Tuesday, January 06, 2009

You don't want a Constitution, you want a Magic Wand.

CrankyProf links to a particularly egregious example of ThereOughttaBeALaw-ism wherein one "Happy Hospitalist" pines for... are you ready for this? A federal ban on smoking in public.

Not surprisingly, I am against this idea, and rather vehemently. The reason, however, is not what you think. See, my objection to the whole scheme centers around one particular keyword, and that keyword is not "public", "ban", or even "smoking": It's "federal".

The instruction pamphlet for running this country is a pretty short one, and the subsection on the powers of Congress is a meager cluster of paragraphs, mostly full of boring stuff like coining money and declaring war. There is no Constitutional provision even for a federal law against murder, unless perhaps the murder is of a federal official engaged in the performance of his duties to the republic.

Let me repeat that: By black letter law of the Constitution, killing unborn differently-abled babies because you hate their race or religion is okey-dokey, unless those unborn babies are postal workers. And on the clock, to boot. If you wish to outlaw the killing of unborn differently-abled babies because of their race or religion, you need to talk to your state or local lawmakers, or amend the Constitution.

Unfortunately, over the years various emanations and penumbras have been discovered, as well as acres of blank canvas in and amongst the letters "i-n-t-e-r-s-t-a-t-e c-o-m-m-e-r-c-e" and "g-e-n-e-r-a-l w-e-l-f-a-r-e" and now we have otherwise sane and reasonable (and allegedly educated) people like this "Happy Hospitalist" guy proposing federal laws banning whatever it is they don't like, from public smoking and polyunsaturated fat to, for all we know, unsightly nose hair.

Oh, well, it was a nice republic while it lasted.

46 comments:

Bob@thenest said...

I'm a non-smoker and don't like to be around people who are smoking, but I think it's about time we had a federal ban on federal bans.

Turk Turon said...

You got THAT right!

Is there ANY "intra-state" commerce left?

The Happy Hospitalist said...

perhaps we should allow smoking in airplaines to come back.

Perhaps we should abolish federal safety standards for clean water

Perhaps we should abolish federal speed limit guidelines

Perhaps we should abolish federal safety standards for the disposal of nuclear waste.

There are thousands of federal laws that protect the public from daily hazards of living.

Toxic smoke residue is no different

Nathan Brindle said...

Any sentence beginning "There ought to be a law" should be supplied with a period -- in the caliber of your choice.

Tam said...

Happy Hospitalist,

1) That should be up to the owner of the airplane.

2) Depends. Is it water that the fed.gov has any business regulating?

3) We sure should.

4) Probably, unless the waste is disposed of on federal land and/or by the federal government.

5) You're right. There are thousands of dumb, unconstitutional federal laws and regulations.

Nathan Brindle said...

The science on secondhand smoke isn't any more settled than the science on climate change. There are plenty of dissenters from the "received wisdom".

Jerry said...

I for one am tired of government interference in my life.

I choose to wear a seatbelt to prevent myself from sliding across the seat. Now it is a law!

Is there anyway we can stop this runaway government intrusion?

I realize the government is there to "protect" us, but, geez louise, I don't need protection from myself!

2yellowdogs said...

Um, I think I see unsightly nose hair in the hospitalist's photo. You know, there really ought to be a law....

Anonymous said...

HH, if cigarettes are all that bad, let's get rid of all tractors, cars, trucks, planes and trains. Dunno how you're gonna eat, but that's your problem. Can't have that CO killing people. First-hand cigarette smoke does bad things to the smoker, after sixty years or so. Second-hand and third-hand smoke? Shall we consider a century or so?

CO takes maybe six minutes.

Murder was not a federal crime until after the JFK assassination. I recall the kerfuffle over the state investigation's competency.

Art

Farmer Frank said...

