(Note: at the end of this piece, you’re invited to add your two cents)

Imagine it’s a warm September’s Day in 1791, and the United States Congress is meeting in Congress Hall in Philadelphia, Pennsylvania, to debate the Bill of Rights. The Congressional delegations from Virginia and North Carolina, two major tobacco-growing states, having recently ratified the Constitution and admitted to the union, proposed a change to the Bill of Rights. They argued that the Third Amendment (quartering of soldiers) was no longer necessary, and offered to replace it with the following:

                              “Whereas tobacco is America’s most profitable crop for both export and internal consumption, and, therefore, a foundational pillar of our nation’s overall economic security and well-being, and for the maintenance of America’s chief industry, agriculture, and for the sustenance of our shared vision for a permanent agrarian way of life; and

Whereas consumption of tobacco products is essential to the pleasure, comfort, well-being and good cheer of men; and

Whereas efforts are being made by some proprietors of taverns, inns, shops and other public establishments to limit, restrict and even prohibit men from consuming tobacco products in their public spaces; and

Whereas for the sake of our nation, this right must not be infringed upon or burdened in any manner whatsoever.

NOW THEREFORE, BE IT RESOLVED that the current Amendment Three of the United States Constitution be deleted and replaced with the following substitute for Amendment Three:

Congress shall make no law abridging the right of every white, male Citizen of the United States of America over the age of 15, and every free Negro male over the age of  21, to consume tobacco products of any kind in any and all public places. Congress shall pass laws  to ensure the strict enforcement thereof.”

               Amidst a chorus of “Huzzahs, Hurrahs and Here-Heres,” the resolution easily passed both houses of Congress. Eleven of the 15 state delegations (Vermont and Kentucky now admitted) unanimously voted aye. All fifteen states had ratified the amended Bill of Rights by the following December.

It’s now 1833. A group of reform-minded women, stressing that smoking in public was harmful to women and children, attempted to repeal the Third Amendment. Congress not only swiftly voted it down, but also passed a statute extending the right to smoke to all free women over 20 and lowered the smoking age for males from 15 down to 13, except, of course, for slaves. The law granted to slaves the “privilege” to smoke, subject to the sole and total discretion and control of their owners. President Jackson signed the bill into law, hailing it as a victory for the common people.

Between 1833 and 1964 only two cases came before the Supreme Court pertaining to the Third Amendment. The first, decided in 1888, clarified confusion over what were “public places,” as stated in the Third Amendment, as follows: “Any building which has at least one entrance for ingress by members of the general public is a public place, as well as all rooms therein, whether open to the public or not. The only exception are rooms exclusively used for storage of gun powder, other explosives and flammables.  Additionally, any outdoor space where members of the public were allowed to enter or gather is a ‘public place.’”

The second, decided in 1932, involved a surgeon’s cigarette which accidentally fell from his lips into the surgical field while operating on the mayor’s wife, nearly causing her death. The court upheld a state law banning smoking during surgical procedures, but the ban only applied to the operating room, and only when surgery was in progress.

In 1948, the court declined to hear a case, and thus left standing a lower court ruling striking down a challenge by an Ohio school board to a regulation mandating that all student desks in all public high schools be equipped with built-in ashtrays to halt widespread littering of classroom floors with ashes and cigarette butts. The court also declined to hear a 1955 case in which a lower court upheld a state statute making it a crime for doctors to advise pregnant women that they should quit smoking during pregnancy.

It’s now 1964. The Surgeon General just announced that smoking could be hazardous to health and suggested warnings on tobacco packaging. Congress, comprised of a slight majority of former smokers and life-long non-smokers, narrowly approved a bill requiring a warning. It also banned cigarette ads that made the claim that smoking actually promotes good health. An apoplectic tobacco industry sued to declare both measures in violation of the Third Amendment. In 1967, the Warren Court upheld both the advertising ban and the packaging warnings reasoning that these measures merely affected a person’s choice whether or not to smoke and did not infringe upon their right to smoke. Several justices joined in with concurring opinions wishing they could do more, but confessed their hands were tied by the Third Amendment.

Sensing the Supreme Court was taking the Third Amendment down the slippery slope to emasculation, Big Tobacco concluded it had to pack the court with ultra-conservative, originalist judges. They raised vast sums of money to fund pro-Third Amendment candidates running for seats in both Congress and state legislatures.

