Smoking Ban

[John Galt]

To me, it is definitely unconstitutional because it boils down to this: it is the legislation of taste.  Plus, are we forgetting here that the science is all over the place regarding the dangers of secondhand smoking?  There are some studies that say that secondhand smoke causes cancer, while other studies say the exact opposite.   Bottom line: if the science is iffy, as it is here, the government has no business telling private-business owners how to run their business. 

That secondhand smoke cures cancer?

[unlvcrjchick]

To me, it is definitely unconstitutional because it boils down to this: it is the legislation of taste.  Plus, are we forgetting here that the science is all over the place regarding the dangers of secondhand smoking?  There are some studies that say that secondhand smoke causes cancer, while other studies say the exact opposite.   Bottom line: if the science is iffy, as it is here, the government has no business telling private-business owners how to run their business. 

That secondhand smoke cures cancer?

Although that would be one opposite, that is not what I meant, and you know it.  I guess I should have specifically stated what I meant, even though I was sure it could easily be inferred.  Anyway, here is what I thought I had previously stated: there are some studies out there that say that secondhand smoke causes cancer, while others say that it does NOT cause cancer. 

Bottom line can be summed up as this:  until there are enough peer-reviewed studies that definitively state that there is a causative, and not just correlative, link re secondhamd smoke and cancer, the government has no business telling private business owners what to do.

[PSUDSL08]

I was out at this restaurant/bar that was split into two sections: one part restaurant, one part cigar bar. Since the smoking ban was enacted in NJ, obviously the cigar bar is now just a plain bar. I was speaking with the manager and he said that they're getting killed b/c all the former patrons who came there specifically to smoke cigars and drink after dinner chose to go somewhere else. Unfortunately under NJ law, you must prove that 75% of your income is based on selling cigars or tobacco products to be exempt from the law's reach..so there's effectively one cigar warehouse in my area where you can drink and smoke.

I don't have a problem with banning smoking in restaurants or even bars that serve food until 8pm or so. However, it's ridiculous to me that with the establishment mentioned above...with proper ventilation systems, where the smoking section is completely shut off from the actual restaurant, where the employees all know they're working at a cigar bar and are aware of the health risks, and where a specific clientele comes to have a cigar/cigarette...there isn't some type of exception.

[tacojohn]

I wonder if there will be a challenge with a chance of success if IU decides to go through with a plan in the very early stages of discussion to ban smoking on campus, after already banning smoking in all buildings, and within 30 feet of doors, windows, and ventilation intakes.

[veganvenus]

To me, it is definitely unconstitutional because it boils down to this: it is the legislation of taste. 

Ummm.. what does one have to do with the other?  PLEASE tell me you haven't taken con law yet.

[unlvcrjchick]

To me, it is definitely unconstitutional because it boils down to this: it is the legislation of taste. 

Ummm.. what does one have to do with the other?  PLEASE tell me you haven't taken con law yet.

It is the legislation of taste b/c some overly sensitive people want to control the behavior of others, meaning it is a violation of our civil liberties - man, do I have to spell that out for you, where I was going with my statement?  An analogy can be made to the FCC's policing the airwaves:  the FCC does so in the name of curtailing obscenity, b/c some people are afraid their poor children may hear some naughty words, despite the following language:  "Congress SHALL make no law..."

Now, I can just hear you saying:  naughty words are different than cancer.  Well, I answer right back with this argument:  no one is forcing you to eat in restaurants that have smoking sections.  If you don't want to be around smoke, LEAVE. 

Moreover, I'm sure there are many private business owners who are more than willing to accommodate non-smokers only.  To have the government legislate private behavior - and tell private business owners how to run their affairs - is what I'm against.

Yes, I HAVE taken Con Law (I and II), and I did very well in both.  This viewpoint is a Libertarian one and I'm proud of it.  Also, if you knew how to read, you would see that I qualified my sentence with the words "to me."  I know that courts have disagreed with this viewpoint - as well as the one about the FCC's being unconstitutional - so don't bother being condescending to me.  It's called having an opinion, and has nothing to do with my not knowing how the Constitution has been interpreted.

[veganvenus]

Also, if you knew how to read, you would see that I qualified my sentence with the words "to me."  I know that courts have disagreed with this viewpoint - as well as the one about the FCC's being unconstitutional - so don't bother being condescending to me.  It's called having an opinion, and has nothing to do with my not knowing how the Constitution has been interpreted.

