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Source link: http://archive.mises.org/4936/where-theres-smoke-you-dont-have-to-be/

Where There’s Smoke, You Don’t Have to Be

April 21, 2006 by

Yet again, the anti-smoking activists want the government to intervene in the economy and the private property (or what should be considered truly private property) of entrepreneurs. But you do not have to breathe in any second-hand smoke while you are eating, drinking, socializing, or gambling. You do not have to serve, bartend, or deal cards in a smoke-filled environment to earn a paycheck. The confusion results from a lack of clarity on what “public” and “private” mean. FULL ARTICLE


banker April 24, 2006 at 1:55 am

“Tobacco smoke is a hazardouse substance and should be avoided if you want to maintain good health.”–quote

If you live in a city like New York or LA, then you are already inhaling a six pack a day. Your lungs are probably already black.

Sione Vatu April 24, 2006 at 3:09 am

Bruno wrote:- “The police tried to work on that but it was just impossible since nobody respected the law. Maybe the law still exists but nobody cares (this hapens a lot around here)..”

Good job! Wish that would happen more around here! I can think of lots of silly legislation that cries out to be ignored.


PS. Anyone noticed the drug users and their suppliers seem to be ignoring the law? Hmmmmm.

Paul Marks April 24, 2006 at 3:28 am

I will not get into the medical argument about “passive smoking” (although I do trust the people who say it is vastly exagerated more than I trust the people who say it is not).

The basic fact of the article remains: A place of business is a PRIVATE place not a “public” place.

If you do not want to go to, or work in, a bar where there is smoking – then do not. Do not use the threat of violence (the government) to enforce your desires on other people.

This campaign to see business as a “public” thing (i.e. open to government control) goes back a very long way.

For example, John Stuart Mill (perhaps the most over rated “friend of liberty” who ever lived) claimed (in “On Liberty” 1859)that trading was somehow in a different catagory from non economic activities. So whilst he was a free trader (at least in the sense of being against taxes on imports) he denied that the principle of liberty demanded free trade (it was a matter of economic calculation).

In domestic affairs J.S. Mill held (for example) that freedom to sell was quite different from freedom to buy, and that the government could regulate the former (I know, it does not make sense to me either).

Of course, J.S. Mill (like his father James Mill, and David Ricardo and even Herbert Spencer in his youth)had strong doubts about private land ownership – so it is hardly a great surprise that a person who doubts the ownership of land (believing that it had to be “justified” on utilitarian grounds, and even going alone with his father’s idea of getting rid of it in India)is not very keen on regarding a place of business (whether this be a shop or a club, a train or a bus) as the property of the owner – and nothing to do with government.

Back in 1848 (in Principles of Political Economy) J.S. Mill had already supported (and falsely claimed that “everyone”) supported a wide range of government intervention (public health was one of the excuses given).

So, sadly, the liberals are just being consistant. Freedom to do various things in the bedroom is one thing – but the principle of liberty is not about economic life as far as they are concerned.

I will not go into J.S. Mill’s principle of liberty here, other than to say that to base it on the “harm” principle (rather than a non aggression principle) is a terrible mistake.

W.E. Schetlick April 24, 2006 at 9:08 am

Let’s try it one more time, shall we?

Again, I will stick to traditional property rules which predate John Locke (although to the extent that he undersood the rudimesnts, he incorporated some of those rules in his first treatise) and the arbitrary decisons of the NH Courts in interpreting and applying their own constitution and takings clauses. (Even the U.S. Supreme Court has wrongly treated “mere economic rights” as damnum absque iniuria!)

Riparian rights and other kinds of rights that are difficult (not impossible!) to assign constitutte the outer fringes of the traditional property law. But people can “own” air and “water” without touching upon any of those questions at all. And context matters . . . a lot.

Traditional property would permit the owner of the building to sever the use unity of air in a building from the building itself for specific purposes. The cases show that while the owner of the property would always maintain reversionary rights in air inside a building, the owner could assign the right to one or more people to use the air for a limited purpose . . . i.e. for smoking tobacco. Literally, the owner could allow lessees or licensees of the air to smoke tobacco while prohibiting other invitees to perform the same act. He could do this either gratis or for a fee under a bilateral contract or limited license.

What must be understood is that no one really “owns” the outside air as such even though a certain amount of homesteading can ripen into legiimate limited ownership, such ownership limited in size and scope to traditional, peaceful, non-invasive use (discounting de minimis invasions not actionable for hypersensitive people).

The regulation banning smoking in bars and other privately owned structures is a government taking of a right inuring solely to the owner and apputenant to his fee simple absolute property rights.

For those of you who are interested in a neo-or quasi-Lockean treatment of this issue, I would recommend Professor Richard A. Epstein’s works entitled “Takings: Private Property and the Power of Eminent Domain”; and, “Skepticism and Freedom: A Modern Case for Classical Liberalism”. (N.B. Epstein’s second book is a bit of a “revision” or “take back” of many of his original contentions, but none that would affect the outcome of the instant issue).

[In the interest of full disclosure: I do not hold to all of Epstein's analyses and conclusions, particularly his cramped view of the entire inherent workings of markets and the process' inherent ability to solve or resolve conflicts of rights and entitlements. I find Rothbard, Hoppe and Block far more satisfying in this and many other respects.] Pareto is farther from his own ideas than he knows and his analysis of “market failure” is really his own analytic failure.

Epstein does mostly treat the regulatory state with the contempt it so righly deserves, though, and reliably relates the courts’ failure to fashion a reliable, consistent doctrine which recognizes and propects property rights from state infringement (partial regulatory takings) through proper interpretation and application of eminent domain.

