Flying Fists and Cancer Sticks:
A Constitutional Primer On Bloomberg's Proposed Smoking Ban

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 muster.

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 me…" 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 run?

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 by leaving."

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."

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