The argument constantly comes up when talking about second hand smoke. The ban was just passed in PA, but here is what Sen. Mike Folmer had to say.
I wholeheartedly believe that we should continue to push for good public health. At the same time, I am obliged to uphold the solemn oath I made to honor the Constitution, which protects private-property rights. Pennsylvanians are endowed by God with the right to own and use private property. Smoking, though highly unhealthful and distasteful, is legal. Further, it is the right and the prerogative of those who
own private establishments to determine whether or not their patrons can engage in legal activities. Nonsmokers enter a private establishment as a privilege extended by the owner, not as a constitutional right. The private business owner’s right to allow his patrons to engage in a legal activity supersedes the intolerance of that activity by those who patronize the establishment by privilege.
We should — and we will — continue to wage the battle against smoking, but we should not do so by burning the Constitution into a pile of ashes.
Now there are those that make the claim that just because the public is invited in that it is no longer considered to be private property. Nothing could be further from the truth and the Supreme Court agrees in Lloyd Corp., Ltd. v. Tanner Held: There has been no dedication of petitioner’s privately owned and operated shopping center to public use so as to entitle respondents to exercise First Amendment rights therein that are unrelated to the center’s operations, and petitioner’s property did not lose its private character and its right to protection under the Fourteenth Amendment merely because the public is generally invited to use it for the purpose of doing business with petitioner’s tenants.
There is also that claim that smoking is not a right, well there again that which is not out and out banned by the government is a right under the Ninth Amendment.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
One of the arguments of the Federalists (the party of John Adams and the dictatorial Alien and Sedition Act) against the Bill of Rights was: since it would be impossible to list all rights, the unnamed would not be protected, and therefore the Government would seize and trample those unnamed rights.
James Madison, one of the authors of The Federalist Papers, responded to this argument when he submitted the Bill of Rights to the House of Representatives.
It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure.
He concluded: “This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against.”
Madison‘s solution was the Ninth Amendment.
Both the Federalists and the Democrats (Jefferson‘s party) agreed that there were too many rights to name. They differed only in how to protect them. The Federalists favored no Bill of Rights at all (the British model), while the others favored the explicit statement that became the Ninth Amendment. This was the argument that carried the day.
But the young nation had larger problems to sort out. This militated against revelation of the truly radical nature of the Ninth. Almost no Supreme Court decisions mention it until Griswold v Connecticut which legalized the dissemination of birth control information to married couples. This decision outraged the usual mob of pious authoritarian hypocrites and was the opening shot in what we now call the culture wars. Even Griswold placed the Ninth in a supporting role.
Yet the plain words of the Ninth as well as documentation of the intent of the Founders must lead any reasonable person to conclude that the Constitution acknowledges and retains for the people unstated rights.
Thus, when you apply a “strict constructionist” or “original intent” interpretation of the Ninth Amendment, a very different view of the role of legislatures and courts emerges. Instead of “activist judges” overruling legislatures, you have “strict constructionists” defending unenumerated rights against activist and oppressive authoritarian/majoritarian legislatures and executives.
But then of course the States that have referendum votes say well it won by a majority. They don’t understand that under a Constitutional republic the constitution was constructed to keep the mob rule to take away the rights of the individual.
Constitutional Republics are a deliberate attempt to diminish the threat of mobocracy thereby protecting dissenting individuals and minority groups from the tyranny of the majority by placing theoretical checks on the power of the majority of the population.
I will conclude with this from
by Thomas A. Firey
Proponents justify a ban by arguing that secondhand smoke is a health risk. But all sorts of human activities are risky – from contact sports to rock climbing, from skiing to swimming, from riding a bike to having sex. Yet many people swim, bike and play football because they take pleasure in doing so, and that’s their choice. In a liberal society, people are free to make their own risk and lifestyle choices – including whether to smoke.
Ban supporters respond that smokers inflict harm on other people, including bar and restaurant employees and other patrons. But again, all sorts of activities impose risks on others, and again, those people bear those risks willingly. Rock climbers endanger rescue workers, pool owners endanger lifeguards and patrons, fishing boat captains endanger their crews, and so on. We grant people the choice to be rangers or lifeguards or commercial fishermen. Why shouldn’t we allow people to choose to patronize or work in smoking bars and restaurants?
Ban supporters may dispute this, arguing that our society has health and safety regulations to protect people from risk. Smoking bans, they say, are no different than those regulations. But their reasoning is wrong. Most health and safety regulations are justified because they protect people from hidden risks. For instance, government inspects restaurant kitchens because patrons can’t. Bars where smoking is permitted are hardly hidden risks.
In fairness, some safety regulations do involve recognized risks, but few of them are outright bans. Coal mining, farming and commercial fishing are all extremely risky jobs and heavily regulated, yet there is no push to ban them. We respect the entrepreneurs’ choice to own these businesses and the workers’ choice to operate