Standing behind that line in the fifth amendment is easy. However, it's not going to work.

We're talking eminent domain here. The government can't take private property for public good without fair compensation to the owner.

If you are going to stand behind the fifth amendment with regards to the Freedom to Breathe Act, than you have to deal with the Supreme Courst case, Kelo vs. City of New London.

It deals direcly with the takings clause part of the fifth amendment and eminent domain.

The Court held in a 5-4 decision that the general beneifts a community enjoyed from the economic growth qualified such redevelopment plans as permissible public use under the Takings Clause in the fifth amendment.

So, when it comes to the Freedom to Breathe Act, you can say the benefits the community get - in this case reduce health risks from second-hand smoke, among other thing - are also permissible public use under the Takings Clause in the fifth amendment.

With smoking bans already in place in California and New York, among other places, you'd think they'd be overtuned without a problem if that clause in the fifth amendment is being violated.

However, the Supreme Court says no.