The Volokh Conspiracy - Today Seems To Be State Constitutional Decision Excerpt Day:

From Beebe v. State, 6 Ind. 501 (1855), which struck down a law that banned the manufacturing of alcohol but excepted specially licensed manufacturing for distribution to the government for medical purposes (paragraph breaks added):

And we may as well remark here as anywhere, that if the manufacture and sale of these articles are proper to be carried on in the state for any purpose, it is not competent for the government to take the business from the people and monopolize it.

The government can not turn druggist and become the sole dealer in medicines in the state; and why? Because the business was, at and before the organization of the government, and is properly at all times, a private pursuit of the people, as much so as the manufacture and sale of brooms, tobacco, clothes, and the dealing in tea, coffee and rice, and the raising of potatoes; and the government was organized to protect the people in such pursuits from the depredations of powerful and lawless individuals, the barons of the middle ages, whom they were too weak to resist, single-handed, by force; and for the government now to seize upon those pursuits is subversive of the very object for which it was created, and is inconsistent with the right of private property in, and pursuits by, the citizen. "A government is guilty of an invasion upon the faculties of industry possessed by individuals, when it appropriates to itself a particular branch of industry, the business of exchange and brokerage for example; or when it sells the exclusive privilege of conducting it." Say's Political Economy, note to p. 134.

There are undertakings of a public character, such as the making of public highways, providing a uniform currency, &c., that a single individual has not power to accomplish, and which government must therefore prosecute: but they are not the ordinary pursuits of the private citizen. These, certainly, as the general rule, and we are not now prepared to name an exception, the government can not engage in. This is all we shall here say upon this point. Time and space forbid that we should elaborate all that arise in the case.

	[Eugene Volokh, November 16, 2006 at 4:31pm] Trackbacks Today Seems To Be State Constitutional Decision Excerpt Day: From Beebe v. State, 6 Ind. 501 (1855), which struck down a law that banned the manufacturing of alcohol but excepted specially licensed manufacturing for distribution to the government for medical purposes (paragraph breaks added): And we may as well remark here as anywhere, that if the manufacture and sale of these articles are proper to be carried on in the state for any purpose, it is not competent for the government to take the business from the people and monopolize it. The government can not turn druggist and become the sole dealer in medicines in the state; and why? Because the business was, at and before the organization of the government, and is properly at all times, a private pursuit of the people, as much so as the manufacture and sale of brooms, tobacco, clothes, and the dealing in tea, coffee and rice, and the raising of potatoes; and the government was organized to protect the people in such pursuits from the depredations of powerful and lawless individuals, the barons of the middle ages, whom they were too weak to resist, single-handed, by force; and for the government now to seize upon those pursuits is subversive of the very object for which it was created, and is inconsistent with the right of private property in, and pursuits by, the citizen. "A government is guilty of an invasion upon the faculties of industry possessed by individuals, when it appropriates to itself a particular branch of industry, the business of exchange and brokerage for example; or when it sells the exclusive privilege of conducting it." Say's Political Economy, note to p. 134. There are undertakings of a public character, such as the making of public highways, providing a uniform currency, &c., that a single individual has not power to accomplish, and which government must therefore prosecute: but they are not the ordinary pursuits of the private citizen. These, certainly, as the general rule, and we are not now prepared to name an exception, the government can not engage in. This is all we shall here say upon this point. Time and space forbid that we should elaborate all that arise in the case.