Posted on 05/25/2005 9:29:10 PM PDT by Crackingham
A judge tossed out a lawsuit brought by a 115-year-old private club that sought to strike down no-smoking laws so it could continue to honor its members - who include Walter Cronkite and Carol Burnett - with ceremonies that include lighting up.
The Players Club is no more entitled to special privileges with city and state health inspectors enforcing the laws than are pro-tobacco organizations that tried unsuccessfully to overturn them, U.S. District Judge Victor Marrero said Wednesday.
"Individuals have no 'fundamental' constitutional right to smoke tobacco," the judge wrote.
I wish I lived near one!
"The issue of association - the right to gather with other cigar smokers and light up on private property - was brought up. That's an opening big enough to drive a truck through and issue a ruling based in favor of the individual and his right to use his property.
What other "silly" issues were you referring to?"
The silly issue of expecting a judge to be impeached because he did not rule on an issue not put before him. It's the lawyer's job to frame the issues, not the judge's. I take it you don't like that but to call it impeachable is, well, silly.
I don't disagree with anything you say. My only point is that the unenumerated rights of the Ninth can depend entirely on the whim of the judges if there is no framework for articulating those rights. Right to smoke/Right to commit sodomy. Two sides of the same judicial coin.
Unenumerated rights depend upon entirely on the citizen making the claim in a court.
The judge just acknowledges the citizen's claimed unenumerated right by nullifying a law that violates such a claimed right.
I currently ride my motorcycle in a the State of Missouri without a helmet. Missouri has a helmet law.
It is only a matter of time before I get a citation for violating that unconstitutional law.
I contend and rightly so, that I have the "retained" right to decide whether I will wear a helmet or not.
I am a citizen making an "unenumerated" right claim.
Your reasoning -- and I use the phrase "reasoning" quite loosly -- has no basis whatsoever in constituional law. There are two "takings" provisions in the Fifth Amendment. The first prohibits the taking of real property without due process of law. From a procedural standpoint, the "due process" requirement is satisfied by the legislative process in enacting the no-smoking law in the first instance, and by the judicial/administrative review available to those charged with violating the law. "Subtantive due process" addresses the issue of whether the law or regulation is so onerous as to constitution a deprivation of property without due process. As previously explained in another post, if a fundemental right is not as issue -- and smoking is not a fundemental right -- the SCOTUS for the last 100 years or so has given government broad disrection to enacct laws and regulations that bear some rational relationship to any concievable legitimate state interest, such as the regulation of economic/business interests or the protection of public health, safety, or welfare.
The Fifth Amendment also prohibits the taking of private property for public use without just compensation. In the absence of the actual taking of title to the property, a taking only occurs if a regulation is so onerous so as to deprive the owner of any legitimate use of the property. This is commonly known as a "de facto condemnation."
Neither situation applies in this particular case. We may not agree, but the smoking ban arguably bears a rational relationship to the protection of public health, which is a legitimate governmental concern. And there is no taking of property -- a de facto condemnation -- because the Players Club may continue to engage in club activities provided it abides by the smoking rules.
You may not like what I have a written or what the judge ruled, but I think I have fairly and accurately summarized the constitutional principles that SCOTUS has applied since the early 20th Century if not earlier.
"I contend and rightly so, that I have the "retained" right to decide whether I will wear a helmet or not.
I am a citizen making an "unenumerated" right claim."
And most likely you will lose. And you can continue to assert your right as the jail door slam behinds you. So your assertion of your "right" will not have made it so.
That was a most articulate response. I'm sure it will have been wasted though. I expect the answer will be "all that was unconstitutional and the judges should be impeached!"
Still, I admire the effort.
Thanks.
Amendment IX
The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.
That's funny, I do not seem to see the word "fundamental" stated in the Constitution, Bill of Rights (not bill of privileges) Amendment IX. Do you?
My point?
The most blatant act of judicial activism is reading something into the constitution that textually is not there.
I thought "conservatives" did not like judicial activism?
