RALEIGH – When Rep. Hugh Holliman’s smoking-ban bill failed embarrassingly in the House last week, its advocates were enraged. Some blamed the House leadership’s flawed arithmetic and parliamentary fecklessness. Others blamed Big Tobacco. And some blamed conservative and free-market groups, such as the John Locke Foundation, for helping to frame the issue as one of liberty and property rights rather than as one of public health.
House leaders and tobacco companies can speak for themselves. But as to the matter of framing the debate as one of liberty and property rights, that was absolutely correct. Please allow me to revise and extend our remarks.
Private property rights are fundamental to any free society. It is incoherent to say that one enjoys freedom in a state without protection of private property rights. The freedom to speak, for example, is understandable only within the context of property ownership. I have a clear right to speak on my property. I only have the privilege of speaking on your property if you so allow it. Similarly, I have a right to worship on my property, or that of a church or other group formed voluntarily and owning property in common for that purpose. I don’t have a right to worship on your property, even though I always retain freedom of religion. And so on.
A standard way to explain the interaction of individual rights is to say that my right to swing my fist stops at your face, which is absolutely true but perhaps a bit limiting. It isn’t just your face that can stop my fist, but your property line. Property rights in land and objects, indeed, are simply extensions of your property right in your own body and what you choose to do with it. If you mix your labor with unclaimed natural resources, you establish a property right in the result. That’s vintage John Locke. It’s written directly into the state constitution in the Declaration of Rights that North Carolinians are endowed by their Creator [not by government, property rights preexist formal government] with “certain inalienable rights” that include “life, liberty, the enjoyment of the fruits of their own labor, and the pursuit of happiness.”
That’s not to say that issues of property-rights protection are simple. As law professor Andrew Morriss explained well in a recent article on the economics of property rights, they are really a bundle of complex and evolving rights to own, use, and dispose of physical resources. Their definition and enforcement have evolved over time in response to new technologies, legal theories, and various bargains among buyers and sellers of goods and services. Human beings have natural rights to obtain and use private property. It’s part of how we sustain and propagate the species. But the specific parameters of property ownership – how far it extends in space, how disagreements are adjudicated, etc. – are defined over time by constitutional jurisprudence and democratic government.
In the case of restaurants, bars, and smoking bans, disagreement arises on at least two separate issues. One is the muddiness associated with the terms public business and public accommodation. Because most restaurants and bars are open to the public, in the sense that you don’t have to be a preexisting member to walk in the door and obtain service, some apparently believe that these private businesses should lack the same level of property-rights protection enjoyed by homeowners and private clubs. I don’t agree. Just because restauranteurs choose not to enforce their property rights with bouncers at the door doesn’t mean they lack those property rights. They still retain the title to the property. They should still have to right to decide to use it any way they wish consistent with their neighbor’s right to do the same.
Second, advocates of the smoking ban make a sort of “in for a penny, in for a pound” argument about regulating private businesses. They insist that the state has every right to impose smoking policies on private landowners because the state has previously imposed other regulations on those landowners, such as building codes and sanitation laws. This is a non sequitur. For one thing, there is an obvious difference in intent and effect between laws that attempt to protect consumers from largely unseen risks – shoddy building construction or unsanitary practices in the kitchen – and easily perceived risks such as allowing smoking in the establishment. More importantly, to say that the state has encroached on private property rights in the past is not to prove that the latest encroachment is warranted. Other risks should indeed be handled in a similar way to restaurant smoking, with private forms of safety certification and a state role to ensure only that consumers are informed and are otherwise left to make their own decisions.
In a free society, those who seek to engineer social change are hardly powerless. They just can’t resort to force or fisticuffs. They can, however, choose where to eat, drink, or work. Proceed.
Hood is president of the John Locke Foundation.