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.
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.
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.
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.