A Constitutional Primer On Bloomberg's Proposed Smoking
By Dan Reiss
I was sitting outside Terminal 5 at LAX, smoking a cigarette,
waiting for a friend, when a mother and her young daughter
walked by. While passing me, both, as if with Pavlovian reflexes,
broke into Tony-worthy faux-coughing fits. The two, it seemed,
were waging a passive-aggressive war on smoking. It was as
if they'd earlier made a pact to chide every smoker they encountered.
I couldn't help but feel guilty. Did my habit really bother
them enough to warrant that kind of reaction? Sure, smoking
is stigmatized on the social grand scale, but does it truly
bother people on the individual level? With a war
raging in New York to this end, and the troops growing
restless, it was time to re-evaluate my stance.
Prominent ponderers of personal freedom, John Locke and John
Stewart Mill, in "Second
Treatise on Government" and "On
Liberty," repeatedly emphasize the linchpin idea
that personal liberties need to be "surrendered" in exchange
for the protection of government.
To summarize their stance in layman's terms: "Your right
to swing your fists ends where my nose begins."
So where does the average nonsmoker's nose begin? This seems
to be the ultimate gray area. Is smoking in bars or restaurants
a "natural right" that we must "surrender"
for the good of society?
For answers, I turned to Rosalie Levinson, professor of constitutional
law at Valparaiso Law School. She says that the heart of the
matter lies in Section One of the 14th Amendment, which reads:
"No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States,
nor shall any state deprive any person of life, liberty, or
property without due process of law, or deny to any person
within its jurisdiction the equal protection of the laws."
Courts, she says, have green-lighted liberties ranging from
marriage to abortion based on this clause. But Levinson explained,
however, that these decisions hinged upon the Supreme Court's
definition of the ambiguous term "liberty," defined
as "those interests that are rooted in the history and collective
conscience of the people."
Whether smoking falls under this definition is up for interpretation.
On the one hand, tobacco is deeply rooted in America's history,
both agriculturally and socially. It's also arguably part
of our collective cultural consciousness. On the other hand,
smoking has recently become a big bad wolf, and some might
be reluctant to lump it in with such inalienable rights as
suffrage and freedom of religion.
In addition, the current Court has been very reluctant to
expand the list of protected liberties, rejecting such obvious
contenders as the right of consenting adults to engage in
sodomy, among others.
If the issue were to make it to the courts, Levinson says
continuing to green-light public smoking on the above basis
might never fly. "The courts would decide that smoking
is just a 'garden variety' liberty interest," says Levinson,
"and government is free to interfere with such provided
it has a rational basis." The protection of the health
of its citizens is a basis that would easily pass constitutional
Audrey Silk, founder and leader of
NYC C.L.A.S.H.(Citizens Lobbying Against Smoker Harassment)
has a bone to pick with this interpretation. "Where in the
constitution," muses the New York native, audibly irked,
"does it say you have the right not to be annoyed? Our
founding fathers are rolling over in their graves."
A 1759 quote attributed to Ben Franklin is set at the top
of C.L.A.S.H.'s homepage: "They that give up essential
liberty to obtain a little temporary safety deserve neither
liberty nor safety." Again, the nebulous term "liberty"
is being thrown around, but in this case, it seems, it's being
interpreted in favor of Silk's mission. To consider smoking
an "essential liberty" might be a stretch, albeit
a popular one that I've encountered in almost all the pro-smoking
rhetoric to pass my eyes.
"Smokers, in general, are laid back," Silk observes,
addressing the scattered, disorganized nature of opponents
to Bloomberg's proposed ban. And as much as I hate to admit
it's true. It is hard to find truly compelling pro-smoking
activist literature. The truth is, most of the sites read
like maniacal manifestos, linking to
articles likening antismoking campaigns to Nazism. I even
came across a few crass updated
versions of Martin Neimoller's "And then they came for
" poem (adapted for the smokers' plight).
Most opinions I found took shelter under the constitution,
but none backed up their claims with actual passages. It seems
like some hadn't even bothered to read the thing. Disappointing.