Over the next 55 years cases of greater significance arose. In 1979, a more conservative Supreme Court held that creating no-smoking areas in restaurants and public conveyances (including airplanes), and no-smoking rooms in hotels violated the Third Amendment. In 1987, an even more conservative court upheld statutes in states which granted Big Tobacco total immunity from liability for personal injury and wrongful death. That same year the court held that states could prohibit the sale and use of aids to quit smoking, and could enforce such laws with fines, criminal penalties, and even by offering bounties. In 1992, the court held that governments could tax the land on which tobacco was grown, and that sales taxes on tobacco products were permissible. Excise taxes on the products themselves, it ruled, violated the Third Amendment. Noting how states had imposed stiff excise taxes on alcohol thus driving up the price of alcoholic beverages, the court reasoned that an excise tax on tobacco would significantly raise its price and place an undue burden on the right to smoke. In 2005, the court held that the Third Amendment imposed no legal duty on tobacco companies to disclose that nicotine is an addictive drug. The only total victory for anti-smokers was a 1995 case extending the smoking ban to private areas within “public places” where sterile environmental conditions are necessary.

It’s now 2022. Whereas, in reality, only 12.5% of Americans smoke, in the alternate history created by the new Third Amendment:

1. Forty-two percent of all adult Americans smoke a pack of cigarettes, or more, every day. Over 60% of minors between the ages of 13 and 18 regularly smoke. Because tobacco products are not heavily taxed like gasoline and alcohol, and because tobacco remains a highly profitable crop and its brands continue to be highly competitive, tobacco products are cheap and affordable. The national average price for a pack of cigarettes is less than half the price of a Big Mac.

2. Heart and respiratory diseases, including lung cancer, are the nation’s top causes of natural death. Lung cancer linked to smoking and breathing in secondary smoke kills more women than breast, uterine and ovarian cancer combined, and kills far more men than prostate, pancreatic and colon cancer combined. Lower respiratory illnesses are the third leading cause of death among children (actually the 10^th), and the leading cause of death to children by a disease. Average life expectancy is 63 years, five months (actually 76), and declining.

3. Heath and life insurance premiums are skyrocketing, as well as Medicare and Social Security taxes. Once the exclusion of pre-existing conditions was banned by the Affordable Care Act, private health insurance became unaffordable. Consequently, only 10% of American households have private health insurance, and two-thirds of them are federal, state and local government employees. Everyone else is either on Medicare, Medicaid, VA assistance or have no insurance at all. In most states, hospitals and clinics are now the largest non-government employers.

4. Health care spending by the states eats up over 40% of their annual budgets, forcing many of them to increase taxes and create new ones. Florida, for example, a state that promised retirees it would never have an income tax, was forced to impose one in 1985, in order to fulfill its constitutional mandate for a balanced budget. Because there is no excise tax on tobacco products, the average gasoline tax nationwide is $2.25 per gallon; on liquor the national average is $48.00 per gallon.

5. Indirect impacts of poorer health and rising health care costs have significantly and adversely affected the food service, entertainment, hospitality, vacation, transportation, automotive, and retail industries. Economists have provided evidence that for every dollar Big Tobacco adds to our GDP, $5 is lost due to direct health care costs and loss of productivity.

6. Many hotels, restaurants, theaters and stores use secret signs and codes to signify their preference to serve non-smokers. Private clubs promoting clean air have proliferated.
7. As with gun violence and reproductive rights, smoking is another hot-button issue which has divided the nation. Seventy percent of smokers identify as Republicans or Libertarians. Sixty-five percent of non-smokers identify as Democrats or Independents. Antipathy between the political parties over this issue has steadily escalated since the Surgeon General’s finding in 1964.

8. Smokers and non-smokers have their own activist groups. Violent clashes at anti-smoking rallies are common. A large, radical pro-smoking group called “Light Up America” has formed militias to defend the Third Amendment, by violence if necessary.

9. Big Tobacco annually spends hundreds of millions of dollars on election campaigns to ensure that Congress and state legislatures never lose a majority of pro-Third Amendment members. It has been remarkably successful. Anti-smoking fundraising simply can’t compete with Big Tobacco. Wealthy non-smokers confess they would rather use their wealth to insulate themselves from secondhand smoke than funding the losing cause of repealing the Third Amendment.

10. For decades a majority has supported repealing the Third Amendment, which now stands at 72%. Millions of smokers who want to quit see repeal, regulation and treatment for nicotine addiction as their only hope.

 

Fed up with the Third Amendment’s plague on America’s health and well-being, Pizza Papa Jolly Holly’s, a national restaurant chain, and the State of Massachusetts decided to take action: Jolly Holly’s banned smoking in all of its restaurants nationwide; Massachusetts enacted a law forbidding smoking in all health care facilities. In addition, the State of Oklahoma banned smoking during church services. Jolly Holly’s sued the State of Oregon’s Department of Health when it attempted to shut down all restaurants within its borders. In Massachusetts the Boston chapter of the United Hospital Workers Union sued to overturn the statute. In Oklahoma an organization called Smokers for Jesus filed suit challenging the Oklahoma law. Jolly Holly’s prevailed in Oregon’s lower courts. The Boston union and the smoking parishioners both lost their cases in the lower courts.

