Almanac: At the Capitol

PERMITTED SMOKING

• Scientific study participants.
• Native American ceremonies.
• Private places, including: (1) private homes, private residences, or private automobiles when they are not in use as a place of employment, and (2) a hotel or motel sleeping room rented to one or more guests.
• Tobacco products shops.
• Heavy commercial vehicles.
• Farm vehicles and construction equipment.
• Family farms.
• Disabled veterans rest camp located in Washington County.
• Theatrical productions.

• The actions on energy and smoking were significant. I'm sure there were others.


• I remain hopeful that we'll still see breakthroughs on some of the issues with the most genuine political opportunity. Transportation funding/pricing comes to mind as the most obvious.


• I remain hopeful that some of the worst ideas of the session (e.g. charter school moratorium) will go down with the vetoes, while some of the best ideas (mental health reform) will be resuscitated.

• At least in the short term, this session may "do no harm." That's not bad.


• But faced with potential long-term crises in education, workforce readiness, tax revenue sustainability, long-term care and health care policy more generally, I think that "not doing harm" might be good enough for right now, but not for the next generation. Major opportunities for reform to address these issues have probably passed.

Leadership is about vision, hope and investment in the future. (No — I don't mean the type of "investment" that is only spending money.)

More than anything, it's not the lack of "harm" that concerns me. It's the lack of leadership.

Protecting People or Protecting Choices?

While I'm sure that every Minnesotan with a set of eyes is likely to want to read more on the smoking ban about as much as they'd like to read a dissertation on ear wax growth, I humbly ask you to indulge me for a moment. Don't worry, though, this isn't so much about the pros and cons of banning smoking in public, indoor places statewide as it is an analysis of the implications of this kind of legislature. I think that the passage of this ban demands that we reflect on the philosophy of Government that allows such a ban to be passed and how we should or should not apply that philosophy down the road. Plus, I promise not to talk about the dang thing again after I get this one last piece out!

Ever since the birth of liberalism as a viable political philosophy in the 17th Century (yes, it can be traced further back, but Locke is a turning point) there has been an ongoing debate about how far an individual's personal liberties can practically extend. For if the liberties of all people are going to be recognized, there will naturally be areas where these liberties overlap. In such situations there are reasons, then, to favor one person's liberties over another's for a variety of debatable reasons. The classic example is when someone's desire to exercise their free will recklessly threatens the life of another; in such cases we as a society have (rightly so) decided that the well-being of the latter person is the dominate liberty. This, of course, is one of the more simplistic examples one can think of. Given that we cannot foresee all the different manners in which one person's personal liberties might interfere with another's, political philosophers have long sought to establish a construct that provides a rational reason to choose one liberty over another. This has, unsurprisingly, produced a wide variety of competing theories without much consensus.

For me (and for those who were just about to fall asleep, this is where things get interesting ... at least for poli-sci junkies), John Stuart Mill's On Liberty provides the most important step, historically, in the direction of an actionable construct of personal liberty. In chapter one, Mill lays out the grounding principle:

...the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant.

This one paragraph has had more influence on how we, as Americans, think of liberty than, arguably, any other paragraph ever written. There are of course holes in the principle Mill lays out, some of which I'll hit on later, but fundamentally I find it to be fairly consistent with our modern conception of liberty: People can do what they want as long as they don't hurt others.

Which brings us back to the smoking ban. It's odd that something as mundane as lighting up in a bar so perfectly gets at the crux of one of the biggest holes in our conception of liberty. For while Mill clearly states that restricting someone's actions in order to protect them from themselves is not acceptable (a controversial notion to this day, but one that I wholly endorse), he also states that we do have the right to restrict action in order to prevent harm to others. So, we can't tell smokers to stop smoking because they're harming themselves but we can tell them to stop if it's hurting others. Hey, I guess that perfectly covers the statewide smoking ban for indoor places then! Well, maybe not entirely…

One important exception that Mill went at lengths to make (although his arguments were filled with holes in this area) is that it doesn't count as harming someone if the harmed person consents to take the risk (This is the idea that the anti-smoking-banners tap into when they say "If you don't like the smoke, go somewhere else!"). Consent is important here because it rightfully leaves out those who have the inability to truly consent, such as children, but it is unclear whether or not there are conditions under which an adult may not be able to consent in a sufficient manner. The absence of deception is the first condition that Mill requires for true consent, but he doesn't go much beyond that. Is it, to pick an applicable example, possible to say that one cannot truly consent to a situation if socio-economic factors push you into that situation? If, I don't know, a particular job puts you into harms way and you have no other way to support yourself, can you truly be consenting to it?

This is a tough question to answer and it's the reason that everyone who supports the smoking ban cites worker safety first. For the patron it's an easy argument, "take it or leave it" but the worker may not have the option to “leave it” due to economic necessity. In some areas a bartending job may simply be the only mode of sustainable employment for someone in a given age group or social class, and in those situations I think we do have an obligation to protect them from harm. That being said, let me outline the conditions that are needed in order to trigger this obligation: a person has to be in a job where second-hand smoke harms them regularly, his or her options for employment outside of that job are extremely minimal, the work environment doesn't offer a smoke-free environment to work in, and, if given the option, the person would rather work in a smoke-free environment. That's a pretty narrowly defined situation.

It is my contention, therefore, that it is the duty of government not to provide for the protection of an individual's health but to ensure that an individual has the option to protect his or her own health. Under this construct the government has the right to enforce legislation that ensures that every Minnesotan has the opportunity to work in a smoke-free environment, but they do not have the right to mandate that every work environment be smoke-free. Why? Because the former protects an individual's right to determine their own fate while the latter merely constricts the actions of individuals in order to protect a few individuals that have consented to a risky situation.

In the end, I personally don't really care, on a practical level, whether we ban smoking in indoor place in Minnesota. In fact, as a non-smoker I'm sure that I'll enjoy it as much as I've enjoyed the ban in the Twin Cities. Moreover, I see it as a rather inconsequential test of liberty in the grand scheme of things. However, it does present a much needed opportunity to reflect and remind ourselves of where we draw the line. As John Stuart Mill wisely noted freedom of action, and subsequently freedom of discourse, is a necessary condition for intellectual and social progress. The smoking ban bill may be an inconsequential transgression of this principle, but it remains a transgression. And, as such, it requires that we as a society reconsider and articulate how we define liberty. If we do not take this step back and set rules for ourselves, I can imagine many more opportunities for the majority to become tyrannical, which could result in tragedy. For without our God-given right to make mistakes, we cannot truly learn.