Opinion Web Exclusive

Smoking bans pose constitutional questions

Our nation’s war on smokers is reaching a fast climax.

Lawmakers in New York City approved measures on Wednesday to raise the legal age of tobacco purchases from 18 to 21. It’s the most stringent criterion in any American city.

Mayor Michael R. Bloomberg has been waging a battle on public fumes for some time, from pushing to curb public inhalation to similar efforts at striking the age at which New Yorkers begin smoking. He’s been mostly successful.

The New York Times detailed the opinion of Democratic assemblywoman Linda B. Rosenthal of Manhattan: “He had other battles that he wanted to win before the end of his term, things he can accomplish in the next couple of months,” she said.

Whether to take on “the long, drawn-out battle” entailed by a display ban, she added, will be up to his successor.

The age requirement for smoking in most states is 18, but some have pushed it to a year later. The increase is almost always accomplished only after months of pushing from the parties concerned, and the variables underlying the decisions made almost always extend past health concerns alone — the political climate in the districts at hand, the popularity of the entities proposing the notion and the political involvement among those whom the bill would be most likely to impact.

Most of the time, it’s pretty nil.

As a nod toward public health, it’s an obviously beneficial move. Tobacco causes cancer. That’s non-negotiable. Alternatives to cigarette cartons may be less overtly detrimental to passersby — from chewing tobacco to electronic light-ups — but they, too, have their downside. They kill you.

“This is literally legislation that will save lives,” Council speaker Christine C. Quinn said shortly before the bill passed 35 to 10.

And it might. But it raises the question of limits: At what point does a ban reach its climax? James Calvin, the president of the New York Association of Convenience Stores, argued that the incidental ban on cigarettes can only give way to further, more malicious bans.

Constitutionality becomes an issue when young people are asked to lay their lives on the line as defenders of public health despite their own inability to purchase a pack of smokes. It sets the chain for a double standard. It sets a precedent that’ll be hard to contain.

Then again, there are simpler reasons for skepticism. Moments before the final vote, Nicole Spencer, 16, was in Union Square in Manhattan with a cigarette wedged between her fingers. Her verdict?

“I don’t think that’s going to work.”

Senior staff columnist Bryan Washington is an English junior and may be reached at [email protected].


  • Where is the constitutional issue? And if this alleged constitutional issue actually exists, how does it not apply to alcohol? And if it applies to alcohol, how come there has been no legal challenge to the drinking age?

    • If we are saying that 18 year olds should be accountable for all unpleasant things like going to war and being responsible for signing legal contracts, it follows that we also allow them the adult privilege of purchasing adult products. If we are saying that 18 year olds are mature enough to vote for presidents but not mature enough to decide to buy or not buy a beer or a pack of cigarettes, then we have our priorities all blanked up. Either make it all for 18 year old legal adults or change the age to 21.

      • It wouldn’t bother me if the age of majority was raised. Recent studies suggest that the human brain isn’t fully mature until after age 24 anyway. It is not like 18 is a universal constant for becoming an adult. I know Japan’s age of majority is 20, apparently other countries set the age much lower ( http://en.wikipedia.org/wiki/Age_of_majority ).

        My issue is that the article’s author, Bryan Washington, promised a constitutional issue and then failed to deliver. If he claims a constitutional right to smoke under 21, then he needs to point to a constitutional clause, a constitutional amendment, or case law showing judicial interpretation of a constitutional right to smoke to all adults. Clearly dude doesn’t know his constitution.

        • I don’t know that the issue is Constitutional, but it certainly is morally wrong to choose what one can and cannot do based upon idealistic Nanny style philosophy. It is, IMO, the height of hypocrisy to say to young men and women that we not only want but actually expect you to face the risk of losing your life in war but then say that those same individuals cannot choose to buy products that might endanger their lives. Anti-smokers are truly hypocritical zealots when they send an 18 year old to face Al Queda and then tell that same person he cannot buy a pack of cigarettes or a beer while serving. It is just so outrageously hypocritical that it boggles my mind.

          • Forgive me if I don’t really care if 18-20 year-olds are being denied the right to smoke tobacco and drink alcohol while they are free to sign up to suck at the government teat. There is no draft. Anyone and everyone is free to abstain from joining the military until these age restrictions are repealed.

            And you are free to fight against mandatory seat-belt laws, speed limits, OSHA standards, age requirements, or whatever law the nanny state unfairly imposes telling you what you can or can’t do. Go ahead and take up whatever libertarian cause du jour you want or move to some libertarian utopia. As for me I like it here and there are greater issues to fight for.

            In reality, morality doesn’t enter into what laws the government can and cannot pass. In America, it is all about what you can get a majority of elected representatives to agree upon that the Supreme Court will sign off on. To whine about the nanny state sending kids who can’t drink and smoke off to war doesn’t amount to anything.

            A majority of your representatives agreed to (or did nothing to prevent) a war. Another majority of your representatives agreed to set drinking, smoking, and voting ages. The fact is you may not even find one hypocrite that supported both of these issues because some people quit or were voted out, or the laws were legislated at different levels of government. “Hypocritical” laws are bound to arise from such a system of government even if you could exclude all hypocrites from office because different people have written different laws at different times.

            None of these decisions have come up against a credible constitutional challenge and if the author had even bothered to do any research he would have known that. Why he didn’t do that research and no editor bothered to question him is a serious issue. It is tantamount to publishing lies which is certainly morally wrong.

            We should demand better from our journalists and newspapers.

    • Josh, the repeal of Prohibition turned the power for alcohol over to the states. The universal 21 age became fact only after the feds played a loophole in the Constitution and blackmailed the states with the threat of withholding federal highway money if they didn’t raise their drinking ages. I believe they *may* have done something similar with 18 and tobacco purchases about 30 years ago, but I’m not certain of that.

      They shouldn’t have been allowed to get away with the first step. Just as with smoking, you’ll find that when you give more power to the “men with the guns” they’re never satisfied: it’s like paying off a mobster: they’ll always be back for more.

      – MJM

  • How about a challenge to the legality of calling an 18 year old capable of making voting decisions, be charged as an adult in a crime, be responsible for making a legal contract and fight in wars but not able to buy a beer or a pack of cigarettes? It should be all or nothing. Either give all rights of adults to 18 year olds or raise the legal age for all of these things to 21.

    • And since we can charge 14 year-olds as adults, shouldn’t we lower the driving age, the voting age, the smoking age, the drinking age, and the age of consent? All or nothing, amirite?

      Perhaps you forgot that the voting age used to be 21 across many states but it was lowered in order to justify the drafting of younger men into the Vietnam War. Clearly empire building was more important than having a mature electorate. (It didn’t really matter since 18 year-olds don’t vote anyway.)

      • That makes no sense. I did not forget that the voting age used to be 21 or that the age for buying beer used to be 18. As it stands now, the cherry picking of rights for legal adults seems hypocritical at best

        • But apparently you believe the cherry picking of rights is alright for children. Are you next going to suggest I should be able to demand medicare and social security at 18 as well?

  • As for smoking bans in Houston you can thank the self-righteous anti-smoking crusades of City councilwoman, Elenore Tinsley for getting it started in the early 1990s and the numerous Attorneys General who started suing Big Tobacco — also in the early 90s. Everything after that, is after effect and justification for imposing yet more restrictions. As for the 18-21 age limit drinking issue, as well as numerous other so-called revised anti-DUI laws that have come into play since the 1980s, look to the crusades of MADD (Mothers Against Drunk Driving) in every statehouse in the country during the period.

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