On Tuesday, the National Transportation Safety Board recommended a complete ban on the use of cell phones and text messaging while operating a motor vehicle.

The recommended ban includes hands free devices.

“No call, no text, no update is worth a human life,” Deborah A. P. Hersman, chairman of the N.T.S.B., said.

According to a CNN report, “The safety board also recommended the electronics industry develop phones that would discourage their use by drivers, but could identify a car occupant’s location so that passengers could use the devices.”

The federal agency insists the law, along with “strict enforcement” and “aggressive educational campaigns,” are all necessary to curb distracted driving.

Which begs the question: what other activities while driving should the N.T.S.B. seek to ban? Eating? Applying makeup? Tuning the radio? All certainly cause distractions. And if talking to someone on a cell phone while driving creates a distraction, making it impossible to safely drive, couldn’t one argue that talking to a passenger in the back seat creates the same hazard? Do we ban back seat passengers? Or all passengers? And what about a baby in the back seat? Ask any parent about the distraction caused by a crying baby.

Perhaps the N.T.S.B. should seek to ban babies in motor vehicles.

Silly nanny-state implications aside, the N.T.S.B. recommendations bring up a much larger issue. What constitutional ramifications do they carry with them? Proponents of big-government solutions will quickly point out that states don’t have to follow the recommendations and each state remains free to regulate motorist cell phone usage as it sees fit. But how long will it take for the feds to begin playing the carrot and stick game, using federal highway funding to coerce state governments into compliance, whether the citizens of those states agree with the ban or not? Technically, states don’t have to comply with speed limit recommendations either.

And as a Time Magazine article points out, N.T.S.B. recommendations, “carry significant weight with federal regulators and congressional and state lawmakers.”

The Constitution grants the federal government regulatory power over transportation associated with commerce under the Commerce Clause. But general transportation safety properly falls under state authority. It certainly counts as what James Madison termed, “objects which, in the ordinary course of affairs, concern the lives, liberties and properties of the people, and the internal order, improvement and prosperity of the State.”  And laws regulating the use of cell phones in private motor vehicles also fall under the powers left to the states and the people.

Supporters of a cell phone ban will undoubtedly scream “safety” over and over again at the top of their lungs. And perhaps they are right. But the righteousness of their cause does not create a justification for simply ignoring prescribed constitutional limits on federal power. State legislatures certainly possess the capacity to study the situation and pass appropriate legislation, keeping with the character of their states and the will of their own citizens. After all, no government possesses and inherent right to “protect” us against our will.

And perhaps a complete ban isn’t the best solution. At least one study showed car accident insurance claims actually increased in three states that passed texting bans. Apparently, drivers text anyway and create an even greater hazard trying to hide their activity from the police.

In fact, allowing each state to determine its own course of action would better serve the U.S. as a whole in the long run. With 50 states experimenting, we could examine a variety of policies as states take different approaches, and we could then determine which ones actually work.

With the one-size-fits all federal approach, we get what we get.

Mike Maharrey

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