Advances in Constitutional Interpretation, Chapter XXXVI

Arkansas State Rep. Bob Mathis (D-Mars) spots a clause the rest of us missed:

If you're pregnant and you smoke, a Hot Springs legislator wants you to stop. In fact, Representative Bob Mathis wants his colleagues to study whether it should be against the law for you to smoke.

During this spring's special session, Mathis led the charge to ban smoking in cars with children. He told lawmakers on Saturday that children born to smokers face the risk of long-term health problems and questioned whether it was "constitutional" for a mother to smoke while pregnant.

Which constitution would that be? And how long before the pre-pregnant get their own special ban?

Via Baylen at the fantastic To the People.

Comments

[Phileleutherus Lipsiensis]

He's probably trying to make some 14th amendment substantive due process claim. Or maybe he's making a Commerce Clause claim.

[the other Mark]

Or maybe he's a retarded hillbilly.

[Kip]

Baby production, like everything else under the sun, is of course interstate commerce.

[David]

Rep. Mathis should be asking whether it's constitutional for the congress to enact a law that only applies to pregnant women.

[curious]

So it's not OK to smoke if you are pregnant, but it is OK to stick a wire hanger up there?

Uh, am i missing anything?

[Thomas Paine's Goiter]

Who uses wire hangers? Plastic hangers have been the standard for 15 years now.

[ChicagoTom]

So it's not OK to smoke if you are pregnant, but it is OK to stick a wire hanger up there?

This is exactly the right kind of question.

If you believe that life starts with conception, then I don't see a problem with making it against that law to smoke when pregnant. After all, you are endangering an innocent life.

I think that anyone who believe that a fetus is a person or that life starts with conceptions should be solidly behind this and anything else that makes harmful to your baby actions a crime (driking alcohol, doing drugs, eating unhealthy)

That is the natural conclusion of the life begins at conception argument, is it not?

If aborting a fetus is a form of murder, then smoking while pregnant must be considered a form of child abuse.

[Brian Courts]

He's probably trying to make some 14th amendment substantive due process claim. Or maybe he's making a Commerce Clause claim.

PL2,

How so? Since when does the constitution act to prohibit an individual's behavior? It's not "unconstitutional" to murder someone - how could it be unconstitutional to smoke while pregnant? No, I think I'm going to go with the other Mark's "retarded hillbilly" explanation.

Of course, he could have been referring to the Arkansas state constitution I suppose - state constitutions seem generally to be statutory codes masquerading as constitutions anyway, so who knows what's in there?

[ed]

Maybe the retarded hillbilly actually picked up the Constitution, couldn't find pregnant or smoking anywhere in it and therefore assumed neither was constitutional. Then he had sex with his sister.

[Rich Ard]

If aborting a fetus is a form of murder, then smoking while pregnant must be considered a form of child abuse.

How about eating too much without proper exercise? Using antidepressants? Epidurals?

[rhywun]

This is just another step on the way to a universal ban. Nothing to see here - move along.

[John DeWitt]

Maybe the retarded hillbilly actually picked up the Constitution, couldn't find pregnant or smoking anywhere in it and therefore assumed neither was constitutional. Then he had sex with his sister.

Should we tell him that by that standard, sex and sisters are also unconstitutional? Or is it unconstitutional to depress a moron?

[sage +P]

rhywun has nailed it.

Now, for exhibit B, I direct you to a letter I wrote to the editor of the Seattle Post-Intelligencer:

Subj: Cigarette Sales Increase Despite Ban

Obviously, the nanny-staters have a lot of work to do. It must be rather discouraging to see that Washington state sold more cigarettes in spite of the most ridiculous, restrictive smoking ban in the country on top of the third highest tobacco tax. Well, the next step is clear, right? Extend that 25 feet out to 25 miles! That'll do it. But no, that seems rather extreme. So why not just go right for your real goal and ban smoking in cars, apartments, and homes. That's what you're really after. Or just ban sales of tobacco outright. I'm sure the state can get along without that $440 million they'll collect this year.

And give them credit - they published it. And I got a nasty message on my voicemail at home the same day.

[rhywun]

Washington state sold more cigarettes in spite of the most ridiculous, restrictive smoking ban in the country

Obviously, Big Tobacco's ramped-up ad campaign targeting kids has worked.

In other ridiculousness... New York State is showing ads telling me that I "may" be eligible for free stop-smoking aids ("Just dial 311!"). Now I don't know exactly how many bazillions of dollars they collect per year, but it seems to me that I should be overflowing in patches and gums by now.

[just another lurker]

sage +p, good for you. I'm curious, was that nasty message on your voicemail from someone with the P-I, or someone who read your letter?