Silk, however, raises one interesting and valid constitutional
point that shines through the rest of her borderline-extremist
message: "Private property rights are infringed upon
for no good reason," she complained. The notion of private
property is compelling. Does the government have the right
to dictate to bar and restaurant owners how their place is
Silk acknowledged the necessity of government involvement
with respect to health inspections. She pointed out that customers,
in this case, don't usually have access to a restaurant or
bar's kitchen, and thusly are unable to judge its cleanliness.
Smoking is another matter, she said. "A customer can pop his
head in the door and tell if he wants to be there immediately."
Should private bar owners be able to design the place's atmosphere
at their own discretion? Conventional wisdom might lean towards
the pragmatic notion of letting one do anything they please
on their own land, but professor Levinson points out that
in actuality, the government is allowed to regulate far more
of what goes on in bars than one might think.
"Private property is subject to reasonable government
regulation," said Levinson. "Generally, regulation
is upheld unless it is totally arbitrary and capricious--the
Takings Clause prohibits government from taking private property
without paying just compensation, but unless the property
owner is deprived of all economically viable use of property,
no taking will be found." Since smoking isn't technically
a bar's bread and butter, count out Takings as a viable defense
for the smokers. Oh well.
Robert Levy, a senior fellow in constitutional studies at
the Cato Institute and
tobacco litigation expert, disagrees
with Levinson's heavy-handed interpretation.
"To put it bluntly," he said, "the owner of
the property should be able to determine - for good reasons,
bad reasons, or no reason at all - whether to admit smokers,
nonsmokers, neither, or both. Customers or employees who object
may go elsewhere. They would not be relinquishing any right
that they ever possessed. By contrast, when a businessman
is forced to effect an unwanted smoking policy on his own
property, the government violates his rights."
Levy went on to echo Silk's point about differentiating between
health regulation and smoking regulation: "Restaurant
patrons have no advance warning of contaminated food or 'asbestos
in the air.' That's not the case with secondhand smoke. Customers
are aware of the risk up front, and can easily avoid the risk
Another thinktanker, Bruce Herschensohn, senior fellow at
the conservative Claremont
Institute similarly defends smoking on constitutional
grounds. In a speech he made at the Institute's Constitution
Day ceremonies in 1998, he decried the constitutionality of
the actual tactics being used in America's war on smoking.
"Government does it the wrong way," said Herschensohn,
"by ignoring the Constitutional processes and prohibiting
little by little, by incremental prohibition. A very clever,
almost unnoticed way to get around the United States Constitution."
He went on to outline the slow but steady elimination of
smoking, starting on short international flights, and leading
to California's outright ban of smoking indoors. Many of the
rag-tag pro-smoking sites have similar arguments, and I think
it's in rallying around this notion that the sites are most
effectively helping their cause.
Herschensohn maintains that if the metaphorical arm-swinging
freedom to smoke anywhere is indeed guilty of making contact
with nonsmokers' proboscises, then the constitution should
be appropriately amended to outlaw it, as alcohol was during
the Prohibition. Then, at a point in the future, if it proved
unsuccessful, the ban could be nixed with one legal action,
in the same way the Prohibition was. To a degree, those crazed
renditions of "And then they came for me
are starting to ring true.
The problem lies in the current tactics of the antismoking
contingent: the incremental phasing-out of smoking. It's easy
to get a small smoking restriction through the lawmaking gauntlet,
and small, specific restrictions are easier to implement than
a sweeping reform that's bound to step on some toes. With
a growing number of small smoking restrictions in place, the
slide down the slippery slope has begun, and it's gonna be
harder to undo than if one simple amendment had been adopted.
The way things are going, with Levinson's points in mind,
the outlook isn't good for smokers (and won't be until
champions of smokers' rights get their acts together). It
seems that until then, this author will just have to ignore
the increasingly frequent displays of righteous fake-coughing,
and cherishingly puffing cigarettes, until, one day, "they
come for" the smokers.
And then smokers will be left with a single choice: dash
for the patch, or up and move to Europe.
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