In 2006, there was an initiative in the state of Washington to ban smoking in public places. The scope of the ban was controversial; when government officials said it applied to private establishments, the ban was challenged by a small shop, the American Legion Post #149. The Post has seven employees; six were smokers and the seventh had no objection to smoking on the premises. The state supreme court nevertheless upheld the ban.
A strong dissent was filed by Judge Richard Sanders. Sanders began his opinion by observing the way in which the state government was attempting to frame the question before the court. The state’s lawyers asserted that the smoking ban ought to be “presumed constitutional and such presumption may be overcome only by proof beyond a reasonable doubt.” Not so, wrote Sanders. ”If any presumption exists, it is a presumption of liberty, wherein the State must prove the necessity and propriety of its restrictions on liberty.”
Sanders then referred readers to two works available from Cato’s Book Store, Randy Barnett’s Restoring the Lost Constitution: The Presumption of Liberty and The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom. Sanders then analyzed the smoking ban more closely and concluded that it is unconstitutional. Read the whole thing.
Randy Barnett delivered the keynote address here at Cato on Constitution Day, where he elaborates on his approach to constitutional interpretation. Check it out.