# Proposed NJ Legislation Would Snuff Driver Smoking Rights **URL:** \ **Category:** The BBQ Pit\ **Created:** [July 25, 2005, 4:43am UTC](https://boards.straightdope.com/t/proposed-nj-legislation-would-snuff-driver-smoking-rights/314009 "2005-07-25T04:43:30Z")\ **Posts on this page:** 20\ **Page:** 5
**Author:** ![Homebrew](https://avatars.discourse-cdn.com/v4/letter/h/c89c15/32.png) [@Homebrew](https://boards.straightdope.com/u/Homebrew)\ **Post date:** [July 26, 2005, 7:25pm UTC](https://boards.straightdope.com/t/proposed-nj-legislation-would-snuff-driver-smoking-rights/314009/81 "2005-07-26T19:25:17Z")
> [@Otto](#): > > Can you cite me a provision of the New Jersey constitution which places regulating driving outside the power of the state? Or smoking, for that matter. The proper question is “Can you cite any provision of the New Jersey Constitution which _allows_ it to do these things?” ---
**Author:** ![Homebrew](https://avatars.discourse-cdn.com/v4/letter/h/c89c15/32.png) [@Homebrew](https://boards.straightdope.com/u/Homebrew)\ **Post date:** [July 26, 2005, 7:29pm UTC](https://boards.straightdope.com/t/proposed-nj-legislation-would-snuff-driver-smoking-rights/314009/82 "2005-07-26T19:29:10Z")
New Jersey Consitition: 1 All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness. 2 a. All political power is inherent in the people. Government is instituted for the protection, security, and benefit of the people, and they have the right at all times to alter or reform the same, whenever the public good may require it. ---
**Author:** ![Liberal](https://avatars.discourse-cdn.com/v4/letter/l/848f3c/32.png) [@Liberal](https://boards.straightdope.com/u/Liberal)\ **Post date:** [July 26, 2005, 7:37pm UTC](https://boards.straightdope.com/t/proposed-nj-legislation-would-snuff-driver-smoking-rights/314009/83 "2005-07-26T19:37:04Z")
> [@This Year's Model](#): > > [Democratic-Republican](http://en.wikipedia.org/wiki/United_States_Democratic-Republican_Party). > > Hie ye directly to your voter’s office and tell them you want to register as a Democratic-Republican. > > Or change your username again. 😃 My username represents (and did before as well) my philosophy, not my political party. 🙂 ---
**Author:** ![Happy\_Fun\_Ball](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/happy_fun_ball/32/17664_2.png) [@Happy\_Fun\_Ball](https://boards.straightdope.com/u/Happy_Fun_Ball)\ **Post date:** [July 26, 2005, 7:42pm UTC](https://boards.straightdope.com/t/proposed-nj-legislation-would-snuff-driver-smoking-rights/314009/84 "2005-07-26T19:42:56Z")
> [@Otto](#): > > Um…it’s a place that’s open to the public? You know, I used to think this too… that was until I tried to get in a nightclub in NY. I don’t know why, but the guy at the door wouldn’t let me in but was letting all these other people in. I was even wearing my best leather pocket protector. No really, if I can put a sign in the window of my restaurant that says “no shoes, no shirt, no service” and have it be legal, why can’t I put a sign that says “whiny bitches not allowed unless they smoke”? Are the shirtless and shoeless not the public? With respect to the hipper clubs in Manhattan and LA, are the uncool dweebs not the public? Why are these public places not open to them? Regarding discrimination for race, religion, sex, etc… The government has made laws that makes it illegal to discriminate on these basis. One could argue that these laws were created because the discrimination against African Americans in the south caused a rift in our society that resulted in violence and had the potential to lead to a popular violent uprising. Because of this potential the state had the right and even the duty to protect itself by making these forms of discrimination illegal. Whatever… I don’t see a similar motivation though to make smoking illegal, how is the state protecting itself? If smoking is legal, then I don’t see why I cannot smoke on someone else’s private property if they agree to let me. I do not see a distinction between commercial and private property, can you please explain it to me? For instance, if I set up a lemonade stand in my front yard has it suddenly become public land? Can I no longer then smoke in my front yard? ---
