A Dot’s Life

There are many ways to think about constitutional law and the limits it may impose on government regulation. I want to think about it from the perspective of someone who is regulated or constrained. That someone regulated is represented by this (pathetic) dot—a creature (you or me) subject to the different constraints that might regulate it. By describing the various constraints that might bear on this individual, I hope to show you something about how these constraints function together.

Here then is the dot.

How is this dot “regulated”?

Let’s start with something easy: smoking. If you want to smoke, what constraints do you face? What factors regulate your decision to smoke or not?

One constraint is legal. In some places at least, laws regulate smoking—if you are under eighteen, the law says that cigarettes cannot be sold to you. If you are under twenty-six, cigarettes cannot be sold to you unless the seller checks your ID. Laws also regulate where smoking is permitted—not in O’Hare Airport, on an airplane, or in an elevator, for instance. In these two ways at least, laws aim to direct smoking behavior. They operate as a kind of constraint on an individual who wants to smoke.¹

But laws are not the most significant constraints on smoking. Smokers in the United States certainly feel their freedom regulated, even if only rarely by the law. There are no smoking police, and smoking courts are still quite rare. Rather, smokers in America are regulated by norms. Norms say that one doesn’t light a cigarette in a private car without first asking permission of the other passengers. They also say, however, that one needn’t ask permission to smoke at a picnic. Norms say that others can ask you to stop smoking at a restaurant, or that you never smoke during a meal. These norms effect a certain constraint, and this constraint, we can say, regulates smoking behavior.

Law and norms are still not the only forces regulating smoking behavior. The market too is a constraint. The price of cigarettes is a constraint on your ability to smoke. Change the price, and you change this constraint. Likewise with quality. If the market supplies a variety of cigarettes of widely varying quality and price, your ability to select the kind of cigarette you want increases; increasing choice here reduces constraint.

Finally, there are the constraints created, we might say, by the technology of cigarettes, or by the technologies affecting their supply.² Unfiltered cigarettes present a greater constraint on smoking than filtered cigarettes if you are worried about your health. Nicotine-treated cigarettes are addictive and therefore create a greater constraint on smoking than untreated cigarettes. Smokeless cigarettes present less of a constraint because they can be smoked in more places. Cigarettes with a strong odor present more of a constraint because they can be smoked in fewer places. In all of these ways, how the cigarette is affects the constraints faced by a smoker. How it is, how it is designed, how it is built—in a word, its architecture.

Thus, four constraints regulate this pathetic dot—the law, social norms, the market, and architecture—and the “regulation” of this dot is the sum of these four constraints. Changes in any one will affect the regulation of the whole. Some constraints will support others; some may undermine others. A complete view, however, should consider them together.

So think of the four together like this:

Footnotes

¹ See generally Smoking Policy: Law, Politics, and Culture, edited by Robert L. Rabin and Stephen D. Sugarman (New York: Oxford University Press, 1993); Lawrence Lessig, “The Regulation of Social Meaning,” University of Chicago Law Review 62 (1995): 943, 1025–34; Cass R. Sunstein, “Social Norms and Social Roles,” Columbia Law Review 96 (1996): 903. Edit Delete

² These technologies are themselves affected, no doubt, by the market. Obviously, these constraints could not exist independently of each other but affect each other in significant ways. Edit Delete