You know all this stuff came as a result of FDR's attempts to kick start the economy back in the 1930's and when it first showed the Supremes ruled he couldn't do it as it was it WAS UNCONSTITUTIONAL. Imagine That? However, FDR made a serious attempt to stack the court with five of his own hand-picked appointees and shall we say, the remainder got the message? That's where the 'interstate commerce' interpretation came from and we've been stuck with it eversince. And it's been applied to a variety of functions, but it was first applied to agricultural policy, so watch our current 'Messiah' carefully because fed law has a habit of mutating into something beyond all reason.

The 'interstate commerce' thing being the prime example.

Plus I agree with Tam, the Feds should stay out of this one, but then I think they should stay out of a whole bunch of social issues as well.

All The Best,
Frank W. James

West, By God said...

Did anyone actually read all the way down to the bottom? I know its hard when faced with such mind-numbing tripe... but it turns out HH doesn't just want an unconstitutional law... he wants the office of POTUS to have dictatorial powers:
"Or better yet, if Obama really wants to make a dent in the health care expenditures, he should, by executive decision, in the interest of National Security, sign a federal decree banning smoking in all public places."

Tam said...

Head... going... all... 'splodey...

og said...

I have their Magic Wand RIGHT HERE.

Wait, that kinda sounded- I didn't mean- oh, nevermind.

Anyway, the only thing we need a Federal ban on is The Happy Hospitalist. And, for that matter, any idiot adding new feddle (amazing that it rhymes with "meddle", isn't it?)gummint regulations.

Farmer Frank said...

It is also well to remember that Doctors in the United States kill more people than guns and illegal drugs do.

So consider the source.

All The Best,
Frank W. James

DirtCrashr said...

If they go after nose-hair I'm dead from plucking. Ow! Ow! Ow!

crankylitprof said...

Don't feel bad, Tam. if you read to the end of the comments on my post, he's labeled you one of "those" people.

You unreasonable person, you.

At least you're in good company.

The Happy Hospitalist said...

By all accounts cranky, it seems like you and others believe the federal government has no business being in the business of public health policy. Since it's not in the constitution.

Do you have any idea what life in the USA would be like with out a federal health public health program.

Perhaps travel to a country that has none to understand why we need one, even though the constitution didn't list it.

We don't have nor need border guards at every road going in and out of every state because of it.

Jerry said...

HH, if it's so great why do they come here?

Waiting list. Want and example of government health in the good old US of A? Go look at the nearest VA Hospital. Check "sick call" desk were the vets come in because they're too sick to wait 6 months for an appointment.

Nathan Brindle said...

Half the problem with the public health system in this country is the government.

The other half is people like you who keep trying to nationalize it.

The Happy Hospitalist said...

nathan. we're talking about two completely different things. I think you're talking about the delivery of health care from a federal level. I'm talking about epidemiological, public health.

If you have ever read my blog I am a huge anti government believer in many, many things. I blog constantly about how the federal government has no business in many aspects of our lives. How they lack the ability to run things. To spend my tax money efficiently . I think our federal entitlement programs, which are over 50 trillion dollars unfunded will destroy any competitive sense we have left.

However, there are some things that the federal government must provide. That is national security. A working national infrastructure and a public health policy from an epidemiological stand point that protects Americans from environmental harm.

Tam said...

"By all accounts cranky, it seems like you and others believe the federal government has no business being in the business of public health policy. Since it's not in the constitution."

Right, okay. And?

"Do you have any idea what life in the USA would be like with out a federal health public health program."

Freer?

alath said...

" am a huge anti government believer in many, many things. I blog constantly about how the federal government has no business in many aspects of our lives. "

And yet, you are blithely proposing that the president-elect assume unconstitutional powers, and rule by dictatorial fiat:

"if Obama really wants to make a dent in the health care expenditures, he should, by executive decision, in the interest of National Security, sign a federal decree banning smoking in all public places. Talk about leadership."

You can't be against government intrusion in anything if you're going to allow them to rule by fiat. One that cat is out of the bag, there's no putting it back.

