Free Republic
Browse · Search
Topics · Post Article

Skip to comments.

TYRANTS IN TALAHASSEE...smoking ban crowd
American Constitutional Research Service | May 25, 2003 | John William Kurowski

Posted on 05/26/2003 7:38:51 PM PDT by JOHN W K


TYRANTS IN TALLAHASSEE…smoking ban crowd

May 24th, 2003

Well, it appears Florida’s Legislature has decided to use its office of public trust to enforce the wishes of an intolerant, belligerent and factious group of voters which approved a state wide voter initiative, Amendment 6, demanding the force of government to be used to forbid smoking on privately owned property, and likewise forbid businesses owners to allow smoking within their business establishments.

What is most amazing is Florida’s Legislators, as well as other state legislators, in pandering to this factious group of voters, is willing to ignore their oath of office, the rule of law, constitutionally protected rights, and even ignore the fact that the United States Supreme Court has emphatically stated that constitutionally protected rights may not be voted away simply because a majority wishes to do so!

The rights in question are enumerated in our various state constitutions, and in our Federal constitution, and are of two basic kinds:

(a) those which are created by a constitution such as the right to a “uniform, efficient, safe, secure, and high quality system of free public schools” [see Florida‘s Constitution], which, it ought to be noted, has been neglected by Florida’s State Legislature and probably every state legislature.

(b) those rights which are not created by a constitution, but are recognized as unalienable rights of mankind, such as the unalienable right to life, liberty and those rights associated with property ownership, and are protected by our constitutions “…from the vicissitudes of political controversy…beyond the reach of majorities and officials…”

In regard to constitutionally created rights the Florida Constitution has created a political right called the initiative process, touted by its supports to allow voters to express their will and compel an unresponsive state legislature to carry out the “will of the People“, but which, in reality, may very well happen to only be the will of a vocal and intolerant mob, and may only be a small fraction of the actual population of the State, as was the case with the approval of Florida’s Amendment 6.

And now, Florida’s legislators claim they are just carrying out the will of the people and are enforcing a voter approved amendment to Florida’s Constitution which they likewise assert is constitutional because of Florida’s constitutionally created initiative process.

But the truth is, Florida’s Declaration of Rights declares:

“The enunciation herein of certain rights [which it is assumed would include the initiative process] shall not be construed to deny or impair others retained by the people.”

These words are binding upon state legislators and among property and business owners as well as patrons and renters; to the rich and poor alike, to smokers and non smokers, and to an employer as well as those who are employed. Constitutional rights [including the right of initiative] are forbidden to be used by one faction to vote away, deny or impair other constitutional rights retained by the people…at least not those classified by the founding fathers to be the basic rights of mankind…the right to life, liberty and those rights associated with the ownership of property!

Confirming this truth, the United States Supreme Court has emphatically stated that:

“The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.” see:WEST VIRGINIA STATE BOARD OF EDUCATION v. BARNETTE, 319 U.S. 624

And, the Court, in LUCAS v. COLORADO GEN. ASSEMBLY, 377 U.S. 713 (1964) continued from the above paragraph by adding:

“A citizen's constitutional rights can hardly be infringed simply because a majority of the people choose that it be…”

Likewise, and only a few years ago, the Court, in ROMER v. EVANS, affirmed that a constitutionally protected and fundamental right could not be voted away by a statewide referendum!

It should also be noted what the United States Supreme Court stated in Lochner v. New York 198 U.S. 45 (1905) with regard to regulatory legislation:

“It must, of course, be conceded that there is a limit to the valid exercise of the police power by the state. There is no dispute concerning this general proposition. Otherwise the 14th Amendment would have no efficacy and the legislatures of the states would have unbounded power, and it would be enough to say that any piece of legislation was enacted to conserve the morals, the health, or the safety of the people; such legislation would be valid, no matter how absolutely without foundation the claim might be. The claim of the police power would be a mere pretext,- become another and delusive name for the supreme sovereignty of the state to be exercised free from constitutional restraint. This is not contended for. In every case that comes before this court, therefore, where legislation of this character is concerned, and where the protection of the Federal Constitution is sought, the question necessarily arises: Is this a fair, reasonable, and appropriate exercise of the police power of the state, or is it an unreasonable, unnecessary, and arbitrary interference with the right of the individual to his personal liberty….”

To this date there is no credible evidence to prove some of the outlandish statements made concerning “second hand smoke”, and especially no evidence with regard to “second hand smoke” and the actual air quality conditions of some of our nation’s businesses affected by smoking ban legislation to justify the kind of smoking bans imposed upon them by the intolerant smoking ban crowd. For example, we find in an article dated August 13, 2002,New York Mayor Proposes Citywide Smoking Ban that Mayor Bloomberg alleges "Working one 8 hour shift in a smoky bar exposes one to the same amount of carcinogens as smoking half a pack of cigarettes a day,"

In the same article Bloomberg’s Health Commissioner, Thomas Frieden, is quoted as saying: "Secondhand smoke causes more cancer deaths than asbestos, benzene, arsenic, pesticides, hazardous waste sites, industrial chemicals, contaminated sledge, and consumer products combined,…. Secondhand smoke kills approximately 1,000 New York City residents every year. That is why we must act now."