The courts in both Oregon and Massachusetts took the unprecedented step of declaring the Third Amendment, a part of the United States Constitution, to be unconstitutional, reasoning that it was contrary to the mission statements in the Preamble to the Constitution, specifically, the establishment of justice, assurance of domestic tranquility, and promotion of the general welfare clauses. The Oklahoma courts held that the last sentence of the Third Amendment, the strict enforcement clause, violated the Constitution as being in conflict with the First Amendment, as well as the Preamble. All three cases are now pending before the Supreme Court.

The United States Supreme Court is comprised of six members appointed by Republican Presidents, and three appointed by Democratic Presidents. All six Republican-appointed justices are members of the Federalist Society, a radically conservative organization united behind the doctrine of originalism and state’s rights and driven by an agenda of reversing all progressive court precedents. The other three justices believe the Constitution is an evolving, future-focused document which the founding fathers never intended to become forever frozen in 18^th Century epistemology, contextualism and culture.

Every member of the court is keenly aware that the Third Amendment will never be repealed by constitutional amendment for at least the next two or three generations, maybe more, and possibly never. Anti-smoking groups are so convinced of the impossibility of repealing the Third Amendment that all efforts are directed toward gradually chipping away at it through the courts. The record in all three pending cases contains all the relevant scientific, public health, economic, social and cultural evidence on the harmful effect the Third Amendment has on American families and communities. All nine justices have read or been thoroughly briefed on all the evidence presented in the lower courts.

None of the justices currently smoke tobacco, but many staff members, including law clerks, are smokers. Court employees are only allowed to smoke on breaks and in just one designated area behind the building, this despite knowing their policy is in direct contravention of its own 1888 decision. Smoking is prohibited everywhere else in the building, even though no explosives materials are kept there, no surgeries occur there, and a sterile environment is not required there. Nevertheless, no one, including the tobacco industry, has seen fit to mount a legal challenge against the policy of the highest court in the land.

All nine justices are former smokers, but only one of them, a 30-year smoker, shows any sign of smoking affecting their health. Although none of them have lost a spouse, close family member, or close friend to smoking-related diseases, over 80% of Americans responding to a poll report to having lost someone very close to them as a result of smoking. That same poll also showed that 73% of Americans favor more restrictions on smoking for the protection of children and vulnerable adults. Finally, 90% agree that minors under 18 should not be allowed to buy tobacco products.

At oral arguments the attorneys for the Oregon Department of Health and the Massachusetts union argued that the Preamble was merely aspirational and did not carry the authority of law, whereas the Third Amendment is clearly a precise, legal declaration of a Constitutional right. The anti-smoker’s only remedy is repeal because it’s impossible for a provision in the Constitution to be unconstitutional. The petitioners fighting Oklahoma’s smoking ban during church argued that churches do not fall within the three exceptions currently allowed by law (storage of explosives, operating rooms during surgery and sterile environments).

The attorneys for Jolly Holly’s and the State of Massachusetts argued that the Preamble, and most especially the “promote the general welfare” clause allows courts to nullify any constitutional provision that is contrary to America’s eloquently-stated vision and mission to form a more perfect union. They laser-focused on the overwhelming evidence which established beyond any and all reasonable doubt that America is suffering dramatically because of the widespread use of tobacco in public places. At a very minimum the public welfare clause should allow governments to impose reasonable restrictions and regulations on tobacco production and consumption where the science indicates a clear and present danger to public health. When the Third Amendment passed, they argue, the founding fathers were totally ignorant of tobacco’s grave health risks and the consequent catastrophic impact it would have on the economy and commerce.

The attorney for the State of Oklahoma argued its position that the “strict enforcement” clause in the Third Amendment created an unconstitutional governmental intrusion upon both the establishment and free exercise of religion clauses in the First Amendment. They point out that church attendance is down because non-smokers cannot tolerate secondhand smoke and parishioners who smoke won’t refrain.

Once all oral arguments concluded, the justices retired to their private conference room to discuss and vote.

The Chief Justice: “I’m sure each of us has a personal preference to see smoking stringently regulated. I know you feel the same as I that unregulated tobacco consumption is harming our nation, but is it up to us to void the Third Amendment, or is it up to Congress and the states to repeal it? Regrettably, I buy the argument that an aspirational statement can’t nullify one of the enumerated rights in our Bill of Rights. I will likely vote to reverse the lower courts in all three cases and uphold the Third Amendment, but I’m anxious to hear what the rest of you have to say.”

Associate Justice #1: “Not only do I agree with the Chief, I’d go further and reverse those earlier cases that imposed limits on smoking. If a surgeon wants to smoke during surgery, that’s his right. The original intent could not be clearer (cough, cough), and we can’t override original intent regardless of the risks and dangers the Third Amendment poses. Repeal is the only way. That’s how America ended Prohibition. That’s how America ends the Third Amendment, if that is its will.”

