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April 2017 Policy Study, Number 17-6


A Commentary on the Bill of Rights


Part 20



Amendment VIII:


Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.


There are two areas of interest that we shall take up with this amendment.  The first deals directly with this amendment; the second deals with the Constitution and our system of laws as a whole, but it can be highlighted most easily in this area.  We will use the subject of smoking, specifically smoking by minors, to elucidate the points.  Keep in mind that this is just a single instance of this type of proposed “law.”  There are far too many others, proposed, enacted, and enforced.


Lately, in Washington and also in my state capital of Des Moines, there has been much discussion about “cracking down” on teenage smoking.  Again, it is not my intention here to encourage or even defend the practice of smoking by our youth in particular or adults in general.  Smoking is a practice that is non-essential; that is, it is unnecessary to our survival.  In fact, evidence seems to indicate it is probably detrimental to our well-being.  All of which is completely beside the point when it comes to our relationship with government.  Being sovereign individuals, our personal habits are not within the domain of government.  They only become so when our personal habits have a deleterious effect on our neighbors.  This is a subject that has been previously covered, and we need not plow the same ground a second time.


Even so, there has been talk of heavy penalties for minors caught smoking — as much as $500for third and subsequent offenses.  Considering the offense and the economic condition of the minor offender, it seems quite possible this punishment would abridge both the“excessive fines” and the “cruel and unusual punishment” provisions of this amendment.  The minor is generally in nowhere near the financial condition to withstand this kind of penalty.  Even taking into consideration that this is supposed to be a penalty (hardship), this would seem to be an unduly harsh reprisal for the “crime” they have committed.  If payment is to be made by a parent or guardian, then we have punished an individual who didn’t even commit the infraction of “law.”  Either of these outcomes would offend my notion of justice.  In fact, all laws of this type offend my notion of justice, and they should offend yours, too.


This second part of the current discussion, though not specifically aimed at the Eighth Amendment, is probably of more import than the first.  It deals with “laws” that tend to offend the very underlying basis for our whole system of justice.  You have probably noticed that the words “crime” and “law” have been set off with quotation marks.  This was done with a purpose.  It was to indicate that what you see on the surface might not be the fact.  Allow me to try to explain.  The foundation for our laws that was established by our Founders was “the Laws of Nature and of Nature’s God.”  The laws that we enact which are grounded on this basis are lawful.  The statutes that we enact that are not grounded on this basis are merely legal.  That is, they are offenses against the state.  Laws that are based on the laws of nature are immutable — they are constant, permanent, and unchanging.  Statutes that are not are transitory.  They can be one thing today and another tomorrow.  And they can be anything that suits the state’s fancy at the moment.  This state of affairs places our liberty in a very precarious position.  We are at the tender mercies of our elected officials who, after all, are like us . . . mere mortals.  This is not a very comforting thought for some of us.


While the “abuse” of the products of nature is an offense against her laws, the mere use of her products is not.  Smoking per se, by adult or minor and age nonwithstanding, would not seem to abridge the laws of nature.  And it is yet to be firmly proven that anyone’s personal and private use of tobacco has so deleterious an effect on others that it is a fit subject for the state to pursue.  It is a very fit subject that lies within the purview of the parent-child relationship.  The parent has a very direct responsibility for the immediate welfare of the child and what is good for his or her child.  However, the state does not, and it is extremely dangerous to our liberty to allow the state that prerogative.  Stated another way, it is the parent that has the preeminent right and obligation to rear his or her children.  It is only when the parent abdicates those rights and obligations and the minor is in imminent danger that the state has any business interfering in the parent-child relationship.


If the aforementioned “talk” does indeed become law, our minors may be considered “criminals” for perpetrating an act that is in itself not criminal in nature.  If they refuse or are unable to pay the fine imposed for this abridgment of statute law, they will “legally” be considered criminals.  All because we tolerate the state making something a “crime” that, in the traditional sense of the word, would not be a crime at all and because it is in the "minor's best interest."  It may well be, and probably is, in the minor’s best interest not to take up the habit of smoking.  But we need to answer this question:  if the state can force anyone to behave in a certain manner simply because the state “believes” it is in that person’s own best interest, where does the state’s power to “manage” the rest of us, as they deem fit, stop?  Even allowing that the state really does have our best interests at heart, this is simply too great a latitude to grant mere mortals.


Here we have been dealing specifically with the “crime” of minors smoking; but the problem extends to any law that would preempt any action of the individual that doesn’t produce a deleterious effect on our fellow human beings.  We may not like what our neighbors do; but as long as they harm no one else, it is neither our prerogative nor the government’s to change their behavior by force or coercion.  We either acknowledge our neighbor’s right to live his life as he sees fit, or we relinquish our own.  History has shown that when we use the force of government to control our neighbor’s personal life, the control of our own life is soon forfeit.  There does not seem to be much middle ground, and it is not a smart exchange.




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