Vox Populi
A Letter to the Editor

Smoking Bans and the Role of Government
Friday, March 2, 2007

by Kenneth Scot Stremsky

I am a moderate Republican; I am not a libertarian.

I strongly support the Preamble of the United States Constitution which I consider to be a part of the United States Constitution and is as much the Law of the Land as the rest of the United States Constitution is.

The Preamble of the United States Constitution says

"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

Article One, Section Eight of the United States Constitution says Congress has the power "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." (clause 18 of this section)

Sometimes, "the general Welfare" needs to be more important than "the Blessings of Liberty." Sometimes, "the Blessings of Liberty" needs to be more important than "the general Welfare." A person's Liberty should not be reduced significantly without a very, very good reason.

It looks like the State of New Hampshire is going to be banning smoking in restaurants.

Even though I have had asthma since I was a child, I think restaurants should be allowed to have smoking. Restaurants should also not have to have smoke free sections.

If you do not want to eat at a restaurant that has smoking, eat someplace else. If you do not want to work at a restaurant that has smoking, work someplace else.

Sincerely, Kenneth Scot Stremsky
former candidate for the Republican nomination for U.S. Senator from New Hampshire (2002)
kstremsky1 at yahoo dot com

Mr. Berg-Andersson responds:

I accepted this as a 'vox Populi' for 'The Green Papers' because my response below will allow me to reiterate, where not also clarify, things I have written previously in many a Commentary of mine or Response to a previous 'vox Populi'.

The issue of a State having power to ban smoking in restaurants is not so much a constitutional issue as it is a political one. Here's why:

Mr. Stremsky states, first of all, that he sees the Preamble to the Constitution of the United States as being "as much the law of the land as the rest of the United States Constitution is".

I disagree.

In my response to a 'vox Populi' dated this past 15 February, I wrote the following:

The Declaration of Independence may well be important... but it is not Law.

The Constitution of the United States (excepting the Preamble), however, is Law...

Now, exactly why did I write that parenthetical statement "excepting the Preamble"?

In his seminal Commentaries on the Constitution, the 19th century jurist (and U.S. Supreme Court Justice) Joseph Story wrote that the Preamble's "true office is to expound the nature and extent and application of the powers actually conferred by the Constitution, and not substantively to create them". In other words, unlike that which Mr. Stremsky opines, Congress gains no power from the Preamble: it only has those powers specifically granted (by, yes, the "We, the People" noted in the Preamble) within Article I, section 8 of the document, along with any other powers subsequently granted to Congress via what George Washington referred to as "an explicit and authentic act", an Amendment to that Constitution (an example of such a grant being the formula found in many of the modern [post-Civil War] Amendments to the effect that "Congress shall have power to enforce [the Amendment in question] by appropriate legislation").

Put another way: Congress has no constitutional power to, say "establish Justice". What it does have, for instance, is the specific grant of power "to constitute Tribunals inferior to the Supreme Court" (Art. I, sec. 8, clause 9) and "to define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations" (clause 10 of the same section), insofar as these might further, yes, the Establishment of Justice.

Theoretically, the Federal courts should ever be looking at the Preamble for the purposes for which such powers as are granted to Congress are to be necessarily and properly (to paraphrase the language of Art. I, sec. 8. clause 18 Mr. Stremsky himself quoted) utilized but, again, the Preamble itself grants the Federal Government no such powers.

This very principle was accepted by the Supreme Court in its opinion in the case of Jacobson v. Massachusetts [197 U.S. 11 (1905)] in which the first Justice John Marshall Harlan, writing the opinion of the Court, noted that

[a]lthough [the Preamble of the Constitution of the United States] indicates the general purposes for which the People ordained and established the Constitution, it has never been regarded as the source of any substantive power conferred on the Government of the United States or on any of its Departments. Such powers embrace only those expressly granted in the body of the Constitution and such as may be implied from those so granted. Although, therefore, one of the declared objects of the Constitution was to secure the blessings of liberty to all under the sovereign jurisdiction and authority of the United States, no power can be exerted to that end by the United States unless, apart from the Preamble, it be found in some express delegation of power or in some power to be properly implied therefrom.

