Prohibition Battle in Arkansas: Local Control or Individual Rights?

On Tuesday Arkansas voters decide whether to end prohibition in the state

On Tuesday the voters of the state in which I dwell, Arkansas, will be asked to vote yes or no on this:

A proposed amendment to the Arkansas Constitution to provide that, effective July 1, 2015, the manufacture, sale, distribution and transportation of intoxicating liquors is lawful within the entire geographic area of each and every county of this state; … that the manufacture, sale, distribution and transportation of intoxicating liquors may be regulated, but not prohibited, by the General Assembly; and that all laws which conflict with the amendment, including laws providing for a local option election (wet-dry election) to determine whether intoxicating liquors may be sold or not sold, are repealed to the extent that they conflict with the amendment.

After national Prohibition ended in 1933, the Arkansas General Assembly passed a law permitting counties to go "dry," that is, to prohibit the manufacture and sale of alcoholic beverages. Even within "wet" counties, individual communities can vote to be "dry." (To get on the ballot, an alcohol-related question needs signatures totaling at least 38 percent of the number of votes cast in the previous gubernatorial election; that's more than three times the percentage required  for other kinds of ballot questions.) As of today, according to Ballotpedia.org (the place for comprehensive information about referendums nationwide), 37 of 75 Arkansas counties are "dry," the rest being "wet" or mixed, which means communities within a "wet" county have voted to go "dry."

My county of residence (Faulkner, for the next few days) is dry, except that the increasingly liberal "club" provision has led to an abundance of restaurants free to serve alcohol by the drink. This has resulted in a new category of county: "damp." Nevertheless, liquor stores and supermarket alcohol aisles are forbidden.

When I first moved to this county 13 years ago, few establishments had a club license to sell alcohol by the drink. In the ensuing years more licenses were issued. When the Outback Steakhouse opened a few years back, patrons "joined" by paying $5 annual dues, and each person was issued a membership card and number. But the $5 was promptly refunded with a discount off the first check. Each time a "member" went to the restaurant, he was asked to sign a book and record his membership number. Some restaurants had drinking and nondrinking sections.

It was a sham. Everyone knew these were not really clubs. The club provision was just a way to relax prohibition without acknowledging it. (Business associations and others around the state understood that prohibition discourages people and firms from relocating to Arkansas.) Nowadays restaurants don't even go through the motions, and nobody seems to cares.

There is no better example of how government treats adults like children than the laws governing beer, wine, and spirits. The range of regulation, all the way to prohibition, is large, but in no state is alcohol free of regulation. (Not that any trade is truly free of government intrusion.)

What is interesting about the referendum campaign is how each side has argued for its position. Proponents, led by Let Arkansas Decide, don't avoid the issue of individual liberty, but it's not front and center either. Instead, the organization has emphasized the creation of local jobs, the increase in local-government tax revenues, and the safety that would result from obviating the need for long drives on the interstate to an adjacent county to buy liquor.

Opponents of the measure have tried to scare the voters. They warn that local liquor stores would mean more drunk driving.

But which sounds safer: People walking or driving a few blocks to buy alcohol, or driving to the county line at 70 miles an hour for 20 or more miles on I-40?

Opponents have also said that legalization will put liquor stores across the street from schools. Proponents counter that the state already prohibits liquor stores within a thousand feet of schools and churches. (More on such regulations later.)

A major opposition talking point has been that the statewide referendum intrudes on a local prerogative and — get this — freedom of choice. The voters of each county, it is said, should decide for themselves. This is also the editorial position of the state's major newspaper, the Democrat-Gazette.

"It's not fair to take away our right to vote on this on a local level," said Brian Richardson of Citizens for Local Rights. "We think it's too important of an issue to not have a local voice in this."

Richardson argues that the people of, say, Pulaski County, where Little Rock sits, should not be able to dictate liquor-store policy to the people of dry (or damp) counties.

To this I say that so-called local control actually constitutes a violation of the most local prerogatives of all: those of the individual. By what right does anyone prohibit an individual from engaging in peaceful commerce? If a minority of the residents of a county want to buy or sell alcohol, why should their neighbors—no matter how many—have the legal power to stop them? (And how long would a liquor store last in a town where no one drinks?)

Here we see the central flaw in the democratic dogma. It is often said that under democracy, the majority rules but the rights of the minority are respected. How can both be true? If the rights of the minority are respected, then the majority does not rule. And if it does rule, then the rights of the minority are not respected.

Anyone who believes in the natural and inalienable rights to life, liberty, and the pursuit of happiness is obliged to accept that individuals have the right to buy and sell alcohol. That's why all the regulations that people take for granted—the restrictions on hours of operation, the ban on Sunday sales, the minimum distance from schools and churches, the minimum age, and the protection of local wineries from competition by wineries in other states—are illegitimate.

The local-control issue is a red herring. If people statewide vote yes on the question, they would not be interfering with local power; rather they would be affirming the right of individuals to make their own decisions free of their neighbors' meddling.

Fundamentally, this is a classic case of "Bootleggers and Baptists," a phenomenon identified by economist Bruce Yandle. The biggest opponents of the freedom to buy and sell liquor in Arkansas's dry counties are religious authorities who want to force their moral views on others and the owners of liquor stores in neighboring wet counties, where dry-county residents must go to buy their alcohol. The Arkansas Beverage Retailers Association worked with store owners to keep the question off the ballot and named its committee "Let Local Communities Decide for Themselves." A letter from the association stated, "Obviously this would be catastrophic for county line liquor stores around the state." (Emphasis added.) It also expressed concern about competition from big chain stores like Kroger and Walmart.

Alliances between moralists and rent-seekers, which used to be covert but now are quite open, have been common throughout American history. No one really believes people will drink less if they can't buy alcohol in their home county. But if the law remains as it is, some people will feel guilty about their drinking (and perhaps donate more heavily to their churches?), and liquor-store owners across the county line will continue to reap illegitimate profits because government has suppressed their potential competitors.

As a libertarian, of course, I believe there should be no need for a referendum on liquor sales because there should be no prohibition to abolish. But given prohibition, I'm hoping that "yes" prevails.

This article originally appeared at the Future of Freedom Foundation.