Doug Rees April 24, 2006 at 9:31 am

I have been a smoker since I was about 12 years old. I thoroughly enjoy the practice and have no intention of giving it up. I suppose that makes me a “drug addict”–but, what the Hell, we all have our addictions, and this is one of mine. I have always tried to be considerate of people who are bothered by cigarette smoke, so it really makes me mad when I am lumped together with other smokers and condemned for “rudeness” as part of a group of social outcasts. Talk about collectivist thinking!!

I’m not sure, however, that I agree with the general proposition that property owners should have absolute control over who they serve. I am old enough to remember when blacks were unable to stay in most hotels/motels and eat at most restaurants, simply because of the colour of their skins. And it wasn’t just blacks. My father loved to take our family on long trips; and on one such excursion, we were denied access to a resort because our name “sounded Jewish” (actually, the name “Rees” is one of the most common surnames in Wales, and my father was about as Jewish as Mao tse-Tung). This private discrimination was accompanied by laws in several states that required racial segregation, which were themselves an infringement on private property rights. It all went under the heading of “Jim Crow”. The net result was to impose a considerable burden on a large group of people; and this unhealthy situation was largely corrected by the “public accommodations” provisions of the 1964 Civil Rights Act. Perhaps that infringement on private property rights was needed to overcome a greater evil. I believe there are times when private rights must yield to the public good–although I question whether banning smoking in bars and restaurants is a legitimate application of that principle.

W.E. Schetlick April 24, 2006 at 10:13 am

State-sponsored and enforced segregation most certainly divorces the use and disposal unity of ownership that is an indispensable part of and consequently protected by traditional property rules.

State-sponsored and enforced association (the so-called “Civil Rights Act” most certainly divorces the use and disposal unity of ownership that is an indispensable part of and consequently protected by traditional property rules.

There is principled distinction that can be employed to justify alienating the use and disposal unity of property in one case and not the other, being as it is that property of this kind, by its very nature is immune from such exogenous value judgments.

Concepts like “coercion”, “harm” and “initiated force” have actual, distinct utile meanings that thus far have survived the many attempts to cloud them in service of the idea that “property” as a legal concept is essentially empty, and therefore unusable.

david chaplin April 24, 2006 at 10:24 am

we in South Africa have similar draconian smoking legislation, that has steadily got meaner and more inflexible over the last 8 years or so. One particular absurdity bears highlighting:

I accept that a non-smoking diner wants to eat in a clear atmosphere without breathing another person’s fug. .

I equally accept that a smoking diner wants to be able to enjoy his meal and be able to smoke between courses. And why shouldn’t he if he’s in like-minded company, and can find an obliging restauranteur?

Absent any state interference on behalf of either side, given the strong but undeniable division in public opinion on smoking, any restauranteur who wants to maximise his custom is a fool if he panders to either one lobby at the expense of the other (except perhaps dedicated cigar lounges), and his own business sense should prompt him to offer a smoking-section or a non-smoking section and thereby keep both pools of potential customers happy, and hence coming back. This self-generated segregation worked very well in most restaurants, having emerged spontaneously long before the state’s legislative diharrea started spewing all over the hospitality industry.

So far so good. Thewn the State unilaterally, and inexplicably, decreed that restaurants may not devote more than 25% of restaurant floor space to a smoking section. And believe it or not, the clientele split between smokers and non-smokers varies wildly with area and restaurant, and income group targeted. SO some have largely unused smoking sections in the corner, while others have huge areas of empty tables, and a queue waiting at the bar for a table in the overcrowded smoking section.

That’s really stupid, whichever way you look at it. Let the restauranteur respond to his own market demographics in the most optimal way – keep everybody happy except those brimming with venomous hatred for smokers(some represented above, it seems from the language used), who would happily lynch smokers even when they are hermetically sealed off from their emissions. Theres no hope for redemption from such meanness, which is completely antithetical to the principles of liberty.

Paul Edwards April 24, 2006 at 10:45 am


“I believe there are times when private rights must yield to the public good–although I question whether banning smoking in bars and restaurants is a legitimate application of that principle.”

What is it specifically about a state imposed smoking ban that seems dubious to you if the principle of the “public good” trumps private property rights in your mind? Tell me it isn’t just because the ban swings against you in this particular instance because you enjoy a cigarette with your meal.

W.E. Schetlick April 24, 2006 at 1:02 pm

Mr. Chaplin:

Your analysis is simple and correct, but presupposes the validity of property rules that allow for the owner’s use and disposal of the property. It further presupposes that the owner will act to maximize the use of his space so as to provide inducements to sup, including partitioning of smoking/non-smoking, scrubbers, etc..

Many do not accept the prior legitimacy of property rules recognizing the bundle of rights that make up property, nor do they recognize the obligation of the State to direct human affairs in such a way as to allow for the maximal use of liberty and voluntarism in ordering human affairs.

Some believe that there exists (apart from all of the expressed, existing “individual goods”) such a thing as the “public good” which somehow mysteriously and miraclulously can be clearly and unerringly exressed only by some people who are deemed “government”. This ability to define and articulate the “public interest” of course inures to the government official at the nanosecond she is elected by a majority of benighted people who themselves can only know their individual interests and cannot know the public interest.

Right? Makes sense to me . . .

Tim M April 24, 2006 at 3:25 pm

Like most issues, semantics are problematic. One of the difficulties with this discussion is that the terms “public” and “private” commonly have different meaning depending on the perspective. The two primary perspectives for these terms are first – ownership, and second – use. When only using one perspective at a time, things are pretty clear, having a lack of distinction between the two is what muddies the conversational waters. With ownership, the distinction is between government and non-governmental ownership. Please note that either way the property is still owned and the owner has the authority to restrict its use. Regarding use, the distinction is between selected (members, family, etc.) and not selected (the general population). Please note that no matter who the intended users are there are still conditions of use (members only, you may not burn the park bench, etc.).

