Magazine January 27, 2020, Issue

Raising the Tobacco Age Is an Assault on Freedom

(Atitan Titwong/EyeEm/Getty Images)
If they can vote, let them smoke

Providing a rare example of the sort of “collegiality” and “bipartisanship” of which the United States is supposedly suffering a chronic deficiency, the various players in Washington, D.C., came together before Christmas to further limit the freedoms of the citizenry. Tucked neatly into the last-minute, must-pass, can’t-wait, don’t-read-it “omnibus” bill was a provision that raised the age at which Americans may legally buy tobacco, from 18 to 21. Thus did the federal government confirm that a few more trillion dollars of debt will do no harm to our children, whereas the prospect of a 19-year-old smoking a Marlboro represents sufficient warrant for alarm.

The more ardent among Mitch McConnell’s fans have taken to calling him “Cocaine” — a sobriquet that strikes a somewhat ironic note in the light of his downright enthusiastic support for this change. Indeed, in the course of explaining his decision, McConnell recruited to his side a veritable array of the sort of overbearing nanny-state-lite clichés that we have been told he is particularly adept at dismantling. He played the For the Children card, proposing that “the health of our children is literally at stake”; he tried the Local Passion card, explaining that because he and his co-sponsor, Tim Kaine, both hail “from tobacco states, we had a kind of special role to play in all this”; and, eventually, he played the Rank Non Sequitur card, insisting that, in his view, “vaping is a public-health crisis.”

None of these arguments made a lick of sense. American citizens aged between 18 and 20 years old are not “children,” either figuratively or “literally.” If Senators McConnell and Kaine truly want to play a “special role” in their home states, they are welcome to quit their present jobs in Congress and run for gubernatorial or state legislative office. And if “vaping” presents a “public-health crisis,” then making cigarettes less easy to obtain is likely to exacerbate rather than to diminish it. If this is the future of the Republican party, it will deserve to wither and die.

All told, the only thing that McConnell said in the course of the affair that rang at all true was that he “might seem like an unusual candidate to lead this charge.” Which . . . yes, he does, given that he has spent the better part of his career touting the virtues of federalism and engineering a restoration of the enumerated-powers doctrine in the courts. At what point, one has to ask, did “I think that there is a problem in my home state” become the type of justification for federal action that convinced the Republican Senate and its leader to act? Prior to the passage of this bill, only 14 of the 50 states had set  at 21 the age at which tobacco products might be purchased. Or, put another way: Prior to the passage of this bill, nearly enough states had declined to follow McConnell’s lead as would have been necessary for the passage of a constitutional amendment in the opposite direction. There is no argument for action here that could not also be used in defense of the federal regulation of health care, zoning, education, transportation, and firearms — or, for that matter, as an excuse for finding a national answer to any of the other political questions that the Republican party writ large regularly insists are best “left to the states.” The last time I checked, there was no “except tobacco” exception to the structure of government laid out in the Constitution.

It will come as no surprise to my regular readers that my view of tobacco is the same as my view of everything else: namely, that if free adults wish to kill themselves with it, that is their prerogative. There is a role for government to play in regulating the production of consumer products, and it is acceptable for the state to pass on whatever knowledge it accrues about the dangers inherent in using them. Beyond that, however, the role of the government — and especially the federal government, which was designed and empowered to fulfill only a handful of functions — is to get out of the way of consenting adults. The neo-puritans and “public health” junkies among us like to ask whether the freedom to harm oneself represents any useful sort of freedom at all. To which my answer is, “Yes, it does.” In fact, as much as anything else, that is what freedom means. The freedom to take conscious risks is what separates adults from children, the autonomous from the coerced, and the educated from the stunted.

I readily accept that I am unlikely to get my way on this; over time, government grows, and, as it grows, it acquires more reasons to push the citizenry around (“Well, we are paying for your health care . . .”). But it would be nice if those who disagree with me could identify an operating principle beyond “I want what I want.” It is not an overstatement to suggest that we have nothing in the United States that even begins to approach a consistent age of majority — no single line that citizens may cross and say, “Now I am an adult.” At around 16, Americans are permitted to drive; at between 16 and 18, they are allowed to get married, to have sex, and to start a family; at 17, they can join the military; at 18, they can vote, sign legal contracts, and buy long guns; at 21, they gain the opportunity to buy alcoholic drinks, cigarettes, and marijuana, and to purchase and carry a handgun; and, at 26, they are kicked off their parents’ health insurance. To inquire why these specific rules exist is, in almost every case, to be utterly confused by the responses — and, typically, to be horrified by the obvious hypocrisy. I have lost count of the number of times I have been told that we should raise the age at which Americans may purchase firearms on the grounds that the human brain “does not develop until age 25,” and also that we should lower the voting age to 16 so that . . . well, we know so that what.

In the 1970s, the American public considered the fact that American citizens could be sent to war at 18 but could not vote until they were 21 to be so egregiously unjust that they backed a constitutional amendment to bring the two watersheds into line. Honestly, is our present patchwork quilt any less irrational than was the mismatch that prompted that change? What political theory undergirds the notion that one should be able to fight and die for one’s country but not to buy a beer or a cigarette? In what moral universe do we consider a person to be adequately grown up to trust with a mortgage, a marriage, and a baby, but insufficiently mature to exercise his rights under the Second Amendment? Those with an expansive conception of the federal government insist that its purpose is to harmonize the rules of engagement across a vast and raucous continent. If so, it’s failing rather spectacularly, no?

Libertarian critics of President Trump might have been forgiven for thinking that one of the few upsides of a man such as he being in office would be his potential to say “No!” in such cases as a priggish consensus began to congeal. Alas, in this instance Trump did no such thing. Instead, egged on by a Senate majority leader who should know better, and with the support of a Democratic party that can imagine no limits on government power, the president has seen fit to leave American tobacco policy in the worst of all positions — first stripping it of the variation that comes from leaving such questions to the states, and then setting the smoking age at the highest plausible ceiling at the national level. Another day, another law, another part of American life conquered by sanctimonious political concord.

This article appears as “If They Can Vote, Let Them Smoke” in the January 27, 2020, print edition of National Review.

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