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Show Hingkley Journal of Politics 2006 Fourteenth Amendment forbids the government to infringe upon fundamental liberty interests. Smoking is not a fundamental liberty interest, constitutional right, deeply rooted in our Nation's history and tradition, and by no means is justice or liberty sacrificed by banning smoking from all indoor establishments. Privacy Smoke-free ordinances do not infringe upon privacy rights. The U.S. Supreme Court has held that "one aspect of the liberty protected by the Due Process clause of the Fourteenth Amendment is a right of personal privacy, or a guarantee of certain areas or zones of privacy" (Carey v. Population Services lnt'ly 1977). State constitutions and laws also establish certain privacy rights. Yet, the same argument used previously is valid here; the constitutionally protected right of privacy extends only to fundamental personal interests, such as marriage, procreation etc. The ability to smoke does not fall into this category. Takings The Fifth Amendment of the U.S. Constitution provides that no private property may be taken for public use without just compensation. Owners of restaurants and bars in Toledo, Ohio, challenged the constitutionality of a city ordinance that restricted smoking in public places on the basis that the ordinance amounted to a regulatory taking without just compensation (D.A.B.E., Inc. v. City of Toledo, Ohio, 2003). The owners alleged that, as a result of the smoking prohibition, their businesses could not function. The property owners did not allege a physical taking, where the government expels them and seizes control of their property. Instead the allegation was a regulatory taking- they were denied the full use of their businesses. But the legal standard for a regulatory taking is that businesses are left with "no productive or economically beneficial use of the land" (D.A.B.E., Inc. v. City of Toledo, Ohio, 2003). Instead of depriving owners of any economic use, the regulations are designed to protect the people of the community. Conclusion The focal point of this essay has been an examination of the rights of individuals and property owners, compared with the responsibility of government to regulate any activity deemed to be a threat to the public's health. In examining the Utah law, as well as laws in other states, the central conclusion is that smoking bans are not in violation of any fundamental right. There are many who claim these bans are personal attacks, are rights violations and that smoking is not illegal and should not be treated as such. However smoking in any establishment is a health rights issue and not a smokers' rights issue. The state is justified in regulating a substance that is causing health problems and killing its people. Governments are not only justified, they are responsible to enact laws to protect the health and safety of the public. Neither the United States Constitution nor state constitutions recognize a constitutional "right to smoke" that would limit the power of federal, state or local authorities to regulate smoking. In fact, courts have consistently upheld the ability of legislatures to enact smoking bans across the Nation. In addition, smoke-free ordinances do not deprive owners of restaurants, bars, or social organizations of their property rights, equal protection under the law, the right to privacy, or to due process. These can only be applied to fundamental rights. Smoking is not a fundamental right! Moreover, in any discussion of rights, the rights of non-smokers must be considered as well. Non- smokers have the right "not to" be exposed to these elements. Additionally, studies have shown that legislation that bans smoking may begin to lower the Nation's high death and illness rates from smoking. Finally, in the United States we defend the right of people to choose what they do. But many governments at the local, state or federal levels no longer take the position that anyone is allowed to do any activity which is harmful to somebody else. For example, the government does not tell people they can't drink, but it does tell them they cannot drink and drive. Even though the Nation's citizens have free speech, they do not have the right to slander somebody. Similarly, even though smoking is legal, non-smokers can choose not to be exposed to secondhand smoke. Smoking is a safety threat to the health of communities and it is, therefore, legal to protect the community against these dangers by banning smoking in all public and private businesses and establishments. References Bailey, Eric. 1999. Smoking bans good for business. Journal of the American Medical Association, 281, 1911- 1918. Carey v. Population Services Int'l. 1977. U.S. p. 431 D.A.B.E. Inc. v. City of Toledo. 2003. 292 F. Supp. 2nd 968 N.D. Ohio. Dyer, P.H. 2005. (March 12). Personal Communication. Fagan v. Axelrod. 1998. 550 N.Y.S.2d at 552-560. Fox, M.H. 2004- (October 13). The Economic Impact of Indoor Smoking Bans. Retrieved June 16, 2005 from http;//www.no/smoke/getthe-facts.php?@ld=54. Shepard, R., & Sargent, R. 2002. (May 5). Montana Forum. Spatafore, D. 2005. (March 12). Personal Communication. University of California, San Francisco. 1998. Evaluating the health benefits on bartenders after the ban. San Francisco: University of California-San Francisco. U.S. Environmental Protection Agency. (2004). Health Effects/Adult Nonsmokers. Retrieved May 26, 2005 from http://www.epa. gov/smokefree/healthrisks.html#Other%20Studies Utah Clean Air Act, (1994) section 26-38-5. Utah Code, (1994) Definitions, 26-38-1. 11 |