Tam said...

With any luck, I will die of cancer before the morons of this nation complete its subversion.

Tam said...

Alath,

"And yet, you are blithely proposing that the president-elect assume unconstitutional powers, and rule by dictatorial fiat:""


I know. The utter lack of anything like intellectual rigor is simply breathtaking.

And the vote of feckwits like this counts as much as mine or yours...

The Happy Hospitalist said...

alath. Again, you have to have been reading my stuff for a while to know that that was not meant to be literal by any means.

It was more for shock value.

I guess it worked.

Tam said...

Happy Hospitalist,

Why should it be a joke?

A federal ban on public smoking via Executive order is neither more unconstitutional nor more comical than one by Congressional fiat.

The fact that you find one risible and the other serious does not speak well for you.

og said...

"A working national infrastructure and a public health policy from an epidemiological stand point that protects Americans from environmental harm."

Once you say the word "environmental" you pretty much remove yourself from any serious conversation. Just so you know. The evidence that secondhand smoke is harmful is about as accurate as the evidence that supports Gloebull Warmening.

Yosemite Sam said...

Let's step back and consider that the entire idea of banning public smoking is nonsensical. How would it ever be enforced? Further, how can a government which can't even enforce it's own laws banning narcotic drugs even begin to enforce a new one against a drug that is quite popular.

Yes, cigarette smoking is quite popular, especially among the younger set. Spend some time with a 20 something and you'll see what I mean. They smoke like chimneys.

If a law like this was passed, they would ignore it and all that would be accomplished is a further eroding of respect for the rule of law. Which is what happens when you pass silly, nonsensical laws.

Anonymous said...

Hey........wait a farookin minute...!

Don't ya know about THIRD hand smoke yet?....yeah, the smoke on your cloths, hair, drapes, furniture, an such??

I propose that Obamasia, make an edict, uh..federal law, uh, ban or something on third hand smoke. 'Cuz it somehow t' other causes folks to get sick. Don't ya know? Jeeze.

J.W.

Anonymous said...

Yes, I know how stupid that sounds. Yes, I know how ignorant HH sounds as well.

J.W.

Anonymous said...

JW, you must have seen it. Just two days ago the NYT ran a science ("opinion") column on third-hand smoke. That being, of course, the [non-smoking] smoker's presence.

Not only can you not make this stuff up, you have to hurry to keep ahead of them. Remember the jokes about obesity being the new smoking? Those jokes are old now, and "no longer operative."

You cannot argue this point historically without violating Godwin, so let me just say, as I've said since the 70's, that in the 19th century, the scientific journals of Europe were chock-a-bloc with peer-reviewed articles on Why The Jews Had To Go.

kbarrett said...

We really need to ban Di-hydrogen Monoxide.

That stuff kills thousands outright, and often acts as a disease vector.

docjim505 said...

There are three problems here, IMO.

1. HH, as Tam and alath point out, doesn't approach this in a logically consistent way. Typical lib... You can't discuss things rationally with people who demonstrate that they are fundamentally IRrational.

2. There IS a need for some level of regulation concerning the environment. Ideally, it would be done at the state / local level, but because the air that gets polluted in CA wafts into Nevada, or because water polluted in No. Carolina runs into Tennessee, the federal level is appropriate in some cases.

Determining WHICH of those cases merit federal intervention is the problem.

3. Government is at best a necessary evil. It may be that some people here who object on constitutional grounds to HH's desire for a federal ban on smoking are less militant when it comes to (for example) federal laws concerning "illegal" drugs, aviation safety, the Air Force, conscription, etc. There is not a very hard-and-fast rule to determine when government crosses the line from "necessary" to "evil".

So... Is HH stupid? Not really. Illogical (channeling Spock, here), but not stupid.

docjim505 said...

