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Another State Constitutional Decision:

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.

PatHMV (mail) (www):
Sounds rather like Griswold to me.
11.16.2006 6:20pm
BruceM (mail) (www):
I agree with the opinion, but I sure hope this judge is anti-drug prohibition, or else he/she is the hypocrite of the day. All these same principles which this opinion espouses apply to why all forms of drug prohibition are flatly unconstitutional.
11.16.2006 6:23pm
BruceM (mail) (www):
And yes, I think 99% of originalist/textualist judges and commentators would agree that, while dumb, the legislature could ban the drinking of cold water if it wanted to.
11.16.2006 6:24pm
BruceM (mail) (www):
Doh, I just realized this opinion is from 1855. Never mind....
11.16.2006 6:25pm
Le Messurier (mail):
BruceM

Doh, I just realized this opinion is from 1855. Never mind....

Perhaps I need to stand up because a sarcasm may have gone over my head, but if it was true in 1855 why not in 2006?

And by the way, one does NOT need to be a libertarian to see the TRUTH in the decision. I'm particularly struck by the reference to tobacco.
11.16.2006 7:59pm
Kazinski:
In 1855 a pint of beer may have been one of the few safe ways to drink any fluid. Water and milk weren't always safe and it was difficult to make them safe. Old ways is the best ways.
11.16.2006 9:44pm
arbitraryaardvark (mail) (www):
I remember this case from a course I had with Judge Boehm on Indiana Constitutional Law, but had misplaced the quote - nice to see it again. It is considered a high point of that line of thinking; there are other cases that are more deferential to state meddling.
11.16.2006 10:25pm
ReaderY:
I want to say explicitly that the legislature can ban drinking water if it wants to. People elect legislators and know how to vote them out of office when they do dumb things. So long as laws violate no provision of the Constitution and the burden of their stupidity falls on all, there is absolutely why judges should have any business protecting people from the consequences of their own power of self-governance. The only way people can avoid making mistakes is by being prevented from making any decisions. Doing so infantalizes them.

There is no reason to believe that an infantalized people will give rise to reasonable or prudent judges. Judges are not metaphyscal beings who come into existence independently of the people and culture who give rise to them. If you treat people like animals, they will behave like them. A people who are not deemed capable of making decisions will inevitably give rise to people who actually can't because they aren't allowed to, which will give rise to judges who can't either.

I'd gladly give up drinking water to live in a society of self-governing people whose leaders can be voted out of office, than drink water in a society run by the fiat of unelected judges.
11.16.2006 11:15pm
BruceM (mail) (www):
Le Messurier:

I certainly agree that is should be just as true today as it was back then. But it's not. I'd be amazed if a modern judge would come out and say the legislature (state or fed) could not ban the drinking of cold water if it wanted to. Will of the people, blah blah blah. Powerful hot water lobby aside....
11.17.2006 5:29pm
James Fulford (mail):
Remember, Prohibition was done on the basis of the Eighteenth Amendment, and there have been numerous postings here on Volokh.com about the unintended consequences of the 21st Amendment, which repealed Prohibition, but left open the possibility of interstate protectionism.

The idea that having a drink is a basic human right isn't particularly far-fetched.

Another question frequently raised by libertarians is "Where does the Constitutional authority to regulate drugs come from?" If it took an Amendment to the Constitution to stop people drinking wine and beer, why is government allowed to spend so much blood and treasure to stop people enjoying a quiet smoke?
11.20.2006 6:38pm
Amy Alkon (mail) (www):
I don't understand how it could be constitutional to prohibit people from using drugs. I'm not talking about any consequences from use of drugs; for example, if you take Ecstasy and get behind the wheel and kill somebody. But, merely your right to go wherever you damn well please in your own head; to get buzzed on a glass of wine or on your drug of choice. Any lawyers here that can answer this?
11.20.2006 11:03pm