**Author:** ![Liberal](https://avatars.discourse-cdn.com/v4/letter/l/848f3c/32.png) [@Liberal](https://boards.straightdope.com/u/Liberal)\ **Post date:** [July 26, 2005, 7:54pm UTC](https://boards.straightdope.com/t/proposed-nj-legislation-would-snuff-driver-smoking-rights/314009/85 "2005-07-26T19:54:16Z")
> [@Otto](#): > > Can you cite me a provision of the New Jersey constitution which places regulating driving outside the power of the state? Or smoking, for that matter. Why is it that, in your view, rights default to the state to dispense as it pleases? It seems to me that that means that you are not entitled to the same rights as heterosexuals until and unless the state grants them to you. I mean, if you had those rights to begin with, and the state is an obstacle to them, then you have a legitimate claim against the state. But if you never had those rights at all, and they belong to the state, then you have no claim. They aren’t your rights to demand. ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [July 26, 2005, 10:08pm UTC](https://boards.straightdope.com/t/proposed-nj-legislation-would-snuff-driver-smoking-rights/314009/86 "2005-07-26T22:08:04Z")
> [@Homebrew](#): > > The proper question is “Can you cite any provision of the New Jersey Constitution which allows it to do these things?” > [@Homebrew](#): > > New Jersey Consitition: > > All political power is inherent in the people. Government is instituted for the **protection, security, and benefit of the people** , and they have the right at all times to alter or reform the same, whenever the public good may require it. There you go. The state has the power to regulate driving for the protection, security, and benefit of the people. The people have the right to remove driving regulation from the ambit of the state, should they so desire. Note that I have no idea if the state’s power to regulate driving _actually_ comes from this clause, but if I had a gun to my head to pick out a spot that spot wouldn’t be a bad place to start. > [@Eyer8](#): > > Regarding discrimination for race, religion, sex, etc… The government has made laws that makes it illegal to discriminate on these basis. And from the sounds of it, you’re OK with that. So it’s not state exercise of power to restrict rights that you object to _per se_, it’s state exercise of power to restrict rights in a manner with which you personally disagree. > [@Eyer8](#): > > I do not see a distinction between commercial and private property, can you please explain it to me? Commercial property is private property used for a commercial purpose. In using the property for a commercial purpose, the owner agrees to abide by any applicable government regulations pertaining to that commercial purpose. ---
**Author:** ![SteveG1](https://avatars.discourse-cdn.com/v4/letter/s/bb73d2/32.png) [@SteveG1](https://boards.straightdope.com/u/SteveG1)\ **Post date:** [July 26, 2005, 11:31pm UTC](https://boards.straightdope.com/t/proposed-nj-legislation-would-snuff-driver-smoking-rights/314009/87 "2005-07-26T23:31:15Z")
> [@Homebrew](#): > > States have Constitutions also. Also, state laws can be challenged and be tossed out. That is something called Supreme Court. A state law can be found unconstitutional. ---
**Author:** ![Homebrew](https://avatars.discourse-cdn.com/v4/letter/h/c89c15/32.png) [@Homebrew](https://boards.straightdope.com/u/Homebrew)\ **Post date:** [July 26, 2005, 11:40pm UTC](https://boards.straightdope.com/t/proposed-nj-legislation-would-snuff-driver-smoking-rights/314009/88 "2005-07-26T23:40:55Z")
> [@Otto](#): > > So it’s not state exercise of power to restrict rights that you object to _per se_, it’s state exercise of power to restrict rights in a manner with which you personally disagree… Bricker? Is that you? Are you arguing just for the sake of arguing now? Since when do you have problem with the EEOC? ---
**Author:** ![SteveG1](https://avatars.discourse-cdn.com/v4/letter/s/bb73d2/32.png) [@SteveG1](https://boards.straightdope.com/u/SteveG1)\ **Post date:** [July 26, 2005, 11:44pm UTC](https://boards.straightdope.com/t/proposed-nj-legislation-would-snuff-driver-smoking-rights/314009/89 "2005-07-26T23:44:56Z")
> [@Cerri](#): > > Your situation may have far bigger implications, but it doesn’t his mean the loss of liberty he feels is being imposed on him should be scoffed at. You are a wise person. You summed it up perfectly. We stand together or we hang separately. ALL rights and freedoms are to be defended, not only those we personally care about or approve of. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [July 27, 2005, 12:55am UTC](https://boards.straightdope.com/t/proposed-nj-legislation-would-snuff-driver-smoking-rights/314009/90 "2005-07-27T00:55:40Z")
