Posted on 01/13/2005 11:53:07 AM PST by bob3443
Constitutional Arguments Against Smoking Bans
Amendment I Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. Smoking is a freedom of speech i.e. personal liberty. Such bans are tantamount to precluding peaceable assemblage in that those who may choose to smoke would have to separate themselves from the assembly.
Amendment V No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Converting private property for public use refers to using property for the benefit of the population at large. To wit: condemning land for the use of building a municipal government center. The property owner will receive fair compensation.
If Government regulates the use of private property in such a way as will harm the profitability of a business located on said private property, or the fair market value of the property itself, and by such regulation declare or imply that said property is in fact public, it stands to reason that the government in the position of owing just compensation to the owner of said property.
Amendment VII In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.
In order to be compensated for business losses directly attributed to a smoking ban, business owners will have the right to demand a jury trial if such losses are in excess of $20.00
Amendment VIII Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted
Were a smoking ban to be enacted and said ban was violated by either the owner of a business or a customer of the business, such fines could be no more than a minimum fine imposed on any other minor infraction of the law. Further, any action taken by the enforcing body of the government can not be so excessive as to destroy the business itself. Such action might be, but not limited to. Criminal prosecution, excessive fines, graduated fines, cancellation of food, liquor or other types of licenses or any other action that could be construed to be use of power to intimidate the private property owner or client or guest of said owner.
Amendment IX The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. The Constitution is indeed of the people, by the people and for the people. The passage of any type of ban is a “bad faith”: activity local and state government that violates the spirit and the intent of the Constitution. Such bans further pits the general desires of a specific group of people against the rights of the private property owner and the clients of said property owner.
Amendment X The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. The rights’ of the people are always preeminent to the rights of the government.
Amendment XIV Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. 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; nor deny to any person within its jurisdiction the equal protection of the laws. A ban of any kind by its very definition is an abridgement of the privileges of the citizens. Bans create an inequality as they would relate to the protection of the laws.
Amendment XVIII Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited. Section 2. The Congress and the several states shall have concurrent power to enforce this article by appropriate legislation. Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several states, as provided in the Constitution, within seven years from the date of the submission hereof to the states by the Congress. (The fact that this amendment was repealed I feel speaks to the fact that the government overstepped its bounds by ratifying an amendment that was unto itself patently unconstitutional. It further demonstrates how even as great as our Constitution is, it can still be held hostage when those who govern us lose sight of the true purpose of this document.)
Amendment XXI Section 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed. Section 2. The transportation or importation into any state, territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited. Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several states, as provided in the Constitution, within seven years from the date of the submission hereof to the states by the Congress.
1990 "Lung Cancer and Exposure to Tobacco Smoke in the Household" New England Journal of Medicine, Sept. 6, 1990
1988 "A Case-Control Study of Lung Cancer in Nonsmoking Women" Tohoku J. Exp. Med., 154:389-397, 1988
1996 "Environmental Tobacco Smoke and Coronary Heart Disease in the American Cancer Society CPS-II Cohort" Circulation, Vol. 94, No. 4, August 15, 1996
"Field studies of environmental tobacco smoke indicate that, under normal conditions, the components in tobacco smoke are diluted below existing Permissible Exposure Limits (PELs), as referenced in the Air Contaminant Standard (29 CFR 1910.1000)."--OSHA, July 8, 1997
"Multicenter case-control study of exposure to environmental tobacco smoke and lung cancer in Europe." By the World Health Organization.
And last, but not least
"Environmental tobacco smoke and tobacco related mortality in a prospective study of Californians", 1960-98
The last two are two of the largest, best funded, longest lasting studies done to date on ETS.
I am the author. I have as I stated before run this past several lawyers,all of whom said the arguments were efficable. Amend.I Smoking is a free speech issue in the same way burning the flag is. Freedom of Speech is a braodly defined activity.
Amend.V The customer IS allowed to see smoking, in actual fact or by the posting of a sign stating smoking is allowed. Smoking is a legal activity, OSHA has stated SHS is not present in sufficient quantities to cause health concerns.
Amend.IX bad faith in this case means intentional deception or dishonesty. The bans are based on bad faith and the constitution should not be supporing anything of the kind.
Amend.X You are correct, it should have read, ...to the poers of the government. One of the few times the government could exercise such power is during the time of martial law.
*hands you a box of "nappies*
*hands you a box of "nappies"*
I've been a server, too. I know I have some war stories of my own, lol! I'm sure you do, too. :)
Um, help me out here...I have no idea what that is supposed to refer to.
