A prologue: I do not smoke and sincerely believe that the world would be a better place if everyone gave up the habit.

One of the primary functions of a constitution is to keep elites from enacting laws simply because they find some aspect of human behavior repulsive, or even attractive, at any given point in time.

For example, why do we currently have bans on smoking, but no equivalent bans on alcohol consumption? This leads to a larger, but relevant, question. On what grounds can a government assume to have the power to control private behavior?

Without constitutional law, the answer is easy. What do the powerful want? The first national ban on tobacco was imposed on German universities, post offices, military hospitals and Nazi Party offices under direct orders from Adolf Hitler, who evidently didn't like tobacco.

By the 1980s, the American elites had decided that smoking was unbecoming. In 1990, San Luis Obispo, California, became the first city in the world to ban indoor smoking at all public places, including bars and restaurants.

Other than imposing your own lifestyle on others, what justification can be given for such bans? There are two main arguments. First, smoking is not a "victimless crime." Second-hand smoke can be dangerous. It has been estimated that about 38,000 Americans die annually from secondhand smoke.

To put that into perspective, over 3 million Americans die every year.

Second, smoking creates increased health costs borne by society. The estimates of the cost of smoking are all over the board. It costs $73 billion, or $85 billion, or $167 billion. The cost is 10 percent of all the health costs in the nation, or it is 60 percent of all the costs depending upon what source you wish to access.

The second argument is interesting in an utilitarian sort of way because it can be applied to any private behavior. Everything a person could do might be seen as costing society something.

Taken at its core, the argument is mechanical, illogical, and even inhumane. For example, some studies have suggested that complete smoking cessation might actually result in an increase in total health care costs in the long run. Elder care is more expensive than the costs of dying rapidly from the typical smoking-related illness.

Given the cost-to-society argument, should we encourage everyone to smoke, or just simplify the whole thing and have everyone over the age of 70 euthanized?

This also demonstrates the hypocrisy inherent in governmental control of private behavior.

What about other health problems that are preventable? It is estimated that one in five Americans between the ages of 15 and 55 are currently infected with one of 50 diseases that can be controlled by a change in behavior.

These diseases and health problems are insidious and are especially dangerous to babies. These ailments, left uncontrolled, lead to damage to the liver and brain. They can cause heart trouble, skin diseases, arthritis and blindness. Several types can never be cured. Once you contract them, you will have them the rest of your life.

Current methods of control for this epidemic have been ineffective. The most common recommended prevention method has a failure rate higher than one-in-six.

Of course, as with smoking and other behavioral problems, this epidemic affects the young and minorities in a disproportional manner. A government study found that 26 percent of teenage girls in America are currently infected. One in five of these has a form of the disease that is incurable.

According to the same study, the infection rate in African-American teenage girls is close to 50 percent.

Every single one of these 50 diseases in this epidemic can be prevented by a change in behavior. So where are the demands for governmental action to ban the behavior that leads to these social ills?

Of course you know by now that I am describing recent studies on the increase in STDs in the United States.

The American elites and their busybody associates currently find smoking to be unacceptable, but they like alcohol and hold sex as the last sacrament. Consequently, smoking can be and should be controlled by government, but sex should not be controlled by government action, and could never be controlled.

None of this has anything to do with the rule of law. It is the perceptions of the powerful imposed on everyone else.