> [@SteveG1](#): > > The above are verbatim. Just like I said, just because some rights are enumerated (listed) does not mean that any others must be listed. Any powers not claimed by the Fed default to the states, and if they don’t claim them, they belong to the individual. These powers have to be actively claimed and written into law. > > This should put to rest any argument that all rights come **from** the government. Rather, exactly the opposite is written (hard coded) in. All rights or powers the government have, are **granted by the people to the government**. > Hopefully there are some constitutional attorney people out there who can verify this for me. Not that I personally have any doubts. Your view of the Ninth Amendment, at least, is completely incorrect. The Ninth Amendment exists to prevent the argument that the existence of the Bill of Rights invalidates other legal sources of rights (e.g., statutory rights and state constitutional rights). It prevents, say, opponents of the Massachusetts gay marriage decision from arguing that the decision is invalid because the federal constitution’s enumeration of rights is exclusive. It is not itself a source of substantive rights. We’ve discussed this point many times. Among other places, it’s buried in these threads: [Rights? What’s a Right?](http://boards.straightdope.com/sdmb/showthread.php?s=&threadid=194286) [Is Scalia Nuts?](http://boards.straightdope.com/sdmb/showthread.php?s=&threadid=170905) [Supreme Court hears challenge to Texas Sodomy Ban](http://boards.straightdope.com/sdmb/showthread.php?s=&threadid=172810) [Conservative dopers vs. gay sex decision](http://boards.straightdope.com/sdmb/showthread.php?s=&threadid=193835) [Democrats oppose Hispanic judge: “he’s too competent!”](http://boards.straightdope.com/sdmb/showthread.php?s=&threadid=159876) [Strict constructionists: How about adding a constitutional “right to privacy”](http://boards.straightdope.com/sdmb/showthread.php?s=&threadid=182770) [A moment of your time, please, Justice Scalia](http://boards.straightdope.com/sdmb/showthread.php?s=&threadid=219203) [What do the Ninth and Tenth Amendments really mean?](http://boards.straightdope.com/sdmb/showthread.php?t=195525) [The State of the CIVIL Union Address](http://boards.straightdope.com/sdmb/showthread.php?t=235947) And not a 9th thread, but just for fun: [Dewey! Minty! Come a runnin’!!](http://boards.straightdope.com/sdmb/showthread.php?s=&threadid=176486) And just because I need a place to store links to other constitutional discussions: [Judicial activism is a good thing, unless you disagree! And how long have we had it?](http://boards.straightdope.com/sdmb/showthread.php?t=287438) [Pat Robertson claims federal judges are greater threat than al Qaeda/Nazi Germany](http://boards.straightdope.com/sdmb/showthread.php?t=314828) [Sean Hannity and listeners, a confederacy of hypocrites](http://boards.straightdope.com/sdmb/showthread.php?t=309947) ---
**Author:** ![SteveG1](https://avatars.discourse-cdn.com/v4/letter/s/bb73d2/32.png) [@SteveG1](https://boards.straightdope.com/u/SteveG1)\ **Post date:** [July 27, 2005, 2:23am UTC](https://boards.straightdope.com/t/proposed-nj-legislation-would-snuff-driver-smoking-rights/314009/91 "2005-07-27T02:23:58Z")
> [@SteveG1](#): > > Amendment IX > The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. > > 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. > > This should put to rest any argument that all rights come from the government. Rather, exactly the opposite is written (hard coded) in. All rights or powers the government have, are granted by the people to the government. > Hopefully there are some constitutional attorney people out there who can verify this for me. Not that I personally have any doubts. > [@Dewey](#): > > The Ninth Amendment **exists to prevent the argument that the existence of the Bill of Rights invalidates other legal sources of rights** (e.g., statutory rights and state constitutional rights). It prevents, say, opponents of the Massachusetts gay marriage decision from arguing that the decision is invalid because the federal constitution’s enumeration of rights is exclusive. **It is not itself a source of substantive rights**. The snips below sort of say what I thought I was saying. which was that rights do not have to be expressly given. Let’s say there is no prohibition against painting cats purple in federal, state or local laws. Given that, isn’t it legal to paint cats purple until and unless a law is written making it illegal? I was reacting to the statement that people have no rights except those that are granted/given. Or am I totally lost? You’ll probably