Screeds
Thursday, September 02, 2004
Clubbings
December 26, 2003
First among the principles that must be respected by a free society is the right of private property, Constitutionally enshrined in the Fourth and Fifth Amendments. The old saying that “a man’s home is his castle” was based on that understanding. Except for the most extreme cases—that is, cases involving violence against others—the majesty of the “public” law paled before the splendor of the privileges (from the Latin “private laws") of the property owner.
That principle is no longer respected in the five boroughs of New York. Michael Bloomberg, who seems to think he was elected the city’s Nanny-In-Chief, recently rammed an ordinance through the City Council that forbade smoking in essentially all enclosed places other than private homes...and there’s a strong possibility that private homes are next on his list.
The traditional response to intrusive legislation was to “go clubbing”: that is, to make use of the escape hatch offered by a private club. Such a club is legally the property of its members. If membership in the club must be applied for and somehow paid for, then the shield of private property protects the club from harassment through nanny-state laws such as Bloomberg’s anti-smoking ordinance.
New York has broken new legal ground by attempting to thrust its arm, via the anti-smoking law, through the doors of private clubs. Recent events concerning the Players’ Club, a high-profile establishment with a number of celebrity members, could force a resolution of the issue in the courts. This is not an unmitigated blessing; this past century, matters taken to the courts have received treatment that was Constitutionally indifferent or worse.
New York’s legislators and bureaucrats have taken a few blows across the face in recent years for attempting to dictate the terms of market exchange in several settings. Most notably, the odious rent control and rent stabilization laws, which deserve 100% of the blame for the city’s rental housing shortage, were neatly circumvented by entrepreneurs and consortia that “went condo” with their apartment buildings. Condominium sales and ownership carry all the rights of private property that inhere in a detached dwelling, at least for the moment. As a result, the New York City condo market exploded in the Seventies and Eighties, and tens of thousands of apartments whose landlords could not afford to let them because of rent control became occupied once again.
The city’s political masters didn’t care for that one whit. It palpably weakened their control of New York’s most important resource, which they had striven to make into a prize to be awarded to favored persons and parties. It’s no accident that many heavily rent-controlled apartments are occupied by persons who could afford a hundred times the rent. Still, it seemed that as long as the right of private property remained at full strength, the city could do nothing about it.
Bloomberg’s anti-smoking crusade is an entering wedge.
It’s very hard to defend the vice of smoking. Even its practitioners will admit that it creates unpleasant externalities, about which non-smokers can justifiably complain. Though the evidence is not strong, it’s possible that a sufficiently intense, sufficiently prolonged exposure to second-hand smoke could injure a non-smoker’s health. As a matter of public law—law that concerns public spaces to which all persons have a right of access—restrictions on smoking are at least thinkable.
But Bloomberg and his fellow-travelers don’t intend to stop with public spaces. Indeed, by targeting private clubs, they’ve made it plain that they won’t rest until the entire city is held to be subject to their rule—and not just about smoking.
The use of a health-related issue to breach the bastions of private clubs is a central indicator. First, it’s a legal innovation that has never before been attempted for any reason. Clubs, being associations to which persons must apply in full knowledge of the
rules and conditions of membership, have always been deemed protected by First Amendment guarantees of freedom of association as well as by the rights of property. Second, by harnessing the issue to the matter of health, the crusaders have adopted the most successful anti-property tactic of the past century. Given their propensity to regulate every facet of human existence, it strains credulity to think that they’ll cease to intrude after banning smoking.
“We’ve been through the smoking business,” Bloomberg, a former smoker, told reporters. “Let’s stop killing people and get on with it and grow up.”
The question before us is: Get on to what?
Think of all the things in your home that pose at least a particle of risk to someone inadequately wary, or to a child. Many items are already regulated at the point of manufacture or sale, of course, but once they enter your demesne, your use and disposition of them have always been held to be at your discretion. But if the hazard they pose once within your home becomes a matter for legal intervention, not one shred of the right of private property will remain. Everything poses some risk to someone.
The Bloombergite regulators will respond, “Oh, you know we would never do that to you.” Before they come for the smokers, that is.
Smoking is an increasingly unpopular practice. Your Curmudgeon holds no brief for it. Indeed, it killed his father and might have contributed to the death of his mother. But going after unpopular minorities and practices is a signature technique of the would-be totalitarian. As H. L. Mencken and others have warned us, we must be ready to defend the rights of sons-of-bitches if we want our own to be respected in the clutch.
It might be rather late in the day to attempt a principled full-spectrum defense of private property, but it will get no earlier for waiting.
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