Posted by Eugene Volokh:
Another State Constitutional Decision:
http://volokh.com/archives/archive_2006_11_12-2006_11_18.shtml#1163716037
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.
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