The tennis courts at the local park are both owned by the government (public) and anybody can use them (public). The tennis courts at the local Racquet Club are both owned by the club (private) and can only be used by members (private). It is not always that simple. The local grocery store is owned by Joe Albertson (private) but is available to be used by anybody with shoes and shirts (public). The local military base is owned by the government (public) but only those with military security clearance can enter the gates (private).

So regardless of ownership, the intended users of something can be either public or private.

This is of course confusing and causes lack of clarity in both discussion and policy.
I would suggest that we all try to stop using the word “public” in regards to ownership. It is either owned by the government or it is not – why not just say it as it really is. It is not really the “Public Library,” it’s the City Library, it’s not a public park it is really owned by the county, they are not public schools they are government schools.

The general population (we the people) have no authority over any of these places because we are not the owners – the government is. Despite the common misconception, the government is not the “public”.

Sione Vatu April 24, 2006 at 3:31 pm


There is a class of people I do not want in my tavern. I dislike them. I figure the patrons do not like them much either. Since it’s my tavern I determine who is admitted. It’s my business who I admit, surely?

Whether I make the distinction according to race, religion, politics, tribe, behaviour or on the basis of affiliations, is completely up to me. It has no bearing at all whether or not other people disagree with me or dislike my decisions. They may complain but I do not have to even listen, let alone obey them. I determine who may enter. The rest must stay out.

Of course you may determine who attends your property. Same principle applies.

Our choices may annoy other people. That is not a reason to overturn those choices.


W.E. Schetlick April 24, 2006 at 4:28 pm


“Ownership”, when applied to government is called (in common parlance) as “public ownership”. That is the professional vernacular.

Private ownership of any fee or interest in property (real or otherwise known as “tenancies”) can be “common” or “joint” or “individual” or “by the entirety”.

“Public use” is any use for any interest in property directed by government where the government exercise sole dominion and control over the property.


SC Jones MD April 24, 2006 at 5:37 pm

Your comments are the most salient points for opposing restrictive smoking ordinances. Government intrusion into the “public” domain should be undertaken with caution and relatively rarely. Unfortunately, or fortunately depending on your perspective, previous case law has determined that access to a “private” business cannot be barred to an individual based on a disability. I have to provide wheelchair access to my business under the Americans with Disabilities Act. If an individual has asthma or severe COPD, for example, they are barred access to my establishment, if smoking is allowed, just as surely as if they were a quadriplegic and no ramp was available. Courts have already established this precedent.

Additionally there is arguably no greater charge for a government that to protect the health, safety and welfare of its citizens. Tobacco kills more Americans every year than AIDS, alcohol, drugs, murder, suicide and car wrecks combined! A multifaced effort at helping rid our society of its greatest public health scourge includes increased taxes on tobacco products, educational awareness, restricting smoking in “public” places, and cessation services amongst other efforts. These have all been proven to either decrease utilization and/or increase cessation. These approaches are much preferred to making an addict population criminal by outlawing the product outright. I doubt however that anyone believes tobacco would be approved for use today were it to enter the market as a new product.

I think we have to be real and recognize that this is a limitation of some personal liberty. That is not always bad. My liberty to take my neighbor’s car is restricted ….so should my ability to adversely affect his health.

Tim M April 24, 2006 at 5:47 pm

W.E., your legal definitions illustrate my point precisely. It is interesting that the “professional vernacular” propagates the myth that the government represents the public. The government only represents itself. We feel better when the government makes rules about or spends our money on “public” items in part because we delude ourselves into thinking we have some control over “public” things – and after all we are part of the public, right? It is very convenient that when “the government exercise sole dominion and control over the property” by definition (ever wonder who made the definition?) regardless of how it is used it is in “Public Use.”

Paul Edwards April 24, 2006 at 6:41 pm

SC Jones,

“…previous case law has determined that access to a “private” business cannot be barred to an individual… Courts have already established this precedent.”

Thankfully, we are more interested in determining true ethical justice, than specifically what judgments our nasty state courts have handed out on any particular case. It turns out you really are within your ethical right to make your premises not wheelchair accessible. No one is justified in coercing you to do otherwise. And if you loose business because you are not wheelchair friendly, then that too is good and someone should be able to take business from you by competing in this way.

Next, “Additionally there is arguably no greater charge for a government that to protect the health, safety and welfare of its citizens.”

It was once argued that the only legitimate charge for a government was that of protecting life liberty and the pursuit of happiness (property), but I guess I should get with the times. On a side note, how do you feel about banning McDonald’s and Wendy’s restaurants? I hear they can serve up food quite detrimental to one’s health and yet are at the same time very popular. How about the obese, should the state force them to trim down? It’s for their own good after all. Should the lazy be forced to exercise? Should the ignorant be forced to study?

Where does it all end? It ends when people stand up and pay attention to ethical principles and learn to apply them consistently and say no to the state. Then it ends before it starts. Outside of that, nobody knows where it ends.

leek April 25, 2006 at 5:21 am
W.E. Schetlick April 25, 2006 at 7:41 am

For the record: I understand that there should be no such thing as “public property” or government-owned/operated property. I wrote those definitions so that the poor folks who have been duped by government into thinking that government can own or operate anything “in the public interest” would have some way of distinguishing how the common law may have dealt with this “smoking on private property” issue.

For the purposes of that conversation, I equated government-owned and/or operated/controlled property as “public property” . . . any interest in property (real or charttel or choses in action, etc.) that is wholly owned and operated by private individuals or groups of voluntarily-organized individuals is “private property”. Any other potential interests real proeprty, personalty or choses in action not obtained by either government or private interests is simply “unowned”.

For the further record: I am not a constitutionalist; I am more or less a Rothbardian/Blockean; that aside, however, I understand the law of “takings” and how it should have been used/construed by courts to protect private property interest from wrongful, non-public use, uncompensated takings by government.

