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Wednesday, November 25, 1998 Mind if I smoke?
There's something unwholesome about B.C.'s campaign against tobacco
Hadley Arkes
National Post
There's something unwholesome about B.C.'s campaign against tobacco
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It is taking hold, spreading from America to Britain and then to Canada: The American way of litigation, with new classes of victims springing up in the land. In Britain, a man has recently sued his doctor for estimating he had six months to live. The man has lived for four years now, and he is suing the doctor for part of the costs he has incurred in living indecorously longer than he had been led to expect. And now, the government of British Columbia is mimicking the antics of some of the U.S. states in launching a kind of legal pogrom against the tobacco companies.
Joy MacPhail, the finance minister of the province, has filed a suit to recover, from the companies, the cost of ministering to patients afflicted with illnesses related to smoking. This move, the first of its kind in Canada, adds to a mounting campaign to harrass and scapegoat the industry.
The Tobacco Sales Amendment Act would force the companies to reveal the ingredients in their cigarettes, and the Tobacco Licensing Fee Act would force the companies to yield up a sum of $20-million a year to fund a campaign against smoking. These measures are immanently open to legal challenge, as they would be in any government under the rule of law.
Altogether, it is what the Cossacks might have done if they had the breeding to use writs and subpoenas rather than guns, and if they had the wit to conceal their rapacity under a banner of legal theories. For there is money to be made here for politicians to spend, and careers to be made by striking high moral poses in the typical style of politicians, at someone else's expense. As law, it is power without the moral substance of law, for it depends critically on planting premises that are at war with the logic of law in its strictest sense. Any system of law can vindicate rights and wrongs only when people are responsible for their own acts. But the campaign against tobacco depends on a willingness to plant deeply, insistently, in the law the understanding that citizens in this country have been, for more than 30 years, in a witless state -- that they have been ignorant of facts broadcast widely, incapable of attending to their own well-being, and bereft of any control of their own acts. I stopped smoking cigarettes myself in 1969, but there is something about this campaign against smoking I find more deeply unwholesome and repulsive than smoking could ever be. For there is something demeaning about the "ethic" described in this legal campaign, this willingness to attribute fault to everyone but the smoker himself.
In the interest of winning the lawsuit, and shifting the costs to someone else, we are asked to absorb, as though we believed it, a deep lie about ourselves. We are to paint ourselves as morons with a public spirit; bipeds with a keen sense of grievance, and virtually no command of our appetites. To incorporate these premises into our character, to make them part of our way of life, is itself to fall into a habit that is rather repellent -- and addictive.
In the U.S., most novel theories of rights and faults are instantly exposed when the theories are applied to the issue of abortion. What if abortion clinics were subjected to a heavy fine, with the proceeds siphoned off to support pro-life counselling for pregnant women? What if the clinics were barred from advertising their services because of a policy of discouraging those takings of life? In the U.S. -- or in Canada -- the argument we are likely to hear in return is quite predictable: These "services" are fully legitimate in the eyes of the law. These measures impose fines and punishments without crimes; they are covert ways of making into crimes what the political class does not have the authority -- or the courage -- to make illegal. And in the meantime, these policies must be seen as rather gross attempts to abridge, or deny, the freedom these businesses are designed to serve (the freedom to choose abortions, or the freedom to smoke).
Even worse, this is not merely an exercise in legislating covertly; it is legislating without truly legislating -- without making laws that must encounter the discipline, and the range of opinion, in a legislative assembly. No legislature, in the U.S. or Canada, is likely to outlaw intrauterine devices or contraceptives, even if they cause hurt to some users. For there will be other constituents for whom these devices are quite useful and safe. And yet, with knockout awards from juries, these small panels of citizens may force manufacturers to remove the products entirely from the market. But this mode of legal judgment removes these critical decisions from the hands of the public and their representatives.
And yet, that is the method of legal attack that has been chosen by the province of B.C. It reveals a craving for distinction and celebrity, but it discloses also a want of respect, at the root, for the very premises of a "government by the consent of the governed."
When taken then in its full sweep, this campaign against tobacco, so morally pretentious, so morally false, makes me . . . well, rather want to take up smoking again. One late night at a hotel in New York, with the bar closed, a woman was seeking a place to smoke as I was sitting with a friend. I told her we wouldn't mind if she smoked. And it struck me that I rather wished we could all live again in New York in black and white: William Powell would be shaking the cocktails, Myrna Loy would have on a negligee, and Bette Davis would be holding a cigarette with the smoke curling seductively. Would authorities come crashing in on this scene, scolding her? None of us would have suffered that presumption. And why would we wish, even in our time, to displace that scene -- and that culture -- for the ethic being pressed on us now?
Hadley Arkes is the Ney Professor of American Institutions and Jurisprudence at Amherst College in Massachusetts.
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