“Smoke Gets in Their Eyes”
December 6, 2005
P. Gardner Goldsmith

For many years, New Hampshire distinguished itself from Massachusetts by being a place where people could live and conduct their lives more freely, where the heavy hand of paternalistic government was less present, and people were trusted to make decisions for themselves. Unfortunately, the “granite state” has recently been mimicking its southern neighbor far too often. Case in point: A proposal sponsored by Hampton Representative Sheila Francoeur to ban smoking in “public” establishments accommodating less than fifty people.

Like the proponents of a Massachusetts ban in 2004, Rep. Francoeur is concerned for the health of employees in establishments where smoking is allowed. Breathing second-hand smoke is seen by her as dangerous, and thus the state must step in. She may even agree with Massachusetts Senator Richard T. Moore, who touted his own legislation by saying that there needed to be a “reasonable balance between smokers’ rights, and employees’ rights to clean air.”
Such magnanimity on the part of the government is truly heartwarming. After years of smokers being marginalized by the mass media and government, it’s good to see legislators making sure there is a “balance”.

But the real issue in question concerns private property, and who rightly gets to control it; and the origin of the debate can be traced all the way back to Title Two of the 1964 Civil Rights Act.
The primary justification of the act was to insure through federal power the right of minorities to vote and be accepted to government-funded schools. This it did, but the act did a great deal more. Much of it actually trampled on the civil rights of Americans to use their private property as they see fit, and changed the popular notion of private property itself.

Title Two of the act outlawed discrimination in restaurants, hotels, theaters, and other places that included “public accommodations” as part of their operation. By taking a view of the Constitution’s “interstate commerce clause” which James Madison himself described as contrary to the spirit and construction of the document, the lawmakers of the 1960’s successfully placed under federal control any establishment that could be construed as effecting interstate commerce. Thus, if a restaurateur bought products from sellers in another state, or admitted patrons from another state, he would be “engaging in interstate commerce”, and his property subject to regulation. Essentially, this interpretation turned private property into “public” property, and it has been viewed as such by most Americans ever since.

Today, most people believe that any business owner who allows customers and workers onto his property has turned this property into a “public” place, and is therefore open to regulation. To most people, the debate centers on how “fair” the regulation is, not on whether the regulation is legally or philosophically justified in the first place.

How could reasonable people be drawn to such an absurd conclusion? How is it possible that business owners can be vilified to such an extent that even their own property is not theirs to peacefully control?

The answer is simple. Underlying the move to ban smoking on private property is a very old and dangerous assumption. It is the Marxist fallacy that the owners of businesses force employees to work for them, and force customers to buy their products -- the belief that capitalists exploit people.

According to those who propose smoking bans, it is essential to protect non-smoking employees and customers from the threat of uncaring business owners who allow dangerous smoking on their property. In their view, the workers and customers have no choice. If the workers want to make money, they have to work in dangerous conditions. If customers want to purchase a product, they have to do business with the uncaring owner of the means of production.
But what the supporters of this legislation do not realize is that in a competitive marketplace, no business owner can exploit employees or consumers. He has to compete against other employers for workers and other businesses, or the potential of them, for customers. The business owner needs employees and customers in order to operate and stay in business. Just as the Marxists believe the worker is under the thumb of the employer, one could just as easily interpret the relationship as the employer being at the mercy of “money-hungry” employees and customers. Surely no Marxist would support a “capitalists’ revolution” based on the belief that the capitalist is at the mercy of the people in the labor pool, and employees will choose to work for someone else if compensation and working conditions are not acceptable. Yet, this is exactly what happens in a free market system. The employer, the worker and the consumer are free to choose those with whom they want to deal. The result is a negotiated equilibrium in which the needs of the workers, consumers, and of the employers are balanced, and in which all of their needs are considered within the context of what the consumer is willing to pay.
But these factors are rarely, if ever, mentioned in debates over smoking laws that further attenuate the rights of people to freely engage in peaceful commerce. Instead, we hear paternalistic politicians fuelling class envy, telling voters they will balance the rights of the property owner against the rights of the poor, disadvantaged worker.

This has nothing to do with rights. In a free society, the rights of the employer to hire and fire those he wished, and to create a working and commercial environment that fit his goals and served his customers, would not be infringed. “Improper” choices, would be corrected naturally, through the myriad decisions of the people who comprise the marketplace, not by politicians like Representative Francoeur telling others how to run their lives.

For a good look at the science and politics of this issue, see Jacob Sullum's work, "For Your Own Good".

For Your Own Good: The Anti-Smoking Crusade and the Tyranny of Public Health