Yosemite Sam - If a law like this was passed, they would ignore it and all that would be accomplished is a further eroding of respect for the rule of law. Which is what happens when you pass silly, nonsensical laws.

Not that I'm in favor of a law banning public smoking (or drugs, for that matter), but doesn't your reasoning sort of point to eliminating ALL laws? After all, we've got quite a few laws forbidding murder, rape, robbery, etc, yet people continue to commit these acts. Since having a law that is flouted does nothing but erode respect for the law, shouldn't we get rid of these laws?

Obviously not.

I agree that laws can be nonsensical when they are practically unenforcable and / or are resented by such a large fraction of the population that they become repressive instead of benevolent (example: Prohibition). The only way we can determine when laws are "good" (even if enforcement is difficult) or when they are "bad" is by the ballot.

The problem with people like HH is that they want to skip that whole pesky democratic process. THEY know best, you see, and they'll order the rest of us to behave the way they see fit. Because They Care(TM).

alath said...

"After all, we've got quite a few laws forbidding murder, rape, robbery, etc, yet people continue to commit these acts."

There is not widespread contempt for these laws. There is general widespread respect for them, and the overwhelming majority of folks behave accordingly. What generates the kind of contempt YS is talking about is when the .gov tries to enforce a law that large numbers of people violate, and even larger numbers of people believe is legitimately a matter of personal choice.

As bad as things are getting, I still think we're a long way away from a place where large numbers of people believe rape or murder to be matters of personal choice.

TJP said...

I went to click on a rate-this-post widget, but there wasn't one. So I made one:

* * * * * (Thanks for your vote!)


I. Even considering an "interstate commerce" clause, there is one area where the Constitution quite obviously commands the fe'ral gov't not to "infringe".

II. The term "general Welfare" appears in two places. The first offers the new Constitution for the purposes of--among other things--to "promote the general Welfare". One wonders how throwing people in jail for violating some rule in an ever-increasing laundry list of unconstitutional restrictions--or taxing the crap out of them--could fit into the category of "promot[ing] the general Welfare".

The second instance appears where the Congress is told what it can do, and how it may go about doing it. To "provide for the common Defence and", appears before the term in question, and is immediately followed by, "of the United States". What are the chances that it actually means, "to provide for the specific needs of a convalescent Uncle Karl, who is strapped for cash because he drank and gambled all his money away at the Indian casino--and now has cirrhosis of the liver"?

III. Doesn't it occur to the majority of the electorate that a distant bureaucracy is the worst choice among the short list of organizations or people that can tend to one's medical needs?

Tam said...

Alath,

""After all, we've got quite a few laws forbidding murder, rape, robbery, etc, yet people continue to commit these acts."

There is not widespread contempt for these laws. There is general widespread respect for them, and the overwhelming majority of folks behave accordingly.
"

And now I slap your wrist. ;)

It doesn't matter whether or not laws against murder or rape are obeyed or not, neither of these are federal matters. It's all right there in the Constitution.

Should there be laws against murder and rape? Most certainly.

Should there be laws against driving without a seatbelt or smoking in public? Maybe.

But the place for any of these laws is not at the federal level. At least not without a Constitutional amendment...

TJP said...

Also:

All the benefits of federal statutes suggested by HH are redundant; states actually have the authority, and similar laws.

I do take exception with nuclear waste disposal, since the same government steered the nuclear industry to produce U235 and plutonium for various purposes; it's not so much disposed as it is just stuck in the ground to decay. Then it lead the assault on the industry through a new and unconstitutional agency, bankrupted the industry, and killed government-sponsored research into designs that might deal with the waste problem a smidge better.


Q: Why does our republic have fifty sovereign states?

A: So a central government will issue diktats that they must follow.

mts said...

But the place for any of these laws is not at the federal level. At least not without a Constitutional amendment...

Egg zactly, Tam. If they had to get a Constitutional Ammendment to ban alcohol, why can they get away with an Executive Order, or a Congressional Act today? Shouldn't they have to follow Prohibition's precedent?

