RSS 2.0 FeedOnly Explicit Rights Are Recognized
by Brad WarbianyIt’s long been noted that our Federal Government has grown in scope and hubris to the point where they don’t see any limits to their powers except that which is explicitly forbidden by the Bill of Rights, and even then they try to get around it (McCain-Feingold, warrantless wiretaps, etc). Usually, though, they try to couch their actions as if they’re balancing our rights with “compelling government interests”, not suggesting that those rights simply don’t exist. But one of them slipped up…
“The constitutions of the United States and the state of Ohio do not recite any ‘right to smoke in public’; controlling precedent creates no such right; and other courts have held that there is no such right,” Nelson wrote.
He also refuted the businesses’ claim that the ban violates their right to use their property as they see fit. They had argued the case is similar to the recent eminent domain case in Norwood, where homeowners won in court after the city tried to take their property.
Nelson said the smoking ban is different.
Rather than taking the property, he said, the state is imposing regulations on the businesses, similar to other safety and health code requirements.
The judge’s ruling seemed to express some sympathy for the plight of bar and restaurant owners, some of whom claim the ban will run them out of business.
But he said the law is constitutional.
The Constitution of the United States and Constitution of Ohio don’t recognize the right to wear plaid on Tuesday, but I would think rational people would consider it an invasion of privacy and our individual rights to ban that activity. Those Constitutions don’t recognize our right to eat meat on Friday during Lent, but I would suggest that if government tried to ban it, it would result in calls of “Theocracy!” from the same people who want to ban smoking. It further shows a misunderstanding between something that is done “in public” and “on private property”, dramatically restricting our right to enjoy the latter.
I touched on this here, a post that was inspired by reading Randy Barnett’s Restoring The Lost Constitution. In that book, Barnett argues that our Constitution was designed with a presumption of liberty in mind; anything the government is not explicitly given power to do is prohibited. We’ve moved to a presumption of Constitutionality; anything not explicitly forbidden by the Constitution is allowed. I’ve recommended on several occasions that people read the book, as it clearly explains how the Constitution was eviscerated in order to make this change.
One thing it doesn’t really discuss at length is WHY this is so important. A world where government can do anything they haven’t been explicitly forbidden to do is dangerous. Fear of this situation is specifically where the 9th and 10th amendments come from. Trying to claim that government doesn’t have unlimited power is like trying to prove a negative. After all, anything not explicitly mentioned in the Constitution— like breathing, for example— may be regulated by the State.
Under this paradigm, the government doesn’t have to justify what it’s doing. Overwhelming power, mixed with a nearly complete lack of accountability, with a dash of egotistical nanny-statism, is a recipe for disaster.
Hat Tip: Reason
warrantless wiretaps?
Ahh, excuse me, but you’re quite confused. You see, when the president comes out of his office, he can either go in the office of the Joint Chiefs (JC), or he can go in the AG office. The AG deals with Law & Order at the federal level. The JCs deal with protecting the US from external threats.
In the AG office, warrants are required, because the only purpose of a warrant is for law & order, ie to ensure that eventual prosecution in court is not hindered by violation of the 4th amendment.
In the JC office, warrants are irrelevant and in 200 years of US history, have never before been mentioned. Not one viewer of countless Bond movies have questioned whether Bond needs a warrant. He has the “license to Kill”, which kinda implies that he has also has the license to search e-mails and bug phones. To clarify, the Commander In Chief has the right to kill terrorists, and is certainly not bound by the 4th amendment.
Given that the NSA is on the JC side (hence the name), there is no moral or constitutional issue with the so called “warrantless” wire taps. That’s why this has passed muster with the supreme court.
Comment by Gunnar — May 3, 2007 @ 2:09 pmGunnar,
The Bill of Rights applies to all people in the United States. If the government wants to incarcerate these people they need some level of due process.
Look at it this way. Right now the NSA can tap your phone with no judicial oversight. Then the executive office can have you snatched out of your home and sent to Guantanamo as an enemy combatant. And you have no recourse to fight them.
As I’ve said before, I actually believe Bush is well-intentioned, and is going to try to limit this power to legitimate terrorists (not that I think the government is competent enough to actually do so). But this is an expansion of power, and it is something that— I GUARANTEE— future presidents will abuse in ways that frighten you.
On a battlefield, things are different. But when our government declares the entire world its battlefield, don’t you think that gives the Commander In Chief basically UNLIMITED power?
Comment by Brad Warbiany — May 3, 2007 @ 3:01 pmBrad, Due Process only applies to the law and order side of the house. The US Military is not bound by the bill of rights, never have been, never will. You are espousing a completely new idea, that no one has ever brought up, in over 200 years of american history. No president has ever, ever been restricted to the bill of rights, when executing his duties to protect this country from threats to national security.
The idea that the military cannot operate in the US is simply an artifact of the civil war, racist slave owners, and compromise. There is no constitutional issue with it, and congress could change that at any time. The civil war itself proves that there is no moral or constitutional issue with military action against enemy combatants, even if they are US citizens.
>> this is an expansion of power
No, it isn’t. This is simply the proper removal of a very recent restriction on power that the commander in chief has ALWAYS had. If you think differently, then you need a big history lesson.
>> future presidents will abuse in ways that frighten you
You are quite naive. As Clinton proved, the ONLY protection we have from the president, is a careful review of his character prior to electing him. There is nothing in the bill of rights, no law, and no check or balance that can POSSIBLY protect us from someone in that position who simply disregards them.
Comment by Gunnar — May 3, 2007 @ 3:17 pmanything the government is not explicitly given power to do is prohibited. We’ve moved to a presumption of Constitutionality; anything not explicitly forbidden by the Constitution is allowed.
I haven’t read the book, but I am reminded of the Jefferson v. Hamilton concepts of the constitution. Hamilton: “If it doesn’t say I can’t, I can”. Jefferson: “If it doesn’t say you can, you can’t”.
The “Elastic Clause” in Article I has been well used by our Congress to pass laws. It offers a great deal of latitude in deciding what is ‘necessary and proper’ for our government.
Comment by David T — May 3, 2007 @ 3:30 pmGood article.
The smell of curry makes me physically ill.
Should we ban curry in Indian restaurants, or do people have the freedom to choose whether to enter?
My mother is highly allergic to perfume, incense, candles, deodorizers, and bacon cooked on too high a heat.
Maybe thes anti smokers will go after these other things when they are done trampling on smokers and business owners rights.
Comment by Gregory — May 4, 2007 @ 7:53 amThe Fifth Carnival of Principled Government, The Citizen and the Constitution…
Welcome to the Fifth Carnival of Principled Government, a carnival which strives to uphold our founders’ vision for our nation as found in our founding documents. In honor of East High’s recent victory in the We the People: The Citizen and the Consti…
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