Posted on 10/02/2002 8:28:42 AM PDT by mtngrl@vrwc
I read the whole document over again and I can't find where smoking is a Constitutionally protected right. Sorry.
I assume you refer to the federal Constitution. It has no enumerated power to regulate smoking, and all non-enumerated powers are specifically prohibited and reserved to the states per the 10th Amendment:
Amendment X: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
So, your state may regulate smoking, or delegate such powers to localities, but only if its Constitution allows it.
Furthermore, rights are not granted by the Constitution, they are recognized and protected by it. Not all rights need be enumerated to be recognized or protected, and the 9th Amendment was added to settle any doubts:
Amendment IX: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
"The establishment of our institutions," wrote President Monroe, "forms the most important epoch that history hath recorded. They extend unexampled felicity to the whole body of our fellow-citizens, and are the admiration of other nations. To preserve and hand them down in their utmost purity to the remotest ages will require the existence and practice of virtues and talents equal to those which were displayed in acquiring them. It is ardently hoped and confidently believed that these will not be wanting."
Ever heard of Prohibition? The federal gov't, at that time still somewhat controlled, realized a Constitutional amendment was needed in order to botain the power to regulate alcohol.
The federal gov't has no authority to regulate tobacco or drugs. These powers are reserved to the states or the people.
Likewise, the federal gov't has no authority to regulate driving.
SD
All actions that do not inhibit the ability of others to similarly exercise their own rights are natural rights. They needn't be spelled out anywhere. The founders called this "the pursuit of happiness".
Driving a car is a bit special. You have a right to drive your own car, but if you drive it on property you don't own, you are subject to the property owner's rules.
All those are regulated without running into any sort of Constitutional questions, 9th and 10th Amendments notwithstanding.
You are saying that if we ignore parts of the Constitution, your theory has no constitutional issues? Well, if I hop in the ocean and ignore water, being wet isn't an issue either.
Besides, the Constitution has the principles of the 9th and 10th Amendments built in. They were only added because some of the founders were wise enough to know we needed to spell them out specifically. They saw you coming 200 years away.
The dialogue between the Jeffersonians and the Hamiltonians gives good insight into the intended meaning of the Necessary and Proper clause and the Xth, since both were the written by a Jeffersonian.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
I see "probable cause" and specificity ("Oath or affirmation"). I do not see notice required. One can at best infer notice from the above concepts. Ordinarily one can cross-examine oath takers, but would have to know about the oaths in order to do so. Naturally this is impossible before the search, but can be used to quash evidence at trial. And indeed, at trial one gets notice of evidence and can attempt to refute the evidence or even have the evidence thrown out by refuting the probable cause used for the warrant.
I don't see notice or refutation either implied or necessary before the government does something with the evidence at trial; for one thing, at trial one can at best get the evidence thrown out of the proceedings; one can't undo the search.
In sum:
1) One virtually never gets notice before the police come to your door to perform a search (lest you remove evidence).
2) If there's a warrant, the search will be made whether or not you're at home, and regardless of any objections you might voice.
3) Before the government can do anything against you with the evidence, you can contest it and the warrant at trial, and have it thrown out. So you have notice and can contest before the government actually does anything with the evidence.* Provided you are given a reasonably speedy trial, and are given information about the search in sufficient time before trial, none of your rights have been violated.
* anything legally, that is. The government may of course use the evidence to track down illegal combatants in our war on Islamofascist Terrorism. But that's exactly the point.
Your article contradicts itself and has no source. Who made this up?
"I read the whole document over again and I can't find where smoking is a Constitutionally protected right. Sorry."
Can there be a notion more representative of the totalitarian fascist idiocy that informs our Al Gore and William Hamilton Clinton supporting liberal brethern more than this? If the Constitution doesn't specifically mention it as such, it isn't a right. Even the totalitarian-fascist Alexander Hamilton knew better than that.
Unless the Constitution specifically mentions something isn't a right, it is a right.
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