Posted by Eugene Volokh:
Today Seems To Be State Constitutional Decision Excerpt Day:
http://volokh.com/archives/archive_2006_11_12-2006_11_18.shtml#1163716279
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.
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