SUPREME COURT OF THE UNITED STATES
No. 98—963
JEREMIAH W. (JAY) NIXON, ATTORNEY GENERAL OF MISSOURI, et al., PETITIONERS v. SHRINK MISSOURI GOVERNMENT PAC et al.
[January 24, 2000] Justice Stevens, concurring.
", therefore, I make one simple point. Money is property;
"And there is no taking of property -- a de facto condemnation -- because the Players Club may continue to engage in club activities provided it abides by the smoking rules."
The "smoking rules" cannot include the Players Club to install air filters because the installation of air filters "takes" property, from the Players Club, since money is property, thus a 5th violation.
"We may not agree, but the smoking ban arguably bears a rational relationship to the protection of public health, which is a legitimate governmental concern."
This argument is valid for "public" property, (A useful definition and description of public places can be stated as follows: When “a state (municipal government) is acting as an owner of property, such as its own offices and buildings, or as the guardian of public spaces such as streets and parks, it may properly constrain conduct there.)
The Players Club is not "public" property, it is PRIVATE property.
Suppose there is a "private club" where men go and women rub their naked bodies on them. Should the township be powerless to prevent this?
You are mixing apples and oranges.
Your summary of SCOTUS rulings is accurate and good. However, the rulings are restrictive toward property rights and these restrictive rulings give government a free hand to trample over property owners.
For example, the courts consistently restrict the development of private property in order to protect endangered species. These restrictions create de facto government nature preserves and the government doesn't pay a dime in compensation to the property owner.
Then we have Poletown where government can take the private property of one owner and give it to another private owner.
Recently, though, the Michigan Supreme Court ruled that local and state governments may not seize private property under their eminent domain power and give it to another private user.
“We overrule Poletown,” the Court wrote, “in order to vindicate our constitution, protect the people's property rights and preserve the legitimacy of the judicial branch as the expositor, not creator, of fundamental law.”
This statement indicates that Michigan’s highest court has rediscovered its constitutional and traditional role as interpreter of law, not creative writer of law.
Justice Robert Young called this seizure of property under Poletown “a radical departure from fundamental constitutional principles.”
“In this case,” wrote the court, “Wayne County intends to transfer the condemned properties to private parties in a manner wholly inconsistent with the common understanding of ‘public use’ at the time our Constitution was ratified.”
This is my kind of court. I want judges who have a very expansive reading of property rights. This Michigan court understands original intent; the US federal courts do not.
You correctly state that "the SCOTUS for the last 100 years or so has given government broad disrection to enacct laws and regulations that bear some rational relationship to any concievable legitimate state interest, ..."
This leads to the situation where nearly anything is in the state's interest. Public use has evolved into "public good," which is nothing more than the American version of the Marxist "common good."
I say that smoking is a property rights issue. Either we have a right to legally use our property as we wish, or we don't. If we don't we're simply serfs paying the state rent.
Once any property can be arbitrarily regulated for any reason whatsoever, no land or building is safe from government abuse and private property ceases to exist.
In the past 80 years the federal courts have established a nice Kabuki play that dances around the question of property rights. All that you mention - from "substantive due process" to “rough proportionality” to “essential nexus” - are part the dance to restrict property rights and give the imperial state "house odds."
Oh, and thanks for your civil reply.
Please explain. Not being an expert in Constitutional Law, I miss the distinction.
Where does the Constitution state that an unborn child is a life that enjoys constitutional protections? Where does the Constitution state that notwithstanding the First Amendment guaranteeing free speech as a fundemental right, a person can't yell "fire" in a crowded theater or verbally threaten the POTUS? Where does the Constitution define ths scope of the equal protection clause? Does the clause literally mean that the government must treat everyone equally as to both benefits and burdens, or is the goverment allowed to draw classifications among her citizens even though not specifically authorized in either the Fifth or Fourteenth Amendments? Where does the Constitution allow government to seize a person's private property when the property consists of that person's stash of marijiuana, heroin, or cocaine?
If you want to be a strict constituional constructionist, then you will need to be able to answer these questions and others like them using nothing other than the exact text of the Constitution itself. If you rely upon sources outside the four cornersof the Constitution, then by necessity, you are actively engaging in subjective construction.