So, I think Mr. Stremsky is here quite wrong in his contention that the Preamble to the U.S. Constitution is, in and of itself, part of the Law of the Land.

As to the issue of legislation banning smoking in restaurants in particular:

In a Commentary of mine written back on 27 April 2006, I observed that

quite a number of my friends and acquaintances who are cigarette smokers are miffed at best, downright angry at worst, about the recent growth of State and local legislation around this Nation regulating (which, in many- if not most- cases, means prohibiting) smoking in, say, restaurants and other public places: most of these friends and acquaintances will often assert their "right to smoke" has been unduly violated by such laws. Their pet constitutional theory is, in a nutshell, that- since the State allows the sale, possession and use of tobacco by individuals (thus legally treating a cigarette quite unlike- say- cocaine, heroin or marijuana)- they have also been given a concomitant "right to smoke" by virtue of said State law allowing them to so purchase, possess and smoke tobacco products.

I later went on to opine that

[o]f course, the problem is: no such "right to smoke" actually exists!--- Why?

Because-- well, notice the language I myself just used towards the end of my earlier paragraph: in my smoking friends' theory, the State has given them a "right"... but, again we go back to the Declaration of Independence (which, while it does not have the force of Law, contains [much like the Preamble to the later Constitution of the United States itself: for the Preamble also does not have the force of Law] a statement of the political philosophy behind the provisions embodied within the Federal Constitution [as well as within the Constitutions of the several States, present as well as past]) in which it is maintained, as a "self-evident" (as in: obvious) "Truth", that a person's "Rights" are "endowed by their Creator", not by the State...

Well note, however, that government- indeed- secures (protects) Rights already granted: by the same token, government cannot grant such Rights itself!

But government can grant privileges (and, therefore, can also take them away!)

Earlier in that same piece, I had stated the following:

How, then, might one readily discern the difference between a person's "Rights" and that same person's "privileges"?

The test is, basically, this: if government can constitutionally- by law (whether statute or ordinance, rule or regulation)- stop you from doing something, it is a "privilege" and not a "Right"; if, on the other hand, a person can legally assert his/her(/its) own claim to be allowed to do something against the government's attempt to prevent that person from so doing, it is a "Right" and not a "privilege". The other key difference is that government can regulate (redefine and/or restrict) a "privilege" enjoyed by persons to a rather large degree, while the restriction of a person's "Right" by Government, while always theoretically possible, must be- almost by very definition- far more minimal in scope...

Put admittedly simply: one's "Rights" are more "secured" (protected) by government than one's "privileges".

Going back to the 'smoking ban by law' issue per se, I noted- in that same Commentary- that

[t]he test I cited earlier would be- in the case of an alleged "right" to smoke cigarettes- this: would it be unconstitutional for a State to completely ban the sale, possession and use of cigarettes?

Answer: NO! (else the State would also not be able to completely ban the sale, possession and use of any other mind/body-altering substance- for instance: cocaine, or heroin, or marijuana or- for that matter- baby food laced with rat poison).

Thus, under this test, smoking cigarettes is (so long as the purchasing, possessing and using of cigarettes- in and of itself- remains legal within a given jurisdiction) a person's "privilege", yes, but not a person's "Right". And, where something is a "privilege" and not a "Right", a sovereign government has power to regulate, or even prohibit, it.

So, banning an individual's smoking in a restaurant by law is therefore not, by any means whatsoever, a "Civil Liberties" issue (we will here, if only for the time being [though I will at least touch on this at length], put aside the "Liberties" of the restaurant-owner alone to set policies as regards what is, and what is not, allowed in his or her establishment). If my statement, just made, be at all true, then what kind of issue is involved?

Quite simply: that involving the so-called "Police Power" of a constituent and sovereign State of this Union.

