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Anti-Smoking Zealots Snuff the Rule of Law

Representative Diana DeGette recently introduced a bill in Congress to raise the legal age for cigarette smoking from 18 to 21. This will protect Our Children from the horrors of cigarette smoking. Ms. DeGette and her colleagues consider 18 year olds mature enough to drive, work, vote, go to war, marry, fornicate, and have abortions. Heaven forbid that they should be allowed to smoke.

It is time for reasonable people to part company with the anti-smoking zealots. What was once a sensible effort to make people aware of the dangers of cigarette smoking has mutated into a regulatory jihad threatening the very rule of law. In California, people with live-in help may not smoke in their own homes. In Colorado, Sen. Dorothy Rupert wants police to ticket and fine any adult seen smoking in a car with children in it. In Florida, Governor Chiles simply suspended the doctrine of equal protection. He decreed that tobacco companies, unlike other companies facing liability claims, can neither dispute the claim that their product caused the harm in question nor argue that consumers should be responsible for their own decisions.

When government stuck to basic functions like defending the borders and maintaining the courts, laws were applicable to all, announced in advance, and limited in scope. Government officials presuming to tell people whether they could smoke in their own homes would have been told to go mind their own business. Churches, families, neighborhoods, and voluntary associations buffered the individual from the state.

After four decades of deliberate maleficence, public health authoritarians and their political allies have succeeded in corrupting the buffering institutions. They are now working on the government itself. As the buffers withered away, their functions have aggrandized the bottomless bureaucracy. As the recent plague of sanctimonious bores like Mrs. Clinton shows, when the state provides family income, rears children, nurses the sick, and counsels the distressed, government officials begin acting like national parents. Bureaucrats confuse wisdom with power and position, presume that their experiences transcend all others, take to uttering platitudes about The Meaning of Life, and are genuinely surprised and angry when the rest of us don#39;t genuflect on cue. When they also use their power to club the disobedient into submission, the rule of law ceases to exist.

Although the efforts to educate people about the hazards of cigarettes have paid off — by 1985, 97% of all Americans believed that smoking was dangerous to their health and millions quit — though millions of responsible adults choose to continue smoking.

Depending upon one#39;s genetics and the number of cigarettes smoked, one expert figures

that the average smoker trades about 10 years of life and a somewhat lower level of general health for the enjoyment of his vice. These risks compare favorably with some of the other activities that current public policy both tolerates and encourages-consider the movement to sanction homosexual sex despite the known health risks associated with it.

With the possible exception of unborn babies, smoking does not appear to physically harm others. Pregnant women who smoke 15 or more cigarettes daily do have more low-birthweight babies, and low-birthweight babies do have higher mortality rates. But according to demographer Nicholas Eberstadt, at a time when American doctors routinely and forcefully recommend against smoking during pregnancy for the good of the baby, the decision to smoke heavily during pregnancy may well be taken as a proxy for an entire locus of parental attitudes and practices that may bear upon the well-being of the infant. Certainly the fetal risk posed by a smoking mother is no higher than that posed by a mother intent on a government-sanctioned abortion.

Nor does smoking cause monetary harm. The private sector recoups its costs by charging smokers higher premiums for life and health insurance. Economist W. Kip Viscusi recently confirmed previous work showing that excise taxes and early smoker deaths more than pay for any of the social costs imposed by smoking. This is true even if one accepts the EPA#39;s grossly exaggerated estimates of the costs of second-hand smoke.

In short, a smoker chooses to indulge in an expensive habit that he knows can kill him but which poses little danger to others. The same is true of sunbathing, driving a sport utility vehicle on rugged mountain trails, and mountain climbing. If you are the kind of person who thinks that smokers deserve the regulatory fury directed against them, think again. This is just the first test of how far the governing elite can go in forcing you to live the way they want. There is no guarantee that those in power will like your pursuits; and the government never, ever, knows when to quit.

Linda Gorman is a Senior Fellow at the Independence Institute a free-market think tank located in Golden, Colorado. https://i2i.org

[Following the publication of the Gorman op-ed, Rand Kannenberg wrote a letter to the editor of the Colorado Statesman criticizing Gorman#39;s position. Below is Dave Kopel#39;s reply to Kannenberg.]

Dear Editor:

Rand Kannenberg#39;s letter (Nov. 28) defending Senator Dorothy Rupert#39;s proposal to criminalize smoking in cars while children are present indirectly shows how weak for case for the prohibition really is.

Kannenberg takes issue with a statement in an op-ed by the Independence Institute#39;s Linda Gorman, in which she wrote, With the possible exception of unborn babies, smoking does not appear to physically harm others. Kannenberg retorts, Thankfully, many of us know better. But the only evidence that Kannenberg cites to refute Gorman is this: The EPA reports that the concentration of breathable particles in a closed motor vehicle is more than 133 times higher than the current average annual EPA standard.

Put aside the fact that EPA#39;s junk science research designed to enhance EPA power over smokers has been well documented as fraudulent by Jacob Sullum, of Reason magazine. Put the aside the obvious fact that the Rupert law would criminalize not just smoking in a closed motor vehicle, but also smoking with the windows open, or even smoking in a convertible with the top down. The most important fact is that the EPA figure is the average annual EPA standard–in other words, the standard for exposure over the course of a year. So if a person spent an entire year living inside a closed motor vehicle in which someone was smoking the whole time, particle exposure would be way too high.

But exposure to smoke in a motor vehicle lasts for only a little while, not 24 hours a day, 365 days a year. It is scientifically inappropriate to use the average annual standard for much shorter periods of exposure. If you expose yourself to an atmosphere with no free oxygen (by sticking your head underwater while swimming) for a little while every day, there will be no harm to your health. But if you expose yourself to such an atmosphere without interruption for an entire year, you will be dead. There is no scientific basis for using annual exposure figures to assess short-term exposures.

Kannenberg points out that handling cigarettes and lighters can be distracting for a driver. Very true. Thus, Kannenberg should be agitating for a ban not only on smoking, but also on eating and on using portable phones in the car. In any case, the Rupert ban is not aimed at driver alertness, since the ban only applies when children are in the car. Many parents would agree that children in the car can be a lot more distracting to the driver than a cigarette.

There is already a very serious problem with police officers using trivial traffic offenses as a pretext for pulling cars off the road, harassing the occupants, and intimidating the driver into consenting to an intensive search of the vehicle and all its contents. The problem is especially severe for racial minorities and for young people. Making it a crime to smoke in a car would supply abusive police officers with a new tool to harass ordinary citizens.

When I was a child, both my parents (who are now ex-smokers) used to smoke in the car. Even without the benefit of EPA studies, I thought the smoke was disgusting. Kannenberg points to a program of the Pennsylvania Automobile Association to encourage people not to smoke in their cars. The Pennsylvania program, which relies on persuasion, is a perfectly legitimate contribution to the public dialogue. I urge Kannenberg and the various organizations which endorse the Rupert bill to conduct their own voluntary public education campaign. (Just make sure to use private donations, not taxpayer money.)

Anti-smoking advocates should not attempt to use the criminal law as a substitute for persuasion. If you don#39;t want people to smoke in their cars, try to reason with them, instead of imposing criminal fines and jail time.

David B. Kopel
Research Director
Independence Institute
Golden, https://i2i.org

This article, from the Independence Institute staff, fellows and research network, is offered for your use at no charge. Independence Feature Syndicate articles are published for educational purposes only, and the authors speak for themselves. Nothing written here is to be construed as necessarily representing the views of the Independence Institute or as an attempt to influence any election or legislative action.

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