As it turns out, the allegations made by Mayor Bloomberg and his Health Commissioner Thomas Frieden, as well as many of those made by the promoters of smoking bans on privately owned property, are found to be groundless, especially if applied to an average restaurant, billiard hall, bowling alley, or other such privately owned businesses affected by the newly adopted smoking prohibitions. See:Mayor Bloomberg Exaggerates Secondhand Smoke Risk

Surely, Florida’s Legislature, as well as other state legislatures are fully aware of the people’s fundamental rights___ rights which are unalienable and inherent in mankind, and may not be voted away nor infringed upon, and especially not by those who took an oath to uphold and protect those rights. If not, perhaps, in addition to reading what the Unites States Supreme Court has stated above with regard to such rights, legislators voting for such bans ought to read what the Attorney General of the State of Florida has noted in AGO 77-139:

“It is undisputed that an individual has an inherent right to engage in a lawful business or trade. It is also axiomatic, however, that a municipal corporation (as an arm of the state) may impose reasonable restrictions upon the conduct of such activities in the interest of the public peace, health, morals, or general welfare, so long as such regulation is exercised reasonably, within constitutional limitations, not arbitrarily, and not in such a manner as to restrain trade or to unfairly discriminate.”

Indeed, and within the lawful boundaries of regulatory legislation, which requires it to be reasonable and within constitutional limitations, and not arbitrary nor restrain trade or unfairly discriminate, the Florida Legislature enacted the Florida Clean Indoor Air Act in the year 2000, as did many other States enact such legislation to accommodate the concerns of non smokers while at the same time considered individual rights associated with property ownership…creating a reasonable balance respecting property and business owners rights as well as an alleged public health concern.

But the intolerant smoking ban mob was not satisfied with reasonable legislation and decided to go further and trample upon the rights of others, and now, for some unknown reason, the Florida Legislature, as well as other State Legislatures, have decided to pander to this nation wide mob which chooses to use the force of government to control the property of others for their own personal comfort and enjoyment, to the exclusion of an identifiable group [smokers], and to do so without the permission of the owners of said property…the characteristics of such action being within the definition of fascism!

Question is, what is to be done with the tyrants in Tallahassee, as well as other state legislators, and public servants like Mayor Bloomberg, who are pandering to a factious intolerant voting block willing to subjugate the unalienable rights of mankind and our constitutional system to suit their own personal comfort and enjoyment?

John William Kurowski, Founder

American Constitutional Research Service

Seminole, Fl

"As nightfall does not come at once, neither does oppression. In both instances there is a twilight where everything remains seemingly unchanged. And it is in such twilight that we all must be aware of change in the air - however slight - lest we become unwitting victims of darkness."___Supreme Court Justice William Douglas

[Permission is hereby given to reprint this article if credit to its author and the ACRS appears in such reprint. No copyright is claimed for quotes within the article which are public domain materials.]

TOPICS: Constitution/Conservatism; Government; News/Current Events
KEYWORDS: initiative; oathofoffice; propertyrights; smokingban; supremecourt; unconstitutional; voter

1 posted on 05/26/2003 7:38:51 PM PDT by JOHN W K
[ Post Reply | Private Reply | View Replies]

Excellently argued. But, with all due respect, IMHO the whole discussion about whether the effects of second-hand smoke are real or not is an irrelevance, and a distraction from your broader and more important points about our loss of liberty.

Even if second-hand smoke were much WORSE than they claim it is -- SO WHAT? All anyone has to do is walk away! Anyone here ever been kept in a place of business at gunpoint? Hands? Didn't think so...
2 posted on 05/26/2003 7:51:22 PM PDT by teech (You can read this: thank your teachers. You're FREE to read this: thank our Veterans.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: teech
I agree with your philosophical view with regard to the loss of liberty and only have brought up the issue of second-hand smoke because it is suggested by the smoking ban crowd that regulation of business for the health and safety of the people is a legitimate exercise of state authority, and thus, this authority justifies government smoking bans which affect privately owned property and businesses. However, and in addition to what you have stated, that those who may believe second-hand smoke is dangerous would have to be willing participants to enter a privately owned business which allows smoking on said property, the limitations of regulatory authority for the health and safety of the people, does not permit the kind of smoking bans being imposed by state legislation, and is far beyond what the SCOTUS has emphatically stated!
3 posted on 05/26/2003 8:27:31 PM PDT by JOHN W K
[ Post Reply | Private Reply | To 2 | View Replies]

Floridians need to take a page from the NYers. They're giving em hell..everything from refusing to sell the States lottery tickets to pictures of politicians who voted for it hanging in pubs. FIGHT!
4 posted on 05/26/2003 10:27:30 PM PDT by ETERNAL WARMING
[ Post Reply | Private Reply | To 1 | View Replies]

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.

Free Republic
Browse · Search
Topics · Post Article

FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794 is powered by software copyright 2000-2008 John Robinson