Constitutional FAQ Answer #24 – The U.S. Constitution Online – USConstitution.net

Apr 23, 2024

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Constitutional FAQ Answer #24

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Q24. “I am doing a debate soon on whether smoking
should be banned from public buildings. I was assigned to be the affirmative
side and support the ban. I was trying to think of some arguments that the
negative side could use and the ninth amendment came to thought. I was
wondering if the unalienable rights of life and happiness are superior to the
‘unenumerated’ right of smoking in the ninth amendment?”

A.The right to smoke would certainly be covered under the 9th Amendment.
But, by extension, so is the right to snort cocaine; but it is illegal, and not
just at the state level. So perhaps to start, you need to ask, what gives the
U.S. the right to make cocaine illegal? From there, you can extend to include
smoking.

The Congress has broad powers to regulate most things under the Interstate Commerce clause. Because most
tobacco products are created for sale outside the state they are created in,
the Congress can tax and regulate tobacco products. If cigarettes were only
consumed in the state they were created in, the Congress may not be able to do
too much about the issue. It would likely, however, have the power to ban
smoking in all government buildings, seeing how it has the power to set rules
for federal agencies, and, by extension, their facilities.

You may have trouble arguing that the Federal Government has a similar right
to regulate other public places, because it exerts no direct influence.
However, it can make funds for schools, for example, contingent upon it being a
non-smoking area.

The powers granted agencies such as the FDA would allow it to ban tobacco outright, I
suspect, even given its wide usage; the FDA may even be able to ban smoking in
public places, though I’d have to check its rules and the U.S. Code governing
the various agencies.

Boiled down, constitutionally, it is easier to argue your opponent’s side.
You will likely need to come up with some basic reasons why the Constitution
might allow such a ban, and then move on to more scientific evidence of why it
should.

Last Modified: 16 Aug 2010

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