Huston: Sunday Liquor Sales

January 24, 2015

by Tom Charles Huston

Indiana is, I believe, one of only two states that prohibit the sale of alcoholic beverages on Sunday. This prohibition offends a number of people: poor planners who have trouble remembering to buy beer on Saturday for their Sunday football parties; national retailers who seek to increase their gross sales and, as an ancillary benefit, drive out of business their locally owned competitors; and libertarians who are offended at government determining the days on which you can buy booze.

The prohibition is supported by Drys, owners of package liquor stores (mostly local folks) for which Sunday sales means increased costs and decreased sales, and Burkean conservatives like me who believe that the presumption is always against change and those advocating it have the burden to demonstrate by a preponderance of the evidence that the proposed change is not merely convenient but necessary. (“Burkean” — from political theorist Edmund Burke.)

I am not surprised that many of my Republican friends with whom I agree on most issues differ with me on this one. That they do so reflects a nuance in thinking among self-identified “conservatives” that is too often ignored: libertarian-leaning conservatives and tradition-embracing conservatives do not necessarily end up in the same place on issues that pit free markets against stable communities or individual “rights” against the claims of the community. This difference is not insubstantial. Try as he may, Governor Mike Pence cannot convincingly reconcile the thinking of his professed exemplars — the libertarian economist Friedrich Hayek and the conservative man of letters Russell Kirk. It was this lack of reconciliation that prompted Hayek to declare that he was not a conservative.

I have never consumed a beer, and I can count on one hand the number of times in a year that I have a drink of wine or hard liquor. This personal quirk may prejudice me against the repeal of the ban on Sunday sales because I am not inconvenienced by it, but it does not control my thinking on the subject. I do believe that alcohol is a great social evil that I would banish if I could, but I can’t and that is a good thing.

The same people who are anxious to impose a comprehensive ban on smoking and perfectly willing to send some young person to jail for sniffing glue are hell-bent on making booze as easy to acquire as possible notwithstanding the families destroyed and lives lost by the abuse of alcohol. I fail to discern a controlling moral principle in the state expediting some of these individual vices and prohibiting others. What I do perceive are issues of prudence, tolerance and moderation, which impose on lawmakers an obligation to balance individual preferences and social costs. I have chosen the word “preferences” deliberately, for by its use I intend to challenge the libertarian notion that we are talking about “rights.”

There are, I acknowledge, certain rights which any law-based society is obligated to observe: natural rights (“the laws of Nature and of Nature’s God”); constitutional rights; and rights established by positive law. Smoking and drinking fall in none of these categories, and no sensible person can argue that a legislature may not rightly (albeit foolishly) ban them if it wishes. Indeed, we experienced a decade of constitutional prohibition of the production or sale of alcoholic beverages, and the only reason the anti-tobacco lobby hasn’t pushed laws to completely outlaw smoking is that they rely on the taxes generated by tobacco sales to fund government operations of which they approve.

If we framed our discussion of contentious social policy issues as questions of prudence rather than matters of right, we would be less likely to inflame passions and stake out inflexible positions. If you have a “right” to buy a drink on Sunday, then my opposition to your doing so is understandably a personal affront. On the other hand, if you have no such right but only a desire, then my opposition is not a poke in the eye, but a reasonable difference of opinion to be resolved through discussion and, ultimately, a vote by the body authorized to render a final decision.

I happen to believe that there ought to be compelling reasons to disadvantage locally owned businesses and to expand, at the margins, the opportunity for the abuse of alcoholic beverages, and I don’t believe there are such reasons. Investments have been made on the basis of the existing legal regime for the regulation of the sale and consumption of liquor, wine and beer, and I do not find persuasive the argument that those investments should be impaired in order to expand the sales and profits of large, national retailers.

As for the convenience of consumers, if they can’t plan ahead and buy their booze on one of the six days of the week on which it is available, then I say tough luck. Life can be unfair, but take another drink and bear it.

Tom Charles Huston, J.D., an adjunct scholar of the foundation who resides in Indianapolis, has written and lectured extensively on real-estate law and practice. He has been prominent in the historic preservation movement as an officer and director of Historic Landmarks Foundation of Indiana and Historic Indianapolis, Inc.; a director of Preservation Action; and a member of the Board of Advisers of the National Trust for Historic Preservation.

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