By Nathan Barton
Is it a “right” or a “privilege” to buy and/or drink alcohol? Is that an inherent human right? Is that a right of Americans under the Constitution? Or is that a privilege granted to us by government?
And what about a “right” or a “privilege” to SELL beverage alcohol? Or to manufacture (brew, distill, concoct, etc.) alcohol? Human right? Privilege?
Why? That is, why are these things a right or a privilege? What evidence do you have to support your choice?
This has been discussed, now and then, over the years.
Courtesy of Eugene Volokh, I found this:
This is from Herman v. State, 8 Ind. 545 (1855), a one-judge decision issued by a state supreme court judge considering a petition for a writ of habeas corpus. Herman was one of the state court decisions that held unconstitutional state alcohol prohibition laws, though other cases in other states upheld them. I have added the paragraph breaks.
[T]he right of liberty and pursuing happiness secured by the [Indiana] constitution, embraces the right, in each compos mentis individual, of selecting what he will eat and drink, in short, his beverages, so far as he may be capable of producing them, or they may be within his reach, and that the legislature cannot take away that right by direct enactment. If the constitution does not secure this right to the people, it secures nothing of value.
If the people are subject to be controlled by the legislature in the matter of their beverages, so they are as to their articles of dress, and in their hours of sleeping and waking. And if the people are incompetent to select their own beverages, they are also incompetent to determine anything in relation to their living, and should be placed at once in a state of pupilage to a set of government sumptuary officers; eulogies upon the dignity of human nature should cease; and the doctrine of the competency of the people for self-government be declared a deluding rhetorical flourish.
If the government can prohibit any practice it pleases, it can prohibit the drinking of cold water. Can it do that? If not, why not? If we are right in this, that the constitution restrains the legislature from passing a law regulating the diet of the people, a sumptuary law, (for that under consideration is such, no matter whether its object be morals or economy, or both,) then the legislature cannot prohibit the manufacture and sale, for use as a beverage, of ale, porter, beer, &c., and cannot declare those manufactured, kept and sold for that purpose, a nuisance, if such is the use to which those articles are put by the people….
We think the constitution furnishes the protection [in this case]. If it does not in this particular, it does, as we have said, as to nothing of any importance, and tea, coffee, tobacco, corn-bread, ham and eggs, may next be placed under the ban. The very extent to which a concession of the power in this case would carry its exercise, shows it cannot exist.
I do not vouch for the quality of this as a constitutional assertion, nor aim to discredit it — here I only quote it as interesting rhetoric. [Eugene]
This was apparently one of the things which led, ultimately, to the 18th Amendment (Prohibition) in which alcohol was banned in the United States. The argument before the 18th seems to be that this was a right “reserved to the people” and even state governments could not constitutionally ban liquor, or beer or ale or anything else with alcohol. Unless the Constitution was amended to specifically steal that liberty.
However, the “reserved to the people” seems to have been forgotten after the 21st Amendment repealed prohibition, and it became a power of the States (or their agents, like counties or municipalities). At that point, I submit, at least in the eyes of the American people and all their governments, drinking alcohol was no longer a human right. It was a privilege. And so it remains today.
Or so they claim. The ability to manufacture alcohol had always been treated as a privilege. A privilege for which you have to pay the government – dating all the way back to the infamous excise taxes which triggered the Whiskey Rebellion way back in 1791. (I know, it was the product and the commerce in it that was taxed, or so they claimed. Even before the Nazgul stretched the definition of “interstate commerce” to the obscenity it is today. Seems to me like you don’t really have a right to something if the government taxes you for doing anything with it, or for buying or producing it.)
But I think that long-ago justice pretty much had it right. And pretty much predicted the future. The governments (from local and state to tribal and federal) DO tell us what we can eat and drink, and product to eat and drink. And with each session of the legislature of each State, each session of the abominable Congress in the District of Criminals, we the people are told more and more what we can and cannot eat, drink produce, own, and operate.
Indeed, I can argue that it has come to the point that it is probably easier to list what the average, private citizen CAN do. Instead of what we are prohibited from doing.
Which is both a complete perversion of the US Constitution, a complete negation of the Declaration of Independence, intentional ignorance of virtually every State Constitution, and a violation of basic, simple human morality. And of human nature.
Note: I do not drink alcohol, and do not believe that drunkenness, even a little bit, is a moral thing to do to yourself. While I may disagree with people drinking beer, wine and other alcoholic beverages, and think that it is bad for them, I do not have any right to prohibit someone from doing that.