Now that Concord Town Meeting has upheld the deeply unpopular ban on water bottles, the matter is almost certainly heading to court.
One of the interesting questions we’ve had in the past few months on this blog has been the role of the majority in public life–the filibuster in the Senate, the question of whether a majority of voters can deny a minority the right to marry, and now the question of whether Town Meeting in Massachusetts can ban a legal product from sale within its borders. Funny how so many people who want to keep out adult bookstores and gun shops are now calling for freedom to shop.
But the short answer is that Town Meeting almost certainly cannot ban the sale of a lawful product within its borders. This issue comes up against a long history of jurisprudence involving interstate commerce. In the absence of any evidence that the water bottle ban has any beneficial and substantive value (and it doesn’t, because Concord isn’t an island), the rights of the seller and the rights of the producer, certainly become paramount. Considering the investment that so many companies have made in single serving water bottles, there are a lot of parties with standing to challenge the ban in court, and they will probably prevail. There may be a short waiting period to show that the ban is meaningless, but the lawsuits will come.
What struck me last night is how many people who voted to keep the ban in place didn’t realize that they were also voting to fund the defense of a massive and probably well funded lawsuit. Is it worth $250,000 in taxpayer funds to defend the ban? As a taxpayer, I wouldn’t think so. Did the voters last night understand that their stand on principle is going to be an expensive one? Because the truth of the matter is that a majority is a good thing, but more often than not, today, the final arbiter is with the court protecting the rights of the one, whether you like that or not. Cause that’s what the constitution requires.