Tobacco Deal Tramples on the Constitution
By William Rusher
Mr. Rusher is a Distinguished fellow of the Claremont
institute for the Study of Statesmanship and Political
Philosophy

The deal recently reached between the tobacco industry
and 39 state attorneys general involves figures so enormous
that it's hard to wrap one's mind around it. But it is, as
Robert levy of the Cato Institute told the Senate Judiciary
Committee,"a shameful document,extorted by public officials
who have perverted the rule of law to tap the deep pockets
of a feckless and friendless industry." It should be rejec
ted out of hand.

The agreement is the product of a weird combination of
pressures. For one thing, the American public is currently
in the grip of a mass hysteria against smoking that unavoid
ably recalls the Salem witch trials. There is the same easy
assumption of moral superiority, the same rage against an
allegedly evil minority, the same exhilaration when that
minority gets the punishment it supposedly deserves.

Then there are the 39 attorneys general, Little did we
suspect, when government barged into the business of subsi
dizing medical care, that one of the consequences would be
billiondollar lawsuits by the states against tobacco com
panies. This resulted from states discovering that they were
required to pay for the treatment of illnesses allegedly caused
by tobacco products (which were lawfully sold to consumers who
knew and assumed the risks).

Last but far from least, there are the productliability
lawyers, who see untold billions of dollars in legal fees
awaiting them as this cornucopia belches forth its fruits.

We should probably add the tobacco companies to this list
because, after all, it takes two to tango. But the industry
is essentially helpless, if it wants to go on at all.It has
been tagged as the sacrificial victim in this autodafe, and
even a $368 billion settlement with its tormentors must seem
preferable to the death of a thousand cuts that it might other
wise undergo. Besides, at least as of now, the cost is tax
deductible.

Who, then, are the losers in this arrangement? Forget the
smokers, who will have to pay a lot more for their vicious little
habit, it serves them right, surely. If thay want to smoke, let
them switch to marijuana, which all right thinking people believe
is chic, a symbol of the freedom that characterizes our era, and
a valuable therapy for whatever ails you. It has already been leg
alized, for medical purposes, in California and Arizona, and is
coming to other states soon.

No, the real losers are the constitutional processes by which
this country has previously been run.As Levy told the senators,
"It is difficult to imagine that legislation could transgress as
many fundamental constitutional principles" as this agreement dose.

What a person's right to trial by jury? To quote Levy again: "
Because of a bargain to which they were not even a party,future claim
ants may not litigate as a class, sue for punitive damages covering
past acts or collect compensatory damages in excess of an agreed upon
capthey lose commonlaw rights they have long enjoyed under the
Seventh Amendment."

Also trampled underfoot are the doctrines of due process, federalism
and limited powers.

If those who are hounding the tobacco companies were sincere in their
protests, they would long since have called for the criminalization of
tobacco. How else, after all, can we save even a fraction of the millions
of lives allegedly sacrificed to the great god Tobacco?

But they don't because they would rather keep the tobacco industry going
and milk it for taxes, liability settlements and legal fees. It is simply
a honeypot, and the flies are gathering.