Thanks.
Back in the late 70's, I worked for Red Lobster. A customer BIT ME in the arm. But, the customer is always right. The following week,at lunchtime, his wife came in with another woman-and wifey was bragging about her hubby's bad behavior. I got myself transferred into the kitchen shortly thereafter.
HOLY COW!! He BIT you?! I hope you had charges pressed against that jerk...that's assualt! I know my hubby would have, if someone had done that to one of his servers! I have been groped, ect., but never had anyone attempt to hurt me, physically. *shudder* And his wife bragged about it? Nice people...ugh.
If smoking tobacco is a constitutionally protected form of free speech, then is smoking marijuana also a constitutionally protected form of free speech as well? How about smoking crack?
You also have the right to stay out of establishments that choose to allow smoking.
You said: I gag from another persons perfume being too strong, but I can't outlaw their use of it.
Ah, but you could, if you could convince the city council, state legislature or Congress to undertake such a ban.
For purposes of disclosure, I state: I don't smoke, don't care for it and avoid cigarette smoke when inconvenient (although I will have a drink at a bar where there is smoking, prefering a less smoky area, if available); I believe that private property owners should be able to control whether, when and where legal behaviors may take place on their premises.
That being said, I don't believe cigarette smoking is protected by the Constitution in any way. Smokers aren't a protected class (nor are non-smokers, for that matter) for Constitutional law purposes, and shouldn't be. The "right" to smoke is not a right at all, at least not a Constitutionally protected one. That doesn't mean that I think it should be prohibited, I don't. It should be a matter of personal choice, BUT if a legislative body wants to prohibit it, even within one's home, I think that such a body has that power. I stress, though, that I don't advocate banning smoking. My concern lies with creating "rights" where they don't exist, such as abortion "rights," the "right" to health care, etc. etc. etc.
On the other hand, given the courts' tendency to create new rights, there are ought to be enough "penumbras and emanations" to support the right to smoke.
I just can't agree with this one.
Until, and unless, smoking becomes a political expression the way burning the flag might be, I just can't see smoking as a right under Amend I
I agree with Amend V and X.
Ament IX - maybe, but whether or not the Constitution should support, or not, not ALL bans are based on bad faith.
Most implented by health boards would meet this criteria. Those, like in Florida that amended the state constitution, I believe, are valid, whether I like them or not.
You are newly registered to Free Republic. And if you HAD been around the threads for a long period of time, you would have known that the best way to start a virtual fight is to go into a smoking thread and start spewing your hate.
We don't need it and we don't want to read it. If you hate smokers, stay the hell out of our threads!!
I was 19, and I was discouraged from making a big deal out of it. He left marks but didn't break the skin. It was apparent to me he assaulted waitresses on a regular basis. When I went back to the business years later, I was a royal (rhymes w/witch). I didn't think providing the service demanded I suffer fools and take abuse. I supported myself for 8 years in that work-I guess being efficient satisfied most of the people I served :)
"*hands you a box of "nappies"*"
Are you that charming to everyone? I sure wish I was as holy and perfect as you (think) you are.
Nice folks you were working for...he had done similar things to other servers? Geesh, I would have given the hosts a picture or description of the guy (maybe name, if possible) and banned him for patronizing my restaurant...at a MINIMUM. I know this took place a long time ago, but I'm still sorry it happened. Totally NOT right. Thankfully, my husband has never (to my knowlege, anyway) had a patron assualt him, either as a server or as a manager, but as I am sure you are aware, the verbal attitude, ect. can be quite enough on it's own.
I know I value efficiency in the folks that serve me! LOL So long as they are polite and efficient, that's all you can reasonably expect, imo. :) Thankfully, most customers are not that unreasonable and/or unbalanced. LOL
P.S. Do you know what on earth "Nappie Man" is talking about? I have never gotten an answer...though I gather from your response, he's one of the "haters" that show up on these threads.
"Nappie" is the British word for diaper. I think he/she must suffer from projection ;)
As for the A-hole from way back when, I think he harrassed waitresses in any establishment he went to. Chain restaurants let patrons get away with ALOT. I remember his wife saying "I remember you.....not what did my husband do to you? Oh, he BIT you! bawhahaha". That made me think it was his normal behavior. And all before he bit my arm, he was a huge PITA. Back then, Red Lobster was total fast food - get 'em in, get 'em out...unless they were drinking.
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