There is nothing unclear about this: If the government isn't authorized to regulate it, laws that regulate these behaviors are illegal, illegitimate, and, as has been shown over and over in the case of unconstitutional laws - they are no law at all, and nobody has a duty to observe them.
Neither does it state that YOU have a right to breathe. It isn't the Constitution's job to do that. There is nothing paradoxical about this and our drug laws. When the Constitution was written, you could put ANYTHING into your body completely legally.
As for abortion, when the Constitution was written, second trimester abortions were illegal, based on the understanding a fetus was unambiuously alive at that point. Of course nothing except the odious Roe decision has changed. Not one letter of the Constitution changed.
People get on the slavery horse at this point to challenge Originalists, but slavery was challenged from before the Founding. It was hardly a settled issue.
Please explain waht? That a discussion of a smoking ban has nothing to do with your question? which was :
Suppose there is a "private club" where men go and women rub their naked bodies on them. Should the township be powerless to prevent this?
That is a use and/or zoning issue that has to do with the license of the business prior to it's opening. The instance being discussed here has nothing to do with use/zoning in regard to the business opening.
In your scenario if the establishment was granted such a use/zoning license, then the township has no business going in after the fact unless it is causing a public nuisance. If such an establishment seeks a permit to engage in such a business and the community does not wish it, then they can work to prohibit it.
But that is not the case in this situation, thus apples and oranges.
So, a city should be powerless to change the zoning to prevent topless dancing in a private club? Unless they are creating a nuisance. Here in Texas we do that all the time.
Question 1
"Where does the Constitution state that an unborn child is a life that enjoys constitutional protections?"
Amendment V, since an unborn child can be nothing but a human being.
Question 2
"Where does the Constitution state that notwithstanding the First Amendment guaranteeing free speech as a fundemental right, a person can't yell "fire" in a crowded theater or verbally threaten the POTUS?"
"Fire in a crowded theatre," you can be denied the "right of free speech" by the property owner, or in other words, there is no Amendment I protection on private property. Xivilly and crimminally you can be held accountable for the "injury" and "damage" you cause for that action, primarily a "state" function. It is thus not an Amendment I issue.
"Verbally threaten the POTUS," no such power exist for Congress to pass such a law, thus unconstitutional.
Question 3
"Where does the Constitution define ths scope of the equal protection clause? Does the clause literally mean that the government must treat everyone equally as to both benefits and burdens, or is the goverment allowed to draw classifications among her citizens even though not specifically authorized in either the Fifth or Fourteenth Amendments?"
"is the government allowed to draw classifications," not authorized, so unconstitutional.
Question 4
"Where does the Constitution allow government to seize a person's private property when the property consists of that person's stash of marijiuana, heroin, or cocaine?"
It doesn't, so such laws are unconstitutional.
But again, I will ask you.
Amendment IX, clearly states "rights." Not fundamental "rights." Just "rights."
How did past judges, (I say past, because recent Supreme Court rulings are moving away from the notion of "fundamental rights" to the notion of "liberties.") properly and textually construct and interrupt the clear statement of Amendment IX concerning "rights" (which implies limitless rights) to the anti-liberty declaration that "rights" have to be "fundamental" in order to have constitutional protection?
It is obvious that the notion of "fundamental" rights is pure judicial dictum. Again, blatant judicial activism which has led to the denial, disparament, and diminishment of liberty in this country.
"Rights" are limitless unless the exertion of a right by one person infringes on the rights of another person, then government, primarily, state governments, have the power to "regulate" the exertion of rights for the protection of everyone's rights.
Stop signs, for example, at a 4 way intersection.
A trial judge doesn't have much choice but to follow the binding legal precedent whether it's good law or not. Constitutional law has grown into a big giant mess of confusing tests and formulas. If the established case law from the courts higher than his calls for application of some ridiculous formula where there are "fundamental rights" and not so fundamental rights, that's what the trial judge is supposed to do.
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