You can articulate your own policy reasons for disagreeing with it all you want.  It doesn't make it unconstitutional.  I think it is telling that you cited the First Amendment for your FCC argument, but have yet to point to a single Constitutional provision restricting the ability of the states, or of Congress, to legislate against taste.  Or, for that matter, any Constitutional provision saying the government can't legislate private behavior.

You can say "to me" until you are blue in the face, but as long as you are going to throw around terms like "unconstitutional" you'll need to assert something more than your own ideology.

[lawnerd73]

It is constitutional.  It is a legitimate exercise of Ohio's police power exercising jurisdiction over public health, welfare, safety, or morality.  It seemingly is too attentuated from interstate commerce to be even addressed Federally.  Unless you wanted to argue that the tobacco farmers are being forced out of business in North Carolina, because smokers cant smoke at the Applebee's in Ohio, which is pretty weak.  Federalism should allow Ohio and other states to regulate intrastate however they please so long as there is a rational basis to do so.  A smoking ban is is a reasonable means to protect the health and welfare of employees and other patrons at the businesses.

An argument may be made for a 5th amendment takings but only if the regulation has a significant impact on the businesses. This is a rather high standard.  As has been demonstrated in various other places, the impact on businesses in minimal.  Smokers just go outside to smoke or hold off on smoking until they leave.  All rights and freedoms are limitable.  There is no fundamental right to smoke in a restauraunt or to allow smoking in a business that is open to the public.

[veganvenus]

It seemingly is too attentuated from interstate commerce to be even addressed Federally.  Unless you wanted to argue that the tobacco farmers are being forced out of business in North Carolina, because smokers cant smoke at the Applebee's in Ohio, which is pretty weak.

Of course, they did make a similar argument to justify federal regulations of places of public accommodation on the issue of racism.  Bought meat interstate?  Your restaurant is now covered under this law on the basis of interstate commerce!  After all, it might affect a minority's decision to travel.

Of course:
1. Those were the pre-Lopez days when the 10th Amendment had been severely weakened by a broad interpretation of the commerce power,
2. The court bent over backwards to uphold anti-segregation stuff; that holding may not have the same force out of that context.
3. Katzenbach might have had some invisible punch from the Civil Rights amendments.

Ultimately, I think you're right.  I just thought it was damn funny that your seemingly ridiculous hypothetical had actually been justified in court

Funny though - I don't see why they couldn't use the Commerce Clause to ban tobacco altogether.  So they could outlaw it, but not regulate where you can use it.  It makes sense if you're a law student, but not necessarily otherwise.

[unlvcrjchick]

Also, if you knew how to read, you would see that I qualified my sentence with the words "to me."  I know that courts have disagreed with this viewpoint - as well as the one about the FCC's being unconstitutional - so don't bother being condescending to me.  It's called having an opinion, and has nothing to do with my not knowing how the Constitution has been interpreted.

You can articulate your own policy reasons for disagreeing with it all you want.  It doesn't make it unconstitutional.  I think it is telling that you cited the First Amendment for your FCC argument, but have yet to point to a single Constitutional provision restricting the ability of the states, or of Congress, to legislate against taste.  Or, for that matter, any Constitutional provision saying the government can't legislate private behavior.

You can say "to me" until you are blue in the face, but as long as you are going to throw around terms like "unconstitutional" you'll need to assert something more than your own ideology.

Again, I know that the states have police power regarding protecting the health of the public, and thus, banning public smoking is not considered unconstitutional.  I argued by analogy to the FCC b/c I'm pointing out that the banning of public smoking is similar to banning offensive speech: they both involve the legislation of taste.  As long as people have a choice to turn off the tv/radio and to leave a restaurant, states should not be constitutionally allowed to ban private behavior.

Furthermore, until there are more definitive studies that secondhand smoke UNDOUBTEDLY causes cancer, the states should not have the right to exercise their police power in the name of public health/safety.  I think it's moot at this point to argue with you b/c you fail to see that I, as a Libertarian, see this as unconstitutional, regardless of how the damn Constitution has been interpreted.

By the way, constitutional interpetation is nothing BUT articulating public policy reasons.  Public policy and the law are not mutually exclusive: they are inextricably intertwined.