IDEAS home Printed from
   My bibliography  Save this paper

There is No Constitutional Right to Smoke


  • Graff, Samantha K.


Smoking is the leading cause of preventable death in the United States. More than 12 million premature deaths over the past 40 years were attributable to smoking.1 Today, smoking causes approximately 440,000 deaths each year and results in over $150 billion in annual health-related economic losses.2 Smoking not only injures nearly every organ of the smoker’s body,3 but it inflicts considerable damage on nonsmokers. Exposure to secondhand smoke is estimated to kill more than 52,000 non-smokers in the United States each year.4 In an attempt to limit the extraordinary harm that tobacco smoke inflicts on individuals and communities, advocates across the country are supporting enactment of state and local smoke-free laws. These advocates have seen their efforts rewarded with a wave of state and local workplace restrictions that prohibit smoking in ofï¬ ces, restaurants and bars.5 Moreover, various cities have passed smoking restrictions that cover targeted locations, such as playgrounds, parks, beaches, and public transit vehicles.6 In addition, some local government agencies, such as police and ï¬ re departments, have adopted policies requiring job applicants or employees to refrain from smoking both on and off the job.7 Advocates promoting smoke-free legislation often encounter opponents who make the ominous legalsounding argument: “You are trampling on my right to smoke.†The purpose of this law synopsis is to debunk the argument that smokers have a special legal right to smoke. If there were a legal justiï¬ cation for a special right to smoke, it would come from the U.S. Constitution.8 The Constitution lays out a set of civil rights that are specially protected, in that they generally cannot be abrogated by federal, state, county and municipal laws. Section I of this law synopsis explains that neither the Due Process Clause nor the Equal Protection Clause of the Constitution creates a right to smoke. As a result, the Constitution leaves the door wide open for smoke-free laws and other tobacco-related laws that are rationally related to a legitimate government goal. Section II highlights two types of state laws that may create a limited right to smoke. Section II shows that in the absence of a constitutionally protected right to smoke, advocates can seek to amend or repeal these laws, thus taking away any safeguards the laws afford to smokers.

Suggested Citation

  • Graff, Samantha K., 2005. "There is No Constitutional Right to Smoke," University of California at San Francisco, Center for Tobacco Control Research and Education qt2h8644m0, Center for Tobacco Control Research and Education, UC San Francisco.
  • Handle: RePEc:cdl:ctcres:qt2h8644m0

    Download full text from publisher

    File URL:;origin=repeccitec
    Download Restriction: no


    All material on this site has been provided by the respective publishers and authors. You can help correct errors and omissions. When requesting a correction, please mention this item's handle: RePEc:cdl:ctcres:qt2h8644m0. See general information about how to correct material in RePEc.

    For technical questions regarding this item, or to correct its authors, title, abstract, bibliographic or download information, contact: (Lisa Schiff). General contact details of provider: .

    If you have authored this item and are not yet registered with RePEc, we encourage you to do it here. This allows to link your profile to this item. It also allows you to accept potential citations to this item that we are uncertain about.

    We have no references for this item. You can help adding them by using this form .

    If you know of missing items citing this one, you can help us creating those links by adding the relevant references in the same way as above, for each refering item. If you are a registered author of this item, you may also want to check the "citations" tab in your RePEc Author Service profile, as there may be some citations waiting for confirmation.

    Please note that corrections may take a couple of weeks to filter through the various RePEc services.

    IDEAS is a RePEc service hosted by the Research Division of the Federal Reserve Bank of St. Louis . RePEc uses bibliographic data supplied by the respective publishers.