Way back in November 2002, I had a "call-and-response" series of 'vox Populi's with (coincidentally, where not also ironically) Mr. Stremsky himself (who had, only a couple months earlier, run in his Party's Primary in his State for U.S. Senate [for which he- as with anyone else willing to take a stab at public office, no matter the Party and/or ideology and no matter how quixotic the effort might, in the end, turn out to be- should be justly commended, by the way]) about a proposal of his that a National Police Force be established, especially in light of the September 11th attacks, at the time of said discussion but a little over a year in the past (thus, of so recent memory back then). I wrote, in my first response to him on this particular issue, the following:

I do have a problem with Mr. Stremsky's proposal for a National Police Force... Besides potential Civil Rights and Civil Liberties issues (which I will not at all take the time to discuss right now), there is the knotty problem of the Federal System itself. The 10th Amendment to the U.S. Constitution reads as follows:

<<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.>>

This "Reserved Powers clause" of the Constitution basically means that unless that document (or, under the concept of Judicial Review, a final and definitive Federal court decision) says it is OK for the Federal Government to do something, it is left to the States or to the People (Politics at the State and local level being, in its essence, the interplay of State[/local] Power versus People's Rights) to do it, so long as the Federal Constitution itself doesn't prohibit it outright- thereby letting the State and its citizenry "duke it out" at the State and local level over the just and proper distribution of such "reserved powers" in any given State.

The most basic, where it is not also essential, "reserved power" left to the States by the 10th Amendment is the so-called "Police Power" and one of the most succinct judicial expressions of the meaning behind this power I have ever been able to find seems to have been that stated in the 19th Century case of Town of Macon v. Patty [57 Miss. 378], as follows:

<<The "police power" is incapable of exact definition and of a precise limitation. It seems to be a power to which are referred all governmental acts which are incapable of arrangement under any other distinct head, and which are justifiable as internal regulations, having in view facility of intercourse between citizen and citizen, the preservation of good order, good manners and morals, and the health of the public.>>

This "police power", to which I referred in that long-ago response (and, again, has been held to be one of the Reserved Powers left to the States via the language of the 10th Amendment to the Federal Constitution), is actually discussed in the opinion of the Court re: the very same Jacobson case from 1905 I've cited earlier in the response one is now reading.

The Commonwealth of Massachusetts had adopted a statute permitting its Minor Civil Divisions (its Cities and Towns) to vaccinate- and, if it be deemed "necessary for the public health and safety", revaccinate- its residents against smallpox and, further, provided that a fine be paid by any adult (21 being the Age of Majority at the time) who was not non compos mentis and who refused to be so vaccinated and/or refused to allow any minor (under the age of 21) member of his immediate family (including those to whom he/she were guardian) and/or any adult over whom one had guardianship (this would serve to cover those who were non compos mentis) to be so vaccinated or re-vaccinated:

a Mr. Jacobson refused to comply with the concomitant health regulations issued, under the authority of this statute, by the City of Cambridge and, further, refused to pay the fine engendered by such refusal and was, as a result, arrested and charged criminally as a scofflaw. He was convicted at the trial court level, appealed his conviction to the Supreme Judicial Court of the Commonwealth (Mr. Jacobson's argument, among others, was that- by being prevented from being allowed to freely refuse vaccination- he was being denied "the blessings of liberty" guaranteed him under the Preamble to the U.S. Constitution) -where he lost, and thereafter appealed to the U.S. Supreme Court on Writ of Error (the "error" at law being, according to Mr. Jacobson, that the trial judge had refused to allow the jury which had originally convicted him to consider, during its deliberations, his argument based on the Preamble, which was precisely how that issue [which I have already addressed above] came to be discussed in connection with the case).

the first Justice Harlan, discussing the Massachusetts statute itself, wrote:

The authority of the State to enact this statute is to be referred to what is commonly called the police power- a power which the State did not surrender when becoming a member of the Union under the Constitution. Although this Court has refrained from any attempt to define the limits of that power, yet it has distinctly recognized the authority of a State to enact... all laws that relate to matters completely within its territory and which do not by their necessary operation affect the people of other States. According to settled principles the police power of a State must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.

