If anything, a fatal flaw in the US Constitution is that the 9th and 10th amendment give the States near fascist authority in theory - something I really don't like about our Constitution as I believe individuals should be sovereign.  It's kind of irrelevant since federal power has so eclipsed States following the FDR era and appointments to the S.C., but its worth noting.  

Its in that that I agree with you that the State might not philosophically be justified in this particularly legislation, even if it is Constitutional.

You raise a vague 5th amendment property deprivation without due process claim - I've addressed that though.  First, no property is being siezed or deprived - there are many more issues in this area you should legitimately be getting bent out of shape about and you pick a time-place restriction that doesn't deprive anyone of property (it regulates their use of it).  That ways on my scale though IF the action has no other governmental justification - even a small liberty violation with no legitimate reason should be resisted.  The problem is that life and public health trump property - that is, government law can regulate commerce if it narrowly tailored to protect individuals lives from other individual actions.  There is simply no way a business that allows smoking can avoid the public health risks that it causes, even if many of those risks are "chosen", and that itself is a forced choice (albeit a choice, I agree) against non-smokers.  That means there is liberty and life weight on the other side of the equation, and it becomes a legitimate possibility even for small government to regulate.  And it wasn't banned (ironically, Jack Hoogendyk argues a complete ban would be moral, which I find to be appalling, because that would be unrestricted, non-narrowly tailored government, and his analysis is deeply flawed).

Jason, what I find to be offensive is that you assign labels like "fascist" and a litmus on your website even more than this to those that voted for this.  You label it "simple" - and you assign motivation to the legislators.  Did you interview them?  Or is there really another possible world of thought out.  Most of the people on the right voting for this bill are "good Republicans" - yet the weapon of RINO gets brought out of the woodwork.  On this vote!  ???

I agree that we haven't "litmus tested" enough Republicans.  But the answer isn't to litmus them all out either.  You must be extraordinarily careful when you litmus any - the thought process must be very tight, and I believe it has to be on more than one issue, or even more than a few trivial ones like this.  And when you do it, you should find the "outer ring" of the most egregious Republicans, rather than bite off a huge chunk because you won't be able to chew on that many at once, and you'll consign yourself permanently to the stupidity of the Big L Libertarian party that is always irrelevant.  If you want a good little-l libertarian influence on Republicans, be smart about it.  But practicality aside, its philosophically not right to do it in cases where there is room for legitimate disagreement.