Judge Upholds NY Smoking Bans

AP ^ | 5/25/05 | Larry Neumeister

[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.

[TKDietz]

"A judge can't just look at the facts in a case. He's expected to draw on previous rulings and have enough common sense to consider basic constitutional issues in a case like this. If he can't do that, he shouldn't be a judge. Impeach him."

You don't even know if the constitutional issues you are raising were even brought up in court. Judges generally don't go deciding on issues that haven't been brought before the court. Both sides make their arguments and the judge rules one way or another on the arguments brought before him. He does this by looking at the binding legal precedent relevant to the case at hand. Lawyers from both sides are actually supplying him most if not all of the cases he will read. He's going to look through the cases, determine which are most applicable to the case at hand, and in deciding the issues he's going to use whatever tests the higher courts have fashioned for determining the type of issues before him, because that is what he is supposed to do in our system.

If the judge was talking about fundamental rights, which again is a legal term of art that doesn't necessarily mean the same thing as it might outside of a courtroom, then no doubt the lawyers for the Players Club were trying to argue that the government had to have some sort of compelling governmental interest in having the smoking ban, instead of some lower form of scrutiny where the court would only have to find that some tenuous rational relationship between the smoking ban that infringes on rights and some legitimate state purpose exists for the government's law to pass constitutional muster. In deciding which standard to apply, according to precedent from higher courts he has to decide whether the right the litigant is asserting is a "fundamental right." He does that also by looking at the binding precedent. There is no precedent that even comes close to suggesting that smoking is a fundamental right and plenty to suggest that it is not. So as the law stands, it is not a fundamental right. So when the judge said it wasn't a fundamental right, he was in fact making a correct statement of the law as it stands today.

Alright, I'm done with this argument. We're arguing over a stupid little point. The fact is that we both agree that smoking bans for privately owned bars are wrong. We both think these bans infringe on rights that should be protected by the Constitution. I'm just not willing to put all the blame on some trial level judge who doesn't make the rules. I think the blame lies with the people who passed the smoking ban in the first place and with the higher courts that over a long period of time have developed a faulty body of constitutional law that allows the government to get away with this kind of crap.

[Tx Angel]

Sounds like a few bars I know in the Albany/Schenectady/Troy area.

[Labyrinthos]

Neither does it state that YOU have a right to breathe.

Fifth Amendment -- "No person shall be deprived of life, liberty, or property without due process of law..."

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.

And in order to reach that conclusion, you had to go outside the four corners of the constitution itself to determine whether and unborn child is a "person" within the meaning of the Constitution. While I agree with your interpretation, I'm sure there are others who have a different opinion. My point is not who is right or wrong, or whether abortion is good or bad (IMO, it is evil), but rather, to demonstrate the hypocracy among so-called strict constructionists.

[Labyrinthos]

I appreciate your effort to answer the questions, but lets examine your answers for logical inconstancy's and practical effect:

Amendment V, since an unborn child can be nothing but a human being.

Where does the Constitution define "person" to include the unborn? To reach that conclusion, you have to go outside the four corners of the Constitution, and therefore, by necessity, you are engaging in subjective construction.

"Fire in a crowded theater," 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. Civilly and criminally 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.

When the government imposes criminal penalties for certain kinds of speech, even when that speech occurs on private property, then the First Amendment has been implicated because the criminal penalties have a "chilling effect" based upon the content of what one has said. Indeed, the government regulates the content of speech on private property all the time, like when it from prohibits pornography and adult entertainment. (BTW, where does the First Amendment contain an exception for porn?)

"Verbally threaten the POTUS," no such power exist for Congress to pass such a law, thus unconstitutional.

Except Congress has passed such a law, which the SCOTUS has upheld against First Amendment challenge.

"is the government allowed to draw classifications," not authorized, so unconstitutional.

Except the SCOTUS has repeatedly upheld hundreds if not thousands of such government classifications against challenges under the Equal Protection Clause, including but by no means limited to mandatory retirement, social security benefits, military service, distribution of government funding, and college admissions. (Did you know that one of the most important factors in gaining admittance to many public colleges and universities, including our Nation's military academies, is not skin color or ethnicity, but whether the applicant is a legatee or the progeny of alumni?) Although the Equal Protection Clause is silent on the issue, I doubt -- in fact, I know -- that government could not function if it had to treat everyone with perfect equality.

"Where does the Constitution allow government to seize a person's private property when the property consists of that person's stash of marijuana, heroin, or cocaine?" It doesn't, so such laws are unconstitutional.

Tell that to your local DA and Ass't. US Attorney.

I'll try to answer your IX Amendment question later this morning.

[eno_]

And in order to reach that conclusion, you had to go outside the four corners of the constitution itself to determine whether and unborn child is a "person" within the meaning of the Constitution.

You have to do that for any common meaning of any word, whether it is "alive," or "commerce," or whatever. Even the implied link between breathing and living. The Constitution never existed in a vacuum, and the Federlist Papers and records of other comtemporary debates usually make these definitions unambiguous.

[eno_]

Tell that to your local DA and Ass't. US Attorney.

Why? If they are enforcing illegal laws, they are in play. So are their families. There is no duty to observe illegal laws, and the agents carrying them out are criminals.

[eno_]

Maybe we should try the appeals process before we go lynching trial level judges

Why wait? Beat the rush.