Regulatory takings (which is what the instant issue is about) should recognize that the smoking ban “takes” a legitimate, privately-owned use of air inside of a closed space for which compensation should be paid, but will not be paid for because of the ongoing misconstruction of the courts and their failure to protect private property rights from government rule-making.

On the other hand, and even if the courts opted not to treat this like a real property right, but rather opted to treat this issue as a matter of proper “police power” regulation for purposes of allegedly protecting the “health, safety, and morals” of “the public”, then the courts should limit the legislature to a remedy that would require a minimally intrusive sign on the outside of the bulding indicating that smoking was permitted therein. The potential customer/employee would then be able to choose whether or not to take the risk of being exposed to an alleged health risk. The sign requirement, like the warning on a cigarette pack, is a minimal intrusion narrowly tailored to protect the individual’s right to choose one way or the other.

If the government ruled tobacco was a “controlled substance” then under federal law, the federal government could ban the use of it entirely, whether within or without bars or restaurants, private homes or anywhere else. After the Raisch case, states would not bother trying to make state-law based exceptions.

In my origninal comment, I indicated that the original “public accomodation” laws, the promulgators of which UNEQUIVOCALLY PROMISED to treat private property as private (sole private dominion, use and control) EXCEPT for the purposes of remedying past and preventing future racial discrimination, set the slippery slope stage for our ongoing descent into fascism.

At the time the law was passed (1964) those of us trained in the classical liberal heritage (now “libertarian”) understood this incursion for what it actually was . . . the camel’s nose under the tent. We understood that the notion of “public accomodation” was loaded with trouble for the future of private property rights. We opposed the laws NOT BECAUSE WE LIKED RACIAL DICRIMINATION (which is an abomination, in my view), but because we realized that the proposed remedy was far, far worse than the disease.

We were right. The promises of the Congress were as empty as their heads. Soon the rationale behind the “public accomodation” law was extended to justify every kind of government employment rule/restriction, license, etc. and every conceivable manner of private property rights destruction.

Now there is actually no such thing as a “private property right” in any business “public accomodation” as it was once defined (exclusive dominion and control).

The only thing that permits the existence of business entities now is “public opinion”. If the “public” (really well-financed, ideologically-motivated interest groups) lobby the government hard enough, kick up enough pseudo-scientific dust allegeding some spurious “harm”, and otherwise camp out at legislators’ offices, they can bring down McDonalds and Exxon and anyone else they want. After all, McDonalds “causes” people to be fat (people simply MUST eat that super-sized fries every day, twice a day, because they are “addicted”), and Exxon causes us to use oil (and we are “addicted” to that as well, so sayeth the President).

The only political/legal idea that once stood as a bulwark between these morality marauders and private business was the idea of legally-enforceable private property rights. But that’s all over now . . . just an old idea, treated like some embarassing part of Americana. The old paradigm. Between legislators and the courts, those enforceable rights are just a memory.

According to an article appearing in today’s Newark Star Ledger, statist columnist E.J. Dionne favorably cites Michael Tomasky’s piece from the American Prospect magagazine: ” . . . Democrats and their allies ["progressives/statists] must destroy the current political ‘paradigm’ based upon ‘radical idividualism’ [the regime of private rights to property] and replace it with a politics of the ‘common good’ [the regime of total state ownership and control of everything]“. Right on, brother. Peace, love . . . theft.

There it is in black and white, ladies and gentlemen. Hayek was right . . .

cigeasy April 25, 2006 at 10:02 am

Since the secondhand smoke statistics are questionable the real (occasionally) admitted reason for anti-smoking hysteria is that it has been whipped up to address the health care costs public and now private (in the case of insured employees) of smokers as opposed to non smokers. A small debate has occurred regarding the level of benefit since non-smokers also die from a variety of diseases and the real relative cost would have to take into account the full stats.

The second hand smoke hysterics are thus merely raving unknowing patsies of state propaganda, or more dangerously, sensing that their freedoms are being encroached on in a multitude of areas by the state (and interest groups behind its policies) are seeking psychological relief by exacting revenge on a “weak” group which appears to have “more freedom” the “social free riders” than they themselves.

It should be seen therefore as a symptom of increasingly oppressive (at minimum at the psychological level) state direction and control. The rational individual reaction in this type of competitive free-riding society is all costs to maximise one’s own free riding opportunities while engaging in seeking by all means possible to limit the free-riding or others a process that will spiral out of control into open warfare or total control.

W.E. Schetlick April 25, 2006 at 10:30 am

Poor Doctor Jones. Maybe you should have taken the LSATS instead of the MCATS.

No one has the presumptive liberty to run over anyone else with their car; thus, a limitation on the non-voluntary running over of anyone with your car.

On the other hand, what of boxing matches and shows where “stuntmen” voluntarily submit themselves to being run over by big trucks? Never mind that . . . what about sexual intercourse? What’s the difference between sex and rape?

In both cases, (the boxer and the stuntman), the boxer gets punched by someone and the stuntman gets run over by someone. The offenders clearly have inherent right to do either of those things to the objects.

So what’s the difference? Why was one activity considered legitimate in the and the other not?

The difference is the existence of VOLUNTARY CONSENT. Voluntary consent of the punchee changes an ordinary victim into a willing sports participant. Same with football, soccer, baseball and any other form of personal distraction.

So too with drinking in a bar. The bar owner has no right to blow smoke in your face without your consent. You don’t have to go into his bar. You can stay home, go elsewhere, open your own, etc. But a bar owner who decides to allow smoking on his premises (absent the idiot law), is saying to you: “you are hereby granted a limited license to come upon my premises for the limited purpose of purchasing and being served and consuming beverages be served so long as you do not object to the existence of tobacco smoke on my premises. Your entry thereon represents your constructive consent to being subject to exposeure to tobacco smoke”.