have to dumb it down a lot for me (no sarcasm intended). > [@Fang](#): > > Amendment 9 basically means that just because the Constitution lists a bunch of rights specifically, that **doesn’t mean those are the only rights anybody can have**. > > Amendment 10 says that unless the Constitution explicitly reserves a power (e.g. coin money, raise an army) to the federal government, or explicitly denies it to the states, that right belongs to each of the individual states respectively. My intepretation of “or the people” is that unless the states specifically grant themselves those powers, they don’t have them, and thus they fall to individual citizens. > [@Spoke](#): > > The founding fathers **never intended the Bill of Rights to be an exhaustive list of the rights of man**. In fact, it was the fear that it would be taken as such which prompted them to include the 9th Amendment in the first place. > [@Spoke](#): > > The Bill of Rights **does not purport to create rights, only recognize them** (an important distinction). When the idea of tacking on a Bill of Rights at the end of the Constitution was raised, some objected that it would be impossible to list all rights, and that any attempt to do so would create the risk that the enumerated rights would be regarded as an exhaustive list. The 9th Amendment was inserted specifically to guard against that reading. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [July 27, 2005, 3:19am UTC](https://boards.straightdope.com/t/proposed-nj-legislation-would-snuff-driver-smoking-rights/314009/92 "2005-07-27T03:19:31Z")
> [@SteveG1](#): > > The snips below sort of say what I thought I was saying. which was that rights do not have to be expressly given. Let’s say there is no prohibition against painting cats purple in federal, state or local laws. Given that, isn’t it legal to paint cats purple until and unless a law is written making it illegal? I was reacting to the statement that people have no rights except those that are granted/given. Or am I totally lost? You’ll probably have to dumb it down a lot for me (no sarcasm intended). This is exactly right, actually: anything not prohibited is permitted. However, when we speak of “rights,” at least in the legal sense, we generally aren’t just referring to the mere absence of prohibition, because that can be changed in a legislative moment. ---
**Author:** ![Liberal](https://avatars.discourse-cdn.com/v4/letter/l/848f3c/32.png) [@Liberal](https://boards.straightdope.com/u/Liberal)\ **Post date:** [July 27, 2005, 10:26am UTC](https://boards.straightdope.com/t/proposed-nj-legislation-would-snuff-driver-smoking-rights/314009/93 "2005-07-27T10:26:51Z")
> [@Dewey](#): > > [The Ninth Amendment] is not itself a source of substantive rights. Amen to that. ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [July 27, 2005, 10:30am UTC](https://boards.straightdope.com/t/proposed-nj-legislation-would-snuff-driver-smoking-rights/314009/94 "2005-07-27T10:30:37Z")
> [@Homebrew](#): > > Bricker? Is that you? Are you arguing just for the sake of arguing now? Since when do you have problem with the EEOC? Who said anything about the EEOC? I’m just pointing out what appears to be a contradiction in the position of someone arguing a contrary POV. ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [July 27, 2005, 10:34am UTC](https://boards.straightdope.com/t/proposed-nj-legislation-would-snuff-driver-smoking-rights/314009/95 "2005-07-27T10:34:24Z")
> [@SteveG1](#): > > Also, state laws can be challenged and be tossed out. That is something called Supreme Court. A state law can be found unconstitutional. And should this particular proposal pass, and should someone wish to challenge it on constitutional (state, federal or both) grounds, I would very much enjoy following the case. What provisions of either the state or federal constitution do you think this proposal would violate? ---
**Author:** ![SteveG1](https://avatars.discourse-cdn.com/v4/letter/s/bb73d2/32.png) [@SteveG1](https://boards.straightdope.com/u/SteveG1)\ **Post date:** [July 27, 2005, 11:55am UTC](https://boards.straightdope.com/t/proposed-nj-legislation-would-snuff-driver-smoking-rights/314009/96 "2005-07-27T11:55:06Z")
> [@Otto](#): > > And should this particular proposal pass, and should someone wish to challenge it on constitutional (state, federal or both) grounds, I would very much enjoy following the case. What provisions of either the state or federal constitution do you think this proposal would violate? I don’t know. That’s the honest answer. Maybe they could point to cell phone talkers, newspaper readers, eaters, and then argue that there are already laws against unsafe operation of motor vehicles - thereby making this new law unnecessary? Maybe they could argue that smokers are being singled out specifically and claim that it is because of unpopularity instead of safety? By the way Dewey, thanks for the clarification/ simplification. ---
