Raising The Legal Age To Buy Tobacco To 21 Would Promote Health, But Undermine Constitutionally Guaranteed Rights and Freedoms

​Tobacco use has become a priority of Senate Majority Leader Mitch McConnell’s legislative agenda.  Through the so-called McConnell Bill, the Republican Senator is poised to tackle tobacco use by young Americans.  His plan is to raise the minimum age required by the Federal government to buy tobacco from 18 to 21.  The idea is to discourage young adults from developing the hazardous habit of tobacco use after they turn 18 and to prevent them from exposing their younger peers to tobacco.  Facing an e-cigarette epidemic among teenagers, which primes users to use tobacco by addicting them to nicotine, there is growing support for action.  The fact that a pro-industry, anti-regulation Republican is willing and easily able to lead the charge against the once-highly influential tobacco industry is truly a sign of how much cultural attitudes toward tobacco use have changed.  The cause is truly noble, but the approach is far more dangerous than most Americans may realize.

​The adverse effect of tobacco use on the human body is irrefutable.  The risk to the health of the young is truly frightening.  Imposing age restrictions on the use of tobacco certainly helps discourage tobacco use.  It is, however, a limited solution.  If age restrictions were the only solution, young people would not have access to tobacco.  Clearly, they are part of the solution and they have been effective, but their ability to curb tobacco use is limited.  That said, it is important to recognize the legal distinction between someone who is younger than 18-years-old and someone who is older than 18-years-old.  Like the age of 21, 18 is a fairly arbitrary age, yet it is the age the US legal system defines adulthood.  Because children fall under the responsibility and authority of their parents and other caregivers, their rights are often subject to restrictions.  There must, of course, be reasonable justifications for restricting the rights of minors.  For those over the age of 18, in contrast, there is no legal justification to arbitrarily restrict their rights based on their age.
 
With that in mind, the approach of the McConnell Bill represents an attempt to unconstitutionally restrict the rights of legal adults.  Preventing adult teenagers and twenty-something- year-olds from legally purchasing tobacco for their younger peers is a sound rationale for a public policy solution, but it is far from a legal rationale.  If a Constitutional challenge was brought against the McConnell Bill, the Supreme Court would likely have to rule against the legislation as there appears to be no legal rationale for restricting the rights of adults.  The question is whether or not the government can restrict the rights of legal adults to buy tobacco.  Because there is a compelling state interest to combat the ill-effects of tobacco use on the health of all Americans, there is likely a legal rationale for banning, or at least severely restricting, the sale of all tobacco and nicotine-laced products.  Allowing a 22-year-old to freely purchase tobacco products, while depriving a 21-year-old of the same right to purchase tobacco, is pure discrimination by the government on the basis of age.
 
The age restriction of 21 comes from the Twenty-First Amendment, which affords those over the age of 21 an explicit Constitutional right to consume alcohol.  Since the end of the Prohibition, 21 has represented a special age limit, but the fact the Constitution creates a right for anyone over the age of 21 does not mean government has the power to restrict the rights of those under the age of 21.  Since the end of Prohibition, for example, numerous States have set their drinking age at 18-years-old.  The National Minimum Drinking Age Act of 1984, which punished States by their annual federal highway apportionment for maintaining a drinking age under 21, has more or less pushed every State to make it illegal for any American under the age of 21 to drink.  The law has been upheld by the Supreme Court, despite its coercive nature, due in part to the fact the Twenty-First Amendment has not been deemed unconstitutional.  Solely due to the fact that the Twenty-First Amendment is a Constitutional Amendment is there a legal basis for its existence.  Beyond that, there is no sound legal rationale for restricting the rights of anyone over the legal threshold for adulthood.
 
The Equal Protection Clause of the Fourteenth Amendment requires the US government offer the same rights, privileges, and protections to all US citizens.  On the surface, the Twenty-First Amendment does not do that.  The rights granted to those over the age of 21 were afforded under the backdrop of the Eighteenth Amendment, which stripped all Americans of the freedom to produce, purchase, and consume alcohol.  Even if the Eighteenth Amendment is never voided by a successful Constitutional challenge, the Twenty-First Amendment returned rights to those over the age of 21 in an arbitrary and discriminatory fashion.  Legislation like the McConnell Bill certainly does the same thing.   Outside of moving the legal age for adulthood, i.e. unconstitutionally stripping all citizens under the age of 21 of their full rights, it is difficult to see how any legislation based on arbitrary age limits can be Constitutional.  Should the McConnell Bill become law, it would be an affront to the rights of all US citizens and help solidify the legal precedence for arbitrary discrimination set by the passage of the Twenty-First Amendment.  Fortunately, a Constitutional challenge against a piece of legislation is more likely to be successful than one against a Constitutional Amendment.  It could also create a legal precedence that could lead to an expansion of Twenty-First Amendment rights.