There is No Constitutional Right to Smoke

Constitutional rights are specially protected, so that laws generally cannot take them away. If a law appears to interfere with a constitutional right, those whose rights are affected can challenge that law in court.

A court will invalidate the law if it finds that the law improperly treads on a constitutional right.

Constitutional rights include the right to freedom of speech, freedom of religion,due process of law,  and equal protection under the law.

The Constitution does not explicitly mention smoking. Therefore, if there were a constitutional right to smoke, it would have to fall under the umbrella of one of the recognized constitutional rights.

People who claim a right to smoke usually rely on one of two arguments:

  1. That smoking is a personal liberty specially protected by the Due Process Clause, or
  2. That the Equal Protection Clause extends special protection to smokers as a group. This section explains that neither of these claims is legally valid.

Since smoking is not a specially protected constitutional right, the Constitution does not bar the passage of local, state, or federal smoke-free laws and other restrictions on smoking.


  • There is no such thing as a constitutional “right to smoke,” since the U.S. Constitution does not extend special protection to smokers.
  • Smoking is not a specially protected liberty right under the Due Process Clause of the Constitution. The fundamental right to privacy does not apply to smoking.
  • Smokers are not a specially protected category of people under the Equal Protection Clause of the Constitution.
  • Since the Constitution does not extend special protection to smokers, smoke-free legislation need only be “rationally related to a legitimate government goal.”
  • Because there is no specially protected right to smoke, tobacco control advocates can work to amend or repeal state laws that stand in the way of tobacco control efforts.



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