I don't think there can be any rational argument that the purposes cited by those who, in Mr. Stremsky's New Hampshire and elsewhere, wish to so ban (where they have not already been successful in banning) smoking in restaurants by law include protecting, where not also improving, the public health and safety (thus, those who seek- or have sought- such legislation are, indeed, asking the State to exercise its "police power"). The issue, therefore, isn't whether or not a State can ban smoking in restaurants and other public places: rather, it is whether or not a State should ban it in the first place!

In other words: the issue isn't at all whether or not such regulations are- in and of themselves- applications to a given situation (in this case, smoking tobacco products in restaurants) of a State's "police power"; the issue is, rather, whether such regulations are, indeed, "reasonable" (for, if they be unreasonable, they are then not legitimate [hence, constitutional] applications of that very "police power").

I myself have, previously on this website, utilized what I have called "the STOP sign test" as an admittedly rather simplistic way of understanding what, in Constitutional Interpretation, has become known as the Rational Basis test (the idea that any law- whether statute, rule or regulation by Government- must be reasonable [that is, have a "rational basis" underpinning its adoption] in order for it to be constitutional). At the risk of over-quoting myself, please allow me- dear reader- to, once more, reiterate it (this, by the way, from my response to a 'vox Populi' dated 15 March 2006)

Every State in the Union has a statute or regulation on the books which requires the erection of octagonally-shaped red signs with the large, white letters "S-T-O-P" at many intersections of roads where there is no stoplight regulating vehicular traffic. Every State, further, has a law on the books which reads something to the effect of At a STOP sign, a driver shall bring his vehicle to a full and complete stop. Generally speaking, the vastest majority of Americans think such a law (along with its concomitant signage) is, in and of itself, a good policy- a sound policy both practical and efficacious; political arguments over STOP signs (or, for that matter, the related stoplights) tend to most often revolve around where (or where not) these signs should be placed in and around a community, not over whether or not there should even be STOP signs.

One can, I suppose, argue that running a STOP sign (that is, failing to come to a full and complete stop at an intersection so regulated) is unethical or even immoral- that doing so violates the "values"... of the community, but running a STOP sign is, as far as government is concerned, merely illegal: any morality and ethics involved has nothing at all to do with it! The purpose of a STOP sign is not, as is commonly supposed, to make it more likely that you do not get into an accident and possibly injure or kill yourself; rather, it is, in part, to make sure you do not injure or kill others (whether in other vehicles or pedestrians) and, above all, to make sure that the flow of traffic is not impeded (in other words: the illegality of running a STOP sign is far more about making sure that a driver approaching a given intersection is not late getting to work than about another driver at the STOP sign possibly harming himself or herself, let alone others). Government has no other care as regards a STOP sign, nor should it (this is precisely why a driver pulled over by a cop after having run a STOP sign cannot legally evade the resultant moving violation citation on grounds that no one else- vehicle or pedestrian- was anywhere near the intersection in question; after all, a car entering an intersection with no one else around is not at all unethical or immoral!: but Law is the law, regardless of the morals and ethics- the values- of the actual situation... this is precisely what "rule of Law" means).

The legal term or art for what I have here called "the STOP sign test" is "Rational Basis": that is, a policy of government, at least in theory, must have a "rational basis" in order to pass constitutional muster-- in practice, however, we all argue about just how rational- or irrational- a given policy might, in fact, be!"

The argument over whether or not smoking should be banned in restaurants, then, pretty much boils down to the last clause of that very last sentence I have quoted from myself, where I wrote "in practice, however, we all argue about just how rational- or irrational- a given policy might, in fact, be!"... this argument is known as "Politics" (in the sense of its embracing the debate and discussion over public "policy" [to which the very word "politics"- not to mention the word "police" (as in "police power")- is itself related]): thus, the debate and discussion surrounding the legal banning of smoking in restaurants is political, far more than it be constitutional, in nature.