By enacting a state law that bans smoking on anyone’s premises, you are in fact interfering with a prospective business advantage on the part of the owner (a tort cause of action under the common law); you are taking away the right of a person to contract with the owner, (basically violating an existing right of the owner and the potential customer, a right that both would have in their own homes (private property).

This is not about health or smoking. It’s about abrogating existing rights.

The mere fact that the law already these individual rights under other circumstances (like the ADA or LAD, for examples) does in no justify or even explain why the right should be further impinged upon.

If I punch you in the nose without your permission, I have assaulted you; I have violated your right to be left alone in your bodily integrity. I cannot justify hitting you a second time just because I have already punched you once before. But basically, that’s the argument you made . . . stating that you already had to change your property to comport with bad government rules; therefore, new violations of your property rights cannot be complained of.


Doug Rees April 25, 2006 at 10:42 am

The reason I make the distinction between government intervention to prohibit racial discrimination and government intervention to prohibit smoking in bars, restaurants, etc. is this:

In the first case, there was a widespread and systematic discrimination against a whole race of people, which made it difficult or impossible for people of that race to travel freely around the country and enjoy the kind of amenities that nearly everyone else takes for granted. Black children could not enjoy swimming pools, amusement parks, etc. If it was just a matter of private property owners deciding, on their own, to exclude people they didn’t like (eg. redheads, left-handed people, etc.), I think I might agree with your analysis. But, in fact, the private discrimination was part of an overall pattern of racial segregation (“Jim Crow”) that included state-sponsored and state-mandated segregation as well. It contributed to the kind of frustration and resentment that exploded in the race riots of the late 1960s; and I think it was legitimate for government to take steps to prevent the problem from becoming even worse.

In the case of smoking bans, the situation is quite different. Absent a state ban on smoking in bars, restaurants, etc., those who objected to cigarette smoke could simply frequent (or obtain employment in) non-smoking establishments, while those of us who enjoy smoking could patronise (or work for) establishments that allow smoking. Neither side would be seriously disadvantaged; and, given the fact that we smokers are only about 25-30% of the overall population, I think we would be the ones having a harder time finding accommodations to our liking.

W.E. Schetlick April 25, 2006 at 11:04 am

I hope you din’t write all that for my sake. I already understood all of that and far, far more.

Legally mandated racial segregation is a violation of rights to property; private segregation is morally reprehensible, but recognizes rights to property. Simple.

I don’t smoke, and I don’t privately descriminate, nor do I advocate that anyone should do either. But I am not presumptuous enough to think that I have the right to dictate my preferences for a smoke and descrimination free world to anyone else against their will on and with their own property . . .

No one else has that right either, and no group of people calling themselves “government” could possibly have more rights as a group than they could as the individuals they fraudulently claim to represent (law of agency: the agent can have no more power than the principal). Thus, government can have no legitimate power to either prohibit private descrimination or to force public segregation. Nor can it have the power to force people to smoke on their closes property or prevent them from doing so.

Paul Edwards April 25, 2006 at 11:15 am


“…that included state-sponsored and state-mandated segregation as well.”

OK, i’m with you all the way then. Yes, the state has this little quirk: It forces everybody to conform to some kind of nasty behavior, where perhaps only a small subset of the population would willingly participate otherwise. THEN, the government decides that “we” are immoral (when in fact it is their immoral legislation), and that the very OPPOSITE policy must now be inflicted on us so that now that previously happy minority is now unhappy.

What is the consistent thread: It is not some benevolent state imposed morality at all, but rather often immoral state coercion, plain and simple. The state just cannot resist meddling, dictating, and compelling us to do one thing, and then on a whim, compelling us to do the opposite thing. Jokers and clowns the lot of them. The solution is simple, and will succeed universally. Allow the individual his right to do with his property what he wishes as long as it does not aggress against another’s property. And allowing smokers in your home or bar does not aggress against another’s property. Nor does excluding white males who graduated from Harvard from your bar aggress against another’s property either.

W.E. Schetlick April 25, 2006 at 11:25 am

Making distinctions based upon pricipled differnces is crucial in the formulation of public policy.

As I mentioned before (at least twice, now) those in government will ALWAYS expand upon a principle to make new and impproved impositions.

Government policy-makers always insist that a new law does not represent a new policy, but an exception to the existing regime. But after a time, they will see a new “necessity” to make an “exception” to the existing regime. After a while, and after a bazillion exceptions based upon the abrogation of the original principle, everyone is used to thinking of the old regime AS THE EXCEPTION!

This pattern has been in existence since the time of the Founding. You simply cannot explain the current regime of law (no property rights, just government tolerance of a certain, ever-shrinking range of freely-chosen behavior) without pointing to and understanding the “public accomodation” law.

Try this: what do you think would be the result of a 1963 legislature anywhere in the US attampting to pass or even suggesting a statute or regulation aimed at limiting a bar owners’ right to contract with her customers or employees because of dirty or even “unhealthy” air?

Let me suggest that no such law would or even could be proposed. No one would even think about bringing such a law. Those old-fashioned crazy people had the bizarre notion that government couldn’t do such things at all.

Yeah, those same people might accede to the idea that no smoking was permitted on (government)publicly-owned/operated busses and trains; after all, givernment could control the conditions under which anyone could use its property.

After 1964, all that changed . . . slowly, imperceptibly at first . . . but over time, and based upon the principle of “public accomodation” all manner of regulation for any reason whatsoever was automatically covered in a mantel of legitimacy.

The principle is what matters. Not the individual justification for violating the principle.

Yancey Ward April 25, 2006 at 12:03 pm

I know it was a typo, but “givernment” made me laugh my butt off.

BillG April 25, 2006 at 12:31 pm

If you take the view that rather than all air being “unowned” it starts out as all owned in common then it adds a different wrinkle to the discussion…although maybe not for the specific case of the bar owner and smoking (as I think a pretty compelling case has been made by Mr. Schetlick).

