The Volokh Conspiracy - 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.

	[Eugene Volokh, November 16, 2006 at 4:27pm] Trackbacks 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.