Person A doesn't want- or even like- people smoking in any restaurant, thus supports the ban; person B, meanwhile, doesn't want smoking in all restaurants banned by legislative (or other regulatory) fiat, thus opposes it--

so: who is actually right?--

takes yer pick!

as far as this (or, for that matter, any other) political argument be concerned: to paraphrase from this site's very own Mission Statement-- you can agree or disagree with another's opinions and/or perceptions as you see fit. "That's Freedom and that's America"...

but, to also paraphrase a scene from Woody Allen's long-ago film Love and Death: if you have more votes than they do, you win; if they have more votes than you do, they win... and that's the very essence of Politics within Republican Democracy!

Now, what about the Liberties of the restaurant owner? Doesn't he or she have the constitutional freedom to decide, without governmental interference, whether or not to allow smoking in his or her establishment?

Depends on whether or not such freedom is a "right" endowed by the Creator to the restaurant owner or merely a "privilege" granted him or her by the State. The reader can well read what I have written in this response (as well as, via any and all links provided, in all the sources I have cited herein) and, thereby, come to his or her own conclusion. My own conclusion is that owning a business- such as a restaurant- is also a "privilege" and not at all a "right" (for one who so owns a business is also subject to reasonable State regulation: after all, is it legal to make someone pay $2.50 [not including applicable sales taxes in those States which have same] for an item with a price tag of $1.29?-- I think not!)

I will only note, in soon closing, one further quotation from the words of the first Justice Harlan re: the Jacobson case, where he wrote- on behalf of the high Court- that

[t]he Liberty secured by the Constitution of the United States to every person within its jurisdiction does not impart an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others...

[w]e are unwilling to hold it to be an element in the Liberty secured by the Constitution of the United States that one person, or a minority of persons, residing in any community and enjoying the benefits of its local government, should have the power thus to dominate the majority when supported in their action by the authority of the State. While this Court should guard with firmness every right appertaining to life, liberty or property as secured to the individual by the Supreme Law of the Land, it is of the last importance that it should not invade the domain of local authority except when it is plainly necessary to enforce that law. The safety and the health of the people of [a State] are, in the first instance, for that [State] to guard and protect. They are matters that do not ordinarily concern the National Government. So far as they can be reached by any government, they depend, primarily, upon such action as the State in its wisdom may take...

The reader should well ponder what I have just quoted as he or she addresses the question I myself posed a couple paragraphs before this very quotation. I will here only say that what has been quoted above applies equally to one restaurant owner, or a minority of restaurant owners, as it does to one smoker, or a minority of smokers, or- especially- one citizen (smoker or not), or a minority of such citizens, of a State contemplating- where it has not already adopted- a ban on smoking in restaurants and, perhaps, other public places.

The real issues seem to be more these: is the ban at all enforceable?- if so, is it at all efficacious as regards the ends desired by the State legislature which has adopted it? And the answers to such questions are mostly public matters of Policy- hence, political- rather than much related to constitutional Rights and Liberties.

Assuming that Mr. Stremsky is arguing that banning smoking in restaurants is bad policy, regardless of his own reasons for being so opposed to said ban, then I have absolutely no quarrel with his own Liberty to take such a position (regardless of whether I might happen to agree or disagree). However, if one is arguing that said ban violates constitutional Liberties- either those of the individual smoker or the restaurant owner- then I myself would have to respectfully demur on this score.

To, once more, quote myself from that first response to Mr. Stremsky's long-ago proposal for a National Police Force: Politics at the State and local level [is], in its essence, the interplay of State[/local] Power versus People's Rights; thus, the State and its citizenry "duke it out" at the State and local level over the just and proper distribution of such "reserved powers" in any given State.

Again, please well note- gentle reader- that the issue of whether or not a State should adopt and enforce such a ban is altogether different from whether or not a State can adopt and enforce it... and this is the basic difference between a debate or discussion that is, in the main, political and one which is principally constitutional in nature.


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