Then again, no one's paying attention to either state, or the federal, constitutions nowadays. The only reason the Illinois Sec of State would have a reason not to sign off on a Senate appointee's credentials was if there a legal problem with it, which there's not, and not because he's not happy with the governor. But now they can block a legal appointment not for any valid reason, but just because they just don't like the governor. And no one objects.

And you can bet your ponytail that they'll get away with a Mickey-Moused federal smoking ban, and the sheeple will go along with it without a major fight.

Tam said...

Y'know, I'm damned near done with going along. I'm about ready for the .gov to feed and clothe me at the Conscientious Objector Hotel.

og said...

I hear Club Gitmo is pretty damned nice. Certainly compared to some of the hotels I've stayed in.

Kelly said...

Looking at how the federal government provides health care would give one a fairly good indication of the federal governments complete lack of understanding and/or give-a-damn about how good health works. These are the folks who provide Medicaid health insurance coverage... which will not cover dental care (At all. Not a checkup, not a cleaning, not extracting wisdom teeth that are causing repeat infections because they poke ito strange places in the sinuses. NO dental care!) but they will cover repeated trips to the doctor and medications to treat things that, quite frankly, could have been prevented with regular dental visits. You'd be amazed how many taxpayer dollars are being wasted that way.

I think a smoking ban would just confuse the hell out of them. Do you ban it "so we can all live healthier"? Or do you just raise the taxes on the cigarettes some more and then keep using the number of people who desperately need health care they can't afford for their emphasema and cancer as statistics to show the taxpayers that we need more funding for this government program or everybody will die?

Anybody who thinks the federal government cares how well you live is foolish. All you are to them is a source of money, or a statistic to excuse squeezing more money out of someone who is a source of money.

alath said...

Tam,

I wasn't addressing the state vs. federal issue in that comment.

What I was responding to was the argument that goes: disobedience of laws creates contempt for the law; ergo, let's get rid of any law that occasionally gets disobeyed.

Whether on the federal, state, or local level, I agree that when vast numbers of people choose to disregard a law, and there is widespread agreement that the subject of this law is a matter of personal choice that shouldn't be regulated anyway, then you very likely have an instance of the .gov (fed, state, or local) sticking its nose where it doesn't belong.

Prohibition is a case in point: the very fact that such a large proportion of the population was willing to disregard the law suggests that maybe the law shouldn't have been passed in the first place.

This clearly does not apply to laws against rape and murder, however. Despite the fact that these laws are occasionally violated, it doesn't follow that there is widespread contempt for them or their enforcement, or that they should be repealed.

And I do agree, it's best to have such laws legislated and enforced on the state level. Concentration and centralization of power are inherently dangerous. The founders recognized that, which is why our Constitution is written the way it is.

docjim505 said...

alath - There is not widespread contempt for these laws [i.e. against murder, rape, robbery, etc]. There is general widespread respect for them, and the overwhelming majority of folks behave accordingly. What generates the kind of contempt YS is talking about is when the .gov tries to enforce a law that large numbers of people violate, and even larger numbers of people believe is legitimately a matter of personal choice.

To a large extent, I agree with you. I would offer the demurer that there are laws which many people flout (e.g. speed limits), but most people would agree that the laws are a good idea even when the state trooper is writing them a ticket!

Yosemite Sam said...

Speed Limits are exactly the kind of law I was talking about. Montana does just fine without them and cops could stick to ticketing for reckless driving. They are disobeyed by EVERYBODY and they work to undermine respect for the rule of law.

They'll never go away though because it is alot easier for Mr. Smoky Bear to set up a radar detector on the side of the road than drive around and actually work and look for reckless drivers.

E said...

smoking is pollution.
decide how you want to regulate pollution (if at all).

tradgedy of the commons, hidden costs, yadda yadda.