So the way Mr. Schetlick lays out property types to summarize is:

1. unowned
2. collective (state)
3. private
– individual
– common
– joint
– by entirety

I would like to suggest a different way to look at property types:

1. in common (individual right)
2. collective
– delegated to an authority (state)
– by entirety as a group right (consensus)
3. private
– individual
– joint

if all of the material world starts out as owned in common as it pre-exists human labor it is only just for individuals to enclose for private use so long as they leave “enough and as good left in common for others” (Locke’s proviso)

inorder to uphold the absolute property rights to labor of all individuals being excluded from the private enclosure, the economic rent must be shared directly and equally between neighbors in a community.

so individuals private own the bundled rights to:

1. use
2. possession
3. exclusion
4. transferability

but the economic rent which naturally attaches to all locations beyond Locke’s proviso (even in an anarchy) is retained as an individual right held in common.

regarding negative externalities as it relates to general air pollution (with the specifics being smoking in an enclosed building) everyone has an individual equal access opportunity right to use the sky as both a source and a sink upto the sustainable yield (Locke’s proviso) to derive their sustenance.

the negative externalities which results from the use of the sky as a sink beyond the sustainable yield represents the amount of infringement (economic disadvantage) individuals are subjected to (a tax) that can only be satisfied at the expense of their absolute right to their wages and hence self-ownership.

the state then is justified in protecting those property rights by requiring a permit to pollute up to the sustainable yield and returning the resulting ecomnomic rent to all the owners directly.

in the case of the bar…the owner encloses a certain amount of air as a source but leaves enough and as good left in common for others so this is a just enclosure.

he then has a sepearate contract for the use of that air within his premises as described by Mr. Schetlick which people accept by voluntarily agreeing upon entrance – includes the infringement by smokers.

Doug Rees April 25, 2006 at 1:02 pm

W.E. Schetlick: “I hope you didn’t write all that for my sake. I already understood all of that and far, far more.”

Actually, I wrote it more for Mr Edwards’ benefit (and hopefully the benefit of others in this forum). I am sure you understand “far, far more” than what I wrote; but please give me credit for understanding more as well.

The question is not whether private racial discrimination is “morally reprehensible” (you and I would probably agree on that), but rather whether government can legitimately prohibit it–as governments have in fact done, not merely in the U.S. but in nearly all other Western countries. The answer to that question rests upon the fundamental nature of government itself.

Government (consisting of an organised body within human society, empowered by general consent to employ coercive force) is not mere agency. Governments were around long before before the rules of agency developed, and have always done things that individuals could not legitimately do in the absence of government.

Government’s justification is not a principle of “agency”, but rather a generally-recognised pragmatic necessity for coercion to be employed on behalf of the interests of the members of society as a whole. Human beings are not merely a collection of rights. Governments do not exist simply to enforce such rights; but rather have a broader scope, relating to human interests and human needs as well as human rights.

The coercive power embodied in government is obviously quite dangerous, however it is employed. Government can easily become a menace to the very people whose rights, interests, and needs it ought to promote. But that is an argument for thoughtfully designing the structure of government, and intelligently selecting those who occupy positions of authority. It is not a refutation of the fundamental principle of government itself.

W.E. Schetlick April 25, 2006 at 2:08 pm

What general consent are you referring to?

Locke’s proviso is not part of the law or any understanding of property law as it currently exists . . . even the US constitution is not based upon that idea, and the US constitution purports to create the government which is supposed to protect the very rights we have been discussing.

The property rules I have described are not MY rules; they are traditional, common law property rules that to one degree or another have been adopted in American Law. There is no place for any such “proviso” there.

Read Chapter One of Prof. Randy Barnett’s recent book entitled, “Restoring the Lost Constitution: the Presumption of Liberty”. There is no “general consent” to any government that I know of. No one has ever shown me proof of the existence of any national government that has been cosntituted from signed documents that have any binding effect on anyone alive today. And, as Barnett shows, there is no substitute for actual consent (no legitmate assumed constructive consent is possible). Consent is only legitimate when refusal of consent is a real option and possibility. Otherwise consent is just a contrivance . . . a fiction.

Many believe in ghosts and artificial property constructs and constructive consent. So be it.

There are, to my knowledge, communities where the purchase of property is made contingent upon the recognition and acceptance of certain rules (covenants that run with the land). These are sometimes gated, proprietary communities. The people who live in them give up certain rights that others outside the community enjoy in exchange for the right to purchase real proeperty owned by others (like the right to choose the color of your house and the company who collects your garbage). They actually consent in writing.

If any claims legitimacy by consent it must be actual consent . . . otherwise it must divine another form of legitimacy to qualify it dictates as worthy of obedience.

In our day, no one believes in the unprovable and untenable notion of an involuntarily constructed “social compact” anymore. Strictly a 17th and 18th century construct. Smoke and mirrors does not a legitimate government make.

W.E. Schetlick April 25, 2006 at 2:21 pm

There should be no ban on people wanting to live in a “Land-Locked” area where this “Locke-Land” provisio with different property rules are created and abided and made a part of the covenants that run with the land. People who live there could actually consent to being told what to do and such agreements could be incorporated into the deeds. Everyone would be happy or at least consensually unhappy.

But let there be no misunderstanding: to the best of my knowledge, no private community currently exists living under the Locke Proviso.

W.E. Schetlick April 25, 2006 at 2:59 pm

If Barnett doesn’t convince you, then read Lysander Spooner’s “No Treason: the Constiutiton of No Authority” where the argument was first made that the US Constitution is illegitimate and binding on no one as it was agreed to by no one living today, and couldn’t even bind anyone other than those who signed it, an ratified it.

