Last Monday dawned clear and bright in the nanny state of New York City. The newspaper brought word that the city’s new health commissioner was working on ways to get residents to exercise more. That same morning, Mayor Michael Bloomberg announced his latest assault on unhealthy behavior. By 2012, the mayor hopes “to lower the proportion of adults who drink one or more sugar-sweetened beverages each day by 20 percent.” Tuesday’s news was about plans to forbid smoking at public parks and beaches.
If the past pattern holds, initial gasps of outrage at such bureaucratic interference will sputter into acceptance. When Bloomberg extinguished smoking in restaurants, bars, and workplaces in 2002, the New York Post denounced him as the “Mommy Mayor” and his approval rating plummeted. Christopher Hitchens called him a “picknose control freak.” Since then, the smoking ban has spread to Dublin pubs and Paris cafes and the muttering has gone away. Last week, the mayor of London, Boris Johnson, shared a stage with Bloomberg at Columbia University and mocked him for banning margarine—i.e., trans fat, which eateries in the five boroughs can no longer use. But restaurants adapted to that rule without much fuss, as they did to the city ordinance requiring them to post calorie counts on their menus. Most people prefer living in a healthier town.
The uptick in paternalism is not merely a New York phenomenon. As my colleague Will Saletan notes, outdoor smoking bans have been imposed around the country. President Obama, who struggles with a cigarette addiction himself, approves this role for the federal government. He recently named Thomas Frieden, the man behind New York’s smoking and eating directives, to head the Centers for Disease Control and Prevention. Last week, Obama told Men’s Health magazine that he likes the idea of funding health care reform with a tax on soft drinks. Others in his party are gravitating in the same direction. Sen. Max Baucus’ health care bill relies on a requirement that individuals buy health insurance—and fines them if they don’t.
One can see why politicians find the paternalistic option so compelling these days. For one thing, behavior modification through public policy really works. With help from free nicotine patches and taxes that bring the cost of a pack of cigarettes to nearly $10, New York City’s smoking rate has dropped from 21.5 to 15.6 percent. Bloomberg thinks he can bring it down another 29 percent during his third term. That’s tens of thousands of lives saved. Seat belt laws have saved hundreds of thousands more nationally, with no fiscal impact. Paternalism is the method of government activism most amenable to an impoverished public sector.
The problem is justification. Standard liberal theory holds such a role for government to be abhorrent. In On Liberty, John Stuart Mill makes the classic case against laws restricting purely private behavior. It’s right there on Mill’s Facebook page: “The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.” New York’s latest proposal stands in stark violation of this principle. Because there’s no evidence that second-hand outdoor smoke does harm, the government lacks a basis for forbidding it.
Legal and political thinkers spend a lot of time puzzling about how to protect people from their own bad decisions without infringing on their rights. Obama’s regulatory czar, Cass Sunstein, is the co-author, with his University of Chicago colleague Richard Thaler, of an influential recent book called Nudge: Improving Decisions About Health, Wealth, and Happiness, which grounds paternalism in behavioral economics. If, as evidence suggests, people are not profit-maximizing actors of neoclassical theory, then it’s reasonable to point them toward choices that serve their own unappreciated interests. Sunstein’s libertarian or “soft” paternalism argues for policies that promote better decisions without diminishing personal freedom by changing the default setting, such as by requiring workers to opt out of rather than into 401(k) programs.
Yet soft paternalism can’t cover all or even most of the instances in which society accepts infringements on Mill’s principle, such as motorcycle helmet laws, seat belt laws, laws against selling unpasteurized milk, efforts to block discrimination in private clubs, and restrictions on recreational drugs and prostitution. In these cases, there is little pretext of preventing harm to others. The justification is simply that some personal choices are just unacceptable.
The underlying left-right divide is not about whether government has the right to promote private virtue but, rather, about what kind of virtue it should promote. Republicans demand paternalistic policies that uphold morality or social order. In Indiana, where I recently spent my vacation, you can pick up fireworks or a handgun anywhere, but good luck buying a six-pack on Sunday. Democrats, by contrast, deploy paternalism for health and safety reasons, yielding a different set of absurdities. In California, pot is on the verge of becoming more permissible than cigarettes. Both left and right take pleasure in mildly persecuting those who fail to meet their civic ideals.
Because Democrats hold power at the moment, they face the greater peril of paternalistic overreaching. It would be wise for them to observe Sunstein’s line. To exhort, nag, nudge, tax, and regulate people for the sake of diminishing purely self-destructive behavior is defensible. But to take choices away on the grounds that people should know better is infantilizing—and likely to hurt those who bear the cross of favoring more intrusive government. Liberals should show restraint, lest the right to be stupid go up in smoke.