Associate Justice #2: “Who are we kidding? America is the wealthiest and yet unhealthiest nation on Earth thanks to this country’s moronic attachment to this superannuated constitutional amendment. The executive branch has no constitutional authority to do anything about it and the legislative branch won’t do anything about it, thanks to the tobacco lobby. We have the moral duty to the American people to rid ourselves of this yoke and there is legal authority in the Preamble for us to do so. What do the exceptions have in common? Doesn’t the ban on smoking in an explosives factories save lives and preserve property? Doesn’t a ban on smoking prevent senseless harm to patients in surgery? If we want our missile guidance system computers to work and our pharmaceuticals to be uncontaminated, don’t we want to keep cigarette ashes from floating around in the production areas? Those exceptions were created based on the ‘promote the general welfare’ clause in the Preamble. We can’t sit on our haunches and act like a bunch of righteous textualists while our country literally goes up in smoke.”

Associate Justice #3: “Well spoken, my friend, but you’re dead wrong. I agree with my brother Associate Justice #1. That Surgeon General’s report was egregiously wrong. Science can’t overrule originalism. And I might add that, unlike abortion in Roe v. Wade, smoking has been deeply rooted in our historical traditions since the founding of our nation. In fact, the natives were smoking tobacco long before the white man came to this continent. There’s no doubt in my mind. We can’t touch it. Period. Reverse!”

Associate Justice #4: “Look, anyone on this court who believes that the largest, most influential, most feared, and by far the best funded lobby in America is going to stand by idly and watch the Third Amendment go down in flames is living in a fantasy land. My colleagues, we’re America’s last and only hope from choking to death on smoke and being crushed under health care debt. You Federalist Society minions need to wake up, smell the lethal smoke and save America. If you believe we can’t declare a constitutional amendment unconstitutional, let’s at least establish the precedent that the Third Amendment is subject to reasonable regulation, beginning with overruling that absurd 1888 case defining public places. Then let’s rule that tobacco can be taxed. Then let’s do away with immunity for the tobacco industry. Finally, let’s let science – you heard me, science – guide tobacco regulation policy, not the ignorance of the framers of our Constitution.”

Associate Justice #5: “My sister Associate Justice #4 could not have put it more directly and plainly. We’re facing an existential threat not only to our general welfare, but also to justice, especially for children and the physically vulnerable. And it’s beginning to upset our domestic tranquility. That’s three national goals listed in our Preamble that’s being trampled upon by the Third Amendment. Besides, where’s the precedent for a constitutional amendment taking precedence over the Preamble? The Preamble in fact predates the Third Amendment. And who said the Preamble wasn’t Constitutional law? Madison? Nope. Washington? Hamilton? Would someone in this room please enlighten me?”

Associate Justice #6: “We don’t need to enlighten you. As you well know, it’s black letter law that specific language, like that in the Third Amendment, takes precedence over general language, like that found in the Preamble. Let’s not forget the resolution supporting the amendment which made it clear that no regulatory burdens be placed upon it. I feel the same way as the chief and I agree with him. I hate tobacco smoke, especially here in D.C. Thank God Colorado has vast fresh air spaces I can retreat to. If our elected representatives want to stand by and let our country go to Hell, it’s neither our duty nor our responsibility to get in the way.”

Associate Justice #4: “Are you freaking serious? If the United States goes to Hell, so’s your precious Colorado – along with my beloved New York!”

The Chief Justice: “Please, Associate Justice #4, you’re out of order.”

Associate Justice #4: “My apologies. I just couldn’t believe what I heard.”

Associate Justice #7: “We also can’t forget the language in the resolution which made a finding that ‘consumption of tobacco products is essential to the happiness, comfort, well-being and good cheer of men.’ I can remember the comfort and contentment I felt while having a smoke with my beer, just like my forbears enjoyed 230 years ago in village taverns. Striking down the Third Amendment would destroy one of the original purposes for it. I would still be smoking today, except my wife made me quit when we had children. I’m just glad she didn’t make me stop drinking beer.”

Associate Justice #8: “The authors of the Constitution were men and the head of our nation. As a woman, I can’t disagree with them. I will follow the chief.”

The Chief Justice: “Okay. Let’s take a vote.”

Imagine you’re one of the justices. How would you vote:

1. Affirm: You agree the Third Amendment ought to be tossed from the Constitution, thereby allowing federal, state and local governments to regulate smoking as part of their police powers to promote public health, safety and welfare.
2. Reverse: You would side with originalists, let the amendment stand, and leave it up to Congress and the states to repeal it, even though repeal is a non-starter.

 

Your comments are also welcome.