W.E. Schetlick April 25, 2006 at 3:43 pm

The law of agency predates our currently constituted government which supposedly derives its JUST powers from the consent of the governed.

The law of agency was on the minds of the Framers as the Convention notes (Max Farrand) and Ratifying Convention Notes clearly indicate.

The “consenting” people (the Principals) empower the government (the Agents) to exercise the otherwise legitimate principals’ right to self-defense. Notice the right is not waived or given up . . . rather the power to exercise it on behalf of the principles is delegated to its agent. The agent may do this and no more.

To the extent that the agent exercises powers not specifically assigned and assignable, it acts “ultra vires” and ordinarily can be held liable for any damage caused by such unauthorized acts.

Methodological individualism instructs that all such complex social interactions can ultimate be reduced to a one-on-one analysis. In the case of government power and applying methodological individualism, no principal could give the government power over something he could not own; spefically the power to exclude others using air in a bar not his own; therefore, the government cannot have such a power.


Constitutionally, if you wish to take that route, the power to prohibit discrimination is nowhere to be found in the US Constitution; thus, to the extent that the statutory laws were federal, they were unconstitutional. A state passing such a law should come up against a 5th Amendment defense (that a state cannot take property; so the regulation would constitute a taking of a right of association for “public use” which would require “just compensation”.

Paul Edwards April 25, 2006 at 3:59 pm

Hey! Another Spooner fan. It seemed i was agreeing with Mr. Schetlick’s comments with great enthusiasm. Now i know why.

M E Hoffer April 25, 2006 at 4:11 pm

“A state passing such a law should come up against a 5th Amendment defense (that a state cannot take property; so the regulation would constitute a taking of a right of association for “public use” which would require “just compensation”.

W.E. your indefatigable perserverance in the face of so much from so many unwilling to see is truly awe-inspiring.

As an aside, I was wondering your take on Erie v. Thompkins (1938) — is it correct to understand that ruling as setting aside “Common Law” in favor of “Public Law” ? In other words, within Statute is our only remaining redress?


W.E. Schetlick April 25, 2006 at 5:13 pm

Erie v. Thompkins really just stands for the proposition that there really is no “federal common law” as such. A close reading and understanding of Article III (federal courts limited juridiction to cases/controversies “arising under” the laws and constitution of the United States)pretty much dictates that result. Federal Courts hearing state-based claims under pendant or ancillary jurisdiction essentially apply state decisional law to decide the state-based claims. State common law remains unaffected by that ruling.

Respecting the “takings” issue: the 5th Amendment obliquely refers to a presumptive federal taking power; however, there is no distinct and specifically enumerated federal power to take private property. You have to look up the Annals of Congress during the debates over the Bill of Rights to get the full flavor of the structural controversy.

But remember that that original Bill of Rights were written to be applied ONLY against the federal government and not the states; presumably, if a state agency (not federal) took private property prior to the incorporation idea (14th Amendment) it could do so absent a state prohibition against a taking.

“Regulatory taking” is a whole ‘nother ball of wax. The federal law is very confused and pretty much anarchic . . . a standardless standard, if you will (see Penn Central and Pallazollo). The instant bar case would be considered a regulatory taking; that is, the government does not actually take the real property itself (in this case, a bar or restaurant), but merely passes a regulation that “takes” away one of the property rights that the owner has with respect to the physical property itself (specifcally, a “use” limitation). State decisional law is just as bad as federal decisional law in the area of regulatory takings if not worse . . . New jersey is no exception. State legislators have no respect for state constitutional limitations; state courts have less, and We The Sheeple are, well . . . sheep.

BillG (not Gates) April 25, 2006 at 5:17 pm

W.E. Schetlick wrote:

“But let there be no misunderstanding: to the best of my knowledge, no private community currently exists living under the Locke Proviso.”

BillG responds:

all land trust are set-up under this principle…


W.E. Schetlick April 25, 2006 at 5:31 pm

Land trusts are set up by those who own a fee simple absolute ab initio. As owners of the fee and under property rules, they can place whatever conditions they so wish upon the land in an testamentary devise, gift or bargain and sale. Thosse who purchase land with such covenants purchase subject to those limitations. Such covenants are enforceable at law.

Philanthropists often gift-deed land to be preserved for special purposes, reserving in their families, and heirs a reversionary interest in the land should the covenant be broken. New Jersey has many farm and environmental trusts (most counties sponsor them) where the lands can be preserved in perpetuity by the government entity so long as it maintained as a farm, etc.

None of this has anything to do with any proviso of any kind. It is simply yet another example of a property owner exercising their rights to alienate their own property with reservations, conveying to the buyer less thana fee simple absolute (subject to reverter).

BillG (not Gates) April 25, 2006 at 5:39 pm

W.E. Schetlick wrote:

“In the case of government power and applying methodological individualism, no principal could give the government power over something he could not own; spefically the power to exclude others using air in a bar not his own; therefore, the government cannot have such a power.”

BillG responds:

as I said, in NH all surface water and all groundwater is constitutionally recognized as being owned in common as an individual equal access opportunity right with the state as the public trustee…so I DO own the water as an individual right in common with all other individuals in the state.

if someone encloses the water for private use that denies me equal access the state has a positive duty to protect my individual rights which are being infringed upon.

what is the difference with air?

if the bar owner enclosed the air in such a way that it did not leave enough and as good left for others thus imposed a cost, infringing on the equal access rights of other individuals via a tax on their wages – I would be on the other side of the issue.

property rights not subject to labor of the owner are conditional as they can always at some point (Locke’s proviso) violate absolute rights to labor products.

W. E. Schetlick April 25, 2006 at 5:44 pm

Governments often pass statutes in derogation of common property rules. What’s your point? That traditional riparian rights and other property rules are abrogated by the government of the State of New Hampshire? Gee, that’s news!


