Robert, just as a point of fact, the Bill of Rights application to state laws has nothing to do with the Supremacy Clause. The BoR was always considered as limitations on the federal government and not on the states up until after the 14th Amendment was passed.

The 14th Amendment had to be passed and later court-interpretted to have the BoR protect citizens against their state government’s intrusions.

#36 Cynical In CA

I think it’s cute how y’all discuss whether the government has the power to do anything.

Thank you for noticing. You’re kind of a cutie yourself.

The government has all the fancy weaponry and the legal cover to use it.

From the film The Aviator: “Not me, Howard. The United States government. We just beat Germany and Japan. Who the hell are you?”

Have fun tilting at windmills, people. The government is here to stay and it will do whatever the fuck it wants to do, your puny little opinions be damned.

In fact, it’s not even on-topic for that thread either. I’m clearly losing it. Probably the result of too much whiskey and too many women. Well, at least the former. The latter is impossible.

We’re sitting here talking about whether the Constitution allows the government to ban smoking in the workplace, but here is a case where the federal government is blatantly violating an explicit Constitutional prohibition on limiting speech and no one says a word. I could be wrong, of course, but I don’t think the First Amendment says “Congress shall make no law … abridging the freedom of speech except when it’s Walmart doing the speaking.”

By the way, I consider freedom of speech to be absolute, despite the oft repeated nonsense about yelling Fire! in a crowded theater.

The only thing amazing about the smoking ban is that it brought attention to the degree of control government has been exercising over business for decades. Usually, workplace regulation is only a burden for the employers, so no one else gives a shit.

If society’s norms change so that rights are recognized which would not have been recognized before, the proper way to protect such rights is by passing laws or Constitutional amendments to protect them. The notion that the Men in Black Robes should decide what rights should be protected is preposterous.

I do not approve of state legislation that would outlaw sex toys, but I see no legitimate basis for the federal government to prevent state legislatures from passing such stupid legislation, beyond the fact that legislators who do so may find themselves unelected.

#22 Sam

What if the sign said “I can charge blacks more for beer than whites” or, “Whites are allowed to beat blacks in here”. Surely by your logic that is within the owners right to do on his property, no? This would likely not effect his business in the appropriate community.

I can’t speak for Zeb, but if you had addressed that question to me, I would have said you are absolutely correct. At least about the pricing policy. And the reason is this: The government does not have the power or the capacity to guaranty citizens “fair” treatment from everyone under all circumstances. If that’s what the public demands from government, then the result will be more and more restrictions and dictation of behavior. The will be no end, because there is no limit to the kinds of activity that can be discriminatory.

And, there will most assuredly be no end to the public’s demands to force other people to be “fair”.

Finally, if the government has the power to control your private property beyond what it takes to protect the private property of others, then it’s no longer your private property. It’s theirs.

This reminds me of the case where the EEOC demanded that Hooters hire men as waiters. The only difference then was that their action just happened to be unpopular with the public. When the public agrees, there is no end to what can pass as perfectly acceptable. Smoking bans are one of those things.

Moreover, just because the Constitution bars the Federal Government from doing something, and is the supreme law of the land, doesn’t mean that State governments are also barred from doing the very same thing. For example, “Congress shall make no law respecting an establishment of religion” is not incompatible with non-acts-of-Congress such as “… no Protestant inhabitant of this Colony shall be denied the enjoyment of any civil right … but that all persons, professing a belief in the faith of any Protestant sect. … shall be capable of being elected into any office of profit or trust, or being a member of either branch of the Legislature, and shall fully and freely enjoy every privilege and immunity, enjoyed by others their fellow subjects” [1776 Constitution of New Jersey], or with requiring all office-holders to attest: ” I, A B. do profess faith in God the Father, and in Jesus Christ His only Son, and in the Holy Ghost, one God, blessed for evermore; and I do acknowledge the holy scriptures of the Old and New Testament to be given by divine inspiration.” [1776 Constitution of Delaware]. See similarly the 1776 Constitution of Maryland.

These practices specifically do violate the 14th amendment (denying privileges or immunities based on religion). But the Constitution also says “No capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.” Does this limit the taxing powers of the states? Given your beliefs, please explain the necessity of the many clauses of the first part of the 1844 NJ constitution, which essentially duplicate parts of the Bill of Rights. By the way, you may want to compare this to that.

In fact, the idea that (parts of) the Bill of Rights are incorporated against the states is quite recent (about 80 years old). It may be a good one, policy-wise, but it’s not obvious.

Specifically in the case at hand the 9th amendment was supposed to be a bulwark against Federal intervention in State matters. It more-or-less says: “a. The Federal government may not ban sex toys [since that would abridge the people's unenumerated rights to privacy, sexual autonomy, etc]” and “b. The Federal government may not interfere when the people of a State decide the extent to which they reserve their privacy rights to themselves and the extent to which they delegate them to their State to regulate”.

Sam-
You have a right not to be exposed to smoke until you violate the private property rights of the bar owner. His right to do with his property as he wishes trumps your right not to be exposed to smoke. In order for the bar owner to violate your rights, YOU have to voluntarily enter the bar, thus voiding your right. And yes I would also apply this to the extremes of beating blacks and allowing theft. If you’re dumb enough to enter that bar, you deserve it.

You’re right that a more detailed discussion of the 9th amendment, as incorporated against the states, is a subject for another day requiring another post.

I should note that whily Randy Barnett has his perspective, I think it’s accurate to say that it is highly, highly controversial. Even as the Supreme Court has struck down state laws on condoms, homosexual sex, and abortion (all decisions I disagree with, btw), they have never done so according to the 9th Amendment, but pursuant to what they view as “substantive due process” under the 14th Amendment. Randy Barnett poses a much, much, much more radical interpretation that Constitutional jurisprudence should use the 9th Amendment, basically as a libertarian hammer, to strike down almost all state laws that infringe upon libertarian-understood freedom. As Griswold, Roe, and Lawrence were controversial decisions striking down state laws on condoms, abortion, and homosexual sex, the decisions used substantive due process that mirrored the substantive due process of the Lochner era (except that it dealt with sexuality instead of contracts). Randy Barnett poses a much more radical agenda than using substantive due process (which is regarded as a sham by many that is just a perfect example of judicial legislating from the bench).

All I’m saying is, just because Randy says something doesn’t mean it carries any weight. It’s a radical theory.

Don’t be silly. You realize it takes 2 people to have a blowjob right? So if there was a law that compelled people to give blowjobs that would be a violation of their rights? Nobody can tell you you cant have a device that gives you a blowjob though!

P.S. I’m going to assume you couldn’t refute anything I said since you resorted to sillyness

I’ll also point out that regardless of if the owner posted in his bar. “people are allowed to steal from you in here” the government would still be allowed to, and would, prosecute people that stole, regardless of the owners rule.

What if the sign said “I can charge blacks more for beer than whites” or, “Whites are allowed to beat blacks in here”. Surely by your logic that is within the owners right to do on his property, no? This would likely not effect his business in the appropriate community.

You do have a right not to smell like smoke or to breathe second hand smoke, and you can exercise that right by not going to places where people smoke. Similarly, smokers and bar owners have a right to smoke or maintain a smoky establishment and they can exercise that right by maintaining and regulating their private property as they see fit.