Fist, and those demands are made passionately - not reasonably.
Again, such a thing doesn't end well. At that point where 'Might makes Right!', America ceases to be.

Smoking Bans: Where there's Smoke, there's Fire
A Restaurant does not become any less the property of the owner, because he allows another member of society, a mystical number of whom spontaneously become the 'public', to enter into it. Potential customers are allowed to freely enter for the purposes of purchasing his services, and just as the owner would be justified in throwing them out if they began dancing on the tables and stepping in the food of other patrons, if they enter in with the intent of stepping on the owners right to dictate how his property will be used and under what terms, he is fully within his rights to have them ejected.

If you don't smoke, you do not have a right to forbid others from smoking in their own property, no matter how many people they allow to gather there, or how much you would like to gather there with them. I don't smoke. When I played in a band, I ticked off my band mates by forbidding them from smoking in my Van - it was my property and my right to set my own rules. By the same token, when we got to the club to play, the club owner allowed smoking, and if I wanted to play there, or go there in my off time, I had to respect their right to set their own rules.

One person can have no right to violate the rights of another, because in doing so they do away with the concept of rights all together. You cannot say that 'this is mine' without also saying 'that is theirs', and still claim to be speaking of Rights.The Rights of free speech, association and property are valid only in their proper context, and that context determines the extent of their reach. While you have the right to free speech, you don't have the right to freely and disruptively speak or shout out in a crowded theater, for the simple fact that the other persons in the theater purchased a ticket, as did you, to an undisturbed property in that show during the period it runs, and such speaking or shouting would infringe on the rights of others to enjoy the show in peace, all of which was purchased from the owner of the theater, and who would be well within his rights to eject you.

By the same token, if someone wants to allow smoking in their restaurant, because it is their property, they have that right. If they wish to divide their property into a smoking and non-smoking section, they have that right to do or not do that. If they wish to make their property an entirely non-smoking area, they have that right as well. But you, and I, do not have the Right to tell them to do with their property, what we would have them do with it, if it were ours.

Just because you enjoy eating at a restaurant, that does not give you the right to deny the owner of that restaurant his right to say whether or not he will allow people to smoke in his restaurant! If you fear that your children's health is endangered by second hand smoke, don't take them into property where smoking is allowed.

We do not have the Right to dispense with another's Rights, as if they were our own. And it is for that very reason, that we can be secure in our Right to do with our property and person what we will, so long as we are not treading upon another's right to do otherwise. If you seek to use the the force of law to say 'this is mine' and 'what is theirs is theirs if I don't mind them having it', there's one thing you can be sure of - what you think is 'mine' will be yours only as long as someone else doesn't want it - up to and including your children. How good for their health is that going to be?

Private Property In Public
There is of course such a thing as being out in public and you do have the Right to be free from having someone walking up to you in public while trailing or blowing smoke into your clothing or lungs, don't you? Yes, you do, and again the reason why rests upon the right to Private Property. What is it we mean by being out in Public? Does being in 'public' mean something other than being amongst people you don't know? If a Realtor brings people into your bedroom while showing your house, does that make your bedroom no longer your private property?

In the sense we're using it here, being out in public, being on Public property simply means being in an area which is not privately owned. Even when out in Public, you still have a right of control over your property and person, but you do not have a right to damage another's person or property. If someone deliberately walks up and blows their smoke into your car window, or while walking past you they deliberately blow smoke onto your clothing or even into your face, they have violated your property rights and might even arguably have committed assault. Why? Because they are imposing, by force of action, their choices over your own, they are taking control of what is yours, where they have no right to do so - because of their property you have in your rights.

The key here is in recognizing the difference between what is public, and what is private.
Now while it's fairly clear cut that if someone is strolling along a public street and blows smoke into your property or person, it's obvious they are imposing upon what is yours. But that clarity begins to fade as distance is increased, doesn't it? If they are walking down the sidewalk, aware or unaware of your presence, passing withing five feet of you, can they still reasonably be said to be imposing upon your rights to your property?

Perhaps. Perhaps not. Ten feet? Twenty? It's in the ambiguous areas of public interaction, where reasonable people must come to reasonable agreements upon what, and where, it is possible to say 'this is mine' and 'that is theirs', and it is just such situations where local laws and regulations can and must, quite properly, be made. Local representative government is given the task of coming to reasonable decisions, agreed to (implicitly or explicitly) by a majority of the voting public, in order to define just what will be declared and recognized as proper boundaries and behavior between private persons when out in public spaces.

And they are enabled to do so because of the concept of Property Rights.

Can some public places be declared smoke free zones? Sure, there's a basis for that, in certain delimited areas, a small park or concert area, I don't see a problem with smoking being declared illegal because the act of smoking might conceivably be impossible to be seen as not invading on the property and peace of another, just as blaring loud music might be declared unlawful in others. In those public spaces, smoking or no-smoking, or quiet zones can properly be declared. But again, not in spite of, but because of Property Rights.

But no member of the public has a right to declare any part or extent of the property of another as being no longer theirs. It is because of Property Rights, and the Individual Rights they make possible, and which are reliant upon them, that we are able to have a civilized society. If you can't say 'That is theirs!' with just as much gusto as you declare 'This is mine!', then you are the barbarian at the gates!

When any member of the public attempts to wipe out the rightful claim which one person has to their property, attempts to deny their right to what is theirs in order to force them to use it in such a way as pleases those who have no right to it, then the Rights of every member of that society are diminished, if not outright gutted. Such a thing asserts the power of the mob over the Rights of individuals, and believe you me, those in power take notice.

For those of you old enough to remember... do you remember when 'Big Tobacco' warned us that if you let them tell us what to do with our property, tell us we have to put labels on our packages, then they'll be after you next? They'll begin regulating and controlling every part of your lives next? Remember how we all laughed at that?
"Ehlmann said in his veto message. "If t___ is harmful, there is no reason to exempt ___, while regulating ___that allow ___."
Doesn't it suck when a joke turns out to be the truth? Might as well fill in the blanks there, you can bet that those who want the power to do so, are working diligently right now to protect you from yourself, right now.

And when they do, everyone's Individual Rights are bound and determined to go up in smoke.