**Author:** ![Homebrew](https://avatars.discourse-cdn.com/v4/letter/h/c89c15/32.png) [@Homebrew](https://boards.straightdope.com/u/Homebrew)\ **Post date:** [July 27, 2005, 12:15pm UTC](https://boards.straightdope.com/t/proposed-nj-legislation-would-snuff-driver-smoking-rights/314009/97 "2005-07-27T12:15:02Z")
> [@Otto](#): > > Who said anything about the EEOC? I’m just pointing out what appears to be a contradiction in the position of someone arguing a contrary POV. It’s not a contradiction. Some regulations, like driving on the correct side of the road, stop signs and to some extent speed limits, actually prevent bedlam and improve safety - a legitimate governmental role. A smoking while driving ban would affect at best one in 200 accidents, which is a statistically insignificant amount. Therefore it is an unnecessary, intrusive measure. ---
**Author:** ![SteveG1](https://avatars.discourse-cdn.com/v4/letter/s/bb73d2/32.png) [@SteveG1](https://boards.straightdope.com/u/SteveG1)\ **Post date:** [July 27, 2005, 12:33pm UTC](https://boards.straightdope.com/t/proposed-nj-legislation-would-snuff-driver-smoking-rights/314009/98 "2005-07-27T12:33:12Z")
> [@Homebrew](#): > > It’s not a contradiction. Some regulations, like driving on the correct side of the road, stop signs and to some extent speed limits, actually prevent bedlam and improve safety - a legitimate governmental role. A smoking while driving ban would affect at best one in 200 accidents, which is a statistically insignificant amount. Therefore it is an unnecessary, intrusive measure. To me, it seems pretty apparent that the only reason for the new law is to cater to those who simply don’t like smoking, and their underlying motives have nothing to do with public safety at all. ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [July 27, 2005, 1:00pm UTC](https://boards.straightdope.com/t/proposed-nj-legislation-would-snuff-driver-smoking-rights/314009/99 "2005-07-27T13:00:41Z")
> [@Homebrew](#): > > It’s not a contradiction. Sure it is. > [@Homebrew](#): > > Some regulations, like driving on the correct side of the road, stop signs and to some extent speed limits, actually prevent bedlam and improve safety - a legitimate governmental role. A smoking while driving ban would affect at best one in 200 accidents, which is a statistically insignificant amount. Therefore it is an unnecessary, intrusive measure. So what you’re saying is, you have no problem with government regulations which infringe upon your liberties. Just so long as you personally believe that the regulation serves some legitimate government purpose. So in other words, like **Eyer8** , it’s not state exercise of power to restrict rights that you object to per se, it’s state exercise of power to restrict rights in a manner with which you personally disagree. By the way, how many accidents does a regulation have to affect before it becomes “statistically significant”? ---
**Author:** ![Liberal](https://avatars.discourse-cdn.com/v4/letter/l/848f3c/32.png) [@Liberal](https://boards.straightdope.com/u/Liberal)\ **Post date:** [July 27, 2005, 1:37pm UTC](https://boards.straightdope.com/t/proposed-nj-legislation-would-snuff-driver-smoking-rights/314009/100 "2005-07-27T13:37:39Z")
> [@Otto](#): > > So in other words, like **Eyer8** , it’s not state exercise of power to restrict rights that you object to per se, it’s state exercise of power to restrict rights in a manner with which you personally disagree. Frankly, I thought that was _your_ position. You still haven’t explained why gays should have the same rights as straights if rights belong to the government. Why should they be given something to which they have no claim? If something is government’s to give, then it isn’t yours to demand. On the other hand, if you already were born with the rights, but government is obstructing them, then your claim to those rights is clearly legitimate. [Previous page](https://boards.straightdope.com/t/proposed-nj-legislation-would-snuff-driver-smoking-rights/314009.md?page=4) [Next page](https://boards.straightdope.com/t/proposed-nj-legislation-would-snuff-driver-smoking-rights/314009.md?page=6)