[tahiti]

"Tell that to your local DA and Ass't. US Attorney."

This is what I will tell to the DA and Ass't. US Attorney and have already been telling my local alderamen and councilmen to stop a "regulation" on private property and to virtually stop a smoke free county wide ordinance.

U.S. Supreme Court HAFER v. MELO, 502 U.S. 21 (1991) Justice O'Connor

monetary damages under 42 U.S.C. 1983

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured. . . ."

Congress did not intend to override state immunity when it enacted 1983 was relevant to statutory construction: "Given that a principal purpose behind the enactment of 1983 was to provide a federal forum for civil rights claims,"

We hold that state officials, sued in their individual capacities, are "persons" within the meaning of 1983. The Eleventh Amendment does not bar such suits, nor are state officers absolutely immune from personal liability under 1983 solely by virtue of the "official" nature of their acts.

The judgment of the Court of Appeals is Affirmed.

When the "every person" is confronted with the possibility that their equity in their home, their savings, their children's college education money, their retirement accounts, are "on the line," so to speak, they have been backing off their blatant disregard for the "rights, privileges, and immunities secured by the Constitution."

I have been having fun.

[eno_]

Effing brilliant!

This should be used FAR more often.

[Labyrinthos]

Why? If they are enforcing illegal laws, they are in play. So are their families. There is no duty to observe illegal laws, and the agents carrying them out are criminals.

I admire your convictions and courage. Hopefully, you will never have to spend 20 years in the pokey trying to prove your point.

[Labyrinthos]

You have to do that for any common meaning of any word, whether it is "alive," or "commerce," or whatever. Even the implied link between breathing and living. The Constitution never existed in a vacuum, and the Federlist Papers and records of other comtemporary debates usually make these definitions unambiguous.

Thanks for helping to make my point. Keep in mind, however, that those on the other side of the debate of any particular constitutional issue will also point to the Federalist Papers and other extraneous sources to prove that the intended meaning of a particular word or phrase is unambigious. Again, by necessity, both sides of the debate, whether they are Pubs or Dems, Libs, or Conservatives, are engaing is subective constructionism to prove their points.

[Labyrinthos]

Hers's the scoop on the Ninth Amendment: First, there are relatively few cases interpreting the Amendment, at least compared to the number of cases dealing with the 1st, 4th, 4th, 6th, and 14th Amendments.

Second, since the early 1800's, the SCOTUS has held that the 9th Amendment doesn't create any substantive rights in and by itself, but rather, is intended to preserve "fundemental rights" that are not otherwise specifically included or addressed in the Bill of Rights. In other words, the Bill of Rights is intended to supplement, and not extinguish those fundemental rights that are not specifically enumerated in the Bill of Rights.

Although the SCOTUS has interpreted the 9th Amendment as I have described for something like 180 years, the most famous 9th Amendment case is Roe v. Wade, where the Court cited the 9th Amendment as the source of the "fundemental right" to kill your baby in the name of "privacy."

[republicofdavis]

"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."

That will be cold comfort as you while away your days in jail because you did not obey a law that you believed the government had no legitimate ability to institute.

[republicofdavis]

"If they are enforcing illegal laws, they are in play. So are their families."

Wow, pretty scary. So I guess you get to decide what's an illegal law and what isn't? And that it's within your rights to take action against an officer's family?

[eno_]

Hopefully, you will never have to spend 20 years in the pokey trying to prove your point.

Unlikely. But I will vote to acquit anyone who does decide to "make a point." There are more people like me that you would like to admit.

[Conservative Goddess]

Funny.....there's not constitutional right to smoke tobacco....but there's a constitutional right to kill your unborn child. Nuts. The world has gone stark raving mad.

This is an issue of freedom....anyone who wants to operate an establishment that permits smoking should be able to do so. I'd fight this as an unconstitutional constructive taking.......in violation of the takings clause. There's a line of cases, I believe, that hold that where the government restrictions on the use of private property amount to a constructive taking......the owners are entitled to compensation......but I would argue for injunctive relief instead of monetary compensation.

[CSM]

Thanks for the feedback. Have a great weekend.

[tahiti]

"Ninth Amendment: First, there are relatively few cases interpreting the Amendment,"

Agreed

"... is intended to preserve "fundemental rights" that are not otherwise specifically included or addressed in the Bill of Rights."

The 9th does not say "fundamental rights." It says "rights." Incorrect interpretation by the SCOTUS which I am trying to change.

"the most famous 9th Amendment case is Roe v. Wade, where the Court cited the 9th Amendment as the source of the "fundemental right" to kill your baby in the name of "privacy."

The exact quote from the decision of Roe v. Wade:

"This right of privacy, [whether] it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is,"

The most famous case of the recognition of a 9th amendment unenumerated right was in Griswold v. Connecticut 1965.

[eno_]

You learn something new every day.

I am glad to see that the jack-boot lickers have no dirt on the IXth, and that Roe is tied to the dubious XIVth.

[Labyrinthos]

The exact quote from the decision of Roe v. Wade: "This right of privacy, [whether] it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is,"

The complete quote is "This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."

A "Westlaw" search (which I am reluctant to cut & paste due to copyright laws and concern over losing my subscription) cites Roe for the proposition that the so-called right to privacy, which is the rationale underlying a womens' right to kill her baby, is proteced by the 1st, 4th, 5th, 9th, and 14th Amendments.