W.E. Schetlick April 25, 2006 at 5:52 pm

You do not the water; under traditional property rules, you have the same limited license that everyone is granted by the owner . . . the State. You cannot exclude anyone from the equal use of the water; thus, you are a licencee and not a fee owner.

You can twist and turn yourself into semantic pretzels if that is your wish, but you can’t change the property rules . . . they were here nad adopted and applied way before the State of New Hampshire decided to enage in wholesale “nationalization” of an ownable resource.

In all socialist countries, all the property is nominally owned in common; the government makes all the rules and regulations and can change them whenever it suits them; can grant special dispensations and licenses to use it to favored interests . . . in other words, the government owns the resource.

M E Hoffer April 25, 2006 at 6:20 pm

I hope your are taking full and appropriate
write-offs vis a vis your 1040 for the valuable edification you are so freely proffering.
If only the majority here, that keep “arguing” in the face of the voluminous and substantial facts that you posit, would close their “keyboards” and pay attention, this thread may finally rest in the peace it has so long been denied.

BillG (not Gates) April 25, 2006 at 6:23 pm

W.E. Schetlik wrote:

“In all socialist countries, all the property is nominally owned in common; the government makes all the rules and regulations and can change them whenever it suits them; can grant special dispensations and licenses to use it to favored interests . . . in other words, the government owns the resource.”

BillG responds:

so it is quite obvious to me that you do not recognize the difference between collectively owned property – a group right that requires consent from all the other owners or delegated authority prior to access/use and ownership in common – an individual right that only requires that the individual does not infringe on anyone else’s equal access/use right…they are actually opposite.

Gee that’s news



W.E. Schetlick April 25, 2006 at 6:54 pm

No problem. I write this stuff quickly, without much thought, and off the top of my head. I write briefs and positions papers in between. Good mental excercise . . . now if I could only learn to type.

You have to have legitimate authority before you can delegate it. Cooperative and group rights are no more and no less than the sum total of all individual rights in the group. If no one in the group has the right to exclude anyone else from the use of a resource without first owning it, then the group cannot delegate a power or authority to do so to any other institution as its agent. Since no collective exists in reality, (hypostacy and reification notwithstanding), no independent, collective rights can exist.

Simple. The rest of what you are discussing is a form of strange social metaphysics applied to property. Fine. No problem. Sounds vaguely like Georgeist fantasy or something. And it has no bearing whatsoever in any way, shape or form to the question of the validity of smoking bans.

I don’t smoke. I don’t even much care for it in others. So I don’t hang out with smokers, and prefer bars and restaurants that have a non-smoking section. I never represented the tobacco companies in court or before the legislature, either. None of this has anything to do with the smoking ban, either, but I thought I’d make the appropriate representations.

BillG (not Gates) April 25, 2006 at 7:21 pm

W.E. Schetlick wrote:

“no independent, collective rights can exist”

BillG responds:


W.E. Schetlick wrote:

“The rest of what you are discussing is a form of strange social metaphysics applied to property”

BillG responds:

I disagree…

do you or do you not recognize the legitimacy of individual property rights held in common?

do you recognize and acknowledge the distinction between collective property and property held in common?

M E Hoffer April 25, 2006 at 7:24 pm

Paging BillG to the White courtesy phone…..

steve April 29, 2006 at 5:24 pm

Not only is a liberty that government interferes with the lawful habits that a property owner allows in his/her premises; but how can the government justify the fact that it can legislate to provide entertainment for non-smokers by banning smoking in bars?

No-one is forced to enter a bar and no interest group should have the power of legislation to provide the entertainment that they prefer.

If the government truly believes the mass of misinformation about the effects of smoking shouldn’t they ban it completely? Or if they continue along the track of ‘it’s ok to harm yourself’ why not license some bars for smokers only and ban non smokers from entering them for their own safety.

Paolo B. July 17, 2006 at 10:49 am

Two years ago, smoking was banned in my Country, from restaurant, bars, pubs, airports etc, unless they had a separated air conditioned area.
I am a smoker myself, I now got used to going outside for a smoke and enjoy stink-free clothes when coming home from a club.
There has been significant debate here about this smoke-free enforcement law, but in the end, after two years, all the people I knew (mostly smokers) who were against it, they are now happy about it: they seem to have prefered freedom not to have burning red eyes, ashtray clothes and horrible smelling hair over that of smoking.

It took a law to do this, you might call my fellow Countrymates brainwashed, but at this point, nobody would go back to how it was before, not because of fear, but because everybody, (even smokers) recognize the benefits.

Cody S. April 2, 2008 at 10:12 am

great points sir!!

Justice May 21, 2008 at 3:23 pm

i think that smoking 4 teens is bad b-cuz it gives u alot of bad things that arn’t kool example bad fingernails breath and dirty smelling clothes so ypu

Cigar October 23, 2008 at 6:53 am

The simple truth still remains, smoking is bad for people’s health, a government that allows it’s people to expose others to this is a bad government. Although I am a smoker myself I have always felt bad smoking around other people because I am conscious that I am creating passive smoke which damages them, especially when they are not smokers. I am on the stance where I enjoy smoking but deep down wish to quit because I know it is bad and I am starting to feel its effects. I have recently switched from cigarettes to cigars in an attempt to limit my consumption each day. I look forward to an environment that forces me to be healthy and quit. Anyone who is in support of smoking and declares the ban an invasion of their privacy needs to wake up and face the facts, smoking kills.

newson October 23, 2008 at 9:41 am

to “cigar”:
i too hope you are forcibly made more healthy. maybe they’ll tie you to the stairwalker, for good measure. can’t do your heart any harm.

Hari shanker singh April 22, 2011 at 9:05 am

This is hari shanker from India, whose blood group is o+ and 21 years old. I need money so i would like to sell my one kidney. For your kind information, I’m not drunker and smoker. Reply fast…………

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