Also, slightly off-topic local, are you following the story of what's happening with the Blue Moon Tavern here in Seattle? It's got a number of aspects that would appeal to the Reason crowd. If anyone's interested....

[sage +P]

JAL,

#1: It was some old lady, not someone with the P/I. I'm the only "sage commander" in my town, apparently, so she was able to dig my number up. Oh well, at least I know I'm ruffling some feathers, yeah?

#2: Have not heard about it. Where is it? Down at Pioneer Square where the bums are only allowed to buy a six pack at a time?

[Swillfredo Pareto]

I am no fan of smokers or underweight babies but this is pathetic. Check out his picture. This guy took second in the loud tie competition at the Arkansas state fair, but he aced the combover contest.

I think that anyone who believe that a fetus is a person or that life starts with conceptions should be solidly behind this and anything else that makes harmful to your baby actions a crime...That is the natural conclusion of the life begins at conception argument, is it not?

No it's not. Abortion actually ends a life; that is usually considered more than "harmful".

[Chad]

ChicagoTom: Yes, sufficiently unhealthy behavior by a pregnant woman could hypothetically be considered child abuse. However, the bar for child abuse is pretty high - far higher than the low-level risks of smoking.

[MainstreamMan]

"The city has said the Blue Moon, on Northeast 45th Street near Interstate 5, attracts nuisance clientele, including drug users. Hellthaler says he doesn't serve such people. The city has wanted him to sign a Community Good Neighbor Agreement and abide by security requirements and community oversight. Hellthaler has declined. (See "Lunar Eclipse," May 17.)"

And how is this connected to the smoking ban?
Not saying I am supporting the city here, just wondering about the connection...

[just another lurker]

Hey sage +p & MainstreamMan:

Here's a synopsis of what's happening. (Anyone not inclined feel free to skip.)

The Blue Moon is a genially seedy tavern located on the edge of the University District. It's been there for 72 years. At one time there was an effort to get it named a Historic Place. It's where the '60's counterculture lives on,lots of grey ponytails, Grateful Dead nights. Hippies and students and artists and blue collar workers, drinking cheap beer and smoking American Spirits or roll-your-owns of Drum. (Full disclosure: yeah, I've been there a few times over the years, but it's a little too granola for me.)

Anyway, the owner of the last 20 years, a guy named Gus Hellthaler, recently announced that he's disgusted and going to sell the place because of a fallout with the City of Seattle. According to Walt Crowley, a local historian, it started with the smoking ban, which changed the Moon's 'business model'. The Moon was a beer and wine only place. (As explanation to non-locals, Washington State has two categories of liquor licenses. It used to be that to serve hard liquor you had to be a restaurant and have 40% of your sales from food; that changed about 3-4 years ago.) To try and attract newer, younger, more upscale customers Hellthaler applied recently for a hard liquor permit. The city turned around and said he'd have to fill out one of their Good Neighbor Plans, detailing how he's going to handle all the social problems that arise from selling a dangerous substance (hard alcohol).

This went against Hellthaler's 'libertarian sensibilities'. He said screw this and made a fuss. The city reacted by portraying the Moon as a den of drug dealing and magnet for vagrants and other undesirable elements. (In fairness, the problems from the Moon are fairly low, and a lot of it is outside of their control. The street people are going to be outside there anyway. The place pretty much controls itself, at least inside.) The police started investigating; they detailed all of their response calls to the place, and even went over the business's own '86'd log. They concluded that the log showed that the cops SHOULD have been called more often than they were, rather than the place was policing itself.

So some heated articles and letters get written. And now when Hellthaler gets his yearly letter from the liquor board, he's shocked to discover that the Moon isn't being renewed for its EXISTING beer and wine license. The Mayor and City Attorney have put the word to the LCB. For daring to even speak against the Good Neighbor Plan requirement.

A couple of links:
http://blog.seattlepi.nwsource.com/night/archives/104017.asp
http://www.seattleweekly.com/news/0623/blue-moon.php

[David]

It was some old lady, not someone with the P/I. I'm the only "sage commander" in my town, apparently, so she was able to dig my number up.

Are there a lot of sage commanders in the surrounding towns? Or anywhere?

[sage +P]

I was using that in place of my real name, which was printed in the paper. That's how the old chick found my number.

[jared]

Tyranny I cry!

Let's take this up as a rallying point, and tap into all that anti-"pregnant smoking ban" bubbling in the underbelly of America. That'll get more people in a libertarian sort of mood.

[Robert]

He must mean "constitutional" in the physiologic, not governmental, sense of "constitution".

[sage +P]

JAL,

Gee, that *is* a shock. Retaliation from public officials? Who'd have thunk it.

Canned goods and ammunition, folks. And if you can get a source of clean water, so much the better.