Lighting up on private property will become a criminal activity if a group called Smoke-Free Arizona has its way. The association is collecting signatures for an initiative that, if adopted, would make smoking illegal almost anywhere in Arizona.
Clean air is a good idea, but a statewide ban on smoking is the wrong approach. The initiative misunderstands the nature of constitutional rights. The right of private property owners to determine how to use their property is constitutionally protected. They alone enjoy the freedom to determine whether smoking, a legal activity, is permissible on their property.
However, property owners are often left out of the smoking debate. Doing so conveniently ignores the paramount constitutional issue at stake - should government dictate what legal activities a person may or may not permit on his property?
A liberty-based approach, as enshrined in the American tradition, grants property owners the right to make these determinations. And many owners do decide to keep their property smoke-free. Smoke-Free Arizona's website links to a list of hundreds of smoke-free restaurants throughout the Valley.
Just as private property owners have the right to decide to keep their establishments smoke-free or not, customers have the right to decide which businesses to frequent. That is the solution that respects everyone's rights.
To say that an era has ended is a huge understatement.
The passing of "the Chief," as William Rehnquist affectionately was known by everyone in the U.S. Supreme Court's circle, coupled with the retirement of Justice Sandra Day O'Connor, leaves the court without sure leadership for the first time in a generation.
Oddly, depending on President Bush's choice to replace him, the court could be poised for a lurch to the left, rather than the right turn predicted by left-leaning special-interest groups.
Rehnquist served on the court for more than a third of a century and as chief justice for nearly two decades. He possessed the two qualities most necessary for a successful chief: he was bright and he was a schmoozer. Though magisterial on the bench, Rehnquist was a first-rate quipster, and his poker games and high jinks with colleagues were legendary.
Those qualities allowed Rehnquist to evolve from an often-lonely dissenter in the 1970s to one of the most influential chief justices in history.
When Rehnquist joined the court in 1972, it was still in the throes of Warren court liberalism, routinely advancing causes that could not be won in the legislative arena. Though the court as a whole never fully embraced Rehnquist's conservatism, his influence moved the court toward the center.
For instance, under Rehnquist's stewardship, the court stopped routinely overruling criminal convictions, but retained the Miranda ruling that protects against abusive police interrogations. It strengthened state autonomy, but never overturned Roe vs. Wade. It struck down most racial preferences, but left the door open to preferences in college admissions.
As chief, Rehnquist was adroit in moderating his own views to bring in colleagues, and often appeared to switch to the winning side in order to exercise the chief's prerogative to assign writing of key decisions to himself so as to narrow their scope.
One area of Rehnquist's enormous influence was school choice.
In the 1960s and '70s, the court had broadly interpreted the First Amendment's prohibition against establishment of religion to embrace outright hostility to religion.
In 1983, Rehnquist cobbled together a 5-4 majority in Mueller vs. Allen, charting a more moderate course in upholding tuition tax credits for K-12 education, emphasizing that the choice of where to spend the education dollars was decided by parents, not the state.
That same slender majority held 19 years later in Zelman vs. Simmons-Harris, in which the court, in a landmark decision written by Rehnquist, upheld the Cleveland school-voucher program. For Rehnquist, it was a matter of state autonomy and an interpretation of the First Amendment true to its original intent.
For millions of children in Arizona and throughout the United States, it meant the promise of precious educational opportunities.
Rehnquist's combination of strong conservative convictions and political savvy make him a tough act to follow. Conventional wisdom holds that another justice should be elevated to chief; but historically, only about one-third of chief justices have come from the court's ranks.
For two decades, the court has been narrowly divided, usually (though less frequently lately) siding with individual liberty over state power, precisely the role the framers intended the federal judiciary to play. Judge John Roberts, the nominee to fill Justice O'Connor's position, is truly an unknown quantity. If Bush nominates a Rehnquist replacement who is less committed to conservative principles than his predecessor, it could have the effect of turning the court to the left.
While we await that decision, Arizonans should pause to mourn the passing of one of the most influential statesmen our state has ever sent to the nation's capital.
The writer is a Phoenix lawyer whose practice includes the U.S. Supreme Court, president of the Alliance for School Choice, and a senior fellow for the Goldwater Institute.
This piece originally appeared in the Arizona Republic , September 5, 2005.
Microsoft CEO Bill Gates recently told the National Conference of State Legislatures that universities are "I.Q. magnets," implying they should receive more government subsides because the correlation between universities and areas with good jobs is "almost perfect."
Almost, but not quite. In his junior year, Gates left Harvard University to start his company in Seattle, which has far fewer colleges and universities than I.Q. "magnet" metropolitan Boston. Also, two decades of data for all 50 states provide no clear evidence that higher-education spending drives economic growth. In fact, from 1991 to 2000, none of the top-10 spending states were among the top 10 for economic growth.
As economist Richard Vedder suggested in the Wall Street Journal, it's better to invest in higher education by funding students directly through grants, as Colorado now does. The competition between public and private institutions for students would introduce strong incentives to provide the best education at the best price. Such a marketplace would be the most powerful I.Q. magnet of all.
Pilots don't pay for jet fuel. Phone operators don't pay for cable lines. Yet some public school teachers are spending anywhere from $120 to $2,000 of their own money for basic classroom supplies, according to the Arizona Republic.
Why aren't the school districts picking up the tab for pencils, paper, and chalk? The complexity of Arizona's public school finance system makes it hard to know. To help make public education funding more transparent and determine how much money is flowing into public school districts, the Goldwater Institute and Friedman Foundation synthesized all publicly available Arizona Department of Education financial data.
The final tally showed that Arizona districts receive a minimum of $8,500 per student. But the schools mentioned by the Republic are in districts that get even more than that. The Madison Elementary District receives about $9,000 per student. The Glendale and Phoenix Union High School Districts receive $9,300 and $11,000 per student, respectively.
If that's not enough to buy basic school supplies, the state and local school districts could save about $32 million annually by giving just five percent of public-school students grants worth half the current per-pupil funding to attend private schools if they wish. A grant system of public school finance would expand educational options for students, make education finance transparent, and wouldn't leave teachers stuck with the tab.
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