by Dan Litwin

As 1997 came to a close, one of the hottest political issues for California was the banning of smoking in all bars which took effect on January 1st. Many people debated the issue in the newspaper, on TV shows, and on talk-radio.

We heard that smokers have rights. We heard that non-smokers have rights. We heard that second-hand smoke kills, and that second-hand smoke is not as dangerous as the doomsayers insist. Some claimed that business in bars would go down because smokers would rather stay at home where they can smoke. At the same time, others were sure that business in bars would go up, because non-smokers would go out more frequently. But while all of these concerns are relevant, they are only side issues.

In an unfortunate sign of our times, the core issue was absent from the dialogue. But to understand that issue takes some imagination. So consider the following scenario: A man in his sixties has retired after working 40 years in a factory. He's not trendy. He wears those sleeveless undershirts; a cheap cigar hangs out of his mouth; and he's got a beer belly to round out the picture. He's obviously not been shopping at Nordstrom's. But after 40 years of work, he's saved up a few hundred thousand dollars for his retirement dream: a neighborhood bar. You know the one. Two pool tables, three pinball machines, beer on tap, and pretzels.

And now what does he find out? That after saving for a lifetime, he doesn't have the right to smoke in his new bar. So I ask you: Is that bar really his? Or has government essentially taken total control? If it really was our cigar-smoking friend's property, the law would, in fact, be supporting him in setting his own rules for smoking or no smoking. So the unspoken central issue - the one that was never discussed in the case of California's ban on smoking in privately acquired bars - was: property rights. And those property rights are not just in question, but in fact, a dead issue in California, as no one in the media or in any position of influence put forth such an argument. The whole idea has vanished from political discussion.

Now, the fact that those on the political left don't concern themselves with property rights didn't surprise me as much as the silence from the right - traditionally supporters of private property. But then I learned a whole lot about why conservatives didn't care to argue from the property rights stance from an on-air conversation I had with talk-radio host and ex-San Diego Mayor Roger Hedgecock during the third week of December, 1997. When I insisted that the whole issue boiled down to a loss of property rights, Hedgecock answered by saying that "we lost this fight a long time ago" because bars are required to enforce numerous laws. But I persisted, saying that that's no reason to back down. I said that this is the time to stand firm and restate that America was founded with specific protections on the right of private property ownership.

That's when Hedgecock bailed out and began cleverly arguing against property rights altogether. He said: "If you want to sell your body, or hire people to sell their bodies,... You can't do that, right? ... What property are you talking about?". At the time I simply said that those who espouse a belief in property rights should indeed support such body-oriented rights, even if they are offended by the decisions made by others, because their body is their property. Such a position would bring new and diverse allies into the property rights movement and generally strengthen the bar owner's position.

But after further consideration, I realized just what that conservative talk show host had revealed to me. He was saying, in essence, that he had not "lost" the battle over property rights, but that he had chosen not to fight it. He was admitting that he didn't want to have anything to do with that slippery slope of pure property rights, because some liberal would eventually figure out that his body could be covered by that same logic and demand the freedom to sell it, pollute it, euthanize it, or any number of other things that conservatives find morally reprehensible.

At last, I finally understood why property rights have disappeared from the political dialogue. The political left has never favored private property rights anyway, and the political right has abandoned them intentionally to avoid concessions favoring private personal freedom. So to the right-wing I say: Take your medicine! Smoke at home where you belong! If you won't support freedom for others, then reap the rewards of your own making and suffer. You've asked for it. And to the lefties I say: Politicians of your stripe may pay lip service to your privacy concerns, but if you've ever truly wanted to be in charge of your own destiny - your own body - the best thing you can do is give control back to that fat man with a cigar in his mouth in that dive bar. And give it based on his property rights. Because you cannot have privacy for your bodily property - your flesh, your blood - without granting others privacy in what they do with their non-bodily property - gained, as it were, by their sweat and blood.

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