Law & Principles

What the ABLE Commission Taproom Flap is Really About

August 24, 2016

Trent England

The legislature passed a straightforward law legalizing brewers to sell their own beer on their own premises. They could already give out samples, and wineries were earlier freed to sell their own wine and host wine tastings. With the brewery law set to take effect this Friday, August 26, everyone was happy. Everyone except Keith Burt.

The Director of the ABLE (Alcoholic Beverage Laws Enforcement) Commission, charged with enforcing the policy choices of the legislature, decided to play dumb. “I didn't know they wanted on-premises consumption because it doesn't say that,” Burt told the press. Thankfully, he punted to Attorney General Scott Pruitt who clarified that Senate Bill 424 means exactly what everyone except Burt always understood it to mean.

The law was not unclear. What was Burt’s problem?

Government officials, like the rest of us, have their biases. And because bureaucrats are not robots, and no law can address every possible circumstance, enforcing the law will always involve some interpretation and discretion. The most fundamental bias for officials is whether to interpret laws in favor of freedom for their fellow citizens, or in favor of government control.

English law recognizes as a principle of liberty that “everything which is not forbidden is allowed.” Many writers have formulated the opposite to describe totalitarianism: everything is forbidden unless government gives permission. An editor’s footnote in Sir William Blackstone’s Commentaries on the Laws of England traces the idea back to ancient Rome.

It was one of the laws of the twelve tables of Rome, that whenever there was a question between liberty and slavery, the presumption should be on the side of liberty. This excellent principle our law has adopted in the construction of penal statutes; for whenever any ambiguity arises in a statute introducing a new penalty or punishment, the decision shall be on the side of lenity and mercy; or in favour of natural right and liberty....

Of course, as the footnote observes, the principle is only a binding rule for the interpretation of criminal statutes (just like the Bill of Rights offers far more protections against a criminal prosecution than a regulatory enforcement action). Outside of criminal law enforcement, government officials have a choice about whether to lean in favor of freedom or not. ABLE Director Burt has shown that he leans in favor of government control.

Citizens have a choice as well. We can either accept government officials who view us as children or serfs in need of general constraints, or we can insist on their removal. Even better, we can ask the legislature to dismantle or at